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GENERAL

CCPR/C/60/D/632/1995
18 August 1997

Original: ENGLISH =

Communication N=BA = 632/1995 :=20 New=20 Zealand. = 08/18/1997.=20

CCPR/C/60/D/632/1995.=20 (Jurisprudence)

Convention Abbreviation: CCPR=20

Sixtieth session=20

14 July - 1 August 1997

ANNEX=20

Decision of the Human Rights Committee under the Optional = Protocol=20

to the International Covenant on Civil and Political = Rights=20

- Sixtieth session -=20

Communication N=BA 632/1995*=20

Submitted by

(represented by Mr. Michael Kidd)=20

Victim: The author=20

State party: New Zealand=20

Date of communication: 6 April 1995 (initial submission)=20

The Human Rights Committee, established under article 28 = of the=20 International Covenant on Civil and Political Rights,=20

Meeting on 28 July 1997,=20

Adopts the following:

Decision on admissibility

1. The author of the communication is Herbert Thomas Potter, a = New=20 Zealand citizen at present imprisoned at Mount Eden prison in = Auckland, New=20 Zealand, spiritual leader of an organization named "Centre point = Community=20 Growth Trust". GHe claims to be the victim of violations by New = Zealand of=20 articles 9, paragraph 3, and 14, of the International Covenant on = Civil and=20 Political Rights. He is represented by counsel, Mr. Michael Kidd.=20

The facts as submitted by the author:=20

2.1 In 1990, the author was convicted and sentenced to three and = a half=20 years imprisonment for possession and supply of drugs. Shortly = before his=20 release he was charged with rape, a charge then downgraded to = indecent=20 assault, perjury and a further drug conspiracy charge. In all he has = been=20 sentenced to a total of thirteen years and four months=20 imprisonment¹=20

2.2 The author appealed his second sentence; his appeal was = dismissed in=20 April 1993. The author did not appeal to the Judicial Committee of = the Privy=20 Council in London, as he was denied legal aid for this purpose on 24 = February 1994. For this reason, counsel contends that an appeal to = the Privy=20 Council is not a domestic remedy to be exhausted, within the meaning = of=20 article 5, paragraph 2, of the Optional Protocol.=20

The complaint:=20

3.1 The author claims that his rights under article 9, paragraph = 3, of=20 the Covenant have been violated: although the police had sufficient = evidence=20 against him in 1990, it was not until he had completed his previous = sentence=20 for drug related charges and was about to be paroled, that he was = charged=20 with indecent assault against minors, and was sentenced to seven and = a half=20 years of imprisonment. The sentences imposed on him were cumulative. = Counsel=20 was informed that the author received a further two year cumulative = sentence=20 for drug conspiracy and another four months cumulative sentence for = perjury=20 charges, arising from the first trial in 1990. Counsel alleges that = Mr.=20 Potter has been treated as a =93special class of prisoner=94, = indicating that=20 his cumulative sentence makes him one of the longest serving = prisoners in=20 New Zealand.=20

3.2 The author claims a violation of article 14, in that he did = not have=20 a fair trial. He claims that he was informed by Mr. Peter Williams, = counsel=20 for the first trial, that the trial Judge had made an = =93anti-Centrepoint=20 joke=94. There is nothing in the file to support this allegation = which,=20 therefore, remains unsubstantiated. Further, the author alleges that = all the=20 pre-trial publicity made it difficult to obtain an impartial jury; = in this=20 respect counsel points out that New Zealand does not have a system = of=20 interrogatories for jury members. Counsel further argues that the = charges on=20 which the author was convicted arose over twelve years ago and did = not=20 involve violence. The author alleges that witnesses against him, who = were=20 members of his congregation, had received sums of money as = compensation from=20 a Government Agency prior to his trial. It is further alleged that = the=20 modification of a rape charge, for which there is a short statute of = limitation, to the lesser charge of indecency, in order to overcome = the=20 statute of limitations constitutes a violation of article 14 of the=20 Covenant.=20

3.3 The author claims that he was subjected to ill-treatment = while in=20 prison. He has been denied adequate dental treatment for broken = teeth caused=20 by the assault he suffered at the hands of a fellow inmate; was = refused=20 vitamin supplements, as well as being denied proper reading glasses. = His=20 correspondence is interfered with, he receives his mail with delays, = is=20 subjected to full body searches on routine visits, and has = restrictions for=20 visits from others. Furthermore, counsel alleges that the = authorities failed=20 to provide protection when he was assaulted by another inmate in = 1993 and=20 that this assault was not investigated.=20

3.4 Counsel alleges that Mr. Potter is the subject of = discrimination by=20 the parole authorities, in that his previous minimum security=20 classification, his good behaviour and non-violence involved in the=20 offences, were not taken into account for his parole. Counsel = submits that=20 Judge Cecilie Rushton, of the Parole Board, told Mrs. Potter that = early=20 release would not be considered for her husband when his non-parole = period=20 comes up for review in August 1998.=20

The State party=92s information and author=92s comments=20 thereon:=20

4.1 By submission of 7 December 1995, the State party argues that = the=20 communication is inadmissible. As regards the author=92s claim of a = violation=20 of article 9, paragraph 3, because the police failed to bring all = charges=20 against him at once, and waited until he was eligible for parole = after=20 serving the time of his first sentence before bringing new charges = against=20 him, the State party argues that there is nothing to suggest that = the author=20 was not brought promptly before a judge and tried within a = reasonable time=20 in any of the four sets of charges against him.=20

4.2 The State party contends that the communication is = inadmissible as=20 incompatible with the Covenant, and that the author has failed to=20 substantiate his allegations. In this respect, the State Party = submits that:=20

- In 1989 the New Zealand police received information to the = effect=20 that the author was involved in the supply of drugs to adults = and=20 teenagers members of the Centrepoint Community. Following an=20 investigation he was arrested and charged for supply of = Lysergide (LSD)=20 and possession and supply of Methylenedioxy-Methamphetamine = (Ecstasy).=20 The offences were alleged to have occurred between October 1988 = and=20 September 1989.

- The author was tried on 23 March 1990, found guilty and = sentenced=20 to three and a half years=92 imprisonment for the LSD supply = charge and 2=20 years for the ecstasy supply charge, to be served = concurrently.

- Towards the end of 1989 the police received a series of = complaints=20 against Mr. Potter, alleging sexual abuse of children and young = persons=20 at the Centrepoint Community. An investigation took place over = the next=20 18 months, during which time more complaints of a similar nature = were=20 received. Mr. Potter was arrested and charged on 27 May 1991 = with=20 several counts of rape and indecent assault relating to the = alleged=20 sexual abuse of five different female complainants. The offences = allegedly occurred between 1978 and 1984. All complainants had = lived at=20 the Centrepoint Community at the time and all were under the age = of 16=20 when the offences were alleged to have occurred. The author=92s = wife was=20 jointly charged in relation with a number of these = offences.

- Mr Potter was granted bail in relation to the sexual abuse = charges=20 on 20 December 1991, in anticipation of his possible early = release from=20 prison on parol with regard to the sentence received after the = first=20 trial.

- Prior to the second trial, several pre-trial applications = were=20 heard between 27 and 29 April 1992, relating to issues that are = before=20 the Human Rights Committee: delay between the dates of the = alleged=20 offences and the time at which the complaints were made, the = question of=20 consent in relation to the rape charges, the issue of what = constitutes=20 =93assault=94 for the offence of =93indecent assault=94, and = questions relating=20 to the admissibility of evidence.

- The author was tried on 29 October 1992 on 8 counts of rape = and 13=20 counts of indecent assault. Mrs. Potter was jointly charged with = her=20 husband on 5 counts of rape and 5 counts of indecent assault. = She=20 pleaded guilty to 5 counts of indecent assault. The jury found = Mr.=20 Potter guilty on 13 counts of indecent assault. He was sentenced = to a=20 total of seven and a half years=92 imprisonment on 27 November = 1992.

- On 2 June 1992, the author together with two other members = of the=20 Centrepoint Community, was charged with conspiracy to supply = controlled=20 drugs (Ecstasy). These offences allegedly occurred between 1 May = 1988=20 and 25 May 1992. The author=92s involvement only became known to = the=20 police following a search of his cell, in particular the hard = disk of=20 his computer, at the Ohura prison on 24 May 1991. He was tried = on 29=20 September 1993 and sentenced to two years=92 imprisonment on 28 = January=20 1994.

- On 23 April 1992, the author was charged with 3 counts of = perjury=20 during his first drugs trial in 1990, in which he had testified = that he=20 had given members of the Centrepoint Community capsules of milk = powder=20 and sugar, and not ecstasy. He pleaded guilty and was sentenced = to four=20 months=92 imprisonment on 8 February 1994.

4.3 As to the allegation of a violation of article 14 of the = Covenant,=20 the State party argues that the author=92s allegations are = uncorroborated=20 assertions; a comment made by the trial judge when it was the jury = which=20 convicted the author, pretrial publicity together with the fact that = New=20 Zealand law does not provide for an interrogation of jurors, cannot = be=20 construed to constitute a denial of the author=92s right under = article 14. The=20 author=92s right to an appeal was respected, as his conviction was = appealed=20 and the New Zealand Court of Appeal, in an ex-parte decision, = dismissed the=20 application. The =93point of law=94 raised (how the term assault = should be=20 interpreted in =93sexual assault=94) was dealt with by the trial = judge in his=20 decision of 28 October 1992, and during pre-trial consideration in = April=20 1992. In this respect, the State party contends that the author has = failed=20 to substantiate his claim.=20

4.4 Concerning the author=92s assertions that he is unfairly = treated, in=20 that he is being treated as a =93special class of prisoner=94, the = State party=20 denies that there is any evidence to suggest that the judicial = process was=20 applied to the author any differently than to other prisoners = charged with=20 similar offences. The allegation that all the events occurred over = 12 years=20 ago and did not involve violence is unfounded, as explained in para. = 4.2=20 above. The assertion that sexual offences do not involve violence = overlooks=20 the violence inherent in any sexual offence. The State party rejects = counsel=92s allegation that the victims received money from a = Government=20 agency to testify against the author: rather, the victims received=20 compensation for personal injury under the Accident Rehabilitation = Act 1992,=20 under which compensation is made available to victims of sexual = abuse to=20 assist them with their recovery from the effects of the abuse. = Compensation=20 under the Act is entirely separate from the conduct of the criminal=20 proceedings and does not depend on these being brought against the = alleged=20 perpetrator, nor on whether the victim gives evidence in such = proceedings.=20

4.5 With respect to the author=92s allegation of ill-treatment in = prison,=20 the State party contends that Mr. Potter relies on alleged = violations of the=20 United Nations Standard Minimum Rules for Treatment of Prisoners and = that=20 the Committee is only competent to examine alleged violations of the = rights=20 set forth in the International Covenant on Civil and Political = Rights. The=20 State party further argues that he has failed to exhaust domestic = remedies=20 as he could have had access to an administrative complaints = procedure under=20 the Penal Institutions Act 1954 and Penal Institutions Regulations = 1961 (as=20 amended), as well as to the Ombudsman. He could have pursued legal = remedies=20 invoking the New Zealand Bill of Rights Act before the local Courts, = if he=20 felt the prison authorities had failed to act diligently in = protecting his=20 integrity in prison.=20

4.6 With respect to the alleged discrimination by the Parole = Board, the=20 State party argues that the author has the right to judicial review = of the=20 Parole Board decisions in the High Court. It argues that the author = wrote to=20 the registrar of the Auckland District Court, regarding a possible = review of=20 the Board=92s decision, but did not actually lodge formal = proceedings.=20 Therefore he failed to exhaust domestic remedies in this respect.=20

5.1 In his comments, counsel reiterates his claims that the = author has=20 been treated as a =93special class of prisoner=94, that he was not = charged=20 promptly, that his trial was unfair, that he was unable to submit an = appeal=20 to the Privy Council, that he was ill-treated in prison and that he = has been=20 discriminated against by the Parole Board. As to the exhaustion of = domestic=20 remedies, counsel contends that the remedies suggested by the State = party=20 are not available to the author as he is in prison, and therefore = these need=20 not be exhausted.=20

Issues and proceedings before the Committee:=20

6.1 Before considering any claim contained in a communication, = the Human=20 Rights Committee must, in accordance with rule 87 of its rules of = procedure=20 decide whether or not it is admissible under the Optional Protocol = to the=20 Covenant.=20

6.2 The Committee observes that the considerations for declaring = a=20 communication admissible include, inter alia, that the = claims=20 submitted are sufficiently substantiated and do not constitute an = abuse of=20 the right of submission. Concerning the author=92s claim that his = trial was=20 unfair because it took place many years after the offence and = because he was=20 tried on a charge of indecent assault at a time when a rape charge = was time=20 barred, the Committee notes that it appears from the trial = transcript that=20 the judge instructed the jury to acquit Mr. Potter on the rape = charges for=20 reasons of law. In this connection it also notes that the charges = relate to=20 a series of events extending over a long period of time up to a = recent date=20 (1978 to 1992). The Committee therefore considers that the = author=92s claim is=20 not substantiated. As to the claim that the trial was unfair because = of=20 substantial pre-trial publicity, this matter could have been raised = before=20 the trial judge; failure to do so implies that the requirements of = article=20 5, paragraph 2 (b), of the Optional Protocol have not been met. With = regard=20 to the remaining allegations of unfair trial, in particular that = witnesses=20 had been influenced by compensation received from a Government = agency, this=20 issue should similarily have been raised before the appellate = courts. The=20 author=92s failure to do so means that domestic remedies have not = been=20 exhausted in this respect either.=20

6.3 As to allegations of ill-treatment in prison, the Committee = does not=20 accept the State party=92s argument that it is not competent to = examine the=20 conditions of detention of an individual, if these are referenced in = relation to the United Nations Standard Minimum Rules for the = Treatment of=20 Prisoners, since these constitute valuable guidelines for the = interpretation=20 of the Covenant. However, it transpires from the file that no = complaint in=20 respect of ill-treatment was ever filed by the author, either before = the New=20 Zealand judicial authorities or with the Ombudsman. For the purpose = of=20 article 5, paragraph 2 (b), of the Optional Protocol, an applicant = must=20 resort to all judicial or administrative avenues that offer him a = reasonable=20 prospect of redress. In this respect, therefore, the requirements of = article=20 5, paragraph 2 (b), of the Optional Protocol have not been met.=20

6.4 With regard to the author=92s allegation of discrimination by = the=20 Parole Board, the Committee notes the State party=92s argument that = even=20 though the author wrote to the Court Registrar enquiring into the=20 possibility of a review of the Parole Board=92s decision, no formal = review was=20 ever initiated. The same considerations as under paragraph 6.3 above = therefore apply.=20

7. The Committee therefore decides:=20

(a) That the communication is inadmissible under articles 2 and = 5,=20 paragraph 2 (b), of the Optional protocol;=20

(b) That this decision shall be communicated to the State party = and to=20 the author of the communication.=20

__________________=20

1/From the State party=92s submission it appears that = the=20 author was convicted and sentenced a second time, on 27 November = 1992, to 7=20 =BD years of imprisonment for indecent assault on minors; a third = time, on 28=20 January 1994, to 2 years=92 imprisonment for drug related offences = and a=20 fourth time, on 8 February 1994, to 4 months=92 imprisonment for = perjury. .=20

* The following members of the Committee participated in the = examination=20 of the communication: Mr. Nisuke Ando, Mr. Prafullachandra N. = Bhagwati, Ms.=20 Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar = Gaitan de=20 Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina = Quiroga, Mr.=20 Fausto Pocar, Mr. Martin Scheinin, Mr. Danilo T=FCrk and Mr. Maxwell = Yalden.=20

[Adopted in English, French and Spanish, the English text being = the=20 original version. Subsequently to be issued also in arabic, Chinese = and=20 Russian as part of the Committee=92s annual report to the General = Assembly.]=20

=A91996-2001
Office of = the United=20 Nations High Commissioner for Human Rights
Geneva, Switzerland =

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