Staying power?
October 29, 2008
I’ve said that the failure of the Fairfax contempt prosecution is a blow for the arms charge defendants’ chances of getting a stay of prosecution due to prejudicial publicity. If the case had succeeded, it would have been difficult for the presecutors and the courts to proceed with prosecutions. After all, two High Court judges would have found that the coverage had created a real risk of prejudice to the fairness of those trials. Unless they could come up with some very convincing way of managing that risk, the trails surely could not have proceeded.
Of course, that didn’t happen. But the way the judges decided the case, I think, still leaves open a fairly good argument that those trials should be stayed. Why? Because the judges finding revolved around their conclusion that:
Any potential prejudice to the accused would largely flow from that material to which the Soliticitor-General does not take separate objection. Any additional prejudice arising from the publication of the intercepted communications would not add materially to any potential prejudice from other sources.
In other words, the prejudice caused by the earlier coverage, the statements of the Commissioner of Police and the Prime Minister, and even the statement of the Soliticitor-General, had done the damage. The Fairfax article added to it only marginally.
Incidentally, this rather flies in the face of a statement from the Chief Justice in the Women’s Weekly case from 2002:
It is not a defence that others have published the same material without contempt proceedings being taken against them.
Similar arguments were also dismissed in the Gisborne Herald case in 1994.
But the point here is that the judges in the Fairfax case plainly think there’s a good deal more prejudice around than they had to worry about to decide the case against Fairfax. If Fairfax was close to the line (and I think it’s a fair reading of the case to suggest that the judges thought it was), then what happens once you throw in the prejudicial material from other sources?
You’ve still got a reasonable argument that a fair trial is impossible, that’s what. But it’s always going to be an argument that judges will be very reluctant to accept…
Topics: Contempt of Court | Comments Off on Staying power?
In case you missed it…
October 29, 2008
Here’s an op-ed piece I wrote for the DomPost. Full credit to the boys (rugby was the winner on the day) for publishing it, because it’s not entirely flattering. Before that, they commissioned an independent and thoughtful piece from Karl du Fresne. The paper’s trial coverage was also fair and balanced. Credit to Tim Pankhurst and Paul Thompson, too, for fronting up on MediaWatch and answering some tough questions from Colin Peacock.
Topics: Contempt of Court | Comments Off on In case you missed it…
Blow me down
October 10, 2008
I confess, I thought Fairfax and Tim Pankhurst were goners. But they have survived the contempt application for their “Terrorism Files” story mostly unscathed.
I say “mostly” because the judges found that they should have been prosecuted for breaching suppression orders and the Crimes Act provision outlawing disclosure of intercepted communications. “We are at a loss to understand why these breaches were not prosecuted,” they said.
But make no mistake, big issue in this case was whether Fairfax’s coverage created a real risk of prejudice to the defendants’ cases. The judges said it didn’t. In short, they thought that it didn’t add much to existing prejudice created by statements by the Commissioner of Police and the Prime Minister and other commentators; that there’s been little prejudicial coverage since then and the usual suppression orders will ensure that continues; that the trial would be two years after the coverage; that the coverage won’t make much difference to jurors’ views on the actual legal issues in the Arms Act trials; and that juries are robust institutions capable of focusing on the evidence before them and putting aside anything they may have heard outside the trial.
Take a bow Fairfax’s legal team, headed up by Hugh Rennie QC and Robert Stewart.
You can see this case as a blow for freedom of expression or a failure to strike a blow for fair trials.
Without wanting to be churlish, there are a few aspects of the case that give me pause for concern. First, having discussed the expert evidence about jurors’ memories, the judges note that they are divided and both admit that any conclusion is “speculative” and conclude:
It falls to us to form our own assessment based on our experience as trial Judges given the lack of any truly helpful research which could assist in making assessments of this kind.
I find this infuriating. There is, in fact, a large body of helpful social science research, some of it specifically devoted to publicity about terrorists. I think they had a responsibility to mould the notoriously vague contempt laws so that it conformed much more closely to what we know will and will not affect juries. For them to fall back on their gut feelings (as judges have often done in the past) is outrageous. Their trial experience actually gives them no particular expertise about jurors’ memories, and they should stop pretending that it does. They could easily have reached the same conclusion they did by preferring the evidence of Dr Warren Young who gave evidence for Fairfax.
Still, I’d point out that even Dr Young acknowledged that there was a “real risk” of prejudice, which is precisely the test to be applied by the court (though he thought the risk was “very small”). If I was a defendant, I wouldn’t want to tolerate anything identified by two of the world’s foremost experts as a “real risk” to the fairness of my trial, even if one of them though the risk was small.
Second, this finding troubles me:
[129] We do not consider that the accused are likely to be prejudiced by the publications in relation to their defences. Offences under s 45 Arms Act are offences of strict liability. Proof of an innocent purpose for the alleged possession of the weapons falls upon the accused. There is nothing before us to suggest there is any real risk that any defence available to the accused on that basis is likely to be compromised by the publication of the intercepted communications. Mr Burns referred to this possibility in his evidence but we are not persuaded in the light of the other evidence to be called by the Crown that an innocent purpose defence is likely to be compromised. The focus of any defence is likely to be on issues of identification.
I’m not sure how the judges could possibly reach this finding. They knew that few of the defendants are relying on identification. Almost all of them will be relying on a defence of innocent possession – that they were having harmless fun, or learning bushcraft, or engaging in recreational activities. That may or may not have much chance of success. But it strikes me as having almost no chance at all if any of the jurors have any sort of memory of Fairfax’s front page article.
The judges say that jurors probably won’t remember the details. But it’s not their memory of details that’s the problem.
Third, I’m not sure about the finding that Fairfax was guilty of breaching suppression orders. If information is learned from a separate source, different from that which was suppressed – and particuarly where another judge has specifically decided not to suppress it (though I’m not sure if that’s the case here) – then it doesn’t seem a clear breach to me.
Fourth, I rather think that the judges’ finding that the Fairfax story added little to the existing prejudice doesn’t give enough weight to the fact that much of the information had never been published anywhere else, that it was by that stage inadmissible by law, and that it gave a level of detail that was much more potent than what had come before.
Whatever the case, this result makes it much less likely that the defendants will be able to successfully apply to have their appeals stayed. There is, I suppose, a possibility that the Crown will appeal. [Update: I was wrong about that. The Crown has no right of appeal from this decision.]
Topics: Contempt of Court | Comments Off on Blow me down
Interesting UK defamation trends
October 10, 2008
UK research into defamation reveals another hike in lawsuits from celebrities (32% of claims), and an increasing readiness by media organisations to settle (61% of cases result in a statement in open court). Results from 2007 had tracked an increase in claims from people accused of terrorism, and claims against posts on blogs and message boards.
Topics: Defamation | Comments Off on Interesting UK defamation trends
Libel by song
October 9, 2008
A British magazine that quoted a song whose lyrics suggested that a politician was involved in an assault has settled a defamation lawsuit for a five-figure sum.
Topics: Defamation | Comments Off on Libel by song
A case to keep an eye on
October 8, 2008
Max Mosley, who successfully sued for invasion of privacy over the disgraceful “Nazi sex orgy” hidden camera sting, is taking his case to the European Court of Human Rights with an interesting argument: the law should require the media to give advance notice to the subjects of their revelations before publishing them. That would give the subject a chance to go to court to stop it. Otherwise, he argues, privacy laws provide no real remedy.
Topics: Privacy tort | Comments Off on A case to keep an eye on
A different way to tackle the juror-internet problem
October 7, 2008
Fine the jurors. Under new laws in Victoria, jurors can now be fined up to A$13,000 for conducting online research during a trial.
Topics: Contempt of Court, General | Comments Off on A different way to tackle the juror-internet problem
Eat the worm
October 7, 2008
There’s talk that TV3 might use the worm again for its leaders’ debate. In an attempt to persuade them not to, let me revisit a column I wrote before the last election:
I see the worm is back.
No, I’m not talking about John O’Neill. I mean the squiggly electronic line that measures audience reaction to politicians’ performance in television debates. I hate that worm.
Still, I can see why television executives love it. It draws us to television screens in droves. One Australian commentator wrote that “many viewers find the worm more interesting than the politicians.”
And that’s the problem. We no longer need to listen to the debates and think about what we’re hearing for ourselves. We have an electronic scorecard. An infallibly scientific one. A fascinating, beguiling one. Instead of thinking to ourselves, “Now, is Helen Clark making any sense?” we think, “How is that going down? Is she winning the game?”
It’s politics as pure sport. We are mere spectators. The worm relieves us of the burden of having to work out for ourselves who’s ahead.
But hang on. The worm is simply the electronically summed gut reactions of a bunch of undecided voters twiddling some knobs in a room somewhere. Why take any notice of them? You won’t be told who they are, but you can make some safe assumptions.
First, the great majority of them will not share your political views.
Second, you would find some of them to be complete tossers.
Third, you have no idea what they are reacting to. You’re watching their reactions to the leaders’ ideas – mostly before the leaders have finished expressing them. Some of them are thinking, “Yeah, I’ve been following National’s Treaty of Waitangi policy and it makes good sense to me.” Some are thinking, “Ooh, I like his tie.” Some are thinking, “Damn, I forgot to remind Trish to pick up the sausages.”
When the worm was first used in 1996, Pam Corkery reckoned it simply went up when the live studio audience applauded. Wellington businessman Michael Gibson observed that the worm dipped whenever Paul Holmes appeared onscreen, no matter who was talking.
This is the process by which the will of the people is translated into science.
The worm then declares the winner of the debate, and identifies the big turning points as the parts of the debate that are worthy of discussion. (In 1996, TVNZ screened the debates first without the worm, followed by a package of worm highlights.) Poor Jim Bolger fielded a question from a grieving audience member whose mother had died three weeks earlier. She had been on a waiting list for a heart operation. “I extend my sympathy to you and your family,” Bolger said awkwardly. “I’d have to say that death is always associated with health…”
Doh. Of course, the worm went subterranean. Bolger was treated to endless replays of this moment, complete with burrowing worm, and it dominated the print media reaction too. I could be wrong, but I don’t remember anyone using this opportunity to explore the question of how many people were dying on waiting lists, whether that number had increased under National’s watch, and how the parties’ health policies played into the issue.
There was lots of coverage about Bolger’s poor performance, though. “Obviously, Mr. Bolger will have to learn to lift his worm,” wrote Brent Edwards memorably.
There was also lots of coverage about how the worm adored Helen Clark. The commentators examined her “empathetic nodding,” her “softer, modulated voice,” her “pained sincerity,” her “ability to project an authoritative presence.” They didn’t examine her policies much.
And that’s why I hate the worm. It’s yet another thing pushing us toward image analysis and horse-race politics, and away from talking about how we’ve been affected by the government’s decisions in the last three years, what the alternatives might have been, and what policies are best for the future. The worm finds this stuff too boring. It doesn’t like long explanations. Nor does it like taxes (though it does like improvements in health and education). It doesn’t like uncomfortable truths being mentioned.
But watch it perk up at huggable words like responsibility, security, community and opportunity. (There’s serious research that people love these words.) Listen for: experience, commitment, pride, New Zealand, future, success, trust, children, keeping promises, leadership, vision. Helen Clark often uses the vision-word, but it seems to sit ill in her mouth. Back in 1996, though, she denied that she was coached to use favoured buzz-phrases. “If you went into a debate trying to remember that sort of thing, you’d fall flat on your face,” she said. “Answering the question is critical.”
Actually, Clark is masterful at answering a slightly different question to the one that’s asked. Still, she compares well with Winston Peters, who will answer a different question entirely. Watch out for those magical transition words: “let me just say this.”
The worm’s one redeeming feature is that it punishes politicians who duck questions using this sort technique, which they get away with the rest of the time. For all that, I still don’t want the worm. It produces bland worm-tested arguments. It hypnotises viewers and media pundits. It assumes that knee-jerk popular appeal equals quality democratic debate.
TVNZ should swallow it.
Topics: Electoral speech, Media ethics | Comments Off on Eat the worm
TV3 next in the dock…?
October 7, 2008
It’s an innocuous-sounding phrase, but it should be emblazoned on the memory of every court reporter: “identity is at issue”.
That means that the defence will be arguing that “it wasn’t me, it was someone else”. (This can be contrasted with a defence such as, “it was me, but it wasn’t a crime, or it was self-defence” etc).
That means the Crown will have to prove that it was the defendant. That means they’re likely to be relying on witnesses to identify the defendant. And that usually happens by the rather unsatisfactory method of an in-court identification.
“Do you see the man you saw knifing your neighbour in the courtroom today?”
“Yes – that’s him there, the man sitting in the dock between those two burly police officers”.
(Incidentally, the courts have often warned police that this isn’t the best identification evidence and they ought to be holding identity parades much more often. For a variety of reasons, the police hardly ever do. They’ll much more often show the witness some photographs, or have the witness do a walk-by to identify the defendant, neither of which is as good as an identity parade.)
Anyway, that puts a premium on the in-court witness identification, and the court needs to be sure that, weak as it is, it is as untainted as possible by outside influence. It would be outrageous, for instance, if a police officer whispered to a key identification witness just before the witness was about to give evidence: “don’t forget, the guilty guy is a tall Indian fellow with a scar on his forehead”.
That’s why the judge warned the media not to publish any images of Liam James Reid. And why he was so furious when TV3 did so.
Defence counsel might go to town on this. “How can this identification hold any water?” they might argue. “The witness admits she saw the TV3 report. How do we know she’s remembering what happened at the time of the offence – and not merely identifying the defendant from what she saw on TV?” In such cases, there may even be argument that the trial should be abandoned.
One problem, as I’ve said before, is that many journalists just don’t get contempt of court. They don’t understand what it’s for, or what it covers. They just have some dim memory of a class in journalism school when they were told that they mustn’t prejudice the administration of justice. Whatever that might mean. Something about previous convictions, maybe?
That applies especially to journalists who are drafted in to cover a case without much previous courtroom reporting experience, and journalists who skip in and out of court, just report on the bits they see,and don’t check with courtroom staff to see what restrictions might have been imposed. (That said, I don’t know who was responsible for the TV3 coverage).
UPDATE: I’ve just seen the story online. Reid’s face (I assume it’s him) is masked. I assume it wasn’t last night. But even without pixelation, if this is all that was screened, it seems a pretty distant and fleeting shot.
Topics: Contempt of Court | Comments Off on TV3 next in the dock…?
TV3 wrong about gong
October 3, 2008
TV3 misled viewers when it broadcast its Campbell Live interview with an actor playing one of the Waiuru Army Museum medal thieves, the BSA has ruled. Viewers were only told that the voice was that of an actor, and might well have thought the person they were seeing was one of the real thieves.
After Ursula Cheer made her complaint, TV3’s complaints committee adopted a heroically generous interpretation of the accuracy standard to avoid this conclusion. It argued that it corrected the report promptly afterwards, and so there was no ongoing breach of the standards.
The BSA noted that it actually took TV3 three days to fess up, and it never broadcast a correction on Campbell Live, or indeed, anywhere else on TV3. It did, however, admit the error in other media.
Here’s the rule laid down by the BSA:
The Authority accepts that there would be occasions, where an error was corrected very quickly, when it could not reasonably find a breach of the accuracy standard. However, the Authority considers that the broadcaster itself would need to have corrected the error in the same medium and for a similar audience as the original broadcast, and at the earliest reasonable opportunity.
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on TV3 wrong about gong
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