Submitted by: Herbert Thomas Potter (represented
by Mr. Michael Kidd)
party: New Zealand
communication: 6 April 1995 (initial submission)
Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
on 28 July 1997,
1. The author
of the communication is Herbert Thomas Potter, a New Zealand citizen
at present imprisoned at Mount Eden prison in Auckland, New Zealand,
spiritual leader of an organization named "Centre point Community
Growth Trust". GHe claims to be the victim of violations by New
Zealand of articles 9, paragraph 3, and 14, of the International Covenant
on Civil and Political Rights. He is represented by counsel, Mr. Michael
facts as submitted by the author:
2.1 In 1990,
the author was convicted and sentenced to three and a half years imprisonment
for possession and supply of drugs. Shortly before his release he
was charged with rape, a charge then downgraded to indecent assault,
perjury and a further drug conspiracy charge. In all he has been sentenced
to a total of thirteen years and four months imprisonment1
2.2 The author
appealed his second sentence; his appeal was dismissed in April 1993.
The author did not appeal to the Judicial Committee of the Privy 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
Council is not a domestic remedy to be exhausted, within the meaning
of article 5, paragraph 2, of the Optional Protocol.
3.1 The author
claims that his rights under article 9, paragraph 3, of the Covenant
have been violated: although the police had sufficient evidence against
him in 1990, it was not until he had completed his previous sentence
for drug related charges and was about to be paroled, that he was
charged with indecent assault against minors, and was sentenced to
seven and a half years of imprisonment. The sentences imposed on him
were cumulative. Counsel was informed that the author received a further
two year cumulative sentence for drug conspiracy and another four
months cumulative sentence for perjury charges, arising from the first
trial in 1990. Counsel alleges that Mr. Potter has been treated as
a "special class of prisoner", indicating that his cumulative sentence
makes him one of the longest serving prisoners in New Zealand.
3.2 The author
claims a violation of article 14, in that he did not have a fair trial.
He claims that he was informed by Mr. Peter Williams, counsel for
the first trial, that the trial Judge had made an "anti-Centrepoint
joke". There is nothing in the file to support this allegation which,
therefore, remains unsubstantiated. Further, the author alleges that
all the pre-trial publicity made it difficult to obtain an impartial
jury; in this respect counsel points out that New Zealand does not
have a system of interrogatories for jury members. Counsel further
argues that the charges on which the author was convicted arose over
twelve years ago and did not involve violence. The author alleges
that witnesses against him, who were members of his congregation,
had received sums of money as compensation from a Government Agency
prior to his trial. It is further alleged that the 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 statute of
limitations constitutes a violation of article 14 of the Covenant.
3.3 The author
claims that he was subjected to ill-treatment while in prison. He
has been denied adequate dental treatment for broken teeth caused
by the assault he suffered at the hands of a fellow inmate; was refused
vitamin supplements, as well as being denied proper reading glasses.
His correspondence is interfered with, he receives his mail with delays,
is subjected to full body searches on routine visits, and has restrictions
for visits from others. Furthermore, counsel alleges that the authorities
failed to provide protection when he was assaulted by another inmate
in 1993 and that this assault was not investigated.
alleges that Mr. Potter is the subject of discrimination by the parole
authorities, in that his previous minimum security classification,
his good behaviour and non-violence involved in the offences, were
not taken into account for his parole. Counsel submits that Judge
Cecilie Rushton, of the Parole Board, told Mrs. Potter that early
release would not be considered for her husband when his non-parole
period comes up for review in August 1998.
State party's information and author's comments thereon:
4.1 By submission
of 7 December 1995, the State party argues that the communication
is inadmissible. As regards the author's claim of a violation of article
9, paragraph 3, because the police failed to bring all charges against
him at once, and waited until he was eligible for parole after serving
the time of his first sentence before bringing new charges against
him, the State party argues that there is nothing to suggest that
the author was not brought promptly before a judge and tried within
a reasonable time in any of the four sets of charges against him.
4.2 The State
party contends that the communication is inadmissible as incompatible
with the Covenant, and that the author has failed to substantiate
his allegations. In this respect, the State Party submits that:
- In 1989 the New
Zealand police received information to the effect that the author
was involved in the supply of drugs to adults and teenagers members
of the Centrepoint Community. Following an investigation he was
arrested and charged for supply of Lysergide (LSD) and possession
and supply of Methylenedioxy-Methamphetamine (Ecstasy). The offences
were alleged to have occurred between October 1988 and September
- The author was tried
on 23 March 1990, found guilty and sentenced to three and a half
years' imprisonment for the LSD supply charge and 2 years for
the ecstasy supply charge, to be served concurrently.
- Towards the end
of 1989 the police received a series of complaints against Mr.
Potter, alleging sexual abuse of children and young persons at
the Centrepoint Community. An investigation took place over the
next 18 months, during which time more complaints of a similar
nature were received. Mr. Potter was arrested and charged on 27
May 1991 with several counts of rape and indecent assault relating
to the alleged sexual abuse of five different female complainants.
The offences allegedly occurred between 1978 and 1984. All complainants
had lived at the Centrepoint Community at the time and all were
under the age of 16 when the offences were alleged to have occurred.
The author's wife was jointly charged in relation with a number
of these offences.
- Mr Potter was granted
bail in relation to the sexual abuse charges on 20 December 1991,
in anticipation of his possible early release from prison on parol
with regard to the sentence received after the first trial.
- Prior to the second
trial, several pre-trial applications were heard between 27 and
29 April 1992, relating to issues that are before the Human Rights
Committee: delay between the dates of the alleged offences and
the time at which the complaints were made, the question of consent
in relation to the rape charges, the issue of what constitutes
"assault" for the offence of "indecent assault", and questions
relating to the admissibility of evidence.
- The author was tried
on 29 October 1992 on 8 counts of rape and 13 counts of indecent
assault. Mrs. Potter was jointly charged with her husband on 5
counts of rape and 5 counts of indecent assault. She pleaded guilty
to 5 counts of indecent assault. The jury found Mr. Potter guilty
on 13 counts of indecent assault. He was sentenced to a total
of seven and a half years' imprisonment on 27 November 1992.
- On 2 June 1992,
the author together with two other members of the Centrepoint
Community, was charged with conspiracy to supply controlled drugs
(Ecstasy). These offences allegedly occurred between 1 May 1988
and 25 May 1992. The author's involvement only became known to
the police following a search of his cell, in particular the hard
disk of his computer, at the Ohura prison on 24 May 1991. He was
tried on 29 September 1993 and sentenced to two years' imprisonment
on 28 January 1994.
- On 23 April 1992,
the author was charged with 3 counts of perjury during his first
drugs trial in 1990, in which he had testified that he had given
members of the Centrepoint Community capsules of milk powder and
sugar, and not ecstasy. He pleaded guilty and was sentenced to
four months' imprisonment on 8 February 1994.
4.3 As to
the allegation of a violation of article 14 of the Covenant, the State
party argues that the author's allegations are uncorroborated assertions;
a comment made by the trial judge when it was the jury which convicted
the author, pretrial publicity together with the fact that New Zealand
law does not provide for an interrogation of jurors, cannot be construed
to constitute a denial of the author's right under article 14. The
author's right to an appeal was respected, as his conviction was appealed
and the New Zealand Court of Appeal, in an ex-parte decision, dismissed
the application. The "point of law" raised (how the term assault should
be interpreted in "sexual assault") was dealt with by the trial judge
in his decision of 28 October 1992, and during pre-trial consideration
in April 1992. In this respect, the State party contends that the
author has failed to substantiate his claim.
the author's assertions that he is unfairly treated, in that he is
being treated as a "special class of prisoner", the State party denies
that there is any evidence to suggest that the judicial process was
applied to the author any differently than to other prisoners charged
with similar offences. The allegation that all the events occurred
over 12 years ago and did not involve violence is unfounded, as explained
in para. 4.2 above. The assertion that sexual offences do not involve
violence overlooks the violence inherent in any sexual offence. The
State party rejects counsel's allegation that the victims received
money from a Government agency to testify against the author: rather,
the victims received compensation for personal injury under the Accident
Rehabilitation Act 1992, under which compensation is made available
to victims of sexual abuse to assist them with their recovery from
the effects of the abuse. Compensation under the Act is entirely separate
from the conduct of the criminal proceedings and does not depend on
these being brought against the alleged perpetrator, nor on whether
the victim gives evidence in such proceedings.
respect to the author's allegation of ill-treatment in prison, the
State party contends that Mr. Potter relies on alleged violations
of the United Nations Standard Minimum Rules for Treatment of Prisoners
and that the Committee is only competent to examine alleged violations
of the rights set forth in the International Covenant on Civil and
Political Rights. The State party further argues that he has failed
to exhaust domestic remedies as he could have had access to an administrative
complaints procedure under the Penal Institutions Act 1954 and Penal
Institutions Regulations 1961 (as amended), as well as to the Ombudsman.
He could have pursued legal remedies invoking the New Zealand Bill
of Rights Act before the local Courts, if he felt the prison authorities
had failed to act diligently in protecting his integrity in prison.
respect to the alleged discrimination by the Parole Board, the State
party argues that the author has the right to judicial review of the
Parole Board decisions in the High Court. It argues that the author
wrote to the registrar of the Auckland District Court, regarding a
possible review of the Board's decision, but did not actually lodge
formal proceedings. Therefore he failed to exhaust domestic remedies
in this respect.
5.1 In his
comments, counsel reiterates his claims that the author has been treated
as a "special class of prisoner", that he was not charged promptly,
that his trial was unfair, that he was unable to submit an appeal
to the Privy Council, that he was ill-treated in prison and that he
has been discriminated against by the Parole Board. As to the exhaustion
of domestic remedies, counsel contends that the remedies suggested
by the State party are not available to the author as he is in prison,
and therefore these need not be exhausted.
and proceedings before the Committee:
considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 87 of its rules of procedure
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
6.2 The Committee
observes that the considerations for declaring a communication admissible
include, inter alia, that the claims submitted are sufficiently
substantiated and do not constitute an abuse of the right of submission.
Concerning the author's claim that his trial was unfair because it
took place many years after the offence and because he was tried on
a charge of indecent assault at a time when a rape charge was time
barred, the Committee notes that it appears from the trial transcript
that the judge instructed the jury to acquit Mr. Potter on the rape
charges for reasons of law. In this connection it also notes that
the charges relate to a series of events extending over a long period
of time up to a recent date (1978 to 1992). The Committee therefore
considers that the author's claim is not substantiated. As to the
claim that the trial was unfair because of substantial pre-trial publicity,
this matter could have been raised before the trial judge; failure
to do so implies that the requirements of article 5, paragraph 2 (b),
of the Optional Protocol have not been met. With regard to the remaining
allegations of unfair trial, in particular that witnesses had been
influenced by compensation received from a Government agency, this
issue should similarily have been raised before the appellate courts.
The author's failure to do so means that domestic remedies have not
been exhausted in this respect either.
6.3 As to
allegations of ill-treatment in prison, the Committee does not accept
the State party's argument that it is not competent to examine the
conditions of detention of an individual, if these are referenced
in relation to the United Nations Standard Minimum Rules for the Treatment
of Prisoners, since these constitute valuable guidelines for the interpretation
of the Covenant. However, it transpires from the file that no complaint
in respect of ill-treatment was ever filed by the author, either before
the New Zealand judicial authorities or with the Ombudsman. For the
purpose of article 5, paragraph 2 (b), of the Optional Protocol, an
applicant must resort to all judicial or administrative avenues that
offer him a reasonable prospect of redress. In this respect, therefore,
the requirements of article 5, paragraph 2 (b), of the Optional Protocol
have not been met.
regard to the author's allegation of discrimination by the Parole
Board, the Committee notes the State party's argument that even though
the author wrote to the Court Registrar enquiring into the possibility
of a review of the Parole Board's decision, no formal review was ever
initiated. The same considerations as under paragraph 6.3 above therefore
7. The Committee
the communication is inadmissible under articles 2 and 5, paragraph
2 (b), of the Optional protocol;
this decision shall be communicated to the State party and to the
author of the communication.
the State party's submission it appears that the author was convicted
and sentenced a second time, on 27 November 1992, to 7 ½ years of
imprisonment for indecent assault on minors; a third time, on 28 January
1994, to 2 years' imprisonment for drug related offences and a fourth
time, on 8 February 1994, to 4 months' imprisonment for perjury. .
* The following
members of the Committee participated in the examination of the communication:
Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet,
Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr.
Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr.
Fausto Pocar, Mr. Martin Scheinin, Mr. Danilo Türk and Mr. Maxwell
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.]