One extra charge against an Australian national charged with the mosque shootings, shouldn’t make much difference.
After all the 28-year-old alleged gunman is already facing 51 charges of murder and 40 of attempted murder.
But when the charge is engaging in a terrorist act under section 6A of the Suppression of Terrorism Act, the difference is significant and controversial.
It would be less so if the terrorism charge provided the court with harsher sentencing options but the charge does not allow the court to add any years to his sentence if he is found guilty.
Police levelled the new charge on May 21, over two months after the mosque shootings in Christchurch on March 15. He is the first person to be charged under the act.
The charge draws the prosecution into a number of issues it could have avoided if only the murder and attempted murder charges were pursued.
The crime of murder requires the prosecution to prove the killing and an intent to kill. The motive is relevant but not something the prosecution has to prove.
The terrorism charge under section 6A means the Crown must first show he intended to cause death and that his purpose was to further an ideological, political and religious cause.
A jury must also be satisfied he intended to induce terror in the civilian population or unduly compel a government or international organisation to do or abstain from an act.
‘INCOHERENT AND UNWORKABLE’
The Suppression of Terrorism Act was passed after the Muslim extremist attacks in New York in 2001 and has a chequered history.
Its one outing in New Zealand was in 2007 when police wanted to charge various Maori, anarchists and activists with terrorism offences after they were arrested for training with semi-automatic weapons in the Ureweras.
Then Solicitor-General, David Collins QC, ruled the evidence available could not be used to substantiate charges under the terrorism legislation that he described as “incoherent and unworkable”.
The terrorism charge against the alleged mosque shooter came as something of a surprise. Many commentators had already suggested sticking to the murder charges was a good idea.
The commentators pointed to several reasons for that view, not least of them being that defending only murder charges provided less of a platform for the accused to air his extremist views.
The force of that argument was somewhat reduced when the main media organisations signed up to a protocol in which they agreed to limit trial coverage of statements that actively championed white supremacist or terrorist ideology.
They also agreed to restrict coverage of the details of the document released by the accused minutes before the attacks and coverage of gestures or signs made by him during the trial.
A terrorism charge, the experts said, would extend the time needed to gather evidence and would mean a longer and more complicated trial. The Act was untested and a trial watched by the world was no place to iron out its wrinkles.
Keeping terrorism out of the charges against the gunman reduced the risk of an unforeseen development overshadowing the trial, they said, and avoided the possible failure to get a guilty verdict on a difficult but highly symbolic charge.
WHEN IS A CRIME POLITICAL?
Some commentators thought “de-politicising” the trial would have advantages.
Jessie Smith, a former Melbourne criminal defence lawyer currently studying counter terror law at Cambridge University, referred to the way the British government handled charges against Irish paramilitaries.
“Back then, the preference was to de-politicise the Irish border conflict through the use of conventional criminal charges – recall Thatcher’s ‘crime is crime is crime’. It is not political,” she wrote in an opinion piece soon after the shootings.
“Irish paramilitaries on both sides were funnelled through specialised courts which prosecuted terrorism as “ordinary” crime, such as murder and manslaughter.
“The policy was to deny a political platform to armed groups and erode their legitimacy, to avoid perverse jury verdicts and to deny prisoner-of-war status.”
She thought declining to file a terror charge might be in the best interests of victims.
“It’s perhaps time to acknowledge that modern terrorism laws are inflexible, narrow, and don’t always meet public perceptions of horrific violence.”
They seemed like solid arguments and no doubt were part of the deliberations before the police in conjunction with the Crown Law Office and Christchurch Crown Solicitor’s office decided to lay a terrorism act.
So what tipped the balance?
One argument that might have swung the debate was that the mosque killings, including the release of a manifesto, clearly appeared to meet the criteria for what most people regard as terrorism. In other words, if it looked like terrorism and sounded like terrorism, why not use the Suppression of Terrorism Act?
Some would say that having terrorism law but not using it when an alleged crime fitted the bill, made having such legislation pointless.
Professor Al Gillespie, an international conflict expert at Waikato University, says filing the charge was a big call and clearly not made lightly.
Gillespie says the risks inherent in traversing the uncertain ground of the untested legislation needed some powerful counter-arguments.
He believes the media protocol is an excellent development and although it represents best practice still carries some risk of providing more of a platform than only murder charges.
“The flip side is that if the Crown is ever going to use it, that time is now. But the Crown has opened up the unknown … it could go off the rails.”
Another important consideration in laying the new charge might have been a possible perception of bias if the alleged crimes did not attract the Suppression of Terrorism Act. The argument would be that if a Muslim extremist took innocent lives in an attack in New Zealand he or she could expect to be charged with terrorism so why not a white supremacist?
An injured victim of shootings, who cannot be named because his name is suppressed, says he was glad to see the terrorism charge laid because it fitted “exactly what he did”.
“If a Muslim does this it’s straight away terrorism. If a white person does it it’s an innocent kid turned evil. I call it racism.”
Keiran Hardy, a research fellow at Griffith Criminology Institute in Queensland, writing for The Conversation, says the criminal law has a moral purpose as well as a practical one.
“Adding this charge signals to the wider community that the massacre was an act of terrorism and will be punished as such. This may give victims, too, some degree of closure, if the offender is sent to prison for committing a terrorist act.
“In other words, bringing a terrorism charge is a trade-off: there’s a risk of giving the gunman a platform, but also a need to denounce the massacre for what it was – an act of terrorism.
“Labels are also particularly important in this case given that it was an act of terrorism by a white supremacist against Muslim worshippers. Had prosecutors only pursued the murder charges, they may have been criticised for a double standard. Acts of violence by Islamist extremists are commonly treated as terrorism, even if they result in far fewer fatalities.”
Gillespie says some crimes are so repugnant they require special treatment to express society’s horror.
“That’s why we have war crimes, genocide and crimes against humanity.”