An activist who acknowledged dousing controversial British speaker Posie Parker with tomato juice during a raucous speaking event and counter-protest in Auckland earlier this year has failed to have her charges dismissed.

Eli Rubashkyn, 35, whose legal name is Eliana Golberstein, faces two charges of assault following the March 25 incident at the Albert Park band rotunda.

The trans and intersex activist pleaded not guilty and is now heading to trial after Judge Claire Ryan rejected her lawyer’s application to throw out the charges.

Parker, legal name Kellie-Jay Keen-Minshull, is alleged to be the victim of one of the charges while the other covered a woman who helped organise the March event who was standing next to Parker and who was also doused in juice at the same moment.

Rubashkyn’s lawyer James Olsen argued for her charges to be dismissed at a hearing on September 20 before Judge Ryan.

He argued there was no case to answer and insufficient evidence to establish intentional criminal offending to the level required to prove the assault charges. If convicted, Rubashkyn could face up to six months’ imprisonment and a $4000 fine.

Part of his argument was that there was a precedent not to lay charges in cases of political protest, such as when a woman threw a dildo at Steven Joyce seven years ago.

Police opposed the application.

Judge Ryan delivered her decision at the Auckland District Court on Thursday afternoon, praising the quality of Olsen’s submissions as “advocacy of its highest standard”.

But the Judge found the police case against Rubashkyn was sufficient to go to trial.

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“I am satisfied there is a case to answer,” Judge Ryan said.

The Judge said it was not her place to take a political stance.

Eli Rubashkyn at the Posie Parker counter-protest at Auckland's Albert Park. March 25, 2023. Photo / Supplied

“My task is not to consider whether Ms Keen is a bad person or stands for bad things, or whether what the defendant did, if they committed the offence, is morally wrong.”

The Judge noted Rubashkyn has repeatedly acknowledged pouring the juice in media interviews both at and after the protest.

Judge Ryan said while the woman who threw a dildo at Steven Joyce in 2016 was not charged, the man who threw brown muck at Gerry Brownlee around the same time was charged and convicted.

“I do not accept that protest and counter protest should be expected to end in violence,” the Judge said.

“People in this diverse and tolerant society when they go to protests should expect that they can protest peacefully.”

Neither Rubashkyn nor Posie Parker attended either hearing.

Judge Ryan excused the appearance of Rubashkyn until the Judge-alone trial begins. No trial date has been set but the matter will be called again in the same court on February 26 for a trial call-over.

On Thursday reporters outnumbered members of the public in the gallery and there was no repeat of the scenes of protest that accompanied an earlier hearing.

The moment juice was poured on Parker. Photo / Supplied

At the September hearing, the defence emphasised that Parker had declined to make a statement to police or give evidence.

There has been no requirement that she return to New Zealand to participate in the process and there was nothing before the court to suggest she wants Rubashkyn to be prosecuted, Olsen said.

Police prosecutor Sergeant Phil Mann has said he intends to rely on Rubashkyn’s filmed statements to TVNZ after the juice incident, but Olsen 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.”