Withholding information is retraumatising victims of the Christchurch terror attack, a preliminary hearing for a coronial inquiry is told. David Williams reports

How has it come to this?

Almost three years after the Christchurch terror attack on two mosques that killed 51 people, families of the Shaheed, as well as the injured and traumatised witnesses, feel disenfranchised and discriminated against. In fact, they’ve been retraumatised by crucial information being withheld, lawyers say.

This week, a “scope hearing” is being held to decide what a coronial inquiry into the Christchurch terror attack will cover.

(A coroner must try to establish the cause and circumstances of death, and make recommendations or comments to try and prevent further deaths occurring in similar circumstances.)

A draft list of included and excluded issues was circulated by Chief Coroner Deborah Marshall last October. Now, affected whānau and interested parties are appearing before Coroner Brigitte Windley, who will hold the inquiry, to argue which issues should be included.

Families’ grievances were aired from the beginning.

In last October’s minute, Marshall suggested some issues be dealt with by “information request” – police providing evidence already gathered during its investigation. (Examples include CCTV footage, timelines, forensic evidence, and statements.)

“That simply hasn’t been done,” Nigel Hampton QC, of Christchurch said at yesterday’s hearing. Other missing information included reviews by St John Ambulance and Canterbury District Health Board. “They’re being retraumatised by not having access to those materials.”

Another lawyer, Auckland’s Aarif Rasheed, agreed that deficiencies in accessing information was having a substantive impact on families.

Hampton, who represents some families, said police had provided a summary of the issues, which refers to source material, but the original evidence hasn’t been provided, despite requests.

“Unless we have the materials how can we properly make submissions as to whether the issues have been properly identified, and put in the right place?”

Hampton is a vastly experienced criminal lawyer who has been involved in other high-profile cases like the Pike River coal mine disaster and the collapse of Christchurch’s CTV building after the deadly 2011 earthquake. (Yesterday was the 11th anniversary of the quake.)

“I can’t think of an inquest where a bundle of everything has not been given to the family or families of the deceased.”

The situation appears to have arisen as the unintended result of an over-cautious policy not to provide high volumes of potentially upsetting material so as not to re-traumatise survivors and bereaved families.

Instead, Hampton says, it’s the irresponsible withholding of information that’s traumatising his clients. “It’s not for this court, with respect, to make these determinations on their behalf.”

Why is normal procedure being set aside, he asked. It smacks of old-fashioned language of paternalism. In fact, he says, it seems discriminatory – against the victims of the worst mass homicide in New Zealand.

He asked Coroner Windley for the process to be paused and reset. The hearing is expected to conclude tomorrow.

Beaming in by video link are Kathryn Dalziel, centre, and Nigel Hampton QC, right. Photo: Monique Ford/Stuff/Pool

A lack of care and attention by the state, while distressing, may not be surprising.

Consider that a month after the attack, Government ministers rejected a plan to give special support, via ACC, to those people mentally traumatised by the Christchurch terror attack.

A year later, soon after the pandemic-induced lockdown was eased, several agencies pulled back support services to terror victims.

The police investigation was opaque because of the terrorist’s surprise guilty plea, which turned a trial into a sentencing hearing.

Then there was the Royal Commission into the attack, which took more than 18 months to investigate, identifying failures that led to Prime Minister Jacinda Ardern to apologise, and promise to adopt, in principle, its 44 recommendations.

(One of the worst failures was by counter-terror agencies, which were inappropriately focused on the threat of Islamist extremist terrorism. That was despite the international rise of far-right extremism – and the knowledge New Zealand’s gun laws were comparatively permissive.)

The commission’s work started badly when it didn’t consult families or Muslim groups on its terms of reference.

At yesterday’s hearing, Auckland barrister Rasheed said the commission became better at including families as time wore on – but that’s not the same as participation in the process.

The commission held no hearings in public, and much of the information is subject to strict suppression orders lasting decades. Families weren’t able to weigh the evidence and ask questions.

Rasheed said it may be premature for Windley to categorically rule some issues out of scope. He suggested the coronial inquiry “walk along” with the Royal Commission report, and test if issues had been dealt with adequately.

He’s clear, though: key questions were not asked at the Royal Commission.

“Our most precious asset in the face of such a dire transformation of history is the emergence not of a sense of clash but a sense of community, understanding, sympathy, and hope.” – Edward Said

Last October’s minute from chief coroner Marshall sets out more than 50 issues raised by submitters, some of which were covered at yesterday’s hearing.

They include: the terrorist’s travel history, red flags missed by intelligence agencies or police, and the “defective” firearms licensing regime – all of which were recommended to be outside the scope of the coronial inquiry.

Other issues, like if the terrorist had direct assistance on the day of the attack, were proposed to be dealt with by an information request.

Marshall’s minute proposed many issues fall within scope of the inquiry. They included:

  • Could more have been done to save the lives of those who died? (Yesterday, Christchurch lawyer Anne Toohey questioned whether one victim, Kamel Darwish, was still alive in the mosque after the time police believe he died.)
  • What steps were taken to catch the gunman as he raced between An-Nur Mosque and Linwood Islamic Centre? In particular, was his car tracked by CCTV cameras?
  • Did the aggressive and confrontational behaviour by police towards some survivors help the terrorist escape? (Dalziel says some clients tried to tell police the terrorist had left, but they had guns pointed at them and were told to sit down and shut up.)

Counsel to assist the coroner, Alysha McClintock, questioned whether the coronial inquiry had jurisdiction to challenge or reconsider the findings of the Royal Commission, which had given many issues proper public scrutiny. “This is not a review court,” she said.

Meanwhile, the release of information is a question of timing, McClintock said: “We’re not at that stage yet.”

Later, Coroner Windley noted with concern the criticism of the commission for not answering certain questions. Could a single coroner, with comparatively meagre resources, be similarly excoriated?

The state had to acknowledge this was an unprecedented event, Rasheed said, and it had an obligation to the families and the public interest to provide a commensurate degree of resources.

While tragedy was the focus of yesterday’s hearing, there was at least one warm moment.

Rasheed concluded his remarks by quoting the late Edward Said, and his response to Samuel Huntington’s idea of a clash of civilisations.

The words might remind readers of the time soon after the Christchurch attack, when Ardern used her now famous line “they are us”, and people gathered to show support for the Muslim population.

The quote goes: “Our most precious asset in the face of such a dire transformation of history is the emergence not of a sense of clash but a sense of community, understanding, sympathy, and hope.”

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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