Murder in the line of duty

Press, 19 October 1977, Page 20

Murder in the line of duty

By

A. K. GRANT

A woolmark, sorry, 1 mean landmark, decision is going to be given in the Supreme Court next year by Mr Justice Lagging, on the subject of the S.I.S. Amendment Act. Here is its text:

MR JUSTICE LAGGING: This is a motion to quash an indictment for murder, pursuant to section 347 of the Crimes Act. The accused, XYZ, is an officer of the Security Intelligence Service. He is charged that on the 18th day of April, 1978, he did murder, extinguish the life of. or otherwise do in Frank Forklift, secretary of the Stevedores' and Battledores’ Union. The facts of this extraordinary case, as they emerge from the depositions. are as follows:

The deceased, in his capacity as secretary of the Stevedores’ and Battledores’ Union organised a strike by the members of his union in protest against the visit to Lyttelton of an American warship, the U.S.S. Joan Crawford. This strike was unlawful under the Industrial Relations Act. since no notice had been given. Because the United States of America is our ally, the Prime Minister took the view that Mr Forklift was engaged in subversion. namelv “undermining by unlawful means the authority of the State in New Zealand.”

In terms of the definition, the Prime Minister was undoubtedly right. A strike which impairs the Government’s ability to conduct its

foreign policy undermines the authority of the State, and if the strike is unlawful then it is “subversive” within the terms of the act. So the Prime Minister issued an intercept warrant, and officer XYZ was detailed

off to carry it out by tapping, or “bugging” as it is popularly termed, Mr Forklift’s telephone. The unfortunate Forklift came upon XYZ while he was engaged in this activity. A struggle

ensued. There is. of course, no point in tapping the telephone of a person who knows that it is being tapped. And the deceased put up a very vigorous struggle to hinder officer XYZ in the execution of his duty. Eventually XYZ came to the view that the only way he could complete his operation was to shoot Mr Forklift dead, which he proceeded to do. Now, there is, of course, no point, either, in tapping a dead man’s telephone, but officer XYZ said in his state-

ment to the police that “he did not think of that at the time.” At all events, the matter came to the attention of the police, and XYZ was charged with murder. Subsequent to the taking of depositions, XYZ’s counsel. Mr I. B. Prolix, filed this present motion. His principal submission is that the terms of the S.I.S. Amendment Act, passed last year, prevent the Crown from charging XYZ with anything, be it murder or common assault. He referred me to the provision in the act which specifies that a person making an interception in terms of a

warrant “is justified in doing so. and no civil or criminal proceedings shall lie against him by reason of his doing so.”

Now this provision is very wide. It clearly empowers S.I.S. agents ' to burgle people’s houses in order to tap their telephones and steal their letters. The question is whether it protects agents who murder in the course of

making an interception. In my opinion it does. Consider the facts here.

Officer XYZ was engaged in tapping the deceased’s telephone, in other words, in making an interception. He was being prevented from doing so by the deceased himself. Rightly or wrongly, he considered that he had to kill Mr Forklift in order to make the interception he was authorised to make. Thus the act of killing Mr Forklift was an essential part of the act of “making the interception,” and that being so. no criminal proceedings can lie in respect of it. The accused must therefore

be discharged. I should like to take this opportunity to warn him, however, that if he ever comes before this Court again, charged with this kind of offence, then thanks to the wording of the act, exactly the same thing will happen. I realise that this result may seem extraordinary to the' man in the street, who may not have realised that Parliament has conferred upon S.I.S. agents the privilege, not only of tapping his telephone, but also of killing him while doing so. It may be that Parliament did not, when enacting the section which protects agents

from criminal liability, realise that it was conferring upon them a licence to kill. But whatever Parliament may or may not have intended, that is the clear effect of the words of the act, and even if the words were not clear. I would be bound to interpret them in favour of accused persons. However, although death may have its sting, it also has its compensations, by which I mean accident compensation, to which the deceased’s widow and children are plainly entitled. Thus the State gives back with one hand what it takes away with the other."