One of New Zealand’s most outspoken and well-known Covid-19 conspiracy theorists, Billy Te Kahika Jr, will not have to serve a prison sentence for illegally organising and attending a protest in front of TVNZ on the first day of New Zealand’s nationwide Delta variant lockdown.
In a decision released this afternoon, High Court at Auckland Justice Neil Campbell upheld the convictions for Te Kahika and co-defendant Vincent Eastwood but overturned their prison sentences, instead ordering both men be convicted and discharged.
“How’s that for an early Christmas present?” Te Kahika, otherwise known as Billy TK, told the Herald of today’s decision. “I’m a little bit of a stunned mullet.”
Te Kahika was already a well-known musician and lay preacher when he rode an undercurrent of discontent on social media over Covid-19 safety measures at the outset of the pandemic. His profile increased during his unsuccessful bid for Parliament in 2020.
He was initially sentenced to four months’ imprisonment and Eastwood received a sentence of three months’ imprisonment when they appeared in Auckland District Court in March.
Judge Peter Winter noted at the time both men were assessed as having a low risk of re-offending, but he also noted that neither man appeared repentant and he described Te Kahika’s involvement as “at the upper end if not the most serious end ... of this type of offending”.
“I find that he has exhibited no remorse other than remorse for himself,” the judge added. “Nor does it seem he’s given any consideration to the sacrifices of other law-abiding citizens [to stop the Delta variant’s spread].”
Both men were immediately granted bail while awaiting appeal.
The duo spent three days in court in August 2022 for a judge-alone trial, during which they both gave evidence. Judge Winter found them guilty last December, following a lengthy adjournment so both sides could submit written legal arguments that focused in part on whether the New Zealand Bill of Rights Act allowing freedom of assembly to protest should have superseded the lockdown order.
A senior police officer testified during the trial that Te Kahika called him on the first morning of the August 2021 lockdown to let law enforcement know he was planning a protest of 200 to 300 people outside TVNZ headquarters in central Auckland that day.
“He was advised it was against the health order and he was liable to be arrested,” the officer testified. “He told me it was his right to protest.”
Te Kahika then posted a series of live videos on Facebook in which he encouraged people to show up to the protest. In one social media post, Judge Winter noted, Te Kahika “advanced various theories now commonly accepted to be conspiracy theories as his reason for being present in contravention of the level 4 lockdown regulations”.
Despite warnings from police, Te Kahika said he was surprised by his arrest because he believed freedom of speech and assembly should have taken precedence over lockdown orders.
Eastwood, an online broadcaster who had been travelling with Te Kahika when the lockdown was announced, also posted on social media encouraging people to turn out for the protest. Video footage played repeatedly during the evidence phase of the trial showed him yelling through a megaphone with an increasingly desperate-sounding tone for fellow protesters to surround him and “protect” him as police approached in an effort to hand him a letter advising him the gathering was illegal.
Violating the Covid-19 Public Health Response Act by attending an illegal gathering carries a maximum punishment of six months’ jail and a $4000 fine, while organising such a gathering is punishable only by a fine.
The pair appealed both their convictions and their sentence to the High Court at Auckland in July and have been waiting months for a reserved decision from Justice Campbell.
“I consider that this offending was well short of the most serious of its kind,” the High Court judge wrote in his decision. “At most, a starting point of a very short period of imprisonment, in the region of 14 days, would have been appropriate for each of Mr Te Kahika and Mr Eastwood.
“Against his starting point, Mr Te Kahika is entitled to several allowances. He has no prior convictions. More significantly, he has spent much of his life making significant and varied contributions to his community.”
When adding in credit for time he spent on restrictive bail conditions, and also considering credit for the one night he spent in custody after his arrest, the most appropriate sentence is a discharge without conviction, he said.
“I add that, even if the adjusted starting point had been a very short sentence of imprisonment, I consider that Judge Winter erred in not considering home detention or some other community-based sentence,” Justice Campbell said.
Te Kahika said today he was celebrating his 20th wedding anniversary with his wife Corrin when a call came from his lawyers.
“They told me they had really good news and a little bit of bad news,” he said, explaining that once he heard the good news about the quashed sentence, “I didn’t really care about the bad news”.
“It’s just amazing and totally unexpected to have a phone call like that,” he said. “My wife just said to me - and the way we see it - is God sees more value for me at this stage being outside of prison.”
Te Kahika said he had woken every morning since appealing the District Court sentencing concerned that the phone call sending him to prison would come that day.
“It’s been like having some strange monkey on my back,” he said, explaining that his main concerns were leaving his wife to raise their children in an isolated rural area and abandoning the 80 people he ministers to. “And also the very clear sense of injustice for the sentencing to jail in the first place.”
Te Kahika said the arrest and prosecution had “felt like a political persecution” but the appeal process, and its outcome, had eased that belief. He said a similar feeling had come with the recent Independent Police Conduct Authority finding six instances of excessive force used by police during the Parliament protest.
“It starts to give people a sense of confidence they can start to have trust and confidence in the system,” he said. “We want to see our country heal.”
Te Kahika said the experience of being prosecuted had left him wondering at the impact it had on those who did not appeal convictions or sentences and did not have the support he had enjoyed from the community and his whanau, for which he offered thanks.
“As a minister, I would love to find a way to support people through the court process,” he said.
In the months between the High Court appeal and today’s decision, Te Kahika also went to trial and was sentenced for election fraud during his 2020 run for Parliament as co-leader of the controversial Advance NZ Party.
He again stood in a dock at Auckland District Court yesterday as Judge Kate Davenport ordered a non-custodial sentence of 200 hours of community work and $14,000 in fines.