Brian Henry’s last stand at the privileges committeeSeptember 16th, 2008
The final lingering image of the privileges committee investigation of Winston Peters was an apt one – a scrum of journalists gathered round Rodney Hide afterwards, virtually begging to be spun. As it happened, the last day’s testimony in the privileges committee process by Peters’ barrister Brian Henry had filled in one essential detail for the trainspotters. On 14 December 2005 at exactly 13:33.30 NZ time it was Peters who had called Henry, who had then emailed Owen Glenn. This detail did not change the basic landscape.
What the final day’s testimony underlined was that the two competing explanations of what occurred on 14 December 2005 remain stuck in parallel universes. The evidence for the claim that Peters long ago knew about, or had actively solicited the $100,000 donation from Owen Glenn comes down to a series of phone calls and emails on that date, and it is on this exchange that Peters liability for reporting the donation as a gift actually rests – as well as the claims that he has lied to the Prime Minister, and to the public. This is quite a heavy burden for a phone and email log to bear.
The key sequence on December 14, 2005 goes : (1) Owen Glenn phoned Peters and talked for some time (2) immediately afterwards, Peters phoned Henry (3) Henry, 40 seconds later, emailed his bank account details to Glenn. Eight days later, the $100,000 was deposited in Henry’s bank account.
There is little or no objective evidence on the content of these exchanges. The evidence is almost entirely circumstantial. If one believes Glenn, there is a a straightforward narrative that indicates Peters actively solicited the donation during the call Glenn made to him, Peters then put the phone down and rang Henry – who then emailed his bank account details to Glenn. The causal chain implied in the sequence is clear and direct.
Taken together, Peters and Henry have a different version that goes like this : Glenn they say, had originally testified that Peters had called him, soliciting a donation. Instead, it transpired that the reverse occurred. Glenn had called Peters – ie, it was the prospective donor who rang – and according to Peters, Glenn wanted to talk to Peters primarily about an honorary consul post in Monaco.
During that call, Glenn asked for Henry’s contact details, and at the close of the call, Peters rang Henry and spoke to him for six minutes, conceivably about the Tauranga electoral petition where a verdict was imminent. During that call, Peters mentioned he’d just been talking to Glenn. Henry, mindful of his earlier contact with Glenn about a possible donation, then immediately emailed Glenn – allegedly, to remind him that, as Henry put it, “ We’re still here.”
What this explanation does – or tries to do – is provide a plausible rationale for the sequence that does not entail Peters either soliciting a donation – Glenn had called him, after all – or involve Peters telling Henry that Glenn had just offered a donation, so get cracking and send him the bank details.
Given the tight timeframe of the sequence, some committee members found it implausible that the Glenn to Peters, Peters to Henry sequence wouldn’t have contained some mention of an imminent Glenn donation. Or wouldn’t have triggered some inquiry by Peters as to why exactly, Glenn would be wanting Henry’s contact details.
The Peters defence is that New Zealand First, like other parties, operate a don’t ask/don’t tell policy when it came to contacts between the party leader and those charged with soliciting funds on the party’s behalf. According to Henry, if Peters had violated that policy by mentioning a Glenn donation – much less that he’d just been actively soliciting one – then an argument would have ensued that Henry would have made notes on, and remembered.
For the Peters case, the most problematic – and/or damning – part of the communication sequence is that Henry commences his email with the phrase ‘ Further to your discussion with my client at 1.30 nzt I provide my bank details as. . . .Clearly this indicates a causal link between the Peters/Glenn phone call that had just been completed, and Henry’s provision of the bank account details. It helps to confirm Glenn’s version. It is the closest thing to a smoking gun that the entire body of evidence on the Glenn donation contains. Henry’s explanation was that this scribbled email – it was written and dispatched in forty seconds – was merely his way of signalling to Glenn that he knew Peters and Glenn had just had a conversation, and meant nothing more than that.
Much has already been of the fact that Henry and Peters have changed their original denial that the “ client” in question was in fact, Peters. While true, this fails to acknowledge that Glenn himself had changed his testimony to the effect that the “ client” had called him which – Henry maintained – had caused the initial confusion. Henry claimed to have been misled by the initial Glenn testimony into thinking that his must have been the so called ‘ “other client” – the mysterious un-named figure who had originally suggested to Henry that he get in touch with Glenn.
Throughout, Henry has said that lawyer/client privilege prevents him from naming this “other client”, who still refuses to be identified. In his testimony, Henry did refer however, to National Party dissidents allegedly unhappy with Bob Clarkson, who had been sympathetic to the Tauranga electoral petition. Could they have an ongoing reason for anonymity? We are left none the wiser.
In his testimony, Glenn claimed that Peters had thanked him for the donation a month later, over lunch at the Karaka yearling sales in late January 2006. Glenn also produced an affidavit by bloodstock agent Paul Moroney to that effect. In a related tabling of evidence this morning, the Peters camp produced three signed statements – by Philip Vela, Peter Vela and by the lunch host on the day, Donald McIlraith, that challenged elements of the Glenn/Moroney account of events at the Karaka yearling sales as being “inaccurate and misleading.”
At the end of the day – whose account is more credible? There is no doubt the Glenn accusation is simpler. Proving a denial is often more difficult. Is the Peters/Henry version inherently implausible ? Almost. Obviously, that is what the committee now have to decide. Unfortunately for Peters, the level of proof required by the privileges committee is quite low.
As I’ve mentioned before, a civil court standard of proof and an “ on the balance of probabilities’ test of the evidence applies. It is not the “ beyond reasonable doubt’ standard that applies in criminal cases. However, because of the high profile of this case and the consequences for the reputation of the ‘defendant’ Peters ( and by implication, for Henry as well ) I would have thought that the committee would accept that the standard of proof in this case should be up towards the high end of the spectrum.
The problem for the committee when judging this almost entirely circumstantial chain of evidence is that both the main witnesses – Peters and Glenn – bring credibility problems to the table. Both have changed details in their stories. At various times, they have both looked like thin-skinned, limelight hogging egomaniacs who have somehow strayed in from the World Wrestling Federation.
In this respect, it certainly doesn’t help that the communication logs from both the Glenn and the Peters camps are all but opaque on another key timeframe, from 22 November to just beyond December 5, 2005. This period is a significant part of the argument from the Peters camp that Henry and Glenn had prior contact before December 14. Clearly, if they did have such contact, then the Henry email dispatch of his bank details on December 14 could potentially be more innocent.
Unfortunately, while Glenn claims that either Peters ‘or someone from New Zealand First” contacted him prior to December 14, and while he also claims that he must have called that person back, no phone record of the calls exists. Ditto, Henry claims to have been in contact with Glenn during this period – and the committee this morning did mull over the possible significance of the first name exchanges evident on December 14. Mr Glenn, Henry suggested though, was an affable man.
Again, on the Peters side, the phone/email log is virtually non-existent in providing any useful backdrop to the contacts that allegedly preceded December 14. Henry testified that he was travelling constantly during this busy period prior ( and immediately subsequent ) to the Tauranga petition legal filings. He had no recall about where and when he might have placed the call to Glenn among the many calls that he was making on the road at the time, nearly three years ago. To repeat : on both narratives, the phone/email logs are virtually mute about the soliciting moves that – logically – would have preceded Glenn’s initiative on December 14.
The privileges committee has signalled it will take about a fortnight to reach a decision. Today, there were few hints in the body language of the committee as to which way they are inclined. Among the possible swing votes – ie, outside the Labour/National party blocs – United Future’s Peter Dunne took a highly skeptical tone towards Henry this morning. If I was laying a Vegas bet, I would wager that Peters has found few sympathetic ears on the committee.
Politics, rather than the case in question, could yet play a role in the outcome. On the evidence presented this morning, Henry did not give Helen Clark an overwhelming reason to sack Peters. Mainly because as mentioned, the change of tack by Henry about the identity of “ my client” had been triggered by a prior and parallel change in Glenn’s testimony. If Clark was intent on sacking Peters, she would still struggle to present the events today as a compelling case of a bridge too far.
Keeping Peters on will hurt Labour. Sacking him will create a new media circus, to see if and how Peters would then try to extract revenge on Labour. National meanwhile, will be wanting to keep Peters and Clark chained together for the duration of the campaign. Hopefully, all those tactical concerns will not influence the committee’s decision and recommendation. Whichever way the committee votes, Peters will be out on the hustings crying foul.