ATTACK on the CUP by ac.compendium

Mark Robinson Holland

Attack

On the

Cup

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Attack on the Cup ----------------------

The story of the conspiracy to destroy the world’s oldest international sporting prize - America’s Cup and the efforts to save it.

Mark Robinson Holland

------------------------- ATTACK on the CUP ------------------------Published 2024 by Compendium Publishing LLC Copyright © 2024 Compendium Publishing LLC ISBN: 978-X-XX-XXXXXX-X All rights reserved. No part of this publication may be reproduced in any form or by any means – graphic, electronic or mechanical, including photocopying , recording, taping or information storage and retrieval systems – without the prior permission of the publishers. America’s Cup Compendium is a research work identifying the persons, places, yachts and events that contributed to the history of the Races for America’s Cup, including the evolution of the applicable rules of sailing and/or yacht design or criteria that applied at the time of any cited race or regatta, all for the purpose of historically documenting the sport.

TEXT: Mark Robinson Holland with Jack Griffin and Karolina Stefanski, PhD. ILLUSTRATIONS: Mark Robinson Holland FRONT COVER: Evidence Photo, 1997, NZ Police Museum Archives REAR COVER: Author at RNZYS with Cup, April 5, 2023. Photo - Mark Robinson Holland

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America's Cup [Ə-mer-Ə-kƏ’s ‘kƏp]

NOUN DEFINITION an international yachting race for a perpetual challenge cup originally won by the yacht AMERICA in a race around the Isle of Wight at the Royal Yacht Squadron’s 1851 regatta, and now held every three to four years.

at·tack [əˈtak]

VERB attack (present tense) take aggressive action against something aggressively in an attempt to destroy.

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Table of Contents Introduction - 6 A Few Words - 7 Prologue - 8 Part One – Attack on the Cup -12 1. 2. 3. 4. 5. 6.

The Attack -12 Conspiracy Gone Wrong - 19 The Trial - 24 The Sentencing - 26 The Appeal - 28 Worldwide Reaction to the Attack - 32

Part Two - Damages, Repairs and Restoration of the Damaged America’s Cup 7. 8. 9. 10.

Damages to the Cup - 35 Damages to the Display Case - 41 Repairs - 43 Cup gets a new Secure Home - 60

Part Three – Official Record (annotated) 11. 12. 13. 14.

The Trial transcript - 66 The Sentencing Notes - 119 The Appeal Record – 126 Was Justice Done? - 135

Appendix A-1 A-2 A-3 A-4

Text of Treaty of WAITANGI - 139 Declaration of Independence of N.Z. Biographies – 142 Acknowledgements and Credits - 144

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Introduction What you are about to read is a true account of the events of March 1997 that resulted in the near destruction of the then-149-year-old 1848 sterling silver ewer now known as “America’s Cup.” But, as you will also read, events even longer ago had significant influence on the attack: on October 28, 1835 the Declaration of Independence of the Northern Tribes of New Zealand was signed, and on February 6, 1840 the British Government agreed to the Treaty of Waitangi. In Attack on the Cup, you will read about the trophy itself, but also about symbolism – what the Cup represents to the sailing community and what the Cup may represent to other factions. You will learn about passion, hatred, protest, dedication, perceived racism, endurance, fear, and how rights and wrongs are rationalized and eventually how they are treated by the Courts Systems. In writing Attack, I have attempted to remain neutral. As an America’s Cup historian and researcher, my initial desire was to collect and fully document the event specifically apropos the Cup itself. In 2023, I travelled to Auckland to meet with many wonderful folks associated with the NZ Court System, the Auckland Police Department, the NZ Police Museum Archives and the National Archives and the Royal New Zealand Yacht Squadron. What I concluded was that this story is both simple – a horrible assault on a priceless trophy, its restoration and its future – and complicated – that the attacker felt so strongly about his beliefs that he could channel such evil in the hope of attracting attention to a cause. Attack on the Cup is not intended to refire emotions but rather to lay out for history the events beginning in March 1997, and, as with the entire Compendium Series, make sure the facts are not lost in time. MRH 7

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A Few Words It is said to be the most elusive prize in international sports. Since its presentation on August 22, 1851, this Sterling silver trophy has been fought for 36 times. Now known simply as America’s Cup, this 134-ounce bottomless ewer has been sought after by such sailing legends as Sir Thomas Lipton, William Vanderbilt, F. Malcom Forbes, J. P. Morgan, Dennis Conner, Bill Koch, Alan Bond and Baron Marcel Bich. But regardless of who competes for the Cup, America’s Cup always is officially held by the winner’s yacht club. For 126 years – from 1857 to 1983, the Cup was safely held “in trust” by the venerable New York Yacht Club, until it was claimed by Australia’s Royal Perth Yacht Club. Later, the Cup returned to the USA in the hands of the San Diego Yacht Club, but eventually was won by the sailors of the Royal New Zealand Yacht Squadron, who proudly had it on display at their clubhouse in Auckland, New Zealand in 1997. And that is where this book begins. Attack on the Cup is a carefully-researched compilation of the events that occurred in 1997, including never-before published police evidence photographs, broadcast and printed news coverage from the day, the actual witness testimony at trial, plus the official sentencing and appeals documents, and finishes with the painstaking restoration of the Cup by the silversmith craftsmen at R. Garrard & Co. in London, all presented in detail. Attack on the Cup is an excerpt from America’s Cup Compendium – the most complete reference work on the history of the races. Compendium includes detailed race results for the final AC match races plus the preliminary and elimination races of the Pell Cup, Citizen’s Cup, Louis Vuitton Cup, Prada Cups, updated to also report the 2024 America’s Cup Preliminary, Women’s Teams, Youth Teams and many others. Compendium also presents the entire litany of racing rules from 1851 to 2024, a comprehensive listing of the yachtsmen who competed, the complete text of the Deeds of Gift and the many court orders and decisions. There are complete details on all of the many yachts – whether they sailed or not – and information on each of the supporting yacht clubs. Available

online at WWW.AMERICASCUPCOMPENDIUM.COM

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Prologue Garrard’s 1848 Ewer In the second half of 1848, one of their regular customers, Royal Yacht Squadron (RYS) member Henry William Paget, 1st Marquess of Anglesey, took fancy to a stock Sterling ewer “of little artistic and no functional value” that was on display in the Panton Street jewelers’ shop run by brothers Robert and Sebastian Garrard, R & S Garrard and Co. in London. The 26 5/8-inch-tall ewer was part of a group of six pieces of similar design made by Garrard from 1848 to 1856. Paget purchased the 134-ounce silver piece “off the shelf” for approximately £100 1 and soon donated it to the RYS for the Club to use as a future prize 2 – in spite of the fact that Garrard’s 1848 Ewer did not bear any obvious nautical or seafaring design details and didn’t even have a bottom. The trophy became the (as yet un-awarded) “Royal Yacht Squadron Cup” until May 9, 1851 when it was designated in the minutes as “the Cup given by the RYS to be sailed for by yachts of all nations,” or “the Cup of One Hundred Sovereigns.” When awarded on August 22, 1851, to the winners of the race around the Isle of Wight held in conjunction with the RYS Regatta during the 1851 Great Exposition in London, the Cup had no engravings, and only bore the Garrard “maker’s hallmarks.” At some point after May 1852, back in the United States, it was (mistakenly) inscribed as the “100 Guinea Cup.”3

1 (US$525) [£15,229/$20,276 in 2023].

2 Reports over time had incorrectly suggested that the RYS commissioned the ewer,

or that Paget purchased it as a prize for any particular event.

3 At the time of the event, the prize was advertised as the “Cup of £100” (with “£”

or “pound” equal to 20 shillings (100 x 20 = 2000 shillings); but a “guinea” was worth 21 shillings (100 x 21 = 2100 shillings) and hadn’t actually even been in use as currency since 18133 (prior 38 years).

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On July 8, 1857 after several years of delay, the George L. Schuyler syndicate (consisting of Schuyler, John Cox Stevens, Edwin A. Stevens, Hamilton Wilkes, and J. Beekman Finley) formally presented the Cup to the New York Yacht Club (NYYC) along with a Deed of Gift, outlining the terms and conditions of competition for the Cup – that it be a “perpetual Challenge Cup for the friendly competition between nations.” In legal terms, it is simply “The Cup,” in as much as that is the only reference in its Deed of Gift 4. NYYC conducted several defenses of the Cup from 1870 to 1881, officially referring to the ewer as the Queen’s Cup. •

•

NYYC held the First Defense of the Queen’s Cup on Monday, August 8, 1870. The Race was won (1:0) by yacht Magic (NYYC), against challenger yacht Cambria (RTYC) and 13 NYYC competitors who finished, seven who did not finish the race, and one yacht who was disqualified. NYYC retained the Cup as Trustee. NYYC held a 5-race Second Defense of the Queen’s Cup on October 16, to October 24, 1871. The Regatta was won (4:1) by yacht Columbia (NYYC), against challenger yacht Livonia (RHYC). NYYC retained the Cup as Trustee. NYYC held a 2-race Third Defense of the Queen’s Cup on August 11, to August 12, 1876. The Regatta was won (2:0) by yacht Madeleine (NYYC), against challenger yacht Countess of Dufferin (RCYC). NYYC retained the Cup as Trustee. NYYC held a 2-race Fourth Defense of the Queen’s Cup on November 9, to November 10, 1881. The Regatta was won (2:0) by yacht Mischief (NYYC), against challenger yacht Atalanta (BQYC). NYYC retained the Cup as Trustee.

But it never should have been referred to as “The Queen’s Cup;” Her Majesty’s Cup was a separate trophy altogether. The naming mistake was likely due to a lapsus linguae (“slip of the tongue”) of 4

The Cup was conveyed to the New York Yacht Club on July 8, 1857 by means of a Deed of Gift. (for further information, please see The Deed in Compendium).

------------------------- ATTACK on the CUP ------------------------Commodore Stevens during his speech at the elaborate October 1851 dinner following their triumphal return to the States: “In the race for the Queen’s Cup, there were, I think, seventeen entries, most of which, I believe started.” Steven’s yacht “America” had been initially entered to race for The Queen’s Cup of the Royal Victoria Yacht Squadron at Ryde on the Isle of Wight, just across from Portsmouth, but did not start due to insufficient winds. To add to the confusion, the route around the Isle of Wight was commonly known as “The Queen’s Course.” And, that other trophy was donated by Queen Victoria, but to the competing Royal VICTORIA Yacht Squadron, and it had already been awarded in a different regatta four days earlier than the RYS race, having been won by Bacchante (Mr. B. H. Jones). 5 But even the venerable New York Yacht Club that held the Cup for 132 years, incorrectly referred to the Cup’s defense races as “The Queen’s Cup” up through 1881. 6,7 But by then, it was had become commonly known as “The America’s Cup” (in honor of Steven’s YACHT AMERICA, which handily first won the Cup, and not the country of the United States of America, as some believe). [To be totally correct, it should most correctly be referred to as just “America’s Cup” [i.e., belonging to the Yacht “America”] not “The America’s Cup.” We therefore use the term “America’s Cup” throughout, except when citing quotes exactly as originally written.] Under the Deed of Gift, The Cup transfers to the Yacht Club 5

Interestingly, that cup was correctly “a 100-guinea prize,” but it had been restricted to R.V.Y.S. 50–100-ton Cutters. 6 There is a separate trophy correctly named “The Queen’s Cup” which is awarded by the New York Yacht Club during its Annual Squadron Cruise. The Cup was presented to the NYYC by Queen Elizabeth II in July 1953, however it has no connection to America’s Cup. 7 The earliest referral to the name “America’s Cup” was in the Newport Daily News on Oct. 20, 1871 [https://newspaperarchive.com/newport-daily-news-oct-20-1871p-3/].

------------------------- ATTACK on the CUP ------------------------sponsoring the winning challenger, not the owners or sailors of the winning yacht. And that Club maintains possession as “Trustee of the Deed of Gift.” Since the passing of the last of the original grantors, all interpretations and legal questions regarding the Cup or the Deed can only be heard by the Supreme Court of the State of New York. As the winners of the Cup are only Trustees of the original deeded Cup, it could never be referred to or renamed as The New Zealand Cup or The Australia’s Cup. There have only been seven (7) trustees (6 Yacht Clubs) of the Cup since its inception. And “The Auld Mug” is not correctly America’s Cup, but rather properly applies to the Calcutta Cup, the rugby trophy contested by Scotland and England since 1879, although the term “Old Mug” had been used by Sir Thomas Lipton often during his quest for the Cup. Prior to the opening in January, 1901 of the New York Yacht Club (NYYC) clubhouse on W 44th Street in New York (and from time-to time thereafter), the Cup was kept in the vault or in a secure display case at the original Tiffany & Co. store at 15 Union Square, New York City. The Cup was in the possession of the NYYC from 8 July 1857 until 27 September 1983 – a total of 45,614 days or 126.22 years – the longest successful defense of a sporting trophy in history. But on that day, it was transferred to the Royal Perth Yacht Club of Western Australia after a win by its 12-metre yacht “Australia.” America’s Cup returned to the United States on 4 February 1987 after a 3-year, 4-month stay in Australia, when it was won back by Dennis Conner sailing for the San Diego Yacht Club where it remained for 8-years 2-months. While in San Diego, the Cup was displayed in a custom-built octangular, alarmed, oak and 12mm armor-plated glass, free-standing cabinet. The Cup was transferred to Royal New Zealand Yacht Squadron (RNZYS) on Monday, May 16, 1995 in a 40-minute outdoor 12

------------------------- ATTACK on the CUP ------------------------ceremony held at the San Diego Yacht Club following a win by “Black Magic.” It was to be only the second time the Cup had left American hands. Before leaving for Auckland, the RNZYS contingent made a pilgrimage stop to the New York Yacht Club in New York City, and then on May 18, 1995, made an appearance at the New Zealand Embassy, Washington, DC. This marked only the second time in its history that the Cup had been in Washington. The group then boarded a chartered Air New Zealand B767-300 (Tail ZK-NC1) (Flight NZ1032) to Auckland. The Cup was secured in a first-class seat of “custom red upholstery, provided by Flight Interiors, Ltd.” of Papakura NZ) The Royal New Zealand Yacht Squadron displayed the Cup in the second floor Members Lounge at their headquarters at 181 Westhaven Drive, Auckland, New Zealand 1011 [GPS -36.835583, 174.745787). The Cup was contained in the same “custom-built glass enclosure” (equipped with an ultra-sonic alarm) that had been used by and purchased from the San Diego Yacht Club during their previous possession. Until 10:30 A.M. on Friday, March 14, 1997.

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Part One 1

Attack on the Cup March 14, 1997 At 10:30 A.M. Friday, March 14, 1997, while in the possession of the Royal New Zealand Yacht Squadron at their 181 Westhaven Drive clubhouse in Auckland, New Zealand, America’s Cup was severely vandalized. A 27-year-old Benjamin Peri Nathan, (name later changed to Penehamine Netana-Patuawa)8, of Manurewa, South Auckland, New Zealand who was described as a Māori 9-language student at Auckland’s Manukau Polytechnic, arrived in the Mercedes taxi driven by Rachael Willmot. He initially told Ms. Willmot that he Benjamin Nathan Booking Photo (courtesy was a reporter for the suburban NZ Police) newspaper Manukau Courier, 10 until she said her husband worked for the same paper. He changed his story, stating he was “in a Manukau Polytech course, and he was on a field trip,” she said, ”But I didn’t see a camera and I thought he was strange.” Nathan was dressed in a business suit, collared shirt and tie and carried a blue shoulder canvas bag; had shoulder-length hair, a bushy mustache and the unshaven start of a beard. 8 And then later to Moemoea Mohoawhenua.

9 The Māori People are an indigenous community of New Zealand.

10 Suburban Newspapers Auckland editor-in-chief Pat Booth said that the man had never worked for the group.

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RNZYS Commodore John Heise said the man came to the reception desk and politely asked if he could view America’s Cup and was shown upstairs by a visiting club official to the trophy room 11 (Members Lounge) where there were at least four Squadron officials present. “We always let people see the Cup,” he said. “The man was dressed in a business suit, so we let him go upstairs where there were four other people in the room.” The Cup was not under 24-hour guard, although it did have a regular custodian – Team New Zealand Security Chief Constable Geoff Smith, a former Police Sergeant from Pleasant Point, NZ. It was, however, surrounded by 12mm armor-plated glass and had an ultra-sound barrier alarm. The case had been purchased by the RNZYS from the San Diego Yacht Club in 1995 where it had previously been used to display the Cup from 1987 to 1995. Inspector John Dewar of Auckland police said that “after entering the display room, Nathan extracted a short-handled (~60-cm/~24inch) sledgehammer from his bag and immediately attacked the armor-plated glass case about 20 times, puncturing it in several places. Nathan reached in and unsuccessfully attempted to remove the Cup from the case (its wood base was larger than the hole in the damaged glass and would not fit through) and then attacked the Cup itself with the hammer some 15 additional times, striking mainly the bulbous center section of the Cup with some blows to the upper neck causing the extensive damage. He then took off his jacket, tie and collared shirt 12 and, wearing a tee shirt bearing slogans of the (seven-member) activist Tino Rangatiratanga Liberation Organization (TRLO), he started chanting in the Māori language, claiming he was acting in the cause of a Māori activist group seeking the establishment of an independent Māori state.” https://reuters.screenocean.com/record/994720 11 The RNZYS facility has been reconfigured since, and the trophies are no longer in

this area.

12 Police crime scene technicians collected six (6) white shirt buttons scattered

across the floor from the violent ripping-off of the shirt.

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Sledgehammer – as Trial Exhibit 12 - used by Nathan to attack America's Cup on 14 March 1997 - Photo courtesy of NZ Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa and used by permission.

The alarm reportedly worked, but the case was not strong enough to withstand the severity of approximately 35 blows with the sledgehammer, puncturing a single small hole through the glass on one panel and a much larger, irregular gap in another of the reinforced glass panels. Harold Bennett, a well-respected New Zealand sailing coach was in the room and said the hit on the Cup was “pretty quick. I didn’t take much notice of him ‘till I saw him launch at the case with a sledgehammer. He continued to belt a hole in the side of the case. He tried to pull (the Cup) out and got it halfway, and then he had another go – at the Cup.” Staff member Mary Grant said “You hear about bank raids, and you know this isn’t the time to be a hero. I was very, very scared.” Later at trial, she expressed that she “honestly thought that Mr. Nathan was going to attack those in the room with the sledgehammer.” “She cried. She was terrified. She hid behind the photocopier in the room for about five minutes before she was finally escorted out,” according to the prosecutor. None of the other four people in the room attempted to stop Nathan until he stopped the attack. During the act, in a mixture of Māori and English, he exclaimed words to the effect of "This is Māori land you white bastards," and that New Zealand did not belong to them. 16

------------------------- ATTACK on the CUP ------------------------Bennett escaped the trophy room and went downstairs to summon assistance and call the police.

Crime Scene Evidence Photograph of RNZYS as it appeared the afternoon of 14 March 1997, showing display case & America's Cup. Also shown are Nathan's jacket (Trial Exhibit 10), blue dress shirt (Trial Exhibit 11), and tie (Trial Exhibit 13). Photo courtesy of NZ Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa and used with permission.

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Crime Scene Photo No. 21 courtesy of Collection of the New Zealand Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa and used with permission.

------------------------- ATTACK on the CUP ------------------------Cut on the thumb by glass during the attack, but otherwise uninjured, and kneeling on the floor in the broken glass, he was surrounded and subdued by local workmen who had been working outside and held for authorities. When police arrived, according to the Court of Appeal, he had laid the sledgehammer on the floor, and offered no resistance to his arrest. Nathan was booked and held at Auckland Central police station [Cook Street & Vincent Street, Auckland 1010, NZ GPS Lat.36.8520637, Long. 174.7604348] pending appearance at Auckland District Court [65-69 Albert Street Auckland 0000 GPS Lat. 36.847490, Long. 174.763783] scheduled for Saturday morning, March 15, 1997. Areas of dried blood were reported on the Cup by Garrard’s personnel during restoration. The display case was surrounded by a perimeter of white ropes and stanchions. Ironically, Nathan stayed beyond the ropes during his attack on the Cup. Defense attorney Lorraine Smith told The Associated Press her client was “greatly moved and motivated by the words of Theodore Roosevelt.″ “After he had broken into the cabinet and finished the attack, he knelt down and laid this text among the broken glass,″ Smith said. “I believe it’s from a letter which President Theodore Roosevelt wrote to Sir Winston Churchill,″ she said. 13 The text on the blood-spattered copy read: “It’s not the critics who count, nor the man who points out how the strong men stumbled, or where the doer of deeds could have done better.

13 It was not. The text was part of a long speech given in Sorbonne, France on April

23, 1910. It is, however, correctly attributed to Theodore Roosevelt.

------------------------- ATTACK on the CUP ------------------------The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows great enthusiasm, great devotion and spends himself in a worthy cause. Who, at the best, knows the triumph of high achievement and who, at the worst, if he fails, at least failed while daring great things. So his place will never be with those cold, timid souls who know neither victory nor defeat.″ She said Nathan’s actions were a valid political protest in the tradition of Māori Chief Hone Heke, who chopped down the pole flying the British flag at the national meeting grounds at Waitangi three times in the last century. Nathan claimed through his lawyer he had carried out a “political act″ against white occupation of New Zealand in attacking America’s Cup. [AP March 16, 1997] 14 But there was no question that it was Nathan who had inflicted the attack on the Cup – he was caught red-handed on film by a freelance photographer, Richard Paul Hare, who was at Westhaven Marina testing a new lens.

“You see, my intention was not to hurt or frighten anyone - it was solely to destroy the America’s Cup which is a symbol of everything I despise.” Benjamin Nathan Trial Testimony 14

https://apnews.com/article/ec424a5080e66c1b27f080ad3025798f.

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Conspiracy Gone Wrong The plan was to demolish the Cup – and it was pre-planned. It was a conspiracy. On Thursday, March 13, 1997 - the day before the attack - Nathan and three other “students at Manukau Technical Institute conceived the idea of destroying America’s Cup as a symbol of protest.” They visited the Yacht Squadron Building to check out the security arrangements for the protection of the Cup. The main priority of this surveillance was to evolve a plan which would involve damage to the Cup, but in a way that did not injure any member of the public or any person connected with the security of the Cup. When they carried out that surveillance and went into the room in which the Cup was situated, there were no guards or officials present. That made them confident that they could carry out the plan without harming any person. Four of the group had originally planned to meet at the Institute and to participate in the attack. When Mr. Nathan arrived at the Institute in the morning there was, however, only one other conspirator present - and he was the person whose job it was to send faxes to the media. [Nathan] felt that he was committed to go through with the plan and when he got to the Yacht Squadron he found, contrary to his expectation, that some people were present in the room where the Cup was on display.” 15 But Nathan was not a lone actor: at 13:06 PM, several hours after he was in police custody, a fax warning: “Our first act of defiance will be the destruction of a national monument of great significance,” and which accused the Government of the “illegal occupation of our country” was sent to media outlets. The Manukau Institute of Technology [est. 1970; 20 Newbury Street, Auckland 2023 NZ GPS Lat. -36.959679, Long. 174.872051] cited protection under the NZ Privacy Act that prevented them from 15 Court of Appeal Judgement December 15, 1997.

------------------------- ATTACK on the CUP ------------------------releasing the names of students, but police sources indicate that the man was believed to be another Māori language student at the Institute, and that the facsimile was sent out on the Institute’s student association’s facsimile line: TINO RANGATIRATANGA LIBERATION ORGANISATION This letter is to inform the “government” of this country, that from today onwards we shall commence actions against it, for it’s (sic) continued illegal occupation of our country. Our first act of defiance will be the destruction of a national monument of great significance. Political Objective: Establishment of an independent Māori race by whatever means is necessary. With our own form of parliament, armed forces (army and police) justice system etc…. Where we will have total control over our destinies and live according to our own beliefs, principals and culture, Signed, Peneamine Pere Patuwawa Founder of T.R.L.O.

The group, Tino Rangatiratanga Liberation Organization [TRLO], a political organization whose stated goal was “to establish a Māori state by whatever means is necessary,” and accused the Government of “illegal occupation of our country,” claimed responsibility for the attack. The fax was signed by the group’s founder Peneamine Pere Patuwawa. 16 Auckland Police spokeswoman Joanne Gibbs said the group was unknown before the incident.

16 Translates as “time to strike.”

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Trial Exhibit 22 – Tee shirt bearing TRLO slogan worn by Nathan. Photo courtesy of NZ Police.

------------------------- ATTACK on the CUP ------------------------When arrested, Nathan had in his pocket a membership form to the TRLO which said that members should not sign up unless they were prepared to take the risk of imprisonment or death for their cause.

Trial Exhibit 14 - TRLO Membership Card signed by Nathan – (NZ Police Photo)

At the time of his arrest, Nathan had half-finished Tā moko (traditional Māori) tattoos on his arms, but more prominent was the homemade, clearly English, HATE inked on his knuckles. 17 The night of his arrest, Nathan was visited in his cell by the Security Intelligence Service (Te Pā Whakamarumaru, New Zealand’s national security group), but according to his attorney, Nathan refused to talk to them about TRLO activities. Nathan’s first court appearance had been scheduled for early on Saturday, March 15, 1997, but it was delayed for an interesting reason. The prosecutors and police could not determine exactly who owned America’s Cup and therefore who the injured party was. (Under the DEED OF GIFT, the New York Yacht Club was the legal recipient as first trustee of the Cup when it was first deeded from the America Syndicate members in 1857 but more recently, 17 This is how it was reported in the press, however, there is some rationale to

believe the knuckle tattoo may have actually read “HONE” and “HEKE.”

------------------------- ATTACK on the CUP ------------------------Royal Perth Yacht Club in Australia became the second trustee in 1983, followed by San Diego Yacht Club in 1987 as the third trustee, then finally the Royal New Zealand Yacht Squadron in 1995 as the fourth trustee. It was finally agreed that, for the purposes at hand, RNZYS was technically responsible for the Cup at the time.) The damaged Cup was placed in a downtown Auckland bank vault awaiting additional forensic tests before being sent to London for repairs. The RNZYS downstairs notice board bore a sign that simply read “The America’s Cup is not on the premises.” After the attack in Auckland, and unsure of the extent of the TRLO movement, the Ranfurly Shield (rugby), the Bledisloe Cup and TriNations Cup, that had been in accessible glass cases at the New Zealand Rugby Football headquarters at Eden Park, were relocated to a vault until the security threat could be assessed. Nathan’s first appearance in Auckland District Court was later in the day on March 15, 1997, at which time he was charged with CRN 97004017053 – Willful Damage 18 (“damage with criminal intent”) which carried a maximum sentence of five years in prison under the Crimes Act (§298)4, and CRN 97004017054 – Entering with Intent19 (“unlawfully entering the Royal New Yacht Squadron Headquarters with intent to commit a crime.”) which carried a term not exceeding 10 years in prison. Nathan’s lawyer, Lorraine Smith, said at the time that he would deny the charges, however Nathan did not enter a plea at the hearing. Smith opposed a proposed psychiatric hearing for her client, saying “This was a political act done for political reasons. If psychiatric reports are to be asked for political reasons, 18 298 Willful damage Section 298 was subsequently repealed on 1 October 2003,

by Section 15 of the Crimes Amendment Act 2003 (2003 No 39).

19 “1 October 2003, by section 15 of the Crimes Amendment Act 2003 (2003 No

39). 231. Burglary (1) Every one (sic) commits burglary and is liable to imprisonment for a term not exceeding 10 years who—(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or (b) having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.”

------------------------- ATTACK on the CUP ------------------------then half of the politicians would be in serious trouble. Actions of mainstream politicians are not subject to psychiatric scrutiny.” The New Zealand Herald later quoted a psychiatrist who said he had treated Nathan in 1996 as saying “he had a talent for writing but had problems keeping things in perspective.” Justice of the Peace Barry Barnes accepted Smith’s comments, withdrew the order for a psychiatric hearing but had Nathan remanded until a pre-disposition hearing April 18 on his failure to appear in Dargaville District Court the previous month on a charge of unlawfully getting into a vehicle (auto theft). Release on bail was not sought. At the hearing April 18, 1997, he was held without bail on the unrelated failure to appear on the auto theft charge and was remanded into custody. During his arraignment hearing on May 28 in Auckland District Court, Nathan merely shook his head. On June 2, Nathan was back in court for a brief appearance. At a June 19 hearing, an early September trial date was set.

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The Trial

The 3-day trial (T146/97) began on September 1, 1997 with Judge Barry Neil Morris presiding. The single charge at trial was one count of willful damage (CRN 97004017053) to wit "that on or about 14 March 1997 at Auckland, Benjamin Peri Nathan willfully damaged a sporting trophy," to which Nathan pled not guilty. In his opening statement, Prosecutor Kieran Raftery maintained that Nathan “attacked the Cup as a “blatant political act” and knew clearly that he was breaking the law. “It (the Cup) represented all that he objected to, and I don’t think for a moment that he would wish to get away from it.” Raftery continued “There is not one law for Pakeha (white New Zealander) and one for Māori. There is a law for all New Zealanders. But, strip ‘Pakeha’ out - there is one law that binds all New Zealanders and that law says you must not damage other people’s property.” He went up the stairs and smashed a hole in the display case and set upon the Cup “with enthusiasm and vigor.” The prosecutor noted that “there were other people in the room who did not attempt to restrain him because of the ferocity of the attack.” Defense attorney Lorraine Smith said in her opening that “there was a disgusting history attached to that gaudy piece of silver. Awe, honor and respect are not qualities to associate with…America’s Cup.” The police case, according to Prosecutor Senior Sergeant Neil Adams, involved 12 21 witnesses and 29 exhibits. Nathan, on the stand for three hours, acknowledged that he was a terrorist in many eyes, but used his trial to air his sovereignty beliefs, stating he felt a moral and legal right to attack the Cup under the Treaty of

20 This is a summary, but the complete transcripts of the Trial appear below. 21 Plus prior testimony of one witness read into record.

------------------------- ATTACK on the CUP ------------------------Waitangi 22 and the Declaration of Independence. Prosecutor Raftery scoffed at the suggestion. “The attack was a simple piece of political vandalism.” Two days into the trial, and after saying to witnesses that “the case could be the trial of the century and would redefine law in New Zealand,” Smith found herself without a cogent argument, and the Court held a hearing outside the presence of the jury. The defense was attempting to put forward the notion that Nathan’s actions were acceptable because he felt they were justified [“color of right.”] “It [is] my ruling that the §2 defence of colour of right is not available when the mistake of fact or any matter of law is based on the belief that the justification of the act is against the very provisions of the enactment against which the offence is alleged. In short, the colour of right defence set out here, that is in this case, is based on the Accused's belief that his act which he claimed is justifiable under Māori law overrides the provisions and the specific provisions of §298 of the Crimes Act 1961.” “There is room for Māori customary law where such customary law can co-exist with the general provisions of the New Zealand Crimes Act, but where the provisions of Māori customary law conflict with or are contrary to the provisions of the New Zealand criminal law they cannot override the legislation itself.” “'It is to be desirable, surely, that there is one set of rules regulating criminal acts in New Zealand which binds everyone”. [Judge Morris outside of presence of Jury]

22 The Treaty of Waitangi was signed in 1840 and was an agreement between the

British Crown and a large number of Māori chiefs. Today the Treaty is widely accepted to be a constitutional document that establishes and guides the relationship between the Crown in New Zealand (embodied by the government) and Māori. Copies are included in the Appendix.

------------------------- ATTACK on the CUP ------------------------In her summary, Smith invoked mens rea 23 and claimed Nathan’s actions were justified because he believed they were. “He believed he had a moral and legal right to attack it under the Treaty of Waitangi and the Declaration of Independence.” Judge Morris instructed the jury that under common law, that argument fails. The jury of five women and seven men took only one hour to convict.

The Sentencing

Nathan was no stranger to the police. He gave himself up in April 1996, a week after trying to rob an ASB bank branch while pretending to have a gun - he had given the teller a note which read “do exactly as I tell you or I will have to kill you.” The bank’s security measures foiled the attempted robbery and Nathan left the bank. He also admitted robbing a 51-year-old female shop worker of $60 five years earlier in 1991 with a butcher’s knife. In July 1996, Nathan was given a 12-month suspended sentence for the bank robbery, plus two years’ supervision, but after only four months he was out of compliance. In April 1997, one month after the attack on the Cup, and while in custody, High Court Justice Dame Sian Elias re-sentenced him to 18 months imprisonment. Judge Elias gagordered any information on the re-sentencing until after the Cup attack trial was complete. In sentencing for the attack on the Cup on September 11, 1997, Judge Barry N. Morris noted that Nathan was five months into the 18-month term, and the following month he would otherwise be eligible for parole consideration. With the impending new sentence, early release eligibility would not occur until September

23 State of mind. Knowledge that wrongdoing constitutes part of a crime.

24 This is a summary, but the complete Sentencing Notes of Judge Barry N. Morris

appear below.

------------------------- ATTACK on the CUP ------------------------1998 and the release date (two-thirds of the combined sentence) would then be February 2000. But Judge Morris also said that the 150-year-old “America’s Cup was not a mere bauble. It represented the best efforts of a New Zealand team of men and women,” and then added that the “Crown had no doubt that Nathan acted sincerely, although that sincerity had no legal standing.” He noted that the defendant had a 12-year history of court appearances which included 16 convictions. “Imprisonment is my only option to show a distaste for what you have done. I do not show a distaste for your sincerely held views, but to vent them in this way is a recipe for chaos.” At the time of sentencing Nathan expressed no regrets, except to apologize for frightening those in the room at the time of the Cup attack. (Later, however, in February 2000, Nathan said “My only regret was that I didn’t chop it up with an axe.”) None of the TRLO four co-conspirators were ever indicted or charged in the attack on America’s Cup. No restitution was ever sought. During sentencing Judge Morris noted that this was the 17th occasion Nathan had appeared in court for sentencing on various charges, and this was “not in keeping with a single act by a person holding deep convictions on a particular protest issue.” He was sentenced to 2 years 10 months jail in addition to the separate 18month term he had received in April for aggravated robbery. Nathan, now bearing a new eagle tattoo on his face, threatened prosecutor Kieran Raftery as he was led from court: “Let’s see who gets the last laugh, Raftery.” Nathan, the third child of five and a 1980 high school dropout, testified that he had lived in Papakura with his Irish-English mother Elizabeth, and his Ngati Whatua-Ngapuhi father, Raco Nathan, until he was five. He later lived with his father’s family in Kaihu, 25 km

------------------------- ATTACK on the CUP ------------------------north of Dargaville where he “was exposed to injustice of poor Māori farming Pakeha lands that had been stolen from them.

My only regret was that I didn’t chop it up with an axe.” Defendant

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The Appeal

On December 10, 1997 attorneys for Nathan appeared in the Court of Appeal of New Zealand [Queen vs. Benjamin Peri Nathan CA386/97] coram 26 nobis to appeal the severity of the sentence (appeal of the conviction was withdrawn and dismissed), imposed on September 11, 1997 by Judge Neil Morris in Auckland District Court. The sentence of 2 years 10 months imprisonment was to have been served after the completion of the 18-month imprisonment separately imposed on April 9, 1997 for earlier offenses. Counsel for Nathan, P. A. Williams, explained to the Court that Nathan “now takes the view that what he did was wrong and that he must be punished for what he did.” The grounds for appeal contended that the sentence was excessive in itself and cumulative. Nathan stated that the attack was against the Cup – intending no harm to any person and expressing regret for causing emotional harm to those present. Government’s Counsel Simon Peter France submitted that this was “a significant offence within the type of willful damage falling within §298(4) of the Crimes Act where the category carries a maximum penalty of five years: 1. The amount of the damage caused was substantial, and that Nathan had intended to destroy the Cup; 2. The value of the damage was large. Originally estimated at £20,000 plus the associated cost of transport to England and back and the construction of a new glass case;

25 This is a summary, but the complete text of The Queen v Benjamin Peri Nathan

Judgement of the Court CA 386/97 appears in its entirety below.

26 Judges P. Richardson, J. Keith and J. Blanchard.

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The offense was premeditated and aimed at property - the destruction of which would bring embarrassment to New Zealand.

But according to his attorney, Nathan’s main reasons why the group “decided to damage the America’s Cup were as follows: a) b)

As a protest on behalf of Māori against the non-recognition or non-plenary recognition of the terms of the Treaty of Waitangi. A protest on behalf of all New Zealanders against the policy of the Government in selling New Zealand assets to foreigners.”

Nathan also said that he had personal reasons relating more specifically to the Cup: a) The New Zealand Yacht Squadron did not consult all the appropriate Māori people in their preparation for the America’s Cup, particularly in regard to water rights. Nathan said that while Tainui was consulted, his tribe, Ngati Whatua, which had relevant ancestral rights, was not consulted. b) That the America’s Cup represents greed and ideas of the rich getting richer, and the poor getting poorer, and c) In disgust at the actions of the Auckland City Council in selling off housing at Freemans Bay, which was being used by a cross-section of the people for their homes, and planning to use the money that would be realized by the sale of these houses, in providing facilities for the America’s Cup, which is a rich boy’s playground. The Court of Appeals wrote “There is no dispute that a sentence of imprisonment had to be imposed. This was a serious offence of its type. For the reasons which Mr. France emphasized relating to the damage and the wider consequences of the offence, we agree that the law must take a firm hand. We agree also with his contention that those reasons, along with Mr. Nathan’s earlier record, meant that an additional period of imprisonment had to be imposed. 33

------------------------- ATTACK on the CUP ------------------------Where we differ from the sentencing Judge is in the extent of that addition.” “What is common to the two cases, however, is the mitigating impact of motivation. We are not saying that those who wish to make public protests for what they see as compelling reasons are free to act outside the law. They are not. Indeed, the appellant by his withdrawing of his appeal against conviction now accepts that. But the underlying motivation in this case is not one of destruction for the mere sake of destruction.” “The appellant was demonstrating and advertising what he felt was a moral viewpoint.” “Accordingly, the appeal against sentence is allowed. The sentence of two years 10 months imprisonment is quashed and a sentence of imprisonment of one year, cumulative on the sentence of 18 months, is substituted. Solicitors Crown Law Office, Wellington” The sledgehammer, shown in photo above, was not returned to Nathan. It was later destroyed by the authorities. Nathan later twice attempted to sell memobilia (2016 and 2021), such as the tee-shirt from the attack on a New Zealand online auction site (TradeMe). Also offered was a printed copy of the Roosevelt quotation and the American quarter which was given to him when he paid the taxi driver and she accidently gave him the American coin instead of a NZ twenty-cent coin. “It was the very first time (Nathan) had ever been in contact with American money so he saw it as a direct sign that Providence was with him,” said his appeal attorney. The auction had a starting price of $10,000 and a Buy Now of $25,000. There were no bids received and the site soon took down the listings. Sir Graham Latimer, chairman of the New Zealand Māori Council, an official organization, said he was called by many Māori who deplored the vandalism and wanted to help pay for repairing the 34

------------------------- ATTACK on the CUP ------------------------Cup. Danny Tumahi, spokesman for the local Ngati Whatua tribe (Auckland Waterfront area) said Nathan was not known to his group. As a representative of the local Maori, Tumahi appologized to the people of New Zealand for the attack, “We don’t understand such things. We are very sorry for what happened here.” Later it was reported that Nathan was assaulted in Mt. Eden Jail at least three times by Pakeha inmates who told him in no uncertain terms that “this is for what you did to our Cup.” He required medical treatment for his injuries. He was later transferred to the more secure Unit 5 at the Paremoremo Prison in Albany, Auckland. Nathan was freed from Paremoremo on April 4, 1998 on early release parole granted by The New Zealand Parole Board (Te Kawanatanga o Aotearoa), and remanded into a residential “habilitation” program operated by the Te Whanau O Waipareira Trust for the remainder of his sentence. Benjamin Peri Nathan changed his name to Penehamine NatanaPatuawa in 1998 and then to Moemoea Mohoawhenua in 2019. He ran for Kaipara mayor in 2019 and for an independent seat of Te Tai Tokerau in Northland in 2020. He lost.

In an ironic twist, Nathan reportedly took up the sport of boxing while in prison for destroying the Cup. --------While silversmith Rod Hingston at R. Garrard & Co. in London, who rebuilt and restored the Cup after the attack. was already an English champion boxer.

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Worldwide Reaction to the Attack Across the continents reaction was quick and universal in condemning the actions of the attacker. The sailing world was joined by the political sector, including many from the New Zealand Māori community in their disbelief in the act. Among the first to respond was the New York Yacht Club who had hosted the Cup for 126 years. New York Yacht Club Statement on the Damage to the America’s Cup Trophy New York, NY March 14, 1997 Commodore Robert L. James and Vice Commodore George “Dooie” M. Isdale stated on behalf of the New York Yacht Club: “When Commodore Heise of the Royal New Zealand Yacht Squadron called to inform us, we were shocked and saddened by the news of the attack on the America’s Cup Trophy. The America’s Cup trophy is the oldest trophy in competitive sport and one that sailors from this club defended for 132 27 years. We are sure the people of New Zealand are as distressed as we are about this senseless act. We know that New Zealand treasures the America’s Cup. Despite any physical damage to the Cup, we know that the values and traditions it represents will never be tarnished.” While the vandalism to the Cup itself is cause for a certain level of dismay, it is the silver ewer that is damaged, not the event, its history, or its future. The Cup is a symbol of those values of “friendly competition between nations” set out in the Deed of Gift that extablished these races in the middle of the last century. As we 27

The original winners of the Cup, the Schuyler Syndicate, were composed of members of the NYYC and held the Cup themselves from 22 August 1851 to 8 July 1857 (6 years). NYYC then held the Cup as First Trustee, from that date until it was won by Royal Perth Yacht Club on 22 September 1983 (126 years, for a total of the stated 132 years).

------------------------- ATTACK on the CUP ------------------------approach the next century, those traditions will carry forward with renewed vigor and fresh relevance throught the regatta planned by the Royal New Zealand Yacht Squadron. You can’t destroy these values with a hammer; you can’t protest against the ideals of sportsmanship or the quest for excellence.” As for the practical matters, there are a few very rare but very accurate replicas of the Cup that can be put on the pedestal to remind us of our goals in the meanwhile, and, as Commodore Heise pointed out, Garrard’s of London, the original makers of the Cup are still available to put their handiwork back in “Bristol” 28 condition.” Other remarks at the time included: “We’re appalled and disgusted and shocked that this could happen here. The Cup has been very, very badly beaten up.” -Commodore John Heise, RNZYS “All it achieved was anger and sadness. If the crew could get their hands on him right now, I wouldn’t like to be in his shoes. Hopefully the crew won’t see it like this. It’s a big part of them and it’s such a huge disappointment.” “I’m sickened and saddened.” “It’s not the people of New Zealand who have damaged this Cup, it’s just one deranged individual.” - Sir Peter Blake “We feel so very sorry for the people of New Zealand – but remember it’s just a thing…But it’s not going to affect the America’s Cup competition. We are still going to sail for it – it can be repaired.” - Vice Commodore George Isedale, NYYC “We can’t believe it’s happened…there are a lot of weird people in the world.” 28

“A phrase meaning in good and seamanlike order” Oxford Reference.

------------------------- ATTACK on the CUP ------------------------- Alan Marsh, GM of the San Diego Yacht Club [The attack was an] “absolute tragedy which we can’t understand.” - Brad Butterworth, Black Magic tactician “It was a rougue act, carried out by an individual who will face the consequences in court. We (Maori] have a great fear of those forces within Maoridom who do more damage to our cause than those on the outside.” - Matiu Rata, Labor Minister of Maori Affairs "....I feel very sorry for the Team that won the Cup and all the effort that they put into, not only for themselves for all New Zealanders." - Mary Grant, RNZYS, eyewitness to attack “We don’t understand such things. We are very sorry about what happened here.” - Danny Tumahi, spokesman for Ngati Whatua tribe, Auckland. A “cheap shot publicity stunt.” -Tau Henare, Minister of Māori affairs “I am looked upon now as a reprehensible and disgusting terrorist, as Hone Heke was. I know that when future historians judge me and my true motives I will be vindicated, as he was.” - Benjamin Peri Nathan – at his trial September 2, 1997

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Part 2 Damages, Repairs and Restoration of the Damaged America’s Cup

Damages to the Cup The result of the attack on America’s Cup was devastating. More so, perhaps, than most people ever knew or were led to believe. The photographs of the damaged trophy usually showed the Cup on its wood travel base – standing generally straight with the obvious damage to several of the prominent lobes on the upper body. At the time, America’s Cup consisted of the original 1848 Garrard trophy and the 1958 Tiffany plinth. While at the RNZYS, the Cup was displayed in a 12mm-thick armored glass case located in the center of what is called the Member’s Room on the second floor of the clubhouse, overlooking Auckland Harbor and the Auckland Harbor Bridge. In the official crime scene photos taken by the Auckland Police on March 14, 1997, however, we can now see the true aftermath.

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Crime scene photo 22 showing extent of damage to display case, America’s Cup trophy and broken glass, including additional attempt to break into case from right hand panel. Photo courtesy of NZ Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa, and used by permission

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Crime scene photo 23 showing extent of damage to display case, America’s Cup trophy and broken glass, including additional attempt to break into case from right hand panel. Photo courtesy of NZ Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa, and used by permission

------------------------- ATTACK on the CUP ------------------------In the photos shown here, we more clearly see the damage. The assailant was unable to remove the Cup from the case, despite the battering of the glass and Cup some thirty-five times. This resulted in the Cup being flipped over to a 62o downward angle, with the bottom of the 1958 plinth protruding through the ragged hole bashed in the laminated glass. Only the width of the attached wood base prevented the Cup from being taken completely from its case. The upper and lower body of the Cup became physically disconnected from the stem and its internal two-inch-long “bayonet fitting” located just above the stem – was held together at an obscene angle by only the Bolt. 29 The lobes, located on the wide upper body, in addition to receiving direct blows from the sledgehammer, were further damaged when the inverted Cup landed directly on these thin, delicate panels, denting them. As seen on the lower left, the entire cruet, spout and handle were completely separated from the Cup; the top scroll of the handle – a delicate holloware piece itself, and the finial atop the handle baluster were bent, resulting in the curve of the handle now almost touching the rim of the spout. 30 (Although straightened somewhat, the repairs described below never fully restored either the upper handle segment or the finial to their original positions.) Damages to the Cup included a broken upper casting near the spout, severe crushing damage to the large upper body section, bending of the upper scroll and finial of the handle, and a crippling of the lower stem of the 149-year-old trophy, resulting in total destruction of the lower collar and one of the lobes. (On-going wear and tear since the repair have further exacerbated the position of these delicate components to the degree that, on April 5, 2023, the distance between the handle and the rim of the 29 Seen in the photographs as the white “tube” in the center of the Cup. The

threaded Bolt was covered by a plastic-like sleeve to protect the inside of the Cup from any wear. 30 In the photos, the upper scroll is pulled away from the spout, but this is due to the bottom of the handle at the upper body being badly dented.

------------------------- ATTACK on the CUP ------------------------spout was found to be only about 3/16 inch 31.) Thus, it is apparent that in the photographs taken of the Cup after removal – and on its way to restoration – the Cup had been roughly straightened and re-stacked but was truly being supported and held together only by The Bolt.

31 From an original approximately 1 ¼” space as shown in the photos from the time

of the transfer from NYYC in 1983.

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Crime Scene Photo 24 Closeup of damaged America's Cup. Collection of the New Zealand Police Museum Te Whare Taonga o nga Pinhimana o Aotearoa. Used with permission.

Damage included one lobe and the lower body engraved collar which required complete replacement. On the cruet, the concave and the convex “plain rings” were crushed, resulting in the spout and its “larger ring” severely bending away from its “high baluster below.” 44

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The extent of damage to the Upper and Lower bodies, the cruet and of course, to the lower collar, would eventually require complete restoration of the silver and much of the historic engraving on the original Cup.

America’s Cup on arrival at Garard in London for restoration

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Damages to the Display Case The first 12 mm-thick ballistic laminated glass panel (clockwise from the access door) “G1” apparently was the first struck with the sledgehammer, according to trial testimony of eyewitnesses. Several blows at about eye level split the glass and left a circular indentation in the panel but did not fully penetrate the case. Nathan then moved to the second panel clockwise “G2”, and now striking lower on the reinforced glass, hit the case some 18 additional times. This resulted in a jagged hole – rather narrow at the top, wider at the center – and large quantity of small, laminated glass shards both inside the case and on the floor adjacent to the display. The reinforced glass held together with the exception of where the actual hole had been chopped through, creating an opening which was too small to allow the passage of the attached wood base of America’s Cup, effectively preventing its complete removal from the case. Thus, with Cup hung up on the broken remains of the panel, Nathan struck the trophy directly with the sledge. During the attempted removal of the trophy, four pieces of wood molding within the case were torn loose. Otherwise, the remaining three glass panels “G3” “G4” and “G5”, the glass and wood door and the glass and wood ceiling of the case, survived the attack.

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Hardwood top rails supporting 12mm ballistic glass panels

9 3'-516 "

Oak display case floor

12 mm ballistic glazing, silicone butt-welded at corners

Oak door with 12mm ballistic glazing Built-up Hardwood Corner Posts

Wood Display riser

(undamaged)

First and Second blows

Section A

Blows 3 to ~15 to break glass

212"

Top View

Hardwood top rails supporting 12mm ballistic glass panels

Keyed cylinder locks (3)

Wood Door w/ 12mm ballistic glazing

Smashed-out area

First and Second blows

(undamaged)

8'-812"

6'-814"

(undamaged)

Silicone butt glazing

(undamaged)

12mm Ballistic Glazing

A 12mm Ballistic Glazing

Interior display riser

Continuous Piano Hinge

Door

1'-10"

Oak Pedestal Access Panel Recessed base

Rear View (Access Door Side)

Left Side View

RNZYS America's Cup Display Case c.1997 Showing Attack-Damaged Areas 24

ALL DIMENSIONS AND DETAILS ARE APPROXIMATE AND ARE FOR REFERENCE ONLY. *NOTE: Security and Operating Components are not shown for obvious reasons

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Repairs On April 7, 1998, R. Garrard & Co. provided an album collection of original photographs, letters and data regarding the restoration to the archivist of the former Museum of Yachting in Newport RI; which is now in the IYRS (International Yacht Restoration School) Edward W. Kane and James Gublemann Maritime Library collection. The information in this section is presented with the kind permission of Garrard and IYRS. [Garrard Photos by Sarah-Vivian Prescott]

Following the March 14, 1997 assault, R. Garrard & Co. of London, known as “The Crown Jewelers Since 1843,” offered to carry out the extensive restoration of America’s Cup. Garrard was the logical choice, as the firm created the silver trophy in 1848, and as stated by Richard Jarvis, Managing Director “Garrard has a sentimental attachment to The America’s Cup, being the design of one of our founder partners.”

“We’ve been faced with many challenges over the years, but none resembles this one. If it was any other piece of silver, it would have been scrapped.”

Richard Jarvis, Managing Director Garrard

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Unpacking the Damaged Cup at Garrard

On April 10, 1997, John Heise, Commodore of RNZYS and Bill Crowley, Managing Director of Sun Alliance of New Zealand, the insurers of the Cup, escorted the trophy which was flown first class to Garrard (23 Albermarle St, London W1S 4HT UK 9, GPS. Lat: 51.510097; Long. 0.142927). The shipment, consisting of the damaged trophy and its wooden base, arrived in its leatherwrapped Louis Vuitton travel trunk. The Cup, wrapped in paper and inside its clear Perspex box, was received and unpacked by Garrard executives and craftsmen in their showroom, in front of a phalanx of cameras and reporters. The Cup still had blood on it. The base and trophy were still covered in ground glass.

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Into the Workshop Garrard’s assembled team of craftsmen for the work consisted of Tony Bedford, Garrard’s Director of Restorations; Rod Hingston, Workshop Manager. A former champion boxer, martial arts and sax player-turned master silversmith who remolded the original cup; Jeff Havis who did the chasing. 32 Stephen Goldsmith, who was responsible for polishing, and Geoffrey Stocker, working from detailed photographs restored, and where needed, recreated, the extensive engraving. Interestingly, the bulk of the restoration of the Cup was not actually done at Garrard, but at a “rent-a-bench” silversmith workshop located in Bermondsey in southeast London, used by Hingston. Regarding the level of security, Hingston said “I brought it home and back to the workshop and started to work on it….I just kind of slipped out with it…I took it back to the workshop in the car and [put it] in the strong room at night. That was the only security.”

America’s Cup, in its 1987 configuration, consisted of the 20 cm (7inch) high 1958 Tiffany & Co. plinth which was scratched but otherwise undamaged, and the original 1848 trophy which is constructed of several components: the cast spout top (cruet), the holloware handle, the fabricated, heavily-damaged 6-bulb upper 32 “Chasing” is the molding and fabrication of the intricate silver ornamentation

applied to the base cup.

------------------------- ATTACK on the CUP ------------------------body, the tapered lower body and the footed pedestal. This is held together with a continuous steel bolt that runs through the trophy and a 16 x 16 x 2 ¼ inch (40.6cm x 40.6cm x 5.7cm) wood base that was added after it left the USA.

Cruet/Spout

Upper Body Lower Body

Hollowware Handle

------------------------- ATTACK on the CUP ------------------------After a thorough inspection, Silversmith Rod Hingston began the careful disassembly and assessment of the parts, including the removal of the applied ornamentation. The spout section (cruet) is about 10 inches (25.4 cm) tall, and from photographs had been crippled about one-third of the way down, just below the topmost decorative band. [The damaged cruet is shown above]. The five (5) original hallmarks from 1848 are on this portion of the Cup, below the spout. The upper body is described by Garrard as “lobe fluted, each lobe engraved with an inscription and separated by masks and strapwork.” It is about 5 3/4-inch (14.6 cm) high, 12-inches (30.48 cm) in diameter, and is constructed of relatively thin hammered silver, appearing almost eggshell-like in its deconstructed state. Most of the sledge hammer damage was inflicted on this part of the trophy, resulting in the need to completely remove and remanufacture one of the six lobes (engraved “Presented to the New York Yacht Club as a Challenge Cup Open to all Foreign Clubs by the Owners – John C. Stevens, Hamilton Wilkes, Geo. L. Schuyler, J. Beekman Finlay, Edwin A. Stevens”), to rebuild and partially replace the supporting silver structure adjacent to the lobe, and to repair the severely dented remainder of the front of the upper body. This section was obviously Rod Hingston’s biggest challenge - one that saw him reportedly spending “every day including weekends for three months,” restoring America’s Cup. Jarvis reported later that he knew they had been working until 7 PM and on Saturdays and Sundays. The lower body is “chased with pellets and ...architectural strapwork enclosing burnishing panels.” This (4 ¾ -inch/12.06 cm) section of the piece bears the engraved results of the races from the 1880’s through 1901, on six panels separated by applied decorative 52

------------------------- ATTACK on the CUP ------------------------“strapwork.” The lower body had suffered major damage and was bent over at an angle that required significant effort and repairs; part being stripped down to bare metal and rebuilt.

Smoothing dents from a lobe

Recrafting the lower body

Areas cut out and replaced by Hingston

Initial reshaping of crushed areas

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Inspecting the handle

The baluster neck is stippled and elaborately chased with foliate scrolls and anthemion motifs above a band of pellets, centered with flowerheads on a background of horizontal lines. This section visually supports the upper body - there are no race results recorded on the baluster. The hollowware handle is described as a “beaded double flying scroll and baluster,” is about 13 5/8 inches (34.5 cm) long and suffered damage to the upper handle and finial. The pedestal has a rounded spread foot and a stem decorated with a bead band and geometric strapwork. It is 5-inch (12.7 cm) high, 8inch (20.32 cm) diameter at the base and approximately 1 ½ inches (3.81 cm) at the stem. When disassembled, an additional internal 54

------------------------- ATTACK on the CUP ------------------------support stem (bayonet) of about 2-inch (5.08 cm) diameter and 1 ½ inch (3.81 cm) height is evident. The foot of the pedestal bears engraving from the 1903, 1920, 1930, 1934, 1937 and 1939 races, and four (4) additional Garrard original Hallmark stamps and slips over the raised step on the 1958 plinth. The three 1901 Columbia v. Shamrock II races are recorded around the stem. The stem, as the weakest spot, had been crushed in the attack. The process of repeated hammering and stretching of the silver results in a brittle metal, so Hingston used gas-fired torches to evenly heat the metal in a process called annealing, and to free up some of the existing soldered-on adornments. Annealing relaxes and allows the molecules to re-align. The disassembly of the Cup commenced by removing the handle. Next, they severed the neck from the main body, separated the upper and lower segments of the body, and finally dismantled the foot assembly.

"Rather than having been simply dropped, it had been maliciously damaged," said Rod Hingston, the silversmith who carried out the repair. "Very rare, that. I had to cut it into several pieces so I could get at it. It's sort of like [repairing] car paneling. You have to push out where it was punched in. I had to forget all about the engraving [of the winners' names on the cup], because some of it was going to have to be re-cut."

Hingston Annealing the Cup

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Hingston reshaping the upper body

During the restoration effort, Garrard’s work was complicated when they discovered that previous repairs 33 in the U. S. had been done with lead solder instead of silver solder. The lead was removed and replaced which resulted in the need to replace several small areas of lead-contaminated original silver, but the restoration otherwise required very few new materials and is therefore correctly classified as being “authentic.” Initially, the client had insisted on “no new materials,” however as the work progressed, it became evident that one of the lobes and the entire lower collar would have to be replaced. Because new Sterling was required for the final repairs, the local assay office of Goldsmith’s Hall was needed to attest to the quality of the patches incorporated into America’s Cup. The removed, damaged scraps were melted down and formed “the Nugget,” which was eventually affixed to the inside of the Cup. The replaced “lobe” and the lower body silver pieces were the subject of what became known as “Silvergate.” (see Saga of Two Chunks of Silver in America’s Cup Compendium)

33 Possibly from an incident in early 1900’s where the Cup was knocked over by a

cleaning crew and badly damaged.

------------------------- ATTACK on the CUP ------------------------Garrard did not replace the rod through the center of the cup which the Americans added to bolt to a rostrum in the NYYC, “conscious of keeping the authenticity of the piece.” 34 The restoration of the engraving on the Cup was aided by detailed photographs provided by the New Zealand Herald newspaper. Now, for the important question – can one drink out of America’s Cup? During the restoration, the neck of the ewer was “slightly altered,” allowing for approximately one-half liter (0.5 L or 16.9 oz.) liquid capacity, which is contained from the bottom of the neck upwards, but for historical purposes, the hole in the bottom of the cast spout section (cruet) which had been made to bolt the trophy to a plinth permanently while in New York, was left. The “slight alteration” is believed to be the addition of a single rubber washer at the top of the Bolt assembly to seal the hole. “The Bolt” can actually be seen in this photo. Obviously displaced upward, the ½ inch bolt, its large heavy washer and a white, (possibly PVC) protective pipe is seen protruding from the spout and visible again through a tear in the silver lower body. With the completion of the structural repairs to the cup, the job of chasing the Cup went to Jeff Havis. In this instance, “Chasing the Cup” didn’t involve sailboat racing, but instead represented countless hours in repairing, recreating, fabricating and reinstalling the applied silver ornamentation, including the heads of the goddesses, that makes America’s Cup so ornate.

34 However, the version of “The Bolt” present at this time was NOT the original

from the NYYC but had been replaced in 1983 with a new bolt – the original had been taken by Alan Bond, and mounted on a plaque, and is presumably still in his estate’s collection.

------------------------- ATTACK on the CUP ------------------------Finish polishing was completed by master silversmith Stephen M. Goldsmith who worked alongside Hingston for over a month. “I then took 40 hours to make it look 150 years old again” Goldsmith recalled. Following cleaning and polishing, the project turned to master engraver Geoffrey Stocker. Using detailed photographs of the original inscriptions, Stocker recreated the extensive lettering on the six panels of the lower body (1885, 1887, 1893, 1895, 1899 Races), and hand-restored the lettering on the badly damaged upper body lobe. In an interview with Alinghi after the repair, Rod Hingston discussed some of the things he encountered during the restoration. “I took the steel out (the “Bolt”) and realized how wobbly it all was.” “The foot came off anyway because it was, strangely enough, what we call a “bayonet fitting”….a sleeve (that) just slides into another sleeve, so the foot was actually loose from the body. Very unusual. No reason why it was like that at all.” “When it came over it had a great big lump of steel (the “Bolt”) running down the middle of it. The Americans had done this and they bolted it right through a wooden base and into the table which wasn’t a bad idea. It means somebody just can’t grab it, but also one of the reasons was, and I think the one thing the historians don’t know about this, is when I started to take it to bits, I saw how the bloke made it. In 1848 he was in serious trouble because he actually made it the wrong way: he tried to do too much out of one piece of sheet (silver) and he should have made in in several pieces and joined it all together. That was so you don’t thin anything out – what happened was it became really thin in one place so when the cup stood up it actually wobbled.” “So he was in serious trouble, but he nursed it and got himself out of it in the sense that he finished it without having to destroy any of it, ‘cause these guys would have been on piece work and there would have been a lot of money lost if he he’d, rather than the firm paid for it, he would have paid for it, he would have paid for the loss of time, so he managed to get out trouble with it and when it and I 58

------------------------- ATTACK on the CUP ------------------------looked at the engraving it was so pristine the engraving that I knew that in because of his making rather than it being worn out through somebody cleaning it for years because if you clean it, clean it and clean it the engraving would have gone right back, but it wasn’t, it was pristine, the engraving was sitting proud on the, right over the Cup, it’s covered in engraving from all the winners and I knew that the guy had made it badly and, but he got himself out of trouble, but when it got hit, because it was thin it crushed, it immediately crushed, it had no substance in it at all so it actually compounded the damage to it because of it so this lump of steel runs from the base which is wooden up through the silver and right up to the top of the neck and then they had a bolt in the top and all that was left at the very top of the neck was about I would say a very, very small, one of those single bottles of wine that you can buy for a single glass of wine that’s all you would get in.” {Interview with Rod Hingston after the return of the Cup to New Zealand}

New Engraving on Main Body

------------------------- ATTACK on the CUP ------------------------To further stabilize the Cup after the repair of the damage, Garrard fabricated a new internal skeleton frame out of wood. The original Garrard 1848 ewer received a wood post – drilled through the center to accept “the Bolt,” and spanning between the underside of the newly-installed silver ring in within the cruet down to the top of the 1958 Plinth. This kept any excess pressure from the bolt from compressing the soft silver of the Cup. Inside the 1958 Plinth, Garrard constructed a wood platform consisting of an upper wood disc, four (4) short wood posts, and a lower wood disc that rested on the original wood base. Garrard provided an engraved silver plaque memorializing Rod Hingston’s contribution to the restoration.

------------------------- ATTACK on the CUP -------------------------

Rod Hingston Removing Damaged Lobe Annealing the Cup

Tony Bedford, who directed the restoration, explained that “work on the cup has taken longer than we expected as the rebuilding and engraving was a very delicate process. [10 April – 4 July 1997] We are, however, very pleased with the success of the restoration and that we have been able to restore The Cup after the near fatal attack.” New Zealand’s NZTV had sent a film crew to produce a program on the restoration. At one point someone thought that Garrard was “getting too much attention,” and the filming was cut back. In a late June 2023 interview with co-author Jack Griffin in London, Rod Hingston recalled “that when he reassembled it, he put a piece of tubing around the bolt that ran through the Cup. It was a piece of nylon pipe he found on the ground in the street outside his workshop - scrap from workmen laying a new gas pipeline. Rod said he didn't bother scraping off the words "British Gas" that appeared twice on the pipe. 61

------------------------- ATTACK on the CUP -------------------------

Geoffrey Stocker, Master Engraver, works on Upper Body

After a special luncheon at Garrard, Richard Jarvis, Managing Director, Bill Crowley (Sun Alliance) and John Heise, commodore of the RNZYS escorted the Cup from London to back to Auckland. In four first-class airline seats. The cost of the repairs (~£20,000 (US$50,000)) was covered by Garrard, although both the Squadron’s insurer, Sun Alliance Insurance, and representatives of The New Zealand Māori Council state offered to pay for the restoration. Sun Alliance sponsored all associated travelling costs for the Cup and personnel. (Sun Alliance, the underwriter of the insurance on the Cup, had donated the insurance premiums on the policy when NZ initially won the Cup.) Richard Jarvis personally awarded £150 to each of the four craftsmen as a bonus for their efforts in the restoration. A video of part of the restoration process was posted at https://www.youtube.com/watch?v=DJTQHKJqIHw&t=1s by Stephen M. Goldsmith [12:16] January 3, 2021. 62

------------------------- ATTACK on the CUP -------------------------

Restored America’s Cup at Garrard

------------------------- ATTACK on the CUP ------------------------Upon its return to New Zealand on July 14, 1997, the repaired Cup was taken on a 17-city (later increased to 22-cities due to demand), two-month “sedate tour of New Zealand,” in a bulletproof glass case, indoors only, surrounded by security personnel, and transported in an armored van. The tour was underwritten by Westpac Trust Bank [Shortland Street, Auckland NZ 1140]. Among the stops, the Cup visited: July 18-20, 1997 Aoteara Centre, Auckland July 21-22, 1997 Forum North, Whangarie July 24-27, 1997 Waikato Museum of Art and History, Hamilton July 28-30, 1997 Baycourt July 31-August 1, 1997 Rotunda of the Convention Center The tour was not without controversy – it was widely theorized that the Cup on display was a replica. This was denied by RNZYS. In the first 12 days of the tour, more than 36,500 people saw the Cup. The public event for the Cup held on August 27, 1997 at the Christchurch Convention Centre was picketed by about 40 “social activists” protesting the public display of America’s Cup. Cup finished its tour at the Michael Fowler Center in Wellington through Tuesday, September 19, 1997, when the Cup was returned to its permanent home at the RNZYS in Auckland.

------------------------- ATTACK on the CUP -------------------------

The Cup Gets a New, Secure Home Following the tour, the Cup resided at the RNZYS headquarters and was placed in a “new, super-strong glass viewing case” built by Glasbau Hahn, (“Hahn Anti-Bandit” 40-46 603888 Frankfurt am Main, Germany. www.glasbau-hahn.de). This case (shown below) features one-inch-thick ballistic glazing on four sides, and a separate, three-piece telescoping protective security box which will come down into place on its two 1.5 x 3-inch steel guide rail posts if triggered. The box, although presenting as superbly finished woodwork on the outside actually is wood-clad ballistic material. The new enclosure was lifted into place by crane. The design specifications for the case, as ordered, read as follows (English measurements added): The case is: • 700 x 700 mm (27.56 x 27.56 inches) in plan • 900 mm (35.433 inches) base height • 1100 mm (43.30 inches) visible glass height • 40 mm (1.575 inches) upper frame height • 2040 mm (80.315 inches) total height • The base is fabricated from 3mm (0.118 inch) steel, bolted to the slab. • Paint is Anthracite-Grey RAL7016 (PROSOL Lacke + Farbem GmbH) Glazing is SCHOTT Clear White 24mm (0.9445 inch) thick, heavyduty laminated safety glass with anti-reflective SCHOTT ‘Amiran’ coating. All edges are finely ground and polished and joined with a 2component Silicone.

------------------------- ATTACK on the CUP ------------------------Access to the inside is by means of a patented 3-way Monorail sliding door. The safety lock and operating mechanism are concealed behind a MDF-panel, which is held in place by means of two magnets and must be tilted forward first to allow unlocking. The display area bottom is sealed on the underside with heavy steel sheet, with a MDF-plate on top and the textile cover matching the Anthracite-Grey RAL7016 of the base. There is a locked metal box beneath the Cup which contains silica gel (amorphous silicon dioxide) to control moisture and inhibit tarnishing of the silver. Around the periphery and recessed from sight are installed 24 light fiber end optic with lenses. Thus, the light can be aimed directly towards the Cup or indirect lighting by means of a reflective mirror installed at the top of the case underneath the 5mm (0.1968 inch thick) steel sheet cover. Around the top edge, the glass is held with a special metal frame approximately 40mm (1.575 inches) high, which also provides the upper guiding channel for the sliding door, lacquered in RAL7016. The base contains a compartment which allows humidity control of the display area, as well as the light source for the fiber optics. The Monorail is equipped with a magnetic switch, hooked up to the local alarm system. Electrical supply is 230v/50 Hz, 1ph.” The cost for the cabinet alone, in 1997 was DM 31,240 ($53,420.40 US or $100,752.92 in 2023). Dagmar and Klaus Girardet, owners of Domino Marketing Ltd., in Auckland, and generous supporters of the Royal New Zealand Yacht Squadron, donated the sum of DM 15,000 ($25,650 in 1997/$48,377 in 2023). This cost did, however, include a spare light bulb! The RNZYS’s insurer, Sun Alliance, reportedly contributed the difference, plus the cost of freight, installation and the outer enclosure.

------------------------- ATTACK on the CUP ------------------------The display case was ordered on October 9, 1997. The order was marked “URGENT.” When shipped from Glasbau Hahn in Frankfort on November 11, 1997, the package weighed a hefty 510 kg (1,124.3 lbs.) and measured 134 x 134 x 237cm. New rules in place at RNZYS included viewing by appointment, signing in at the front desk and…no bags and presumably no sledgehammers allowed.

------------------------- ATTACK on the CUP -------------------------

Stained Wood Trim UPPER PANEL - HOUSED LOWER PANEL - HOUSED Glazing Channel 1" Ballistic Glazing

The CUP

Upper Guide Rail

Mirror Inner Trim Support Grating Line of TOP HOUSING

Section C

Section B [TOP HOUSING Stained Wood Veneer over Ballistic Structural sheet Applied stained wood moulding Wood corner moulding

1" Ballistic Glazing "Hahn Anti-Bandit" with welded corners and top & bottom glazing tracks [Front panel slides for access]

America's Cup Trophy

4'-183"

Upper section of slide rail TS 3 x 2

B 7'-5"

Lines of drop-down panels (reference)

Vinyl-wrapped ballistic material base

2" Painted Letters - on vinyl 3-D Triangular ornamentation Lower section of slide rail TS 4 x 2

3'-312"

RNZYS Burgee

"In Position" electronic sensor plate

Front View

Left Side

Glasbau Hahn "Anti-Bandit" Display c.1997 24

ALL DIMENSIONS AND DETAILS ARE APPROXIMATE AND ARE FOR REFERENCE ONLY. *NOTE: Security and Operating Components are not shown for obvious reasons

------------------------- ATTACK on the CUP -------------------------

security and operating components not shown*

Building Ceiling Stained Wood Veneer Ballistic Structural Sheet

[TOP HOUSING]

Slide Rail [STOWED POSITION OF UPPER & LOWER PANELS] Wood Trim Glazing Track

Stained wood trim Stained Wood Veneer over Ballistic Structural Sheet

7'-5"

Mirror on interior ceiling of case

[UPPER PANEL IN PLACE]

Applied stained wood moulding

1" Ballistic Glazing Upper panel guide clip Upper panel support "shelf" on guide rail

Stained Wood Veneer over Ballistic Structural Sheet

Glazing channel Interior custom support grating

[LOWER PANEL IN PLACE]

Vinyl-wrapped ballistic material base (interior structure not shown)

security and operating components not shown*

[LOWER PANEL IN PLACE]

Applied stained wood moulding

"In Position" electronic sensor

Front w/panels closed

Section A

Glasbau Hahn "Anti-Bandit" Display c.1997 24

ALL DIMENSIONS AND DETAILS ARE APPROXIMATE AND ARE FOR REFERENCE ONLY. *NOTE: Security and Operating Components are not shown for obvious reasons

------------------------- ATTACK on the CUP -------------------------

RNZYS New Display Case

------------------------- ATTACK on the CUP -------------------------

Part Three 11

The Trial Record The following is the transcript of the actual testimony heard during the trial of Benjamin Peri Nathan. The Trial (Case 146/97) was held at the Auckland District Court, Auckland, New Zealand between 1 and 4 September 1997 with the Honorable Barry Neil Morris presiding, and a twelve-person jury. The records of the trial were provided with the generous cooperation of the New Zealand Archives, Auckland District Court Duty Judge Kevin Glubb, and Ms. Tahanee Taurakoto, Deputy Registrar of the Court. The original transcript has been reformatted to conserve space. Some spelling has been adjusted from “Stenotype” for ease of reading. All footnotes and annotations are those of the authors. In the Trial Record, certain items do not appear, such as the Prosecutor’s and Defense Attorney’s Opening and closing statements, the reading of written reports, testimony that was recorded in earlier proceedings and which was read to the jury, statements that the Judge ruled inadmissible and sustained objections, as these are not “evidence.”

------------------------- ATTACK on the CUP ------------------------IN THE DISTRICT COURT HELD AT AUCKLAND

Trial No. 146/97

QUEEN -vBENJAMIN PERI NATHAN Date of Hearing:

1 September 1997

Counsel:

Mr. K. 35 Raftery for Crown Mrs. L. 36 Smith for Accused

LIST OF WITNESSES RACHAEL MARIE WILLMOT, Cab Driver MARK ALLAN WALLIS, Regatta Participant, visiting RNZYS MARY GRANT, Staff Member, RNZYS HAROLD LOCKWOOD BENNETT, Events Manager, RNZYS WILLIAM JOHN HEISE, Commodore, RNZYS STUART LLOYD MACKY, Insurance Adjuster, Sun Alliance RICHARD PAUL HARE, Independent Photographer WARREN ERIC WIECKMANN, Regatta Participant visiting RNZYS (READ BY CONSENT) GEOFFREY WASHBORNE BABER, Police Constable, Auckland Central DAVID THOMAS NIMMO, Detective Constable, Auckland Central RODNEY ALAN DOWLING Police Constable, Stanley Street Parnell. BENJAMIN PERI NATHAN, Defendant COLIN WELSH (TeAroha Patuani Werehi), Māori Sr. Elder

35 Kieran.

36 Lorraine.

------------------------- ATTACK on the CUP ------------------------LIST OF EXHIBITS AT TRIAL

FOR THE PROSECUTION Number Description Exhibit 1 Jacket Exhibit 2 Shirt Exhibit 3 Tie

Number EXHIBIT A EXHIBIT B EXHIBIT C

Exhibit 4

Blue Sports Bag

EXHIBIT D

Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 EXHIBIT 13

(not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) 12 mm Glass Piece (not introduced at trial) APD Sketch Plans of RNZYS Sledgehammer Paper - Theodore Roosevelt Quotation Paper – TILO Membership Form (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) Tee Shirt (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) (not introduced at trial) Nathan Police Interrogation Video

EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H

EXHIBIT 14 EXHIBIT 15 EXHIBIT 16 EXHIBIT 17 EXHIBIT 18 EXHIBIT 19 EXHIBIT 20 EXHIBIT 21 EXHIBIT 22 EXHIBIT 23 EXHIBIT 24 EXHIBIT 25 EXHIBIT 26 EXHIBIT 27 EXHIBIT 28 EXHIBIT 29

FOR THE DEFENSE Description Photo of Eels Photo of Eels Letter – Nathan to Newspaper - Land claim Copy of Declaration of Independence Copy of Treaty Letter – Nathan to Newspaper Letter – Nathan to Newspaper Letter – Nathan to Newspaper

------------------------- ATTACK on the CUP ------------------------INDEX TO POLICE PHOTOGRAPHS Number Showing Photo 1 Exterior of RNZYS building RNZYS Front Entry Doors exterior RNZYS Reception Area

Photo 16

RNZYS Stairs to Second Floor (w sports bag) RNZYS Upper Stair Landing/Double Doors Placement of Blue Sports Bag - bottom of stair Closeup – blue Sports Bag Landing-side double doors to Members Lounge -do – (open)

Photo 18

Showing From interior back towards door Closeup of Blue Dress Shirt, unfolded Closeup of Grey Jacket, unfolded Damage to Cup and Case

Photo 19

Damage to Cup and Case

Photo 20

Damage to Cup and Case

Photo 21 Photo 22

Damage to Cup and Case Damage to Cup and Case

Photo 23 Photo 24

Photo 13

From Double Doors looking into scene Closeup of jacket and shirt on floor Closeup of shirt and tie, on floor Closeup of jacket, on floor

Damage to Cup – Upper Section Damage to Cup – Upper Section - closeup Damage to Cup – Upper Section - closeup Damage to Cup and Case

Photo 14

RNZYS Members Lounge

Photo 1_i “Photo 4

Photo 2 Photo 3 Photo 4 Photo 5 Photo 6 Photo 7 Photo 8 Photo 9 Photo 10 Photo 11 Photo 12

Number Photo 15

Photo 17

Photo 25 Photo 26 Photo 27

Exterior of display case – door side Sledgehammer *Nathan holding object

“Photo 4a

*Enlargement-Nathan with Sledgehammer *Photos taken by witness Richard Paul Hare **BOLD indicates the photos are included in The Cups section of Compendium,

37 Single montage of the 9 photos taken by witness Hare, was included as the last

photo in the packet.

------------------------- ATTACK on the CUP ------------------------NOTES OF EVIDENCE TAKEN BEFORE JUDGE B. N. MORRIS AND JURY OF TWELVE 38 ORDER EXCLUDING WITNESSES39 MR. RAFTERY40 OPENS 41 AND CALLS: RACHAEL MARIE WILLMOT (SWORN) Q by Mr. Raftery: Could you tell the Court your full name please? A: Rachael Marie Willmot. Q: Do you still work as a taxi driver? A: Yes, I do. Q: I think on 14 March of this year 42 around about 11:30 in the morning43 or so you were on the cab rank Customs Street, West Auckland? A: Yes. Q: And around about that time did you get a fare? A: Yes. Q: Where did the fare want to go? A: To the Royal New Zealand Yacht Squadron in West Haven. 44 Q: How much did the person say that they had on them? A: He said he had around about $8 or $9 45 on him. Q: Did you tell him that should be enough? A: Yes, I did. Q: On your journey to the Royal New Zealand Yacht Squadron, did you chat to him about what he was doing and why he was going there? 38 As provided by the Court and New Zealand Archives.

39 Several witnesses were excluded by Judge Morris, likely as repetitive, irrelevant,

or prejudicial.

40 Prosecuting Attorney Mr. Kieran Raftery.

41 Opening Comments by Prosecutor are NOT considered “evidence” and are

therefore not included in the transcript, however parts are presented in the narrative describing the trial. 42 1997. 43 NZST/UST+12. 44 181 Westhaven Drive, Westhaven Marina, Auckland 1011, New Zealand [GPS Lat: -36.835516°, Long: 174.745345°]. 45 NZD – New Zealand Dollars.

------------------------- ATTACK on the CUP ------------------------A: Yes. Q: What did he tell you? A: He said he was going to take some photographs and do an article about the America’s Cup. He said he also worked for the Manukau Courier and that’s the article he was going to write for. Q: Did you make any comment about Manukau Courier 46 or suburban newspaper? A: Yes, I did. It’s the same company my husband worked for. Q: Did you tell him that? A: Yes, I did. Q: What did he say? A: He decided to change his mind 47 and said he was at the Manukau Polytech and this was like an assignment for him. He said he wasn’t actually working for the Manukau Courier, but he was at the Manukau Polytech doing his first story. Q: Was there any more conversation about it at all on the way there? A: Yes. He said he was quite happy; he was very happy at the time. Um, he said he was quite nervous because it was his first story and his first assignment, and he said he had his camera and pen and pencil for him to write his story. Q: Did he have a little blue carry bag with him? A: Yes, he did. Q: When describing what he had in the bag, did that seem consistent with what appeared to you the bag looked like? A: Yes. Q: So, you didn't think any more about it? A: No, I didn't. Q: Did you take him right to the doors of the Royal New Zealand Yacht Squadron?

46 Weekly local newspaper published on Thursdays by Suburban Newspapers

Auckland. 47 Suburban Newspapers Auckland editor-in-chief Pat Booth stated that the man had never worked for the group.

------------------------- ATTACK on the CUP ------------------------A: No, I dropped him off around the roundabout near the Sitting Duck Café. He wanted to be dropped off there 48 not right at the front door. Q: And the Sitting Duck Cafe is down in the West Haven complex, is it? A: Yes, it is. Q: Once he got out, you just carried on and went back to look for another fare, did you? A: Yes. NO CROSS-EXAMINATION --- WITNESS EXCUSED MR. RAFTERY CALLS: MARK ALLAN WALLIS (SWORN) Q by Mr. Raftery: Could you tell the Court your full name please? A: Mark Allan Wallis. Q: Occupation? A: I’m a sailmaker. Q: Now, around about 11:30 on morning of Friday, 14 March this year were you at the Royal New Zealand Yacht Squadron? A: I was. Q: And why were you there? A: We were due for the weigh-in for the IMS Regatta beginning the next day, weighing being part of the team for the boat. Q: What regatta? A: New Zealand IMS Regatta. Q: What part of the squadron building were you in? A: Upstairs in the America’s Cup room itself being used as the events center, I think. Q: While you were there did you see anyone either entering the room or just after he had entered in a grey suit? A: Yes, I did. Q: What did this person do? A: This person proceeded to whale away at the America’s Cup case with a short handled sledgehammer attempted to break the glass in one panel and failing to do that attempted further lower down a bit 48 141-151 Westhaven Drive (business is now closed).

------------------------- ATTACK on the CUP ------------------------more around the glass case and there was glass going everywhere and eventually managed to chop a hole thru the glass case and he reached in and tried to pull the Cup out of the hole but the Cup has a large square wooden base 49 on it which wouldn't come out of the hole so it was hanging upside down and the guy took to the Cup itself with the sledgehammer separating it and denting it severely, in the course of this he pulled off his grey suit jacket and left it lying on the floor, um, had a couple of more attempts at damaging the Cup and eventually just left the sledgehammer, I think, lying on the floor and just wandered around the room. Q: Did he, while attacking the Cup, say or call out anything? A: The words were really unintelligible from what I could tell. Q: Did he at any stage say anything to you? A: Yes. He looked directly at me and said 'Tino Rangitirotanga 50 mother fucker' and gave me the one fingered salute. He said this twice. Q: Looking at a booklet of Photographs, can you just turn to Photograph 10. That’s the view with the double doors behind the Photographer looking into the scene. Whereabouts were you while this was going on? A: I would have been standing just to the left of the notice board beside the scales not in view. Q: When you were being weighed in, were other Officials from the Royal New Zealand Yacht Squadron there? A: The officials were Harold Bennett and the office lady whose name I didn't know at the time. There was a couple of other entrants in the regatta. Q: The lady - how was she when all this as going on? A: I only found afterwards when I decided to leave the room, she was under the table on hands and knees. Q: Did you help her out of the room? A: Yes, she was well-distressed, so we quietly made our way out of the room. 47t At the time, the Cup had an attached, 2 ¼ inch high, 16 3/8 x 16 3/8 (5.72 x 41.59 x 41.59 cm) wood base. 50 [ˌtiːnəʊ ˌrɑːŋətɪərəˈtɑːŋə] NOUN, translates as “political control by Māori people over Māori affairs”

------------------------- ATTACK on the CUP -------------------------

XXD 51 BY MRS. SMITH 52: Q by Mrs. Smith: While the Cup in the case was being struck, can you remember how far away you were from the action? A: Would have been 10-12 feet. Q: So, you yourself weren’t in any risk from being struck by the hammer or glass? A: No. WITNESS EXCUSED MR. RAFTERY: No dispute about identity. MR. RAFTERY CALLS: MARY GRANT (SWORN) Q by Mr. Raftery: Could you tell the Court your full name please? A: Mary Grant. Q: Occupation? A: I work for Royal New Zealand Yacht Squadron. Q: I think you were working there on the morning of 14 March this year? A: Yes. Q: When the America’s Cup was damaged? A: Yes. Q: What were you doing there? A: I was working in a secretarial role. We were running the New Zealand international regatta and we set the regatta Office up in the trophy room where the Cup was and at the time of the attack, we were preparing a race to Kawau - finishing at Kawau Island 53 and I was preparing the ticketing for the crew attending at Kawau.

51 XXD – Cross-Examined.

52 Mrs. Loraine Smith, Defense Attorney for Nathan.

Kawau Island was originally settled by early migrations of Māori people. From time-to-time tribes contested the right to live on the island, which was eventually

------------------------- ATTACK on the CUP ------------------------Q: And we’ve heard that the time of the attack a man by the name of Mark Wallis was being weighed in? A: Yes. Q: Were you helping with that? A: Yes, there were four of us at the time, two were weighing-in and Harold Bennet and I were doing administration. Q: Just to get the layout of the Yacht Squadron building in evidence could you just look at the Photographs. That’s the Yacht Squadron shown in Photograph 1, is that right? A: Yes, that’s right. Q: And you go through the doors in Photograph 2 into the Reception area in that hallway shown in Photograph 3 ? A: Yes, that’s right. Q: Is there a little desk where there might be a receptionist when someone comes in to make an enquiry? A: Yes, on the right-hand side. Q: If you wanted to view the America’s Cup at that time, you would go up those stairs in Photograph 4? A: That's correct - after checking in at the Reception desk. Q: Then that upper landing Photograph 4 shown in more detail in Photograph 5 - it would be thru those double doors on the right into America’s Cup, is that right? A: Yes. Q: So, obviously, at that time it was being housed in the Members’ Lounge, as we can see? A: Yes. Q: And that was the room you were actually in doing ticketing? A: Yes. We were using that as our regatta headquarters. MORNING ADJOURNMENT 11:30 PM COURT RESUMES 12:55 PM EXAMINATION-IN-CHIEF CONTINUES BY MR. RAFTERY: [Mary Grant]

abandoned in the 1820s after a particularly bloody skirmish during the Musket Wars.

------------------------- ATTACK on the CUP ------------------------Q: What happened when the man in the grey suit came in? A: It took a few seconds to realize what he was actually going to do, almost in slow motion, he started to hit the Cup case with the sledgehammer and it still didn't - didn't seem to be real the way it was happening but after a time and he had been hitting at it he broke thru the glass and at that stage I really realized the severity of what he was trying to do. Q: While he was hitting the glass and later hitting the Cup, was he saying anything? A: Yes, he was chanting in English about Māori 54 Sovereignty and being degrading about white people. Q: Was he also saying anything in Māori? A: As I recall, he didn't start chanting in Māori until after he had finished doing the damage and he was down on his haunches holding the sledgehammer. I think eventually some of the others in the room helped. That was after the Cup had been smashed, at the time when he was hitting the glass I got down on the floor and waited there until someone got me. NO CROSS EXAMINATION – WITNESS EXCUSED MR. RAFTERY CALLS: HAROLD BENNETT {SWORN) Q: Could you tell the Court your full name please? A: Harold Lockwood Bennett. Q: Occupation? A: I am an Event Manager for the Royal New Zealand Yacht Squadron. Q: Were you working at the Squadron on morning 14 March this year when the America’s Cup was attacked? A: Yes, I was. Q: Were you upstairs, I think, with Mrs. Grant dealing with some of the formalities for a Regatta that was to take place that weekend? A: That's correct.

54 Māori are tangata whenua — people of the land. They came to Aotearoa from

Polynesia in the 13th century and created a new language and culture.

------------------------- ATTACK on the CUP ------------------------Q: Shortly after 11:30, did you see any people entering the room where you were working? A: Yes. Q: Who were they? A: There was two gentlemen walked into the room who were contestants for the event who were to be weighed off, which was the job I was carrying out at that time. Q: Was one of those Mr. Wallis and the other Warren Wieckmann? A: That's correct. Q: Did you see anybody else come in apart from them? A: There was one more gentleman who came into the room of which really, I caught out of the corner of my eye. Q: What was the next thing you became aware of? A: My attention was drawn to some violent blows being struck with a sledgehammer on the case 55 that contained the America’s Cup. Q: The person attacking the America’s Cup how was he dressed? A: He was wearing a suit and being side-on I didn't recognize anything other than the suit. Q: What did he do once he had attacked the outer case? A: Once the attacked the outer case and had broken through the glass, he proceeded to attempt to pull the Cup from the case. Q: Was he able to get it out? A: No. Q: So, what did he do to the Cup itself? A: He then turned his attention to beating the Cup with the hammer he still had in his hand. Q: While he was doing this, was he saying anything you could remember? A: Not at the time when he was beating the box or the Cup that I recall. Q: Did you, in fact, go down downstairs at one stage and telephone the Police? A: Yes, that's correct. Q: When you came back, had the attack on the Cup finished? 55 The Cup was enclosed in a six-sided ballistic-glass and oak security/display case (see drawing of case in San Diego Yacht Club section of Compendium.) The Cup was bolted to its base with a single ½” threaded internal rod with a plastic sheath.

------------------------- ATTACK on the CUP ------------------------A: Yes. Q: Did Mr. Nathan say anything at that stage? A: What he was saying, um, I was not able to understand. Q: Is that because it was incoherent or in a language you didn't speak? A: In a language I didn't speak. Q: Were there any phrases in English you recall? A: I recall one phrase in English which was to the effect this is for Māori Sovereignty; I remember something like that. Q: Shortly after that did the Police arrive? A: Yes, the Police arrived some 5-10 minutes later. XXD BY MRS SMITH: Q Mrs. Smith: I wonder if Mr. Bennett could be shown the book of Photographs. Would you be kind enough to flick through to Photograph 14? That is the Photograph of the room we are talking about 56? A: That's correct. Q: Are you able to assist us by telling us how large the room is? A: That room would be possibly as wide as this - maybe back to just behind you as a square. THE COURT57: About half the size of this room. Q by MRS. SMITH: And the man who was damaging the Cup, did he keep within the circumference which is marked off by the ropes? A: No, he was outside the ropes. Q: I’m sorry - when the Cup was being damaged? A: When the Cup was being damaged, he was standing outside the ropes. Q: Was he up close against the ropes? A: Yes. Q: And where were you standing? A: I was standing approximately from where this picture was taken - maybe a little to the right. 56 The room is now known as the Members’ Lounge. America’s Cup is no longer

displayed there.

57 THE COURT means comments made by District Court trial Judge Barry Morris.

------------------------- ATTACK on the CUP ------------------------Q: That would be how many meters away from the ropes? A: Four meters. WITNESS EXCUSED MR. RAFTERY CALLS: WILLIAM JOHN HEISE (SWORN) Q: Could you tell the Court your full name please? A: William John Heise. Q: And are you the commodore of the Royal New Zealand Yacht Squadron? A: Yes 58 Q: Were you at the time of the attack on the Cup in March this year? A: Yes, I was. Q: Just take in front of you the booklet of Photographs, turn to Photographs 22, 23, 24. I presume you saw the America’s Cup after it had been damaged. A: Yes, I did. Q: You were one of the people that ensured its safe transport and return to England? A: That's correct. Q: In the Photographs 23 and 24, we can see something of the damage to the Cup. There seems to be what I might call two sections to the Cup, the top half and then the bottom half divided by a little upright shaft joining the two together. Was the damage to the Cup confined to the top half or more areas than obviously the very graphic areas we can see? A: Most of the damage was on the top half but there was superficial damage59 at the bottom section.

58 Heise was Commodore of RNZYS from 1996-1998.

59 In actuality, the damage was significant. See Damages, Repairs and Restoration

of the Damaged America’s Cup in Compendium.

------------------------- ATTACK on the CUP ------------------------Q: And the top half in Photograph 24 - the main blow seems to be that large bulbous area 60 at the base. Was the damage confined to the top or were other areas also damaged? A: It was damaged at the spout as well but most of the damage was centered in that midsection. Q: We are probably all aware in general terms of the winning by New Zealand of the America’s Cup, but under what terms is the Cup held in New Zealand? A: Under the terms of the Deed of Gift 61, the Royal New Zealand Yacht Squadron holds ownership 62 of the Cup. It was won by the yacht NZL-32 in San Diego in 95. Q: And as indicated you held the ownership of the Cup until what time? A: Until it is won from us by another yacht club. Q: And a deed of assignment and accepted 63 has been signed by you and the last holders of the San Diego Cup is that correct? Answer: That's correct. Q: And you hold the ownership 64 of the Cup subject to that Deed and to the original Deed of Gift of the America’s Cup? Answer: That's correct. Q: Apart from the obvious damage to the Cup we have seen, the Photographs also indicate the Display Case65 itself was substantially damaged? A: It was. Q: Was that a display case of the club’s own or had it come with the Cup from San Diego? A: The Cup case came from San Diego. 60 The “lobes”

61 Deed of Gift is the legal perpetual document which transferred the Cup from the

original winning syndicate to the New York Yacht Club in 1857.

62 Not exactly; The Cup is held in Trust not in Ownership. The current holder is the

Trustee of the Cup.

63 Actually an “Assignment and Acceptance.” Document was signed on 25 May

1995, and covers the specifics of the assumption of the Cup by the new trustee and that trustee’s responsibilities. 64 Ibid. 65 See PLATE showing drawing of original display case in the San Diego Yacht Club narrative in Compendium.

------------------------- ATTACK on the CUP ------------------------Q: Was that purchased by the club from San Diego and owned by the club? A: That's correct. XXD BY MRS SMITH: Q: You’ve told His Honor and the Jury about a Deed of Gift. I’d like to ask you about a few historical questions about the Cup itself. Was the building of the Cup commissioned by Sir Thomas Lipton in 1851? 66 A: The building of the Cup, if you refer to the Deed of Gift, it describes how the Cup was commissioned 67 and how the Cup was originally sailed68 for and named the America’s Cup. 69 Q: I know it’s all in the Gift Deed, but just for the benefit of the jury, the Cup was commissioned by the millionaire Sir Thomas Lipton in 1851, isn’t it? 70 A: Can I refer to the Deed please? (Leave Granted). I can’t answer that with any certainty. I can’t find that in the Deed. 71

66 NO! First, the Cup was never commissioned. It was manufactured by R&S

Garrard in 1848 as “store stock” and it was purchased, as is, by the 1st Marquess of Anglesey (Henry William Paget) from the store stock of R&S Garrard Co. in London at some time before May 9, 1851 when it was donated to the Royal Yacht Squadron for use as a prize. Second, Sir Thomas Lipton was born on May 10, 1848, the same year the Cup was made. Sir Thomas Lipton did repeatedly try to win the Cup in competition – entering five challenge regattas starting in 1899 but was never involved as suggested by defense counsel. 67 The Deed of Gift (all versions) never discuss the commissioning of the Cup in any form. 68 The Deed of Gift does cite that the Cup was won on August 22, 1851. 69 Although generally known as “America’s Cup,” the trophy was never officially renamed. The only notations of name on the Cup are “RYS Cup of 100 Sovereigns” and the incorrect “100 Guinea Cup.” The engraving does recognize that the Cup had been won “By Yacht America,” but that engraving was done by Tiffany & Co. in New York at the order of NYYC. 70 Atty Smith again misstates the historical facts. Sir Thomas was never involved before 1899, decades after it was made. 71 Accurate response as this subject is not covered in any way in the Deed of Gift.

------------------------- ATTACK on the CUP ------------------------Q: After the Cup was built, was it called the Queen’s Cup 72 after Queen Victoria? If you’re not sure? A: I’m not sure, no. Q: Well, was the name changed to America’s Cup after the yacht America won the race against 14 yachts around the Isle of White[sic]? 73 A: That's correct. 74 Q: Was the America’s Cup presented to the New York Yacht Club in a Deed of Gift that mandated for a friendly competition between the nations? A: That's correct. Q: Will the next America’s Cup race be held in Auckland in the year 2000? A: The next America’s Cup defense will be held in Auckland, yes. Q: Was the deadline for submitting a challenge against a previous winner on May 14, ‘96? A: That was the final deadline. Q: And was the entry fee $100,000US? A: There were two tiers of entry, the first payment date was 14 May ‘96 that was $100,000US, and there were late entries accepted to 14 May ’97, and the entry fee was $200,000US. Q: Is it the case that a viable syndicate in New Zealand could spend between $10-34 million US dollars competing for the America’s Cup? A: Could you repeat? Q: (Repeats question) A: I think the extremes you use are too wide. 72 Again, Atty Smith confuses history: Due to a slip of the tongue, George Schuyler

mentioned “Queen’s Cup” in an October 1, 1851 speech, and the NYYC incorrectly referred to this Cup as the Queen’s Cup in 1870, 1871 and 1876. In fact, however, Her Majesty’s (Queen’s) Cup had been awarded earlier in the same week, but to a Royal VICTORIA yacht Club yacht. America had originally been entered to race in that regatta, but withdrew due to lack of adequate wind. At the time of the Isle of Wight race in 1851, the Cup was known as the “Royal Yacht Squadron Cup of One Hundred Sovereigns.” 73 The race was held around the Isle of Wight. 74 Again, incorrect. The first time the actual words “America’s” and “Cup” appeared on the trophy was following the 1964 races between Constellation and Sovereign.

------------------------- ATTACK on the CUP ------------------------Q: You say it would be less than that? A: Certainly less than $35,000 75 million US dollars, a lot less. Q: Have you been involved in any discussions with the local Māori tribes who have had the responsibility of the Waitemata about the forthcoming America’s Cup? A: I personally haven't. Q: Are you aware of any sites sacred to the Māori people on the Waitemata? A: Yes, I am. Q: Are you aware the Royal New Zealand Yacht Squadron sits on a launching stone that is sacred to Māori people? A: No, I’m not. Q: You are, of course, aware that the village to be built for the forthcoming race is going to cost in the vicinity of $58,000 76 million? A: Yes, I am. Q: Is any of that money going to go to the Māori people who are the Tangatawhenua of the Waitemata? A: I have no idea. Q: What sacred sites are you personally aware of in the Waitemata? A: I am aware of some of the sites in the Hauraki Gulf. Q: Are you aware of any others around the area of the Yacht Squadron? A: No, I’m not. REXD77 Q Mr. Raftery: You’ve told us that if anyone wanted to compete for the America’s Cup, they would be spending rather less than $35,000 million at one end do so. I take it they would have to spend more than $10 on the other end? A: That's correct.

The sum “$35,000 million” dollars was noted in the Court Transcripts. We believe this should have read “$35 million.” 76 Again, Court Transcripts indicate “$58,000 million.” Should read “$58 million.” 77 Re-Direct Examination.

------------------------- ATTACK on the CUP ------------------------NO FURTHER QUESTIONS - WITNESS EXCUSED MR. RAFTERY CALLS: STUART MACKY (SWORN) Q by Mr. Raftery: Could you tell the Court your full name please? A: Stuart Lloyd Macky. Q: Occupation? A: I’m a marine surveyor and loss adjuster. Q: Were you appointed by Sun Alliance Insurance to carry out those functions in relation to the damage to the America’s Cup? A: Yes, I was. Q: We’ve heard about how it was fairly extensively damaged on morning of 14 March this year, and probably the jury are well aware that it was sent to London to be repaired by Garrard’s? 78 A: Yes, it was. Q: As far as the cost of the repair to the Cup itself, who met the cost of that? A: The cost of the repair to the Cup itself was met by the repairers – Garrard’s. Q: In their original estimate of the extent of the damage, did they quote a figure for the cost of repair? A: Yes, initially they did at pound Sterling. $20,000 79 as a rough estimate. Q: As far as other costs associated with the damage, were they met by Sun Alliance? A: Yes, they were. Q: Did they include the cost of damage to the case in which the Cup was kept? A: Yes. Q: And costs associated with the dispatch of the Cup in safe custody from New Zealand to England for its repair and likewise on its return, once repaired, to New Zealand? A: Yes. 78 R. Garrard & Co., 23 Albermarle Street, London W15 4HT, UK 9, GPS.

Lat.:51.510097, Long.: 0.142927). Garrard originally made the Cup in 1848 and was enlisted to conduct the repairs to the damaged Cup. 79 New Zealand Dollars.

------------------------- ATTACK on the CUP ------------------------Q: Without a detailed breakdown, just a round figure of what sort of costs have had to be met from the damage? A: To give exact figures I would need to refer to my documentation. Q: Don’t need exact figures. A: The total is around about $40,000 New Zealand. XXD Q by Mrs. Smith: How was the $40,000 made up? A: Several components to the associated costs to repair: Cup required to be sent to UK necessary for two Squadron members to accompany Cup. Q: Why was that? A: Two reasons. One - there are protocols as to how the Cup is to be transported internationally. It is to be accompanied by two members of the holding club - the second reason the Cup is to be carried as hand baggage if you like, rather than being handled as normal freight. Reason is Cup can be damaged quite easily if it is handled in rough manner during normal freight handling. Q: Do I take it the Cup had its own seat first class? A: I don’t think the Cup itself had a seat, but it was carried first class because in first class it could be carried as hand baggage rather than economy situation where it would have to be racked or carried in a different manner. Q: Did the two accompanying bodyguards travelling - did they travel first class or economy? THE COURT: Mr. Heise was the one to ask that. Q by MRS. SMITH: Did he travel first class or economy? A: The two people accompanying the Cup, I believe, travelled first class. Q: Were you surprised at how much the projected cost was going to be to repair the Cup? A: To tell you the truth, I had no idea what the projected cost would be initially. I didn't think the Cup could be repaired to the standard it was utilizing the same materials. Q: Are Garrard’s the jewelers to the royal family? A: I believe they have a royal appointment, yes. Q: Perhaps that explains why projected costs are so high? 90

------------------------- ATTACK on the CUP ------------------------A: I couldn't comment on that. NO FURTHER QUESTIONS - WITNESS EXCUSED MR RAFTERY CALLS: RICHARD PAUL HARE (SWORN) Q: Could you tell the Court your full name please? A: Richard Paul Hare. Q: Occupation? A: I’m a Photographer. Q: And on the morning of 14 March this year were you working, taking Photographs at West Haven marina? A: I was. I went down to West Haven to try out a lens I was going to buy for a friend. Q: At the time you were there, what sort of thing were you interested in Photographing? A: There are some railway sleepers down by the marina and birds nest there and I was going to Photograph those birds. Q: Were you close by the building of the Royal New Zealand Yacht Squadron? A: I parked alongside. Q: While there, did someone come out of the Royal New Zealand Yacht Squadron and tell you what was happening inside? A: Yes, there was a lady who heard there was trouble in the building, and she said to me I had got there quickly. I didn't understand what she meant. She assumed I was a press Photographer because I had a very large lens. Q: So, did you go into the building? A: I asked her whether she thought I should go inside, and she said she thought this was a good idea because the ladies inside might need some help. Q: So, did you go upstairs to the floor where the America’s Cup was housed? A: Yes, I ran in and the girls at Reception said somebody was smashing the Cup and I ran upstairs to see if I could help. Q: When you got up there, was the man still smashing the Cup?

------------------------- ATTACK on the CUP ------------------------A: He was standing, facing a crowd of people at the top of the stairs and turned around and started smashing the Cup again. Q: You told us initial reaction was to help. Did you feel you could do anything to bring the attack to an end? A: Yes, I was going to stop the man, but several staff said that was not such a good idea because he seemed upset, so I didn't. Q: Did you try and talk to the man at all? A: Yes, I did. I asked him what he thought he was doing, and we had a conversation about who my parents were and what my place in New Zealand was and he suggested to me I should go home, and I assumed he meant England. I said to him that I was born here and that I was as much a New Zealander as he was. Q: Did he say anything about what he was doing or why he was doing what he was doing? A: Not really. He really was very upset. He was chanting in Māori things that I did not understand and had a go at me with verbal abuse about being a Pakeha 80 and that I shouldn’t be in the country. Q: Did he say anymore what I might call that general political line in English that you can remember? A: Not that I can remember. I seem to remember that he was really more intent on arguing with me and he turned around and hit the Cup again and a lady stopped me talking to him at that point. Q: When he was talking to you or addressing remarks to you was it done in a casual conversational tone or what sort of tone? A: No, he was very upset and had some very nasty things to say to me. Q: Nasty in what way? A: Some very abusive language and he was very upset; he was shouting at me and the other people. Q: So having decided not to physically intervene and having not dissuaded him by any verbal exchange from attacking the Cup did you decide to take Photographs? A: No, I didn't. I stood back and we all watched him do his thing and one of the builders working on the site there suggested I take Photographs for the Police. Q: So, did you do just that? 80 White man.

------------------------- ATTACK on the CUP ------------------------A: I did. Q: Once you had taken the Photographs, did you stay in the building until the episode had finished? A: No, I didn't. I took some Photographs and then waited to see if anybody else was going to do anything then I realized that I should get the film processed as soon as possible to show the Police and I took off for my photo lab. Q: Did you get them processed and then advise the Police of what you had got? A: Yes, that’s exactly what I did. I got them processed then I went home to my mother’s place, and I called the Police from my mother’s and the senior sergeant on control said I should wait for someone to call me. Q: Have a look at the book of Photographs in front of you. If you turn to the last Photograph in the booklet there, are there a series of nine Photographs, all obviously in quite some reduced size? Are those the Photographs that you took that day of Mr. Nathan? A: They are. Q: And Photograph 4 on that sheet shows Mr. Nathan with a clenched fist and an object in his left hand, is that blown up in Photograph 4A to show what the object is, namely a sledgehammer? A: That's correct. Q: When Photograph 4 was taken is that as it were a pose - he was posing for your camera or is it one taken of him while he was in the midst of his action? A: He didn't actually pose for me. That is basically a snap of him in action, he was talking in Māori, I think, at this point. XXD MRS SMITH: Q: You told His Honor and the Jury that women had come to you and asked you or suggested that you might be the press, but you asked if you should go inside, and she said she thought that was a good idea because the ladies inside might need some help. Remember saying that? A: That's correct. Q: In fact, her attitude was quite sarcastic, wasn’t it? 93

------------------------- ATTACK on the CUP ------------------------A: It was. Q: She wasn’t referring to ladies as such, she was referring to the men there as being a lot of girls, wasn’t she? A: At the time I thought she was referring to ladies not men. Q: At the time she was referring to men inside? A: I don’t think so. Q: Have you ever said on an earlier occasion she sarcastically suggested that there were a lot of girls in there and it would be quite a good idea if I lent a hand? A: I did, the sarcasm that I referred to is I think she was upset that I had to ask the question, she was having a go at me I think. Q: You didn't have a long conversation with the man who was smashing the Cup did you? A: Not particularly long. A few minutes. Q: There wasn’t any discussion by you about you having come from England was there? A: No, I said I was born here to him, he said to me I should go home. I assume he meant overseas where white people come from. Q: Did you not say to His Honor and the Jury that you told him he came from England? A: No, I didn't say that. Q: The conversation you had with him, in fact, only took a matter of a few seconds, didn't it? A: Not really. I was talking to him for a few minutes. Q: When you came in and saw what was happening, did you ask him why he was doing it, and what he thought he was doing? A: I did, yes. Q: And the man swore at you, said something about Māori taking over New Zealand and then told you to go home, didn't he? A: That's correct. Q: And you said 'I’ve got every much right as anyone else to stay here' didn't you? A: Yes. Q: And that was the end of the conversation, wasn’t it? A: I kept saying to him what did he think he had done, and the Cup was as much his as it was anybody else’s, and why would he destroy such an important thing, and a lady came up to me and said she 94

------------------------- ATTACK on the CUP ------------------------thought I should stop talking to him because it was clearly making him angry. NO FURTHER QUESTIONS - WITNESS EXCUSED BRIEF OF EVIDENCE OF WARREN ERIC WIECKMANN READ BY CONSENT MR. RAFTERY CALLS: GEOFFREY BABER (SWORN} Q by Mr. Raftery: Could you tell the Court your full name, rank and station please? A: Geoffrey Washborn Baber, Police Constable, currently stationed at Auckland Central. Q: On Friday, 14 March this year were you working in a crime car with another Police Officer named Nimmo? A: Yes Q: Were you the first Officers on the scene following the attack on the Cup? A: I believe we weren’t, but we arrived shortly after. Q: How many Police in all would have been there? A: Two or three. Q: What time, in fact, did you get there? A: May I refer to my notebook? Q: When were those notes made? A: At the time. We arrived at the scene at 12:16 p.m. Q: Did you, among other things, take charge of the Exhibits in question? A: Yes, I did. Q: You have in front of you the booklet of Photographs please. We can see, if you turn to Photograph 5, the view in the hallway immediately adjacent to the America’s Cup room? A: Yes. Q: There are white tape with red writing on? A: Yes, there is. Q: Is that standard Police tape to cordon off an area while Exhibits are collected? A: Yes. 95

------------------------- ATTACK on the CUP ------------------------Q: At the foot of the stairs leading up to the floor even above that one, there is a blue bag is that correct? A: Yes. B: Blue, little kit bag? A: It’s a sports bag, yes. Q: Photographs 6 and 7? A: Yes. Q: If we look at Exhibit 4, please, that’s the bag in question, is it? A: It is indeed. SPORTS BAG PRODUCED AS EXHIBIT 4. Q: Inside the America’s Cup room we can see the scene set in Photograph 10? A: Yes. Q: That effectively was the scene that greeted you on arrival? A: Yes, it was. Q: In the foreground there are some items of clothing - a grey jacket? A: Yes. Q: Pale blue shirt and a tie? A: That's correct. Q: And they are shown in a little bit more detail in Photograph 16 is the shirt and 17 the jacket? A: That’s right. Q: The shirt had what looks like in the Photograph, blood stains. Is that correct? A: Yes, there were numerous blood spots on it. MR. RAFTERY: Garments are available for the jury to look at. JACKET PRODUED AS EXHIBIT 1. SHIRT PRODUCED AS EXHIBIT 2. TIE PRODUCED AS EXHIBIT 3. Q: As far as the shirt was concerned, were a number of buttons missing? A: Yes. Q: But I think six buttons were found about the room? 96

------------------------- ATTACK on the CUP ------------------------A: That's correct. Q: We’ve heard how he basically tore off outer clothing he was wearing which would be consistent with the shirt being ripped off in zeal, is that correct? A: Yes. Q: We can also see in several Photographs that the actual Display Case itself was quite severely damaged? A: Yes, it was. Q: And you collected a number of glass fragments from that, should they be required for Exhibit or analysis? A: Yes, I did. Q: And you also prepared, I think, two scene plans: one of the general area of the Yacht Squadron stairways and landing and the other layout of the rooms and the detailed one of the actual America’s Cup room? A: Yes, I did. Q: Again, you can either produce those, or answer questions should they be of importance or relevance to my friend. 81 PLANS PRODUCED AS EXHIBIT 11. NO CROSS-EXAMINATION NO FURTHER QUESTIONS WITNESS EXCUSED LUNCHEON ADJOURNMENT 1:00 PM COURT RESUMES 2:25 PM MR. RAFTERY CALLS: DAVID THOMAS NIMMO (SWORN) Q: Could you tell the Court your full name, rank and station, please? A: David Thomas Nimmo. I’m a Detective Constable at the Auckland Central Police Station.

“My friend,” term of respect referring to defense attorney Smith.

------------------------- ATTACK on the CUP ------------------------Q: On Friday, 14 March this year you were one of the Police that attended at the Royal New Zealand Yacht Squadron after the America’s Cup had been damaged by the Accused, is that right? A: That's correct. Q: Can I just ask you about one matter. We’ve heard a lot of evidence already about the damage to the Cup and the case. I think several areas of the glass case were damaged, weren’t they? A: That's correct. Q: If i could just ask you to look at part of Exhibit 9, please, a fragment of glass from the case. I think that glass was measured in width, wasn’t it? Can you remember what the measurement was? A: Approximately 12 mm. Q. If I could ask you to produce just that one part. GLASS PIECE PRODUCED AS EXHIBIT 9 Piece of glass passed around members of the Jury. Q: Could you also, should it become necessary at a later time, take the clothing Mr. Nathan was still wearing from him? A: That's correct. Q: I’m not going to go thru all the clothing. Did it include a white Tshirt with a motif on it? A: It did. Q: Look, please, at Exhibit 22. Just hold it up - see if we have the right one. Underneath the black, white and red flag or around it should it say 'Tino Rangitirotanga Māori independence? A: Yes, that's correct. Q: At the time you arrived, I think that was what he was wearing on his top? A: The first instance I saw the Defendant was back at the Auckland Central Police station where he was wearing this top. Yes. Correct. Q: If I could produce that as Exhibit 22. T-SHIRT PRODUCED AS EXHIBIT 22. Q: You can also give details of any other items of clothing, if my friend wants? A: Yes, I can. 98

------------------------- ATTACK on the CUP -------------------------

NO FURTHER QUESTIONS - WITNESS EXCUSED MR. RAFTERY CALLS: RODNEY ALAN DOWLING {SWORN) Q: Could you tell the Court your full name, rank and station, please? A: Rodney Alan Dowling. I’m a Police Constable stationed at Stanley Street Parnell. Q: You were one of the Police who arrived at the Royal New Zealand Yacht Squadron on the morning of Friday, 14 March this year? A: Yes, I was. Q: Just after midday? A: That's correct. Q: You were ultimately appointed the Officer In Charge of this enquiry? A: That's correct, yes. Q: When you got up to the America’s Cup room at Squadron building, was the Accused, Mr. Nathan still there? A: Yes, he was. Q: And apart from himself were there a number of other members of the club or people visiting there? A: Yes, there were a number of the people were previous witnesses. Q: We’ve heard he attacked America’s Cup and its casing with a sledgehammer. Did you see any sign of a sledgehammer there? A: Yes, there was, if I recall, the sledgehammer was on the ground in the vicinity of where the Defendant was standing. Q: Look, please, at Exhibit 12. Is that the sledgehammer? A: Yes, it is. SLEDGEHAMMER PRODUCED AS EXHIBIT 12. Q: Was there also a piece of paper on the floor nearby him? A: Yes, there was.

------------------------- ATTACK on the CUP ------------------------Q: Look at Exhibits 13 and 14, please. If you look at Exhibit 14 first, that was a piece of paper that’s headed 'Tino Rangitirotanga Liberation Organization is that correct? A: Yes, it is. Q: Does it appear to be a membership form for that Organization? A: It states ‘TILO membership form’ just under the title. Q: Was Mr. Nathan placed in handcuffs at that stage? A: Yes, as the first Police member on the scene, I immediately handcuffed Mr. Nathan. Q: The jury have seen in some Photographs his right hand appears to have been bleeding. Was that the only area of him visible as having been cut in any way? A: Yes, it was. I checked his injuries. I could see blood from his knuckles or fingers that was the only visible injury I could see. Q: Did you place him in a Police car outside the building and advise him of his rights? A: Yes, I did. Q: When we use the phrase advise him of his rights, what does that mean? A: I gave him a short caution and his New Zealand Bill of Rights, pursuant to the Bill of Rights Act. Q: And, in effect, does the short caution advise him that he doesn’t have to say anything unless he wants to? A: That's correct. Q: And his rights pursuant to the Bill of Rights include the right to a lawyer? A: That's correct, yes. Q: Having given those rights, what did you say to him? A: Could I refer to my notes? Q: When were the notes made? A: At the time or slightly after. (Leave Granted). At 11:37 p.m., I placed the Defendant into the Police car. (Reads Notes). Q: Did you ask him some questions there? A: Yes, I did. Q: What did you ask him? (Reads Questions and Answers). Q: Looking at Exhibit 13 beside you. There is that the note covered in blood you have referred to? A: Yes. 100

------------------------- ATTACK on the CUP ------------------------Q: Does it purport to be a quote from Theodore Roosevelt? A: Yes, it does. Q: You were going on to say you asked him his details? A: That's correct. Q: What did he tell you about himself? (Reads Notes). Q: What did you ask? (Reads Notes). A: Was that referring back to the Tino Rangatiratanga form? A: That's correct - Exhibit 14. (Continues reading notes). Q: Was he then, I think, taken to the Auckland Central watchhouse and there did you show him a duty solicitors list and recommend him to speak to a solicitor? A: Yes, I did. Q: Did he then instruct you to telephone Mrs. Smith, behind me, and did you do so? A: Yes, i did. Q: Short while later did Mrs. Smith arrive at the watchhouse and was she then placed in an interview room where she was allowed to talk to Mr. Nathan in private? A: Yes, she was. Q: Then at 1:53 or thereabouts did you commence an interview with him in the presence of Mrs. Smith which was recorded on video? A: Yes, I did. Q: Perhaps if you could be shown Exhibit 29. Is that the master copy of the video of the interview you conducted with Mr. Nathan? A: Yes, it is. VIDEO PRODUCED AS EXHIBIT 29. QUOTATION FROM THEODORE ROOSEVELT PRODUCED AS EXHIBIT 13. TILO[sic] 82 MEMBERSHIP FORM PRODUCED AS EXHIBIT 14. VIDEO INTERVIEW PLAYED AT THIS POINT (2:45 - 3:10) NO CROSS-EXAMINATION 82 Tino

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------------------------- ATTACK on the CUP ------------------------NO FURTHER QUESTIONS - WITNESS EXCUSED EVIDENCE FOR THE CROWN CONCLUDES MRS. SMITH REQUESTS CHAMBERS DISCUSSION {3:10 - 3:20 PM) AFTERNOON ADJOURNMENT 3:30 PM COURT RESUMES 3:55 PM MRS. SMITH OPENS83 COURT ADJOURNS 4:30 PM COURT RESUMES TUESDAY 2 SEPTEMBER 1997 AT 10:45 AM MAORI INTERPRETER SWORN IN MRS. SMITH CALLS: BENJAMIN PERI NATHAN (SWORN) MR. NATHAN SAYS A KARAKIA 84 TO THE COURT Q: Could you tell the Court your full name please? A: Benjamin Nathan. Q: Now, before I go to the facts of this case, I want you to tell the jury a few things about yourself. Where were you born? A: I was born in Papakura. Q: Who are your parents? A: My mother’s name is Elizabeth Nathan. She is of English Irish descent. My father’s name was Raro Nathan. He was of Nga Puhi Ngatephatua and Teroroa descent. He is passed away. Q: Where were you raised? A: Well, I was raised in Papakura until the age of five, and at that time we moved up to my father’s ancestral Lands at Oma mare Beach. Opening Statements by Defense Attorney are NOT considered “evidence” and are not included in the transcript. 84 Prayers or chants used in many formal and informal daily rituals. 83

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------------------------- ATTACK on the CUP ------------------------Q: Were you raised at Oma mare Beach? A: Yes, not just at Oma mare. I was also raised at a small community at Kaihu and the reason I spent so much time there is because all my father’s relations lived at Kaihu, so it was just natural for me to stay there as well as Oma mare beach. Q: What was life like for you as a child living in such a small Māori community? A: It was choice. Yeah, real choice. It was a real sense of togetherness our focal meeting point was our marae waikaraka. 85 We would go there for funerals, meeting, working bees and so on. My fondest childhood memories of the time I spent at my marae there. I remember us Tamariki 86, we would sort of like just be sitting in the kitchen around open fire making endless cups of tea and playing jokes and all that sort of thing listening to sounds having some snooky cigs. All the elders would be in the main meeting having a korero. I regard Waikaraka Marae as my spiritual home and it is where I should be buried one day. Q: In what way, if any, do you think living at Kaihu and spending so much time on the marae influenced your life as a child? A: Well, it’s made me see myself as being 100% Māori, although I’m obviously very fair on the outside. To me, in my Wairua in my spirit I regard myself as being Māori thru-and-thru. Q: As a child what was your relationship like with other Pakeha children? A: Yeah, it was very good. Basically, to me it was the same as Māori children. I was an innocent child. I didn't judge a person by the color of their skin. Yeah, it was good looking back now, though I can see the obvious discrepancies between our cultures. Q: What do you mean obvious discrepancies? A: Firstly, our cultural differences, secondly there were our value differences brought up with different values and thirdly most importantly economic differences. For the most part, the Pakeha children’s parents owned the farms in local district and the ironic thing is this was Land stolen from our ancestors. Economically, they were very well off, whereas our parents, the Māori, were farm 85 (Māori) cultural center. 86 (Māori) children.

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------------------------- ATTACK on the CUP ------------------------laborers or kumara-pickers or on the dole, a lot of them on the dole - not that they want to be on the dole find it degrading but they had no choice it was be on the dole or starve so there were those economic differences, for a lot of our parents were forced to work as common farm laborers for farmers on land which rightfully belonged to them. Q: Did being poorer than say, Pakeha children, affect you when you were little? A: Well, at home it didn't at all, because my parents always made sure we had plenty of kai, heaps of clothes and roof over our head. At school you could notice differences because Pakeha kids had flashiest clothes and nicest lunches. I remember us Māori kids would --Q: Did these economic differences cause conflict between the two communities - Māori and Pakeha? A: No, not at all. Like our two communities have always got on civilly and courteously, although the Pakeha were economic better off than us culturally and spiritually, we had our riches as well. Q: As a child, were you ever subjected to racism? A: No, not personally, however that’s because I am a very fair Māori, and I can pass as either Pakeha or Māori, however my cousins who had distinctive features were occasionally subject to racism, however I do recall one time when my father was made the butt of a racist remark. At the time I was only 8 years old coming back from school on the bus and there was this Pakeha girl sitting next to me and my father walked out of the house and she saw him and she didn't know it was my father and she points at him and says ‘look at that blackie’ and to me instead of doing something about it, I looked away and I was ashamed. I should have done something about it. Q: I know you want to tell His Honor and the Jury something about your father because he meant a lot to you, what would you like to say? A: Yes, my father was a very deep dark Māori man and his nickname was Mohammod Ali because he looked like the American boxer. He was born in the Koiwi area to Sarah and John Nathan, and because Nana was very sick, he was adopted to Nana Kiti and that’s the reason we can trace our ancestral lines both natural and 104

------------------------- ATTACK on the CUP ------------------------adopted. At the time my father was born in Aotearoa, this country was a very racist where Māori were classed as second-class citizens, they were not allowed to speak the Māori language in school, there were cases where Māori children were forced to pick blackberry bushes with their bare hands for speaking their own language. Also certain of their customs and beliefs they were forbidden to practice by the laws of the Land they had the most menial of jobs kumara pickers farm hands and that politically economically spiritually and socially they were disadvantaged. One other thing - the thing about it is you won’t read about any of these facts in the history books that are taught in our public schools because the history books taught in our public schools are from colonizers’ point of view and as such, they are a litany of lies upon lies upon lies. Q: Did your family ever suffer from discrimination? A: Yes. My father suffered from discrimination, and I refer to it as racial discrimination of institutional kind because it was inflicted upon my father by a Government department. At the time my father was working for Lands and Survey Department as common farm laborer again, ironically enough, on Land which rightfully belonged to us. He hated the job he was doing but he had to do it because he had to feed us, his family, and one day an opportunity came along which would enable my father not only to start his own business but to make good money and also to do work which he loved. My father was offered a lucrative contract to supply the Dutch Government to supply eels to [them]. When my father heard about this he was overjoyed - an opportunity for him to better life for himself and us and so all that had to be done was a contract just had to be signed details to be finalized and that was it. But then, somehow and some way the local county council heard about the contract and seeing a great deal of money to be made they decided they wanted to put their greedy little bits in it so what they did they went behind my father’s back, and they signed the contract instead with the Dutch Government. When my father heard about this, he was fuming. He was livid with rage, so he went directly to the county council and said you can’t do this what you are doing is wrong and the C.C. 87 turned around to my father in their arrogance 87 C.C. = County Council.

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------------------------- ATTACK on the CUP ------------------------pride and conceit, and they said to my father ‘look little Māori boy we are the ones in power we are the ones in control the laws of this Land say the contract has been signed so there is nothing you can do about it, little Māori boy you just run along home, ok.’ And my father knew he was morally in the right, but he was a poor man who could not afford a fancy lawyer, so my father had to give up his dreams of a better life for himself and us his family all because of the greed and corruption of the C.C. Q: We are going to get to Land claims in a minute. A: But you see, like as bad as they treated him, they did worse things to us, his family, after he died, but that’s another story. Q: Did the C.C. have any further dealings with your family? A: Yeah, to make a long story short because I can see His Honor wants to get to the main bits, the C.C. destroyed our tapu 88 eels. After my father died, we had pet eels - they were pets, not to be eaten or anything like that, we had them for a very long after my father died. A tapu was placed on them which meant they were sacred; the C.C. came along and, even though they were tapu they disregarded us for the local farmers. Q: I’m going to show you now two Photographs (Going in by consent) PHOTOGRAPHS PRODUCED AS EXHIBIT A (INDISTINCT SHADOW) AND B (DISTINCT SHADOW) Q: If you could have a look at those Photographs and tell the jury what they show? A: These are our pet eels that we used to feed and look after and all that sort of thing at the back in our creek that’s before they were killed. Q: Ben, has your Tribe been in discussions with the Government for the return of your ancestral Lands? A: Actually, I am very much involved with the return of my tribes’ Land.

(Māori) sacred, spiritual restriction.

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------------------------- ATTACK on the CUP ------------------------Q: First of all, tell us about the Land claim? A: Well it began in 1876 when the Government thru devious means stole my ancestors’ Lands. For m[y] tribe this was both like an economic and a spiritual blow to them because it robbed them of an economic and spiritual base, and ever since that time 120 years [ago] we have been fighting for the return of our Lands. Q: Have you personally been involved with a claim for the return of your Lands? A: Yes, I attend all the Land meetings, I’ve participated in protest action, and I’ve written numerous letters to the local paper to inform the public about the issues of our Land. Q: Now, I’m going to show you a copy of a letter. LETTER PRODUCED AS EXHIBIT C. Q: Do you recognize that letter? A: Yes, it’s one I wrote to a local paper. Q: What is it called? A: Local Land Claim Over 100 Years Old. Q: Do you remember when you wrote that? A: Couple of years, I think. Q: Now, you’ve told us that you are affiliated to Turora Ngatiphatua and Ngapuhi. To which part of New Zealand do these tribes belong? A: Up in North Island. Q: When did you come to Auckland to live? A: Last year. Q: Did you undertake any study programmes in Auckland? A: Yes. Q: What was that programme about? A: Total emersion in the Māori language. Q: Where was that course held? A: Manukau Tech in Otara. Q: Have you heard of the Declaration of Independence 1835? A: Yes. Q: Are you able to tell His Honor and the Jury what it is? A: It’s a Treaty.

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------------------------- ATTACK on the CUP ------------------------Q: And do you know when it was signed? A: 1835 by some Chiefs and the British, I haven't got the paper here, so I don’t know Q: I’m going to show you - have you seen that document before? A: Yes, I have. Q: What did you understand the purpose of the Declaration to be? A: To establish a platform for Māori Sovereignty. Q: Does the Declaration of Independence mean anything to you? A: Yes, it establishes our Tino Rangatiratanga which means to me having full control and power over our own resources and assets and living our lives according to our beliefs, principles and customs. THE COURT: Do you produce that Declaration? DECLARATION PRODUCED AS DEFENCE EXHIBIT D. Q: I’m now going to show you a copy of the Treaty of Waitangi. Were any of your tribes signatories to that document? A: Yes, both Ngapuhi and Ngatiwhatua. Q: Was the Treaty written in English only or was it written in Māori as well? A: It was written on both languages. Q: What does the Māori version of the Treaty of Waitangi mean to you A: It guarantees Māori sovereignty. I mean to say it’s ludicrous to suggest, as some people do, that Māori willingly signed away their sovereignty. At the time this Treaty was signed, Māori outnumbered the Pakeha by 200 to 1, so you can’t tell me under those circumstances anyone would willingly give away their sovereignty and self law, that’s ludicrous. Q: Is there any article in the Treaty which guarantees to Māori Tino Rangatiratanga? A: Second Article of the Treaty glass our Tino Rangatiratanga, it promises undisturbed and exclusive possession of all our assets, plus the Fourth Article which is the unwritten article only written in Māori, that we were promised all our customs beliefs and laws and all of that. Q: Were you taught by your elders what Tino Rangatiratanga meant in the Second Article? 108

------------------------- ATTACK on the CUP ------------------------A: Yes. I was taught that it was authority based on Mana. Now there are three different concepts of Mana - cosmic principles and spirituality, Mana Tangata, 89 which is about politics and how people organize themselves and there is Mana Whenua 90, territorial control of the Land and economic development. I was taught it was my custodial duty as a member of my tribe to uphold economic political and social rights of these concepts, both Declaration of Independence and Treaty of Waitangi endorse this moral authority. I was also taught that this Land belongs to one person, that it is my custodial duty as a member of my tribe to protect the integrity of this Land thru the concept of Mana Whenua, because as one of my fellow brothers said, Mike Smith, we are the last line of defence. It is up to us to say to this Government and foreign capitalists kati 91 stop finish you can’t keep on selling off our assets to foreign capitalists, you can’t keep on selling it so they can rape, exploit and destroy our Land. We never said we owned this individually ourselves, but we know no one else does either, and another thing we were taught was that our sovereignty as a people is not reliant upon Treaties, not reliant upon political acts or parties or anything like that. Our sovereignty as a people is guarantee because we have lived and evolved on these islands for the last 2000 years - our people have fought, they have made love, they have made past. This country is rich in history, and as such, our sovereignty as a people is absolute and is guaranteed. Q: Have these two documents, the Declaration of Independence and the Treaty of Waitangi guided you in the action which brought you to Court? 92 A: Yes. There were other factors as well, such as injustices that my family have suffered at the hands of the Government; my tribe have suffered at the hands of the Government, that Māori people throughout history have suffered at the hands of Government, and for me one of the reasons I feel is that I was following an example of a great Ngapuhi Chief Hone Heke. 89 (Māori) power and status. 90 (Māori) territorial rights.

(Maori) to close, shut, close up, obstruct.

92 Copies of each are included in their entirety.

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------------------------- ATTACK on the CUP ------------------------Q: Can you tell us about Hone Heke? A: Hone Heke was a great Ngapuhi Chief who cut down the British flagpole four times in defiance of British rule. The reason he did this because he could see Māori people everywhere suffering at the hands of British Government. Now, at the time that Hone Heke cut down the flagpole, he was condemned - not only by Pakeha, but by many Māori as well. His actions were looked upon as unlawful and rebellious and Hone Heke was looked upon himself as a reprehensible and disgusting terrorist, but now, all these years later, history has proven that what Hone Heke did was moral and right and it was also proven that Hone Heke was an honorable and just man. So too, in the same way I believe history will vindicate me for my actions: although I am looked up now as a disgusting and reprehensible terrorist, in 100 years-time however I believe when future historians judge me and judge what my true motivations were for my actions, that they will vindicate me of any wrongdoing just as Hone Heke has been. I believe it. Q: Can you whakapapa 93 to Hone Heke? A: No. Q: Has Hone Heke influenced you in the actions which brought you to Court? A: Yes, because like Hone Heke, my actions were not aimed at the community but at the Government. You see, if the Government won’t listen to us Māori, but when their rich friends are offended, they will listen alright. Q: Now, I want to show you the Exhibit dealing with the Tino Rangatiratanga movement. (Exhibit 14). Ben, when did you become involved in the Tino Rangatiratanga movement? MORNING ADJOURNMENT 11:30 COURT RESUMES EXAMINATION IN CHIEF CONTINUES: [Benjamin Nathan) 93

Whakapapa (Māori pronunciation: [ˈfakapapa], ['ɸa-]), or genealogy, is a fundamental principle in Māori culture. Reciting one's whakapapa proclaims one's Māori identity, places oneself in a wider context, and links oneself to land and tribal groupings and the mana of those.

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TREATY - EXHIBIT E. Q: Now could you look at Exhibit 14 in front of you please? When did you become involved in the Tino Rangatiratanga movement? A: I became involved in the movement earlier this year. I signed this membership form here, which basically says due to the fact that we will be using direct action against the Government the possibility of being jailed or even killed will be extremely likely, so if you are not prepared to face dangers, do not sign up. Also, like part of our membership form we have swear a loyalty oath which says my loyalty is my honor my loyalty to the cause of Tino Rangatiratanga is my honor. Q: Why did you become involved in the movement? A: Basically, just out of frustration and resentment against this racist Government - just the better things for Māori people in general. Q: Can you tell us anything about the Organization? A: Yes. Organization no longer exists since I’ve - since the last 6 or so months. It’s disbanded for various reasons, so there’s no longer our Organization left. Q: Was it after you joined the Organization that the plan to damage the America’s Cup was conceived? A: Yes. Q: Why did you damage the Cup? A: There were a number of reasons. Firstly, in order to protest against this Government for the continued sale of our assets to foreign capitalists who are destroying our sacred treasures, forests and lakes and all that sort of thing. Already over half of our Lands and assets have been sold to foreign capitalists, yet the people of New Zealand don’t seem to care about that. Second reason was in order to protest against this Government for not fully honoring the Treaty of Waitangi and the Declaration of Independence. The third reason why I did as I did was in order to protest against this Government and Royal New Zealand Yacht Squadron for not consulting with my tribes to use the waters for the America’s yacht race. If they are going to pollute all the sacred sites and all that, they can’t do that. They have to consult with our tribes, and they 111

------------------------- ATTACK on the CUP ------------------------haven't, and the fourth reason to protest against what the Cup symbolizes. Q: What does the Cup symbolize? A: The rich becoming richer and the poor, poorer. Q: Who are the poor? A: They are my people, whose going to benefit from this Cup. Not my people - only the rich. Q: Did you honestly believe what you did was justifiable? A: Now you’ve asked me if I honestly believe that my actions were justifiable, yes. I sincerely believe my actions were justifiable, and my thinking has developed in this way as to why I believe my actions were justifiable. Was it justifiable for the local C.C. to rob my father of his eel contract, thus destroying his dreams of a better life for his family? Was it justifiable for the same C.C. to destroy our sacred eels? Was that justifiable? Was it justifiable for the Government, in 1876, to rob my tribe of their Lands? Was that justifiable? Is it justifiable that this Government continues to sell off our assets and our Land to foreign capitalists even though it is against the will of both New Zealanders Māori and Pakeha? Is it justifiable that this same Government continues to refuse to fully honor the Treaty of Waitangi and Declaration of Independence? Is that justifiable? Is it justifiable that the New Zealand Lotto Board has turned down a grant for the people in the disabled wheelchairs, but they have given exorbitant amounts of money to Black Magic? Is it justifiable that the ACC chucked out old people from their homes which they have been living in for 30 years to make way for condominiums for Cup crew? This is reality and I ask is that justifiable? So, compared to these atrocities, my act pails [sic: pales] completely in significance. Not only do I believe my act was justifiable, I believe it was honorable and I believe it was right. Q: What are the grievances which you had which caused you to attack the Cup? A: Well, firstly, as I have said, there are my family grievances because of what the Government did to my family. Secondly, tribal grievances because of what New Zealand Government has done to tribes throughout New Zealand and continues to do. Thirdly, my Māori political grievances because the Government refuses to fully honor the Declaration Fourthly, the conservation grievances 112

------------------------- ATTACK on the CUP ------------------------because the Government keeps on selling off assets to foreign capitalists. Fifthly, they didn't consult with my tribes to use the waterways, and because of what the Cup symbolizes, mainly the grievances which I mentioned before. Q: Before you damaged the Cup had you tried any other means to address those grievances? A: Yes, I participated in protest action and also, I’ve written numerous letters to various officials and various newspapers and that. Q: I’m going to show you 3 letters now LETTER - IDENTITY - F LETTER - PUT IN PLACE - G LETTER - NOT VOTING - H Q: Have a look at those letters. Are they the ones to which you were referring? A: Some of them. Q: Produce those. Ben, had you formed the view as to whether or not the Government was making honest attempts to address the grievances you have told us about? A: Yes, and my view was and it still is that this Government is making no real serious attempts to address my main grievances, e.g. when leaders of Tino Rangatiratanga movement went to go and see Government to discuss issue of Māori Sovereignty, the Government flatly refused to even discuss it with them. Secondly, this Government is continuing to sell of our assets and our Land and all that to foreign capitalists even though against the will of Māori and Pakeha people. They are destroying our Land. Q: Did you have a belief in your mind which justified the action you took? A: Yes, it was a belief of Māori law of Muru 94. What I did was legally right, according to a law which is called Muru. 94

Muru is a concept in Māori culture, describing acts of compensation for wrongdoing, either between hapū (sub-tribes), whānau (extended families) or individuals. A form of utu, Muru is a process of restorative justice to restore balance in relationships and society. Often Muru involves the transfer of goods or

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------------------------- ATTACK on the CUP ------------------------Q: Can you explain what the law of Muru is? A: Well basically Māori law of Muru means to plunder or destroy. Now back in the old days if someone did something wrong, they could be punished by not having their goods destroyed but by having goods destroyed that belonged either to friend or family. In other words, even if you were totally innocent of a crime according to Māori law of Muru, if one of your friends or family committed something wrong you could be punished instead of them. So that’s why, for myself, that’s why I believed I was fully justified in taking action I did, because I was doing so according to Māori law of Muru. Because I recognize both Pakeha and Māori law, this is how when I say I believe it’s justified in this way all those involved with America’s Cup are friends of New Zealand Government. They all associated with New Zealand Government in one form or another, so by taking Muru against the Cup, I was, in effect, punishing New Zealand Government for the crimes they commit and continue to commit against the Māori people by not honor the Treaty and the Declaration of Independence. Q: Can you commit Muru again, are you able to commit Muru again? A: You mean against the Government? Q: Yes, against the Government? A: Well, for myself personally, technically, cannot commit Muru again against the Government. Reason is because once a person has taken Muru against someone else for wrongs that someone else has committed, he can’t do it again. So, for me personally, I can’t. My fellow or ex-member could, if they wished to I should, say, or any other Māoris could, however, even if I was able to, I would not commit Muru again against the Government, for the simple reason that I believe I have achieved the political aim which I set out to achieve: to punish the Government for the wrongs it continues to commit against Māori people and the Declaration of Independence. Q: Did you think that taking this action against the Cup might result in any positive changes? resources in response to an offense. In the early colonial era of New Zealand, Muru was recognized as a legal concept in colonial New Zealand courts, as an equivalent to common law damages.

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------------------------- ATTACK on the CUP ------------------------A: Yes, because it will let this Government know that there are still people out there who are willing to fight for this Land, let this Government know that it cannot continue to sell off our assets to foreign capitalists. You see, both my grandfathers fought in both World Wars in defense of this Land. If they could see what this Government was doing to it, they would turn in their grave. And also, to let this Government know that we will continue until they fully honor the Treaty of Waitangi and Declaration of Independence. Q: When you damaged the Cup, did you have a belief as to any legal right you may have had? A: Yes, the legal right of Muru, according to Māori law which I recognize, and I believe in. Q: Is Muru recognized by Māori law? A: Yes, it is. Part of our oral and cultural law, it is also part of our Declaration of Independence, also part of the Treaty of Waitangi, and also part of United Nations Declarations for Indigenous People of which this Government is a signatory. Q: On the day you attacked the America’s Cup, a fax was sent to all the media stations, and in the fax it says our aim is the establishment of an independent Māori state. THE COURT: Are you giving evidence? MRS SMITH: Was a press release sent to the media? A: Yes. Q: What did that say? A: A press release95 stated that we will establish an independent Māori state. Such a state would have a red, white and black Flag of Tino Rangatiratanga movement as our official Flag. Such a state would have official language as the Māori language. Such a state would have a Māori army, Māori Justice system, Māori Parliament system. Such a state would have a written constitution in Māori based on principles of equality Justice and fairness for all. That is what the press release meant. Basically, what I wanted to say was that I no longer believe in the concept of an independent Māori state, for the simple reason that I believe it would divide our country. I’ve had a lot of time to think about things over the last 6 95

First indication at trial of a conspiracy to attack the Cup.

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------------------------- ATTACK on the CUP ------------------------months or so, during which time I realized the only reason I had a radical belief was because of a rage and resentment I felt against the Government. For me, personally, my concept of Tino Rangatiratanga is the empowerment of Māori people and Māori tribes are politically and economically, so that each tribe can live according to their own customs beliefs and principles and be in control of your own resources and assets of course. We have to have one law for all New Zealanders - I also believe that Māori law should be included in one law in the Treaty of Waitangi. Q: On 14 March this year did you take a taxi from downtown to Royal New Zealand Yacht Squadron? A: Yes. Q: Did you arrive at the Squadron at about 11:15 that morning? A: Yes. Q: When you walked inside the building, did you speak to the Receptionist? A: Yes. Q: What did you say when you spoke to her? A: I told her that I was a reporter who had come to do a story on the Cup. Q: After you spoke to the Receptionist, what did you do next? A: I went straight up to the America’s Cup room. Q: When you reached the room, what did you see? A: I saw the America’s Cup in the middle of the room, and there was four people sitting in the corner. Q: When you saw these people, did anything go thru your mind? A: Yes, I froze for about 2 minutes. You see, my intention was not to hurt or frighten anyone - it was solely to destroy the America’s Cup which is symbol of everything I despise. You see, when we first planned our operation 96, there had been no one in the room and I later found out they had just arrived for some regatta, so there was meant to be no one in the room. Q: What made you decide to continue with your plan? A: Well, there were a number of factors, but the most motivating factor was the quotation by John F. Kennedy. 96

First indication at trial of conspiratorial pre-planning.

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------------------------- ATTACK on the CUP ------------------------Q: Could the Exhibit please be shown, Exhibit 13. Is that the Exhibit to which you are referring? A: Actually, it was written by John F. Kennedy, and attributed to Theodore Roosevelt. 97 Q: What can you tell us about that Exhibit? A: Well, it was written by John F. Kennedy, and tributed to Theodore Roosevelt. Q: Why did you take it with you? A: The main reason why I took that with me was to inspire and encourage me. You see, I read it all the way there to the Royal New Zealand Yacht Squadron, just to give me courage. I suppose to mentally prepare me. Q: Did you know the words off by heart? A: No. Q: Did it seem hypocritical to you reading a quotation written by the American president when you were going to smash the America’s Cup? A: Not at all, the late president John F. Kennedy, who wrote this tribute, was the greatest American leader who ever lived. He helped end Martin Luther King segregation in America. For me, it was a great honor to have his words to inspire me. Q: Now you told us when you went into the room you saw people there and you hadn’t expected to see them. What were the factors that made you continue? A: Well, like I said, there were a number of factors: firstly, I believe too much time and planning had gone into the operation to back out. Secondly, I believe it was my duty as a member of Tino Rangatiratanga movement to make a stand for our course. Thirdly, and most importantly, I was inspired to carry on by these words which I had been reading.

97 This is an interesting become associated with both TR and JFK,

but the entire quotation found at the scene which was clearly Roosevelt’s.mis-statement statement on the part of the defense. Roosevelt clearly wrote the speech, and JFK, being a fan of Roosevelt, quoted him in “Profiles in Courage” using only the phrase “man in

the arena.” It is said that this phrase has now

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------------------------- ATTACK on the CUP ------------------------Q: When you had made up your mind to continue and smash the Cup, did you have any attitude to the people who were in the room? A: Yes. I was determined not to hurt them. As I said, my sole intention was to destroy the Cup. It had nothing to do with anyone else, yeah, my intention was to destroy the Cup. Q: When you started hitting the case in which the Cup stood, did it surprise you it was so hard to break? A: Yeah, it did actually. It was like incredibly thick glass, and I kept on sort of just smashing it. I couldn't believe how tough it was, that glass. Q: Now you said in your interview with Constable Dowling that you kept smashing the case, and you said to him it kept making a lot of noise like trying to scare everyone off, remember that? A: Yes. Q: What did you mean by the words like ‘trying to scare everyone off’? A: Because I had made up my mind to continue with the plan, I didn't want to frighten anyone more than I had to, so I just started yelling and that, in the hope that people would leave the room, which most of them did, except for one person, which is regretful. Q: Was there any chance that any of the people could have been struck by the sledgehammer? A: No, not at all. The Cup stood in the middle of the room and the people in the corner were over there. I went straight to the Cup - I didn't go to the people - I went straight to the Cup and started smashing it. Q: You may recall a witness yesterday, Mark Wallis, said that you spoke to him and said ‘Tino Rangatiratanga mother fucker.’ Did you use those words? A: Yeah. Q: Why did you say that? A: Well, I was just hyped up and tensed up at the time. It was all the tension coming out of me it - was nothing personal. I didn't even know him. Q: Remember Richard Hare, the man with the camera gave evidence yesterday and he said that you swore at him. as there anything personal in that? 118

------------------------- ATTACK on the CUP ------------------------A: Is that the fella with the camera? Mrs. Smith: Yes. A: No, it was nothing - like I said, I was hyped and tense at the time like I said a lot of things on the day which I wouldn’t normally say to people I don’t know. Q: Mr. Hare said you said to him ‘Māori will take over New Zealand,’ remember? A: Yes. Q: Why did you say that? A: Well, once again, like I said, I was hyped up and I said a lot of things I didn't mean. After all, it’s not every day a person goes around smashing America’s Cup, it just happened like that. Q: Did you tell Mr. Hare to go home? A: Yes. Q: Mr. Hare said when you told him to go home, he said ‘I’m a New Zealander and I have as much right as you do,’ remember that? A: Yes Q: When you told Mr. Hare to go home, what did you mean? A: When I told Mr. Hare to go home, I meant his place at the time. I saw he had a camera, so I told him to get away and that I was referring to his home - I wasn’t referring to anywhere else. He said yesterday I was referring to England, which isn’t true. Q: As far as you are concerned, does Richard Hare have a right to live in New Zealand? A: As far as I’m concerned, no matter what a person’s color, religion, race, or anything like that, everyone is welcome to live in this country. My fight is not against the ordinary people of this country, it’s against this corrupt Government. Richard Hare has got the right to live here as I have. Q: Remember Warren Weikman gave evidence yesterday, and he said after you took off your suit, you began chanting and saying ‘this is Māori Land you white bastards,’ remember that? A: Yes. Q: To which Land were you referring? A: To all the Māori Land that is currently under Māori claims before the Government. Q: When you said ‘white bastards,’ to whom were you referring?

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------------------------- ATTACK on the CUP ------------------------A: I was referring to all those people who were there at the time, however, I would like to say I realize that that is a very racist remark, and, as such, I would like to apologize for that. Q: In brief why did you go to the Royal New Zealand Yacht Squadron on 14 March and smash the Cup? A: Well, I believed that it was my moral and legal duty to do so, because as someone once wrote ‘let us believe to the very end that right makes might. And, in that belief, let us dare to do our duty as we understand it’ and I believe that was my duty as a member of my tribe and as a member of the Tino Rangatiratanga movement, to make a stand for our cause. That it was my custodial duty to protect the economic Protocol and social integrity of the concepts of Mana Atua Mana Whenua and Mana Tangata. Q: When you refer to ‘my tribe’ to which tribe are you referring? A: Well, I grew up mainly with Turoroa, but I still retain strong links with Ngati Whatua and Ngatipuhi as well. Q: Are they linked to the Waitemata? A: Yes. Q: Do you know if there are any sacred sites on the Waitemata Harbour? A: Yes. Where that Yacht Squadron is there is a sacred site there it used to be like a launching stone for all the canoes. Q: What did you expect to achieve by smashing the Cup, just in a very brief summary? A: Well, to force this Government to honor the Treaty of Waitangi and Declaration of Independence, and to stop selling off our assets to foreign capitalists. Those are my political aims. Q: Has the customary law of Muru enabled you to do that? A: Yes, because it has enabled me to act lawfully according to Māori law. Q: And my final question to you is this, should other New Zealanders feel threatened by the concept of Tino Rangatiratanga that is Māori Sovereignty? A: No. I believe not. See, like once New Zealanders are made aware of what the Treaty is all about then they will understand what Māori Sovereignty is all about. You see, I see a future Aotearoa with a Māori language and values will flourish, where our country will not be based on exploitation, but more on sustainability 120

------------------------- ATTACK on the CUP ------------------------of our assets, and that people who come to this country will say you know, bro, it’s real choice here man, it’s clean and it’s green and they’ve got a real good Kaupapa, they have found a way to meet the needs of a modern society along with the rights of a Tangata Whenua, it’s not like in some countries where people are sleeping on the streets where others have millions of dollars. MRS. SMITH INTERPOSES THE NEXT WITNESS BY CONSENT. MAORI INTERPRETER SWORN IN MRS. SMITH CALLS: COLIN WELSH (SWORN) Q: Sir, could you introduce yourself to the Court please? A: I am an elder - a senior elder - of Ngati Whatua and also extends to the four winds of Aotearoa. Te Tainui, that is the Waikato, Taitokerau, the north and the south and the east. My name is TeAroha Patuani Werehi. Q: Can you explain, please, to the Court, your status and your immediate tribal connections to the Tamaki-Makau-Rau? A: I am a senior elder here in Tamaki-Makau-Rau, the local tribe being Ngati Whatua. I am here to give an in-depth Māori perspective that can only be expressed in the Māori language. Q: Are you related to Benjamin Nathan? A: Yes, as was explained in the first instance, his connections not only in Ngati Whatua but extend to the Taitokerau confederation of tribes. Q: Are those the principal lines of relationship, main lines of descent? A: Yes, there are some things, by virtue of my being a senior elder in Māori society, that can only be expressed by a senior elder, and cannot be expressed by the younger generation. Q: Do you know about Ben’s action in smashing the America’s Cup? A: Yes. Q: As senior elder, can you sanction that action within Māori customs and tradition? A: Yes.

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------------------------- ATTACK on the CUP ------------------------Q: Finally, Sir, can you tell us why you can sanction them? A: Let me go back to traditional times. I don’t agree with the action, per se, but let me say this. As an elder, that there were issues laid down by our elders. There were Māori lores laid down and laws laid down by our elders to follow in those days - they were very sacred. Māori laws were sacred, if one offended, they were dealt with in a very particular way, but we have no access to that structure anymore. A trial of a person was conducted on the sacred marae where everyone could hear what the offence was, nowadays that is lost. Concerning this young man, here you have a young person who is striving to understand his own culture and has struggled to gain some of this knowledge. Some of the depth of Māori knowledge has been passed on to him but he lives in a world dominated by western culture, and there you have the difficulty. So, within his understanding of Māori knowledge and culture, he understands that the most important thing is human beings, then he lives in this world which is dominated by western culture that teaches him that things are more important, material things are more important and there develops the anger within him and within many young Māori people that material things have more importance than human beings. And in understanding that human beings are more important, it is also a connection to his God who created him, for in Māori society there is a belief that we descended from the God, a sacred seed from the Gods, yet within this western culture he is educated to honor and prize material things. I want to thank you all for your patience for listening and I would ask at this time for one minute silence in remembering Princess Diana. 98 (Minute of silence observed). NO CROSS-EXAMINATION NO FURTHER QUESTIONS WITNESS EXCUSED

Diana died 1 August 1997 in an automobile accident.

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------------------------- ATTACK on the CUP ------------------------LUNCHEON ADJOURNMENT 1:00 PM COURT RESUMES 2:35 PM CROSS-EXAMINATION BY MR. RAFTERY: [Benjamin Nathan] Q: When you spoke to the Police on the day that you smashed the Cup, you told them you believed you were morally justified in doing what you did, didn't you? A: Yes. Q: Today you’ve added that you also say you were legally justified because of a Māori custom of Muru. That’s right, isn’t it? A: Yes. Q: Was there any particular reason why you didn't say anything about Muru to the Police? A: No, there’s no particular reason at that time. Q: Or is this a further justification claimed for your actions which has been thought about since your actions? A: Well, I don’t believe it is, for the simple fact that all these beliefs and custom and principles that I’m talking about I know all about them before I did my actions, but you’ve got to remember on the day I undertook the action that I did that there was a lot of things I didn't say to the Police. Q: I accept, for the purposes of argument, that you knew about the custom of Muru before you spoke to the Police, when you did speak to the Police you will remember that on a couple of occasions you stopped him questioning you and said you had more to say and wanted to finish your explanations for your actions, didn't you? A: That’s right. Q: And, on no occasion during your interview with the Police did you make any reference to Muru? A: Are you calling me a liar, Mister? THE COURT: Listen to the question. MR. RAFTERY: On no occasion on your interview with the Police did you make any reference to Muru, did you? A: Well, it’s like I’ve explained, Mister. I never said a lot of things which I could have said because I forgot a lot of things, and I also 123

------------------------- ATTACK on the CUP ------------------------said a lot of things which I now regret, such as racist remarks. You have to remember, on the day I was extremely tensed up when I had the interview with the police. I didn't explain what I had done, now regardless of the fact whatever you think I know for myself that I was acting in accordance to my belief, that was the belief of Muru. I knew about that prior - before the America’s Cup. Q: So, is the answer to the question 'no i didn't'? A: I can’t understand what you mean. Q: The question was, did you make any mention of the custom of Muru to the Police? A: I’ve already said I didn't. It was in the interview. Q: You acknowledged to the Police that you knew you were breaking the laws of this country, but believed you were morally justified in doing so, didn't you? A: Yes, morally justified under the Māori law of Muru. That’s right. Q: And that fully expresses in a short and pithy way the reason why you did what you did, is that correct? A: That’s right. NO RE-EXAMINATION NO FURTHER QUESTIONS WITNESS EXCUSED COURT ADJOURNS FOR THE DAY 3:15 PM TO RESUME THURSDAY 4 SEPTEMBER 1997 AT 10:00 AM

COURT RESUMES THURSDAY 4 SEPTEMBER 1997 AT 10:00 AM MS. SMITH CLOSING ARGUMENTS MR. RAFERTY CLOSING ARGUMENTS JUDGE MORRIS DELIVERS JUROR INSTRUCTIONS JURY RETURN GUILTY VERDICT IN ONE HOUR COURT ADJOURNS FOR THE DAY TO RESUME 11 SEPTEMBER 1997 AT 10:00 AM 124

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The Sentencing Notes The following are the actual sentencing notes of Judge Bary Neil Morris concerning the trial of Benjamin Peri Nathan. The Trial (Case 146/97) was held at the Auckland District Court, Auckland, New Zealand between 1 and 4 September 1997. The sentence was imposed on 11 September 1997. The records of the trial were provided with the generous cooperation of the New Zealand Archives, Auckland District Court Duty Judge Kevin Glubb, and Ms. Tahanee Taurakoto, Deputy Registrar of the Court. The original transcript has been reformatted to conserve space. Footnotes of Annotation are those of the authors. SENTENCING NOTES OF JUDGE BARRY N. MORRIS IN THE DISTRICT COURT HELD AT AUCKLAND QU EE N V BENJAMIN PERI NATHAN Date of Sentence: Counsel:

11 September 1997

Mr. K. Raftery for Crown Mrs. L. Smith for Accused 125

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SENTENCING NOTES OF JUDGE B. N. MORRIS Solicitors: Mr. K. Raftery, Crown Law Office, Auckland Mrs. L. Smith, P.O. Box 47-106, Auckland Benjamin Peri Nathan is a sentenced prisoner for sentence in respect of a jury trial which took place here on 1 September 1997. On 4 September 1997 the jury returned a guilty verdict. There was one count in the Indictment and that was; "that on or about 14 March 1997 at Auckland, Benjamin Peri Nathan willfully damaged a sporting trophy". The trophy is not identified in the Indictment, but it was the America’s Cup. There is no argument about the fact that on this particular day at about 11:30 a.m., the prisoner in an ordinary business suit carrying a small bag went by taxi to the premises of the Royal New Zealand Yacht Squadron on the Waterfront in St. Mary’s Bay, that he asked directions of staff, that he went up into the America’s Cup room which was being used that day as a committee room for a Regatta which was about to or was underway, other people were there, the Cup was there in its special case in the room. The prisoner took from his bag a substantial short handled sledgehammer and after brief reflection, or he might have reflected on it before he picked it up, he took to the case. He told us that his purpose was to destroy the America’s Cup. He was surprised at the level of resistance that the Cup casing put up and he told us that it took a lot of work and effort. He could not get the Cup out of the hole he had made in the case, and he proceeded to give it a number of hefty blows. When he was satisfied that he had 126

------------------------- ATTACK on the CUP ------------------------done enough damage to it he took off his coat, or he might have taken it off before he laid down his sledgehammer, and engaged in various conversations, if that is the correct term, with a number of people in the room. He made it crystal clear in his evidence and in his original statement to the Police that he meant and intended to harm no person, that his attack was motivated against the Cup and it was his task to destroy it. The matters then proceeded from that time, the Police were called, he was interviewed and he finally appeared before a jury and me, as I said, on 1 September 1997. It is important at this stage that I deal with elements of his defence. As I said he has never denied planning and effecting the purpose, the operation of destroying or attempting to destroy the Cup. After two days of evidence, based upon the thrust of the information Mrs. Smith gave as to the basis of his defence, we had a hearing away from the jury to discuss and for me to rule on the notion of a defence to this charge under the conventional provisions of the Crimes Act. And whilst I do not intend to go into it in any detail, I want to make it plain how it was dealt with by this Court and, of course, there is a public record of my ruling which could not be published in any form until the jury had given its verdict. It was my ruling that the §2 defence of colour of right is not available when the mistake of fact or any matter of law is based on the belief that the justification of the act is against the very provisions of the enactment against which the offence is alleged. In short, the colour of right defence set out here, that is in this case, is based on the Accused's belief that his act which he claimed is justifiable under Māori law overrides the provisions and the specific provisions of §298 of the Crimes Act 1961. I went on to say that there is room for Māori customary law where such customary law can co-exist with the general provisions of the New Zealand Crimes Act, but where the provisions of Māori customary law conflict with or are contrary to the provisions of the New Zealand criminal law they cannot override the legislation itself. What I said was 'It is to be 127

------------------------- ATTACK on the CUP ------------------------desirable, surely, that there is one set of rules regulating criminal acts in New Zealand which binds everyone'. The Crown has never suggested that Benjamin Peri Nathan acted other than with sincerity in his beliefs, but the simple fact of the matter is, in my view, those beliefs could not be a legal justification for what happened on the day. I do not think I need to go into that any further, but I want to put it into perspective. Today on sentencing we have embarked basically on a conventional sentencing hearing. I have had a Probation Service report which appends a copy of the summary of facts, the Indictment and the prisoner's previous list of offending. It is not quite up to date, but I am informed from the Bar by counsel for the Prosecution and the Defence that a suspended sentence of imprisonment imposed in July 1996 has subsequently been invoked and he is a sentenced prisoner on those matters. The Probation Service report carefully and thoroughly sets out his position. In addition, I have had the benefit of a personal note from him where he sets out a number of his personal concerns, basically following his consistent statement of his beliefs to date. He has asked me, and I respect that, to not mention any part of it because it is personal things that come from the heart from him, and I respect that. His mother has sent in a note, she was not able to be here today. Ms. Annette Sykes gave a statement on his behalf under §16. Mrs. Smith informed me that she, Ms. Sykes, is authorised by the family, the immediate family and the wider family, to support him today. She carefully went over a whole raft of important matters to the various family, lwi and tribal groups to which this prisoner belongs. She mentioned the broad concepts of the relevance of Māori law and she accentuates and confirms a whole list of the very issues that the prisoner had put to the jury, to me and to the Police Officer who first interviewed him after this event. She asks, on his behalf, that I release him to the family and that he goes back possibly up North where those aspects of rehabilitation that are recognised in 128

------------------------- ATTACK on the CUP ------------------------the report are addressed within the family environment. Mrs. Smith, accepting the recommendation of the Probation Service, suggests that the notion of a community-based sentence as it is not recommended by the Probation Service might not find favour with me. She suggests the imprisonment concept recommended by the Probation Service, but the making of that to be concurrent so that it would fuse in with his existing term which he is almost free of now if the District Prison Board reviews him favourably in a short time. The Criminal Justice Act makes a clear distinction between probable outcomes on people by in large are visited by full term custodial sentences. Attacks on property or property offences are not necessarily visited by that type of outcome. One of the pieces of information that I have is a victim impact statement given to the Police by the lady who works in the Squadron and who was in this committee room on that day. It says this: "When the incident happened with the Americas Cup, I was terribly scared and I honestly thought that the man was going to attack us with the sledgehammer. I was so terrified after he began smashing the case that I knelt on the floor behind the photocopier. I cried, I was terrified, I was there for about five minutes, I was finally escorted out." And she mentions the effect that that had on her. sentence, in my view, puts all this into perspective.

Her last

"....I feel very sorry for the Team that won the Cup and all the effort that they put into, not only for themselves for all New Zealanders." It is interesting to note that at page 4 of the Probation Service report the probation officer says this: "Mr. Nathan stated that he does not regret the offence nor the damage to a symbol of the dominant culture, however, he stated that he very much regrets having caused any emotional harm or 129

------------------------- ATTACK on the CUP ------------------------stress to those present at the time of the offence." To a degree, therefore, he has made some recognition of the hurt that he gave the lady whose situation I mentioned from the victim impact statement, and he says he informed that he and others who had decided on the action had not intended harm to anyone, and I accept that too. During the trial Mrs. Smith in her addresses to the jury put some emphasis on the fact that these actions were to destroy, and I think she used the term somewhere 'a mere bauble' or some such, and the prisoner himself makes no secret of the fact of his genuinely held concerns over human values. As I see it this Cup is not a 'mere bauble' but it is something that represents the very best of human values. It represents the enormous effort of a team of men and women over a period of years who worked together with the greatest skill in almost every avenue of design, planning, implementation and execution, who devoted their lives to this, and in achieving victory placed New Zealand in a supreme situation, in a true David and Goliath situation, by whipping the most powerful nation on earth. And one only has to remember the outpouring of euphoria, I suppose is the only word that I could use, in the achievements of these people. Sure, it was funded by significant sums of money, but no achievement like theirs could have been undertaken, let alone successfully completed, without the most incredible amalgam of ability, dedication and sheer guts. I agree with Mr. Raftery that this episode is a political statement, a pro-active political statement, designed to draw attention to the holder or holders of the grievance in the most public way in this country and throughout the world. In a true democracy one has to have the right of legitimate protest and that is the mark of a real democracy, but one of the stumbling stones, if you like, of achieving a just outcome for any grievance is the lobby of interest with non negotiable demands. I am not making any comment on the justification or the existence of a whole host of grievances, that is not my job, that is not my role. 130

------------------------- ATTACK on the CUP ------------------------What I am saying is that if everyone; Māori or of any of our number of cultures, and we have got to remember that we are no longer a bi-cultural country, we are a multi-cultural country and unless we have a common legal fabric then we cannot function and that is the simple plain matter of fact. I accept that imprisonment is the only option for me, for the reasons mentioned (by Mr. Raftery, to show on behalf of the citizenry our distaste for what he has done. By that they are not, and certainly I am not, showing distaste for his sincerely held views, but to vent them in this way, as I said, is only a recipe for chaos. There has to be some aspect of deterrence. I have to be conscious of the fact that Benjamin Peri Nathan has got a significant 12-year history of appearing before the Court, this is his 17th appearance, and I have to differentiate between him and the person who creates a political protest with an otherwise impeccable background. On the basis that the maximum period for sentence in respect of this Section is five years, it is my belief that the appropriate sentence, bearing in mind his contrition in respect of any unhappiness or emotional harm that he caused to others, is two years and 10 months and that is to be served cumulative on his existing sentence.

(B.N. Morris) District Court Judge

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The Appeal Record IN THE COURT OF APPEAL OF NEW ZEALAND CA 386/97 THE QUEEN v BENJAMIN PERI NATHAN Coram99: Richardson P Keith J Blanchard J Hearing: 10 December 1997 Counsel: P A Williams QC and Cara for Appellant S P France for Crown Judgment: 15 December 1997 JUDGMENT OF THE COURT DELIVERED BY KEITH J Benjamin Peri Nathan was convicted following a jury trial at the District Court in Auckland of willfully damaging the America’s Cup in March 1997. He was sentenced to two years 10 months imprisonment on 11 September. That sentence was to be served cumulatively100 with the sentence of 18 months imprisonment which had been imposed on him five months earlier on 9 April 1997. Mr. Nathan originally appealed against both conviction and sentence but he has abandoned his appeal against conviction which is accordingly dismissed. As Mr. Williams QC, his counsel puts it, Mr. Nathan now takes the view that what he did was wrong and that he must be punished for what he did. The appeal against sentence is on the ground that the sentence was manifestly 99 Coram Nobis Coram Nobis:

[Latin, In our presence; before us.] The designation of a remedy for setting aside an erroneous judgment in a civil or criminal action that resulted from an error of fact in the proceeding. 100Sentence begins after completion of first sentence.

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------------------------- ATTACK on the CUP ------------------------excessive in itself and because it was made cumulative on the existing term of imprisonment. The principal reason given in support of the ground of appeal is the humanitarian or political motivation behind the attack on the Cup: Mr. Nathan’s motivations were to him idealistic, moralistic and designed to enhance te tino rangatiratanga of his people, the Māori people. There are also reasons relating to Mr. Nathan’s personal development. The facts immediately surrounding the offence can be briefly stated. On 14 March Mr. Nathan entered the Royal New Zealand Yacht Squadron building at the Westhaven marina in Auckland. He was wearing a business suit, shirt and tie. He was carrying a canvas bag containing a short-handled sledgehammer, approximately 60cm in length. In front of several people in the room he withdrew the hammer from the bag and walked to the glass case containing the America’s Cup. He struck the glass case about 20 times, puncturing it in several places. He then struck the Cup with the sledgehammer about 15 times, causing extensive damage. At that point he took off his suit jacket, collared shirt and tie, revealing a T-shirt with a Māori sovereignty slogan and uttered words in Māori and English to the effect that “this is Māori land you white bastards”. The police arrived and the defendant put the sledgehammer on the floor. He was arrested, offering no resistance. Mr. Nathan made it clear both in his evidence and in his original statement to the police that his attack was against the Cup, that it was his task to destroy it and that he meant and intended no harm to any person. He has expressed his regret for causing emotional harm or stress to those present at the time of the offence. One employee of the Squadron said that she was “terribly scared” and that she “honestly thought that Mr. Nathan was going to attack those in the room with the sledgehammer”. She cried. She was terrified. She hid by kneeling behind the photocopier in the room for about five minutes before she was finally escorted out.

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------------------------- ATTACK on the CUP ------------------------Mr. Nathan’s statement of regret is to be seen against the background of the facts that on the day before the offence he and others of a group of students at Manukau Technical Institute who had conceived the idea of destroying the America’s Cup as a symbol of protest had visited the Yacht Squadron building to check out the security arrangements for the protection of the Cup. We were told that the main priority of this surveillance was to evolve a plan which would involve damage to the Cup but in a way that did not injure any member of the public or indeed any person at all connected with the security of the Cup. When they carried out that surveillance and went into the room in which the Cup was situated there were no guards or officials present. That made them confident that they could carry out the plan without harming any person. Four of the group had originally planned to meet at the Institute and to participate in the attack. When Mr. Nathan arrived at the Institute on the morning there was however only one other person present and he was the person whose job it was to send faxes to the media. The appellant felt that he was committed to go through with the plan and when he got to the Yacht Squadron he found, contrary to his expectation, that some people were present in the room where the Cup was on display. Mr. France, for the Crown, while recognizing the significance of motivation in sentencing, also stressed the nature of the property damaged and the value of that damage. He submitted that this was a serious offence within the type of willful damage falling within s298(4) of the Crimes Act - the general category of willful damage carrying a maximum penalty of five years. He emphasized three matters: 1. The amount of damage caused was substantial. Mr. Nathan’s stated purpose was to destroy the Cup although as it turned out it was able to be fully repaired. 2. The value of the damage was large. While most of the costs were internalized by contributing organizations this does not diminish the amount. The jewelers estimated the cost of repair at £20,000. As well there were the associated costs of transport to and from England and the construction of a new glass case. 134

------------------------- ATTACK on the CUP ------------------------3. The offending was premeditated and aimed at property the damage or destruction of which would bring public embarrassment to New Zealand. Whatever view is held of the merits of the America’s Cup the reality is that it is a famous international trophy first won in 1851 of which New Zealand was a guardian. We now turn to counsel’s statement of Mr. Nathan’s motives, motives which we were told were also shared by others of the group: The main reasons why the group decided to damage the America’s Cup were as follows: a) As a protest on behalf of Māori against the nonrecognition or non-plenary recognition of the terms of the Treaty of Waitangi. b) A protest on behalf of all New Zealanders against the policy of the Government in selling New Zealand assets to foreigners. Mr. Nathan also says that he had personal reasons relating more specifically to the Cup: a) The New Zealand Yacht Squadron did not consult all the appropriate Māori people in their preparation for the America’s Cup, particularly in regard to water rights. Mr. Nathan says that while Tainui was consulted, his tribe, Ngati Whatua, which had relevant ancestral rights, was not consulted. b) That the America’s Cup represents greed and ideas of the rich getting richer, and the poor getting poorer. c) In disgust at the actions of the Auckland City Council in selling off housing at Freemans Bay, which was being used by a cross-section of the people for their homes, and planning to use the money that would be realized by the sale of these houses, in providing facilities for the America’s Cup, which is a rich boy’s playground.

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------------------------- ATTACK on the CUP ------------------------Mr. Nathan’s criminal record is plainly also significant in this case. As indicated above, he was at the time of sentencing five months into an 18 months sentence. That sentence arose from a review on 9 April 1997 of a sentence imposed on 19 July 1996. In 1996 he had been sentenced for two offences which he himself reported to the Police. It was accepted that detection of both offences was unlikely but for that voluntary action. That can be seen as a commendable recognition of personal responsibility. The offences had been committed in 1991 and 1996. On the earlier occasion he used a knife to rob a shop assistant of $60. In April 1996 he entered a branch of a bank. He was wearing a suit he had purchased. He gave the teller a note which read “do exactly as I tell you or I will kill you”. The bank’s security measures foiled the attempted robbery and the appellant left the bank. The July 1996 sentence was 12 months imprisonment, suspended for one year, and two years supervision. Although the supervision was initially successful, after four months it failed. The appellant refused to participate, Mr. Williams said because of his view that he should not be subject to “European law”, and he left to shift back North. He had been expressly instructed not to do this until alternative arrangements were made. Mr. Nathan appealed to this Court against the 18 months imprisonment imposed on the review but that appeal was dismissed ex parte. When the District Court Judge came to impose sentence in the current case he had to have regard to that serious offending and to the fact that Mr. Nathan was five months into the 18 month term. In the following month he would otherwise have been eligible to be considered for parole. The effect of the new sentence is that that eligibility would not arise until about 9 September 1998 and the release date, at two thirds through the combined sentence, would be in February 2000.

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------------------------- ATTACK on the CUP ------------------------There is no dispute that a sentence of imprisonment had to be imposed. This was a serious offence of its type. For the reasons which Mr. France emphasized relating to the damage and the wider consequences of the offence, we agree that the law must take a firm hand. We agree also with his contention that those reasons, along with Mr. Nathan’s earlier record, meant that an additional period of imprisonment had to be imposed. Where we differ from the sentencing Judge is in the extent of that addition. While counsel agreed that sentences imposed in other cases of willful damage are of limited assistance, one decision of this Court relating to acts of political protest does provide some help. In R v Burton [1982] 1 NZLR 602 sentences of nine months’ imprisonment were quashed. Each accused was fined $1,000 and ordered to serve a period of 150 hours of community service. The accused had been found guilty of damaging a television transmitter when they cut cables in an attempt to stop the broadcasting of the third rugby test during the 1981 Springbok tour. The sentencing Judge had accepted that they went to the transmitter not for purposes of malice or mere destruction but to demonstrate and advertise what they felt was a moral point of view. Although they did not appear to have realized that the damage done would involve more than a few hundred dollars, the damage was in fact serious and cost an estimated $45,000. Counsel for the appellants submitted that the Judge had given too much weight to the need for a deterrent sentence and had paid too little attention to personal considerations, previous good character, absence of previous convictions and the underlying motivation. Those were among the factors that led to the appeal succeeding. There are two important distinctions between the Burton case and the current one. The appellants in that case had been hardworking, successful and considerate people and without any previous convictions. As well, they did not appear to have realised that the damage done would involve more than a few hundred dollars. By contrast Mr. Nathan’s record tells against him, as does his intention to destroy the Cup. What is common to the two cases, however, is the mitigating impact of motivation. We are not saying that those who wish to 137

------------------------- ATTACK on the CUP ------------------------make public protests for what they see as compelling reasons are free to act outside the law. They are not. Indeed, the appellant by his withdrawing of his appeal against conviction now accepts that. But the underlying motivation in this case is not one of destruction for the mere sake of destruction. As in Burton, the appellant was demonstrating and advertising what he felt was a moral point of view. There is a further consideration bearing on the extent of the additional term of imprisonment that was not before the sentencing Judge. The Waipareira Trust has made it clear that they would welcome Mr. Nathan into one of their programs. The Trust would prepare and monitor a training and educational programme involving a caring residential programme where Mr. Nathan would need to work in a team and whanau capacity, and where responsibility is highly valued. Specialists such as clinical psychologists or tohunga would, depending on Mr. Nathan’s personal merits, be brought in to help with his rehabilitation. The Trust, under the auspices of New Zealand Employment Service, has an employment center and one of its goals would be that Mr. Nathan return to the community rehabilitated and in full employment. He would, as well, be provided help by the Elders Council of the Trust. The latest annual report of the Trust describes the programs run at the habilitation center in Massey. It is a 6–12-month resident programme primarily for Māori who are eligible for early parole from prison, or those who are sentenced to a community based sanction by the courts: The programme is holistic in its approach and is designed to provide a therapeutic support of whanau environment for residents with an overall Māori philosophy. Within the habilitation centre core programmes are run in relation to work training programs, drug and alcohol abuse and anger management courses and also psychological counselling from a clinically trained Māori psychologist. The report quotes from sentencing notes of Tompkins J in an unrelated case: 138

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In your case reference has been made to a suggestion that you should be put in care of Te Whanau O Waipareira Trust, a rehabilitative center. I have looked through the material provided, and I commend those responsible for setting up this trust and for helping in the way that it does. In some ways those sorts of organizations can do what parents have failed to do ... As I mentioned to counsel, I would recommend to the Parole Board or the District Prisons Board, a consideration of the three of you possibly... being placed in the care of Waipareira Trust as a condition of your early release if, whichever board considers it, concludes that that course is appropriate. As we read the restrictive provisions of the Criminal Justice Act 1985 §§30(4) and 13(7) and (10) (but see subs (9) of §13), we are not able in the context of the present case to impose a community-based sentence. Courts have on a number of occasions called attention to the unnecessarily restrictive character of such sentencing provisions. This is another case where greater flexibility in the legislation would have been of assistance. We can however recommend that the District Prisons Board, when considering Mr. Nathan’s situation and conditions attaching to his release, have regard to the offer which the Waipareira Trust has made. As we have already indicated, we agree that an additional period of imprisonment had to be imposed for the serious offending in this case. We consider, however, that having regard to the indications of personal development which have become somewhat more apparent during the term of the imprisonment, the proposed programme at the Waipareira Trust and the motivation for the offence, that the condemnation, general deterrence and element of punishment that is required in the present case can be appropriately met by an additional sentence of one year cumulative on the original sentence of 18 months which Mr. Nathan was already serving. That will, of course, have consequences for the 139

------------------------- ATTACK on the CUP ------------------------timing of his eligibility for consideration for parole. Accordingly, the appeal against sentence is allowed. The sentence of two years 10 months imprisonment is quashed and a sentence of imprisonment of one year, cumulative on the sentence of 18 months, is substituted. Solicitors Crown Law Office, Wellington

DEPARTMENT OF COURTS TE TARI KOOTI The CRIMES ACT 1961 NOTICE TO APPELLANT RESULTS OF APPEAL CA386/97 The Queen v Benjamin Peri NATHAN To the above-named appellant: This is to give you notice that the Court of Appeal has considered the matter of your appeal and has finally determined the same and has this day given judgement to the effect following – namely – Appeal against the sentence is allowed. The sentence of two years 10 months imprisonment I quashed and a sentence of one year, cumulative on the sentence of 18 months is substituted. Dated at Wellington this day the 23rd day of December 1997. Dawn Baggaley REGISTRAR OF THE COURT OF APPEALS

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Was Justice Done? 1. Following his arrest, New Zealand Police charged Nathan with two counts: CRN 97004017053 – Willful Damage (“damage with criminal intent”) which carried a maximum sentence of five years in prison under the Crimes Act (§298)4, and CRN 97004017054 – Entering with Intent (“unlawfully entering the Royal New Yacht Squadron Headquarters with intent to commit a crime.”) which carried a term not exceeding ten years in prison. Assuming common practice, conviction on both counts would result in concurrent sentences, with the maximum being 10 years in prison. But at trial, Nathan was only subject to answer for the single “Willful Damage” charge (5 years maximum.)101 The “unlawfully entering” charge was never pursued.

2. Nathan’s four co-conspirators were never charged in the case. Before the attack, Nathan and several of his classmates at Manukau Polytechnic met to plan to destroy the Cup, including a visit to the RNZYS to case the location. Further, one of the coconspirators used the facsimile machine at the Manukau Poly Student Association to claim responsibility for the destruction. At trial, Nathan admitted that there were others involved. When approached by Police, the school claimed protection under the NZ Privacy Act, and refused to release or confirm the identity of students.

3. Impact on others – the staff and occupants.

101

Interestingly, “America’s Cup” was never specifically mentioned in the indictment – only “a sporting trophy.”

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------------------------- ATTACK on the CUP ------------------------At trial, Nathan repeatedly stated that there was a specific intent on the part of himself and his co-conspirators that no harm befall the occupants or anyone involved in the security of the Cup. “[M]y intention was not to hurt or frighten anyone - it was solely to destroy the America’s Cup which is symbol of everything I despise. You see, when we first planned our operation102, there had been no one in the room and I later found out they had just arrived for some regatta, so there was meant to be no one in the room.” But the RNZYS secretary clearly was frightened, and sought safety behind a copy machine until she was moved to safety by another occupant. She likened it to “a bank raid” and at trial testified that she “honestly thought that Mr. Nathan was going to attack those in the room with the sledgehammer.” “I got down on the floor and waited there until someone got me,” said another.

4. Impact on others – the sailing community. Obviously, the Club and the sailing world were without the Cup from the time of the attack until it was restored and returned in April of 1997. But then torn between the absolute requirement to keep the Cup secure and the public’s desire to see and be part of the “Cup Experience,” the Trustees had to enact new, strict and quite restrictive access rules. So tightly controlled is access that there are often suggestions that the cup on display is not the “real” America’s Cup, but the equivalent of a “stunt double.” While balancing these needs, the Trustees still manage to keep the Cup accessible to the sailing public worldwide. And the sentiments, as covered above in “Worldwide Reaction to the Attack” start to capture the feelings of those hurt by the assault. “All it achieved was anger and sadness.” Sir Peter Blake 102

First indication at trial of conspiratorial pre-planning.

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5. The difference between “losing the Cup” and LOSING the Cup.

Let me explain. Although it has only happened six times now (and only three times at the time of the attack in 1997) the feeling of losing the Cup to another yacht squadron in the course of racing in competition must be devastating. The countless hours dedicated to training, conditioning, and planning, and technical expertise that are necessary to sail for the world’s oldest international prize are immeasurable. But the underlying fact is that there may just be another group of sailors who are better trained (slightly), better conditioned (slightly), have planned a little better, or have found a better way to take their boat over the line faster. Sometimes it may just be being luckier at the right time. But with AC-class racing at the Match Level, the difference between winning and losing to another group of yachtsmen comes down to seconds 103. So, although “losing the Cup” – either by failing to defend or by failing to prevail - by such a slim margin is possible, there has to be comfort in the fact that it was lost in genuine competition with an honorable rival. And at that moment the opportunity to regain the Cup becomes the new goal. Losing the Cup to an act of wonton destruction is another matter. Consider that America’s Cup was 149 years old at the time of the attack and had previously led an extremely staid and protected life. Yes, things happened over the years but, with the skilled intervention of expert silversmiths such as Tiffany & Co., the Cup, although always fragile, survived intact. The reality of the extent this of damage was perhaps best stated by Richard Jarvis, Managing Director at Garrard & Co. “We’ve been faced with many challenges over the years, but none resembles this one. If it was any other piece of silver, it would have been scrapped.”

103

In AC Finals in 2007, the 7th race had a margin of only 1 second.

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------------------------- ATTACK on the CUP ------------------------If not for major intervention by some very dedicated and talented craftsmen, the irreplaceable Cup could have been reduced to scrap.

6. No restitution was ever sought by RNZYS. The RNZYS nor the courts ever pursued restitution from Nathan. The cost of the repair ($50,000) of the Cup was donated by Garrard & Co. of London, the original silversmiths of the ewer. Insurer Sun Alliance of NZ covered the cost of security, the airfare and transportation from Auckland and back, the cost of repairs to the display cabinet, and portions of the cost of the new display case’s sliding ballistic-proof outer enclosure. A separate generous donor contributed 15,000DM ($25,650) towards the new anti-ballistic display case.

7. The sanctions. Nathan was held in pre-trial detention from the time of his arrest on March 14, 1997 until his sentencing on September 11, 1997, then at Mount Eden Prison (Auckland) and at Unit 5 of the Paremoremo Prison (Albany, NZ) until his early release parole on April 4, 1998 – a total of 386 days – one year and 3 weeks. Nathan then was placed in a 6–12-month resident rehabilitation program for Māori, the Te Whanau O Waipareita Trust (Henderson NZ), which include “work training, drug and alcohol abuse and anger management courses and also psychological counselling from clinically trained Māori psychologists.” The New Zealand Department of Corrections (Ara Poutama Aotearoa) operates under Release Guidelines: For a sentence of more than two years, the offender is “eligible for parole after serving one-third of the sentence or at the end of any non-parole period imposed by the sentencing judge.” For a sentence of less than two years, the offender is “automatically released on conditions after serving half of their sentence.”

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------------------------- ATTACK on the CUP ------------------------Judge Morris originally sentenced Nathan to 2 years 10 months in prison for the attack on the Cup. Applying the NZDoC guidelines, he would have to serve (1,034 days x 0.33 = 341 days). As he was held in jail without bail from March 14, 1997 until his sentencing on April 9, 1997 (26 days) on the separate bank robbery charges, he would be credited with those days and could have been released March 11, 1998. But the Court of Appeals granted Nathan’s motion to quash the 2year 10-month sentence and imposed only a 1-year penalty for his crime. As the NZDoC guidelines state for a sentence of less than two years, his sentence thus became (365 days x 0.5 = 183 days, and he would have been credited with the 181 days of pre-trial detention and end up spending just 2 more nights in prison. Nowhere in the record are mention of imposed fines or court costs.

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Appendix I Note: The following two documents were specifically and repeatedly cited in the September 1997 trial of Benjamin Peri Nathan, a Māori who was convicted of the March 14, 1997 attack on America’s Cup at Auckland, New Zealand. THE TREATY OF WAITANGI – February 6, 1840 Her Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favor the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any part of those islands - Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions. Article the first The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights 146

------------------------- ATTACK on the CUP ------------------------and powers of Sovereignty which the said Confederation of Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof. Article the second Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs, yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf. Article the third In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. [signed] W. Hobson Lieutenant Governor Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

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------------------------- ATTACK on the CUP ------------------------Done at Waitangi this Sixth day of February in the year of Our Lord one thousand eight hundred and forty. The Chiefs of the Confederation __________

Declaration of Independence of New Zealand 1. We, the hereditary chiefs and heads of the tribes of the Northern parts of New Zealand, being assembled at Waitangi, in the Bay of Islands, on this 28th day of October, 1835, declare the Independence of our country, which is hereby constituted and declared to be an Independent State, under the designation of The United Tribes of New Zealand. 2. All sovereign power and authority within the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity, who also declare that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled. 3. The hereditary chiefs and heads of tribes agree to meet in Congress at Waitangi in the autumn of each year, for the purpose of framing laws for the dispensation of justice, the preservation of peace and good order, and the regulation of trade; and they cordially invite the Southern tribes to lay aside their private animosities and to consult the safety and welfare of our common country, by joining the Confederation of the United Tribes. 4. They also agree to send a copy of this Declaration to His Majesty, the King of England, to thank him for his acknowledgement of their flag; and in return for the friendship and protection they have shown, and are prepared to show, to such of his subjects as have 148

------------------------- ATTACK on the CUP ------------------------settled in their country, or resorted to its shores for the purposes of trade, they entreat that he will continue to be the parent of their infant State, and that he will become its Protector from all attempts upon its independence. Agreed to unanimously on this 28 day of October, 1835, in the presence of His Britannic Majesty’s Resident. (Here follows the signatures or marks of thirty-five Hereditary chiefs or Heads of tribes, which form a fair representation of the tribes of New Zealand from the North Cape to the latitude of the River Thames.) English witnesses: (Signed) Henry Williams, Missionary, C.M.S. George Clarke, C.M.S. James R. Clendon, Merchant. Gilbert Mair, Merchant. I certify that the above is a correct copy of the Declaration of the Chiefs, according to the translation of Missionaries who have resided ten years and upwards in the country; and it is transmitted to His Most Gracious Majesty the King of England, at the unanimous request of the chiefs. (Signed) JAMES BUSBY, British Resident at New Zealand.

'He Whakaputanga - Declaration of Independence, 1835', URL: https://nzhistory.govt.nz/media/interactive/the-declaration-of-independence, (Ministry for Culture and Heritage), updated 14-Sep-2021.

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Biographies The Prosecutor

“Kieran Raftery graduated from Manchester University in 1969. He was admitted in New Zealand on May 27, 1988 and joined Auckland firm Meredith Connell, becoming a partner in that firm in 1992. Mr. Raftery joined the independent bar in 2015 and specializes in criminal work and work for Crown/public agencies. Mr. Raftery is admitted in Samoa and Fiji and has been a faculty member for the Pacific Island Litigation Skills program since 2000.” (see also 5/2/2018 article https://devonportflagstaff.co.nz/crowns-legal-eagle-stays-relaxed-oververdicts/)

The Defense Attorney

“Lorraine Smith is a high-profile Criminal Lawyer, based in Auckland. Lorraine specializes in Murder, Manslaughter, Sexual Violation, Violent Assaults, and all drug charges. She has over 30 years’ experience in Criminal Law and acts for her clients on a legally aided and private basis. (It is only possible to choose your own lawyer for matters carrying over 14 years of imprisonment under the present system of Legal Aid.) Lorraine has been admitted as a Barrister by the Supreme Court in New Zealand, and by the Supreme Courts in Victoria and Sydney, Australia. — Graduated BA/LLB (Honors) Auckland University 1980 — Graduated M Jur Auckland University 1982” (See also https://lorrainesmith.co.nz/about/)

The Judge

“Barry (Neil Morris) (1939-2022) was a marvellous judge and one of the funniest judges to clerk for. Indeed there was never a dull moment with Judge Barry in the 'big seat’. Court has its serious and sterile moments, but Judge Morris often left lawyers, court staff, and defendants in hysterics with his amazing sense of humour. Barry loved his rugby and always talked about the many North Shore teams.” (Attorney Peter Boshier on Judge Morris’ passing 4/27/2022) Judge Morris was appointed as a District Court Judge on 2 May 1988.

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Acknowledgements I would also like to acknowledge the following individuals without whose help this research work would not have been possible. First and foremost, my friend, Cup Historian and researching partner Jack Griffin www.CupExperience.com R. Steven Tsuchiya – America’s Cup Historian and author Helen Sowinski – Librarian and Archivist (IYRS) International Yacht Restoration School, Newport RI Isabel Hahn, Marcus Knecht and Peter Hohenstatt - Glasbau-Hahn, Germany Moira Murphy - Tiffany & Co., NYC Archive Department - Tiffany & Co., NYC Bill Tavares - Newport Mansions Alice Dickson – New York Yacht Club, Silver Curator Hayden Porter – Royal New Zealand Yacht Club Hamish Ross – Attorney and AC Historian, Auckland NZ Jay Coogan – President IYRS, Newport RI Charlotte Butter – Garrard & Co., London Phil Crowther – Archivist and researcher Museum of Yachting, Newport RI Norene Rickson - Herreshoff Librarian Archivist, Bristol CT Jon Readhead – Royal Perth Yacht Club Archivist, Perth Western Australia Brian P. Carlson - GM San Diego Yacht Club Vanessa Cameron - Librarian and Archivist NYYC Jen Anderson - National Library of New Zealand Alexander Turnbull Library Richard Wingfield - RNZYS Cooper Hopman - RNZYS Kieran Raftery – State Prosecutor, Auckland Jeff Carr – Archivist for the Archives New Zealand Francis Frost - Archivist and Librarian IYRS Jessica Aitken - Curator of Collections New Zealand Police Museum Rowan Carroll - NZ Police Jannette Dalley - NZ Herald 151

------------------------- ATTACK on the CUP ------------------------Sr. Sgt. Shaun Richardson - NZ Police Tahanee Taurakoto - Deputy Registrar Case Manager, Auckland District Court Hon. Judge Kevin Glubb - Auckland District Court Daniele Carter - NZ Maritime Museum Archives and Library Manager Sarah Wiblin – Manager, RNZYS Norbert Bajurin, former Commodore GGYC …….and everyone who has contributed to their knowledge to the project. Thank You!

References AP. 3/16/1997. Cup attack: Man in court; The Age (Melbourne AU), p16. 4/10/1988, Top trophy maker; The Town Talk (Alexandria LA), p33. (staff). 3/17/1997. Cup attacker ‘acted alone’; Sydney Morning Herald (NSW, AU), p2. Brooks, J. 4/7/1997. Kiwi Warriors?; Sydney Morning Herald (NSW, AU), p14. Reuter. 3/15/1997. Man wrecks America’s Cup; The Age (Melbourne AU), p14. Grauer, N. A. 1/10/2000. Skill, care triumph over violence; Baltimore Sun (MD), p42. Masters, C. 5/29/2000. Cup batterer thinks he has last laugh; NZ Herald, pA5. Laird, L. 8/12/2002. Ex-activist wields pen; Kauri Coast Advocate (NZ), p1. Wade, A. 9/17/2013. Auld Mug vandal hawks tale to media (NZ), online. Holland, M. 2023. The Cups. (manuscript) Holland, M. 2023. America’s Cup Compendium (online) …and the citations included in the text and footnotes of the book.

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Photo Credits Page 1: America’s Cup Page 13: NZ Police Photograph, courtesy NZ Police, 1997 Page 15: Trial Evidence Photo No. 12; Page 16: Crime Scene Photo No. 10; Page 17 and Cover: Crime Scene Photo No. 21; Page 37: Crime Scene Photo No. 22; Page 38: Crime Scene Photo No. 23; and Page 40: Crime Scene Photo No. 24 courtesy of Collection of the New Zealand Police Museum Te Whare Taonga o ngā Pirihimana o Aotearoa and used with permission. 1997 Page 22: Trial Evidence Photo No. 22, courtesy NZ Police, 1997 Page 22: Trial Evidence Photo No. 14, courtesy NZ Police, 1997 Pages 41 (1), 44 (1), 45 (2), 47 (4), 48 (1), 49 (4), 50 (1), 51 (1), 52 (1), 53 (1), 55 (1), 56 (1), 57 (1), and 59 (1) courtesy of Garrard & Co., Sarah-Vivian Prescott, and IYRS Edward W. Kane & James Gublemann Maritime Library Collection, Newport RI. 1997 Page 56: courtesy Rod Hingston, 1997 Page 66: courtesy Royal New Zealand Yacht Squadron, 1998 Back Cover: Mark Robinson Holland, 2023

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“As I see it this Cup is not a 'mere bauble' but it is something that represents the very best of human values. It represents the enormous effort of a team of men and women over a period of years who worked together with the greatest skill in almost every avenue of design, planning, implementation and execution, who devoted their lives to this, and in achieving victory placed New Zealand in a supreme situation, in a true David and Goliath situation, by whipping the most powerful nation on earth. And one only has to remember the outpouring of euphoria, I suppose is the only word that I could use, in the achievements of these people. Sure, it was funded by significant sums of money, but no achievement like theirs could have been undertaken, let alone successfully completed, without the most incredible amalgam of ability, dedication and sheer guts.” Judge Barry Neil Morris at sentencing.

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For the most comprehensive historical data on America’s Cup racing please consider visiting us at

WWW.AMERICASCUPCOMPENDIUM.COM

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Attack on the Cup

The story of the conspiracy to destroy the world’s oldest international sporting prize - America’s Cup and the efforts to save it Mark Robinson Holland is an America’s Cup historian and researcher. After retiring as a successful Architect Emeritus, he began the multi-year research project that will culminate in the publication of America’s Cup Compendium: a record of every yacht, yachtsman, owner, designer and club, in addition to logs of every America’s Cup final race regatta and each observation, qualifying and elimination race that led up to the finals during each “Cup” year. “The Cups” is a look at not only the famous America’s Cup, but at all of the trophies and awards bestowed on the competitors leading up to the finals. Mark is married and lives in Massachusetts, USA.

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