An activist who has acknowledged having doused controversial British speaker Posie Parker with tomato juice during a raucous speaking event and counter-protest at Auckland’s Albert Park earlier this year has asked to have the assault charges against her dismissed.

Eli Rubashkyn, 35, whose legal name is Eliana Golberstein, did not appear in Auckland District Court in person today as a hearing was held before Judge Claire Ryan, who has reserved her decision.

Neither in attendance was Parker, a self-described women’s rights activist who has been labelled by critics an anti-transgender rights activist. Parker, whose legal name is Kellie-Jay Keen-Minshull, initially told her supporters that she would be returning to New Zealand for the procedural hearing but later backtracked, saying her family feared for her safety.

Via social media, however, Parker encouraged supporters to show up en masse for a gathering down the street from the courthouse. She sipped from a mug decorated to look like a Campbell’s tomato soup can during her live broadcast yesterday as she reiterated her request for a large showing.

There was a larger-than-normal security presence around the court this morning before the hearing began but no crowds gathered inside.

Parker aborted her two-event Let Women Speak New Zealand tour in March when her planned speech in Albert Park was drowned out by counter-protesters. About 150-200 supporters showed up but they were dwarfed by roughly 2000 counter-protesters.

Attendance ranged from Green Party co-leader Marama Davidson to a large procession of Destiny Church’s Man Up motorcyclists, some of whom stopped to join the melee while headed to a different nearby rally.

Parker was led out of the park by her security shortly after Rubashkyn threw the juice on her - an act that was filmed by others.

Rubashkyn also left New Zealand a short time later, claiming fears for her own safety.

She has not appeared in court in person since police issued a warrant for her arrest but entered not guilty pleas in April through lawyer James Olsen.

She is accused of two counts of assault - one in which Parker is alleged to be the victim and another for a woman who helped organise the March event who was standing next to Parker and also doused in juice at the same moment. If convicted, Rubashkyn could face up to six months’ imprisonment and a $4000 fine.

Among the defence’s arguments for dismissal was that there is a precedent of not filing charges for political protests, such as when then-Government minister Steven Joyce had a dildo thrown at his face during a Waitangi event in 2016. But other political protests have resulted in charges, the judge noted, pointing to the 2016 community service sentence for a man who threw dirt at then-minister Gerry Brownlee at a Christchurch earthquake memorial service.

“I don’t know why Ms [Josie] Butler, who threw the dildo at Steven Joyce, was not charged,” Judge Ryan added. “I don’t accept that establishes a precedent for not prosecuting.”

The judge also noted the 1981 Springbok tour in which three protesters dressed as clowns were beaten by police officers near Eden Park. No charges were ever filed, but that’s because the officers were never identified, Judge Ryan said.

The defence also emphasised that Parker has declined to make a statement to police or give evidence. There’s been no requirement that she return to New Zealand to participate in the process and there’s nothing before the court to suggest she wants Rubashkyn to be prosecuted, Olsen contended.

Police prosecutor Sergeant Phil Mann has said he intends to rely on Rubashkyn’s filmed statements to TVNZ after the juice incident, but the defence argued that’s not good enough when there are more serious crimes waiting to be heard.

“Ms Keen is the central player in all of this,” Olsen said, adding that his client is clearly not going to deny she poured the juice but may rely on other legal arguments that require a closer examination of Parker’s specific points of view. “We’re going to have to deal with these issues in her absence, which will create a significant vacuum.”

Judge Ryan acknowledged that Parker’s absence has made it more difficult for police to prosecute. She may very well complain about a corrupt government or judiciary, the judge said, but “at the end of the day she could have resolved this quite easily by providing a formal written statement, and she must be aware of that”. Nevertheless, the judge said, “there is some objective evidence” that could be relied on without her.

Mann compared the current case to a family violence prosecution in which authorities push forward even when the complainant declines to cooperate.

“The public interest is definitely there,” he said of the reason such a case might go ahead anyway.

British activist Kellie-Jay Keen-Minshull aka Posie Parker is escorted from Albert Park. Photo / Dean Purcell

The courtroom where today’s hearing was held, one of the smaller ones in the central Auckland court complex, had all 20 gallery seats but they were sparsely filled.

“I’ve decided that no witnesses or potential witnesses be here today,” the judge noted at the outset of the hearing, explaining that the order was intended to protect the integrity of a trial if there is to be one.

At the end of the three-hour hearing, she thanked the sparse crowd - outnumbered by media and security staff - for having sat quietly and maintained courtroom decorum.

Judge Ryan said she will announce her decision about whether or not the charges should be dismissed during a follow-up hearing next month.

Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.