Sure enough…
October 22, 2009
The Solicitor-General has applied for Vince Siemer to be held in contempt of court for breaching the court order that he remove from his website his article about a suppressed HC judgment. (This time, he has sensibly just gone for a three-month jail term, seeking to avoid the Bill of Rights right-to-jury issues that continue to plague his earlier contempt application). The hearing is today, though no-one seems to be reporting it.
No-one, that is, except indefatigable campaigner Penny Bright, who says she’s proudly distributing exactly the same suppressed material as Vince and is miffed because she hasn’t been charged with contempt too. It’s a question of equality before the law, she says.
Topics: Contempt of Court, Suppression orders | Comments Off on Sure enough…
What’s wrong with trial by media?
October 21, 2009
I get irked by those who rail against “trial by media” as if it’s some general category of wrongdoing. Yes, some reporting of allegedly criminal conduct is unfair, inaccurate or unbalanced, and some may even prejudice an accused person’s right to a fair trial. In such cases, we should by all means criticise the reporting for those flaws. But in other cases, trial by media is exactly what the media is for.
I’ve just come across an Australian High Court injunction case (ABC v O’Neill [2006] 229 ALR 457) which, I’m pleased to note, makes just this point. The first-instance judge had awarded an interim injunction against the screening of a documentary, partly on the grounds that it amounted to trial by media. Here’s Gleeson CJ and Crennan J’s response:
First, it is not the fact that allegations of serious criminal conduct usually become known to the public only as a result of charges and subsequent conviction. On the contrary, the process often works in reverse: charges and subsequent conviction often result from the publication of allegations of serious criminal conduct. Subject to the law of contempt (and, of course, the law of defamation) media outlets are free to make, and frequently make, allegations which are directed towards, or which have the effect of, prompting action by the authorities. Condemnations of trial by media sometimes have a sound basis, but they cannot be allowed to obscure the reality that criminal charges are sometimes laid as a response to media exposure of alleged misconduct. The idea that the investigation and exposure of wrongdoing is, or ought to be, the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society. There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours. Indeed, in our society allegations of misconduct are sometimes made against the police and public officials.
Secondly, it may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question. It is certainly in the public interest that it is open to be called into question. The facts of this case provide an example. At least according to the Hobart Mercury, the South Australian Commissioner of Police and the Tasmanian Commissioner of Police have formed different views on the respondent’s likely responsibility for a number of murders. These may reflect legitimate differences of opinion, but why should such differences not be a matter of public knowledge and discussion, bearing in mind the respondent’s existing conviction and custodial status?
Thirdly, if the expression “trial by media” means any public canvassing by the media, outside the reporting of court proceedings, of the merits of topics which could become, or are, the subject of civil or criminal litigation, then we are surrounded by it. The idea that the criminal justice system ought to be the exclusive forum for canvassing matters of criminal misbehaviour is contrary to the way our society functions in practice.
Fourthly, a complaint that what is going on is trial by media implies that there is some different, and better, way of dealing with the issues that have been raised. Unless it be suggested that the public interest is best served by silence on the subject of the respondent’s possible complicity in the disappearance of the Beaumont children, it is not easy to see what, in the circumstances, that might be. Crawford J was willing to accept that it was likely that it would be shown to be true that the respondent was suspected of being involved in the murders of the Beaumont children. The South Australian authorities appear to have no present intention of charging the respondent with those murders. The respondent is a convicted murderer, serving a life sentence. The Tasmanian Commissioner of Police has been reported as saying that the respondent has killed many children. The corollary of the respondent’s argument is that the public should not be allowed to hear of the suspicions. Any public revelation of those suspicions is likely to be stigmatised as trial by media. The alternative is silence. The third imputation alleged is that the respondent is a multiple murderer. He has confessed to a second killing. That is a matter of public interest. The authorities have never brought him to trial for that matter, perhaps because it would be a work of supererogation. If any media outlet publishes the fact of the respondent’s confession, then no doubt it can be said that the question of his guilt is being canvassed without all the protections and safeguards of the criminal trial process. That would be true. Yet it seems surprising that the public could never be told of the respondent’s confession.
It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated. More fundamentally, however, it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter.
PS It’s just been pointed out to me that Justice McGrath cites this passage in the Rogers case (para 114). Useful to have that on our books.
Topics: Defamation, General, Injunctions, Media ethics | Comments Off on What’s wrong with trial by media?
Siemer in contempt again?
October 20, 2009
Yet another chapter is written in the Vince Siemer saga.
In this episode, Vince decides that a High Court order suppressing publication of a decision doesn’t apply to him. The decision concerned some pre-trial rulings in concerning the Uruwera defendants, so it’s pretty big deal. Justice Winkelmann suppressed the decision, it seems, out of concern that publication may prejudice the conduct of a fair trial. Finding material of interest in the decision, Vince publishes it on his website. In response to the Soliticitor-General’s demand that he remove it, he argues that the judge had no right to make the suppression order.
On October 9, the Solicitor-General obtained a court order requiring him to remove it. When I last checked, he hadn’t. Looks like he’s in contempt of court again.
The case illustrates once again Vince Siemer’s unerring knack for identifying deficiencies in our legal system, as well as his galactic talent for overblowing his case and infuriating the judiciary.
As usual with Vince, there was nothing straightforward about the case. He supplied a notice of opposition but said he’d be out of the country for the hearing and asked for it to be deferred. On the one hand, it really is important that criminal defendants (which is effectively what he is) be given a fair chance to make representations in their own defence. On the other hand, the court can’t be a hostage to Vince’s travel timetable – and it was, after all, considering the enforcement of a court order that was already in existence and being breached with every extra day that passed. In addition, Vince could have rustled up a lawyer to represent him.
Anyway, he sent in submissions. He said he had the right to publish under s14 of the Bill of Rights. The judge could only override this with “clear and compelling legal reasoning” – and the suppression order contained no reasoning at all. There could be no right for the judge to arbitrarily keep the public ignorant of what was happening in the courts, particularly given the public interest in the contents of the judgment. He said he’d published nothing that could jeopardise the right to a fair trial. The public release of factual Court judgments is inherently non-prejudicial, he argued.
As usual, Siemer badly overstates his legal claim. This made it easy for the judge to bat aside his submissions. The High Court certainly does have power to suppress its decisions when necessary in the interests of justice. This was confirmed recently in Paraha v Police [2008] NZAR 581, as the judge noted. The Bill of Rights doesn’t prevent this. What’s more, it’s not inherently non-prejudicial for Court judgments to be made available. Consider, for example, a judgment that rules some evidence of confession inadmissable because it was obtained by coercion. If the jury could learn of the confession through the media, that would plainly prejudice the trial. What’s more, Vince forgets that these restrictions are not permanent, but only apply until the trial is over. The public is not being barred from seeing this judgment forever.
But that’s not the end of the story. Because, as usual, in the middle of Vince’s outraged pontificating, there are some solid points, I think. He is effectively mounting a collateral challenge to the validity of the suppression order, and the judge treated it as such. There are some arguments he could have advanced that may have made the judge sweat more:
1. While the Bill of Rights cannot override the court’s power to make a suppression order in the interests of justice, it seems clear that the discretion to make such an order must be exercised consistently with the Bill of Rights – that is, only when it is demonstrably justified under s5. Would publication of the judgment really have jeopardised a fair trial? (I don’t know; I haven’t read it). In any event did the judge really need to suppress the whole decision to protect the fairness of the trial? Would a less restrictive order have sufficed?
2. Vince was probably wrong to say that his publication creates no prejudice. I think it probably does. But any prejudice is to the Crown, not the defendants. Is it in the interests of justice to prevent such prejudice? Probably so. But it would have been interesting to see the judge grapple with the dicta from Solicitor-General v W & H Publications Ltd [2003] NZLR 12, at para [27], where the Chief Justice and Morris J said:
It is not at all clear however that there is reciprocity of effect upon trial where publications are sympathetic to the accused, rather than adverse. The submission made by the Solicitor-General that sympathetic publicity about the accused is the “flip side” of adverse publicity, and equally prejudicial to the administration of justice, does not echo in experience. No doubt some such symmetry seems intuitively fair as between prosecution and defence. But the fairness to be considered is the fairness of the administration of justice.
3. In the Lewis case (remember the name suppression of the American billionaire caught bringing in drugs on his yacht?), the Court of Appeal said it was an error of law not to provide reasons for the suppression. There seems a fair argument that this ought to apply with equal force here. Vince did point out that no reasoning had been provided. The judge simply said that such suppressions were “made on a daily basis in the Courts throughout New Zealand, in the context of the determination of pre-trial hearings, or in the determination of appeals where a retrial is likely… on the basis that the publication of the material in whole or in part prior to trial, has the potential to prejudice the conduct of a fair trial”. I’m not convinced that such suppressions are quite that common. (Name suppressions are, but those are not usually made to avoid prejudice to a fair trial). Suppressing publication of the whole content of a decision involves an exercise of common law powers that go beyond the suppression that’s authorised by statute (which allows suppression of submissions and evidence)… the scope of various courts’ powers to prevent media reporting has in recent years been the subject of litigation, including the recent Paraha case above. In short, I can’t help wondering whether the judge (who incidentally is the next Chief Judge of the High Court) is being a bit blase about the suppression here, and the failure to explicitly justify it in s5 terms. For all that, as she does explain in this judgment, there may well be good reasons to suppress material in the judgment: if it discusses evidence that may well end up being ruled inadmissible, for example. Again, though: does this apply to the entire judgment?
Still, I doubt the result would have been different if these arguments had been made.
Next step: another application for a warrant to commit him for contempt?
Topics: Contempt of Court, NZ Bill of Rights Act, Suppression orders | Comments Off on Siemer in contempt again?
Carter-Rucked
October 19, 2009
Heavy-hitting UK libel law firm Carter-Ruck has been getting some bad press lately. The Guardian reported that Carter-Ruck (famously referred to as “Carter-Fuck” by its nemesis Private Eye) had gagged it from reporting Parliamentary proceedings. What’s more, the gagged material related to a report concerning a toxic waste spill by giant oil company Trafigura. And what’s worse, the injunction itself was what’s become known as a “super injunction” meaning that not only are the press gagged from reporting the allegedly confidential material – they are also forbidden from revealing the existence of the injunction itself.
An outrageous attack on free speech, all have agreed. A possible contempt of Parliament, some have suggested.
I’ve taken a particular interest in this since, as some of you know, Carter-Ruck were kind enough to let me spend a couple of weeks with them recently in an observational capacity. I’m afraid I have no insider information about Trafigura though: during my time there, I had no involvement with the case and didn’t discuss it with anyone, and the furore erupted after I left.
Still, it did make me more inclined to seek out Carter-Ruck’s point of view. And it’s here, on their website.
Now, any reader of this blog will know that I’m not a fan of these super-injunctions (though I can conceive of very rare situations where the confidentiality interest itself may be destroyed by public knowledge of the existence of the proceedings). And I have concerns about the way injunctions can often readily be granted at an early stage of proceedings (though again, there are certainly some situations where this is the only way to protect legitimately confidential information). But the Guardian’s reporting – and the predictable shitstorm in the blogosphere – strike me as a bit ill-informed, if Carter-Ruck’s press release is to be believed (and I do).
One would have hoped that people wouldn’t need reminding of one particularly important fact: this injunction was not imposed by Carter-Ruck, it was granted by a judge. Any criticism of the existence and scope of the order ought to be directed, in the first instance, at Justice Maddison.
Second, it seems that a week after the injunction was first ordered, on an urgent and interim basis, the Guardian consented to its continuation pending resolution of the issue. That doesn’t mean that the Guardian accepted that the injunction was justified. But it does mean they weren’t fighting the stop-gap injunction, and accepted that it could stay until the matter could be properly argued.
Third, the injunction arose well before there was any question of the matter being raised in Parliament. It certainly wasn’t an attempt to gag Parliament, or Parliamentary reporting. It was an attempt to protect a confidential report. Carter-Ruck says that, if anyone had raised the possibility of Parliamentary coverage when the injunction was being formulated, they probably would have agreed to exclude it from the ambit of the injunction. (This is credible because it’s common to exclude material that’s in the public domain, and it’s hard to see how Carter-Ruck could have argued to keep it in the gag. What’s more, once it became a live issue, they took instructions from their clients and pretty quickly agreed to consent to its removal from the terms of the injunction).
Carter-Ruck has written to the Speaker of the House, trying to set the record straight and head off ill-informed comment by politicians and the media (good luck with that). They also noted the Parliamentary resolution that Parliament does not discuss active court proceedings. I’ve said before that Parliament should really only be leery of discussing active court proceedings in such way that they might be prejudiced. Still, isn’t it fair game for Carter-Ruck to point to Parliament’s own rules? As they say in their letter, “clearly, the question of whether this matter is sub judice is entirely a matter for your discretion…”
So what’s the Guardian’s headline? Carter-Ruck in new move to stop debate in Parliament.
Sheesh. What’s a poor Machiavellian Libel Bully to do?
Topics: Breach of confidence, Injunctions, Internet issues, Media ethics, Suppression orders | Comments Off on Carter-Rucked
Holiday time
August 20, 2009
I’m off to Hong Kong, London and the South of Spain for six weeks or so. Then I’ll be based in Melbourne for a few weeks, beginning on October 10. Back in NZ late November. If you want to contact me, best to try claudiasteven@gmail.com, which I’ll try to check regularly.
Topics: General | Comments Off on Holiday time
Irish Supreme Court protects source confidentiality
August 20, 2009
The Irish Supreme Court has allowed two journalists to refuse to answer questions that would have made them disclose their sources. Trinity College senior lecturer and blogger Dr Eion O’Dell welcomes the decision, but thinks it falls short of recognising a full-blown journalists’ privilege.
Topics: Confidential sources, General | Comments Off on Irish Supreme Court protects source confidentiality
Let Us Stray (from the facts)
August 19, 2009
Sigh. Let Us Spray producer Keith Slater has given an interview on MediaWatch, defending the documentary Let Us Spray after the BSA upheld complaints against it.
Well, that’s his right. And plainly, he still thinks the documentary was right. But he’s still making statements that strike me as just as misleading as the programme was. (Disclosure, again: I acted for the Ministry in this complaint, though the views here are mine).
For instance, he says that the Leonard report demonstrated that ESR’s serum study (a blood test to determine dioxin levels) was seriously flawed. Leonard wasn’t too sure himself, but suggested that his findings be reviewed by a biostatistician. They have been, and they’ve been found essentially wrong. An expert recommended by the WHO also looked at Leonard’s criticisms of the study (and was given the data the serum study was based on) also concluded that the study was fine. Those reviews are on the Ministry’s website, as is trenchant rebuttal from the study’s author, Dr Jeff Fowles. Oh, and you’ll also find the three expert peer reviews of the original serum study. (TV3 will tell you that those reviewers were not given “Appendix O”, a fact which formed the “gotcha” moment in TV3’s interview with the Ministry’s spokesperson, who didn’t know what information the peer reviewers had been given. Appendix O was a compilation of the raw data from the serum study – raw data that the ESR team had been working from. True, Appendix O got contained misaligned data. That was a result of a computer glitch when the information was transferred. But there was no conspiracy to keep this information from the reviewers. Peer reviewers aren’t given data like this. They don’t want it. They don’t expect it. Their job is to review the methodology, not check the adding. The Ministry asked TV3 to name any other study in the world in which peer reviewers were given the data to check, and they didn’t respond. Anyway, if they had been given Appendix O, what would have happened? The reviewers might have raised a question about the figures in it. ESR would have realised the mistake, provided the accurate data, and assured the peer reviewers that their calculations had been based on the raw data, not the mangled table.)
Mistake number two: Keith confidently asserted that dioxin exposure is clearly scientifically related to neural tube defects. Maybe Keith was one of the mysterious scientific experts consulted by TV3 for the programme. The Ministry kept asking, but TV3 never named the experts it had talked to in the making of the documentary. One might have hoped that anyone truly independent would have referred TV3 to the Institute of Medicine’s reports on the lastest scientific evidence on the links between dioxin and various health conditions. Birth defects? They’re in the category of “Inadequate or insufficient evidence to determine association” (except spina bifida). Hmmm. So who do you trust? TV3 or the panel of expert scientists convened every two years to examine the latest research data? But didn’t much of the emotional clout of the documentary hinge on those shocking images of babies with birth defects, you say? Well, exactly.
Finally, Keith tells us that the Ministry and ESR changed their position on the serum study after the documentary. TV3 suggests that this is an acknowledgement of a screw-up and an admission that the exposure was much higher than the study said. Wrong. TV3 has got the wrong end of the stick from some further calculations performed by Dr Fowles some time after the study was released. He drew on newly published research about how dioxin is processed in the body and was able to perform some new calculations using the data from the serum study. The serum study itself aimed to measure dioxin exposure among residents. It also tried to identify the peak exposure period, but could not do so with confidence. Dr Fowles’ new calculations allowed him to estimate peak exposures in the late 1960s and 1974. It is important to understand – as TV3, ostrich-like, refuses to do – what these new calculations are not about. They are not inconsistent with the study, which did not identify a peak exposure period. They do not change the findings on the level of exposure of the residents. They do not affect the findings on the health risk to residents. (Note that the study did in fact estimate a 10% increased risk of death by cancer – something that the documentary, in its anxiousness to portray officials as wilfully blind to the risks, did not explain to viewers).
In short, the new calculations do not affect the validity of the study at all. TV3 have been repeatedly told this. They have never given any indication that they have taken it on board, constantly portraying it as a u-turn by the officials. This must be terribly frustrating for Dr Fowles, who is being treated as if he has criticised the study that he led, when all he was trying to do was gain some more refined information.
Why is TV3 being so intransigent? Don’t know. I can only guess that they are so convinced about the evilness of the Ministry and ESR that they simply don’t believe any explanation they’re given. I suspect they’re in the thrall of the advocates for the residents. I doubt they really understand the science involved. In addition, it is hard not to be sympathetic when confronted by the awful medical conditions of some of the residents, and it’s easy in this age to be suspicious of the effects of a nearby dioxin factory. Then there’s the temptation to go for the jugular and produce a compelling doco, rather than muddy the waters with inconvenient complexities. Worked for the Qantas judges. Didn’t serve the public so well, I think.
In any event, one can instructively contrast TV3’s incredible prickliness when their professionalism is challenged with their readiness to suggest that a range of officials have acted incompetently and corruptly, callously standing by while Paritutu residents die.
Topics: Broadcasting Standards Authority | Comments Off on Let Us Stray (from the facts)
Sad news
August 14, 2009
Auckland University law professor Mike Taggart has died. He was a colossus in the public law field, and a really nice guy to boot. His death wasn’t unexpected, but it’s no less tragic for that.
Topics: General | Comments Off on Sad news
Monkeying around
August 13, 2009
Sean Plunkett was on top form this morning. After interviewing the park manager with the vaguely familiar name who’s hoping people will contact him if they spot Minty the runnaway monkey, he wrapped up with:
Thank you very much. That was Willowbank park manager Jeremy Maguire, who says: “Show me the monkey”.
Well done, that man.
Topics: General | Comments Off on Monkeying around
Sparking debate
August 10, 2009
I’ll be in the Court of Appeal with Tony Shaw tomorrow trying to make the world safe for flag-burners. Specifically: Valerie Morse, who lit a flag over the road from the Anzac Day dawn service at Wellington’s Cenotaph in 2007 to protest our militaristic foreign policy. She’s been convicted of offensive behaviour. Is this a demonstrably justified restriction of her free speech rights under the Bill of Rights? We’ll find out. Should be an interesting day’s argument.
Update: argument is over. It’s fair to say that the judges did not seem particularly sympathetic to the flag-burners at ANZAC day services, but at the end were toying with the idea that a criminal conviction may be disproportionate, as opposed to simply moving such protesters along, or merely arresting them for a short while, or warning them to stop and prosecuting them for obstruction if they persisted.
We now await the decision. Watch this space.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Sparking debate
« Previous Entries Next Entries »