Electoral Finance Act lawsuit tanks
June 24, 2008
Was the Crown Law Office vet that found that the Electoral Finance Bill wasn’t inconsistent with the Bill of Rights Act wrong? Should the Attorney-General have reported to Parliament that the bill was inconsistent with our rights to freedom of expression? Is the Electoral Finance Act itself inconsistent with the Bill of Rights Act?
John Boscawen et al say yes. They’ve taken these issues to the High Court. But they faced a big hurdle. Would the courts even be prepared to rule on them?
The answer is no. On the first two questions – getting the courts to second guess the Attorney-General’s advice to Parliament – this should come as no surprise. The courts don’t like to trespass on Parliamentary Privilege territory.
But on the third – the issue of the consistency of the EFA itself with the Bill of Rights – I was surprised to see the High Court summarily strike out the claim. Clifford J said the Declaratory Judgments Act can’t be used to address moot points because there’s no live underlying dispute between the parties. The situation might be different, he said, if the applicants “sought declarations of inconsistency through NZBORA itself”.
The question of whether the courts might be prepared to issue a declaration or “judicial indication” that a particular statute is inconsistent with the Bill of Rights Act has been much discussed by academics (and occasionally by judges). To strike it out here, with little reasoning, on what looks like a rather technical ground, seems wrong to me.
Perhaps there will be an appeal.
Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on Electoral Finance Act lawsuit tanks
Suppression unsuppressed
June 21, 2008
Just how much suppressing are the courts doing? In the past it’s been hard to tell, because statistics have been pretty patchy. But in an admirably prompt response to my request for some statistical information, the Ministry of Justice compiled some data for me from their records.
Name suppression is the perennial hot issue. Is permanent name suppression given out like lollies? In short: no. Out of about 150,000 criminal cases each year, there are about 730 final name suppressions in the District Court and about 35 in the High Court. There are about three times as many interim name suppression orders (five times as many in the High Court), but these are less significant since the media can eventually report them.
The numbers have been fairly constant over the past five years during which these statistics have been recorded.
In general, this doesn’t include the suppression that arises by operation of the law (for child witnesses and victims of sex offences, for example) though it’s possible that sometimes a judge will make a formal order to underscore the importance of the suppression. In addition, final orders may be made after interim ones expire, so there’s some effective double-counting there. Consequently, there probably aren’t as many different discretionary name suppressions as the above figures suggest.
Another caveat: it’s not clear that these records pick up all the suppression orders made. It seems likely that most of them are captured, though.
It’s not always (or not only) names that get suppressed. Sometimes facts (such as past convictions or contested evidence) can be suppressed, too. The courts have a discretion to suppress evidence or submissions. How often is that exercised? Not too often. About 440 times a year, overwhelmingly in the District Court. Only about a 100 of these each year are permanent.
The Ministry even managed to dig up some stats about civil cases. Name suppression has been ordered in 23 DC cases and 87 HC cases in the past 5 years. There’s no break-down of interim and permanent orders, and no explanation of the circumstances of such orders, so they’re a bit difficult to analyse. The stats also list all of two cases in which facts have been suppressed in the last five years.
I’m a bit sceptical about the civil figures, since they don’t include the one case that I know about – the suppression orders relating to various factual matters (as well as the plaintiff’s name) in the High Court litigation over Anne Hunt’s book. Still, it does suggest that such orders are probably pretty rare, which is some comfort.
Topics: Name suppression, Suppression orders | Comments Off on Suppression unsuppressed
Desperately seeking relief
June 19, 2008
Readers will know I’m a generally fan of free speech. But I would support a ban on the use, by all politicians in every election year, of the word “desperate”.
Topics: General, Media ethics | Comments Off on Desperately seeking relief
Feeling sorry for Vince?
June 17, 2008
Poor Vincent Siemer. Facing a limitless stretch in the slammer for … what? A couple of websites? Oath.
I’m afraid I find it difficult to get too worked up about Vince’s plight. He’d like to pitch his troubles as a freedom of expression battle against a corrupt businessman (his nemesis, Michael Stiassny), and corrupt lawyers (including his own), and corrupt judges (pretty much anyone who’s ruled against him, in a couple of dozen court hearings). But what it’s really about is his ongoing and flagrant refusal to comply with court orders.
He’s already been held in contempt in two cases (the second upheld by the Court of Appeal). He had been injuncted from publishing particular material about Stiassny, and had continued to do so. His websites are here and here, and it seems here, and he’s got a book out that you can buy here. I’ve ordered my copy, before it gets banned. Will it breach the court order not to:
Publish in any form any information containing allegations of criminal or unethical conduct or as to improper personal enrichment on the part of the plaintiffs in relation to their conduct of the receivership of Paragon Oil Systems Ltd; any claim that the plaintiffs deliberately overcharged Paragon Oil Systems Ltd in the sum of $10,000; together with information as to the fact of complaints made by Mr Siemer and/or Paragon Oil Systems Ltd to ICANZ or to the Serious Fraud Office; and including any information obtained by Mr Siemer or Paragon Oil Systems Ltd in the course of discovery in any proceedings pending further order of the Court…
This injunction is fairly narrowly tailored. The original injunction – by Winkelmann J – prevented Siemer from publishing anything at all on his website relating to Stiassny. That’s really too broad to ever be justified. It was narrowed by Ellen France J about a month later. Note that the injunction is an interim one. It’s in place pending the final determination of the defamation case. If Siemer can prove that his allegations are true, he will be able to reinstate the banned content. The courts generally do not grant this sort of injunction in defamation cases. They only did so here because two High Court judges were convinced that there was no basis for Siemer’s allegations:
Justice France: Having assessed the evidence, I conclude this is one of those exceptional cases where the Court can say that there is no reasonable possibility of a defence of truth succeeding in relation to any allegations of criminal or unethical conduct or as to improper personal enrichment.
[UPDATE: I’d missed this point, but the Court of Appeal preferred to base the injunction on an agreement struck between Siemer and Stiassny not to publicly diss each other, rather than on defamation.]
Siemer continued to publish such allegations. He was fined after the first contempt and sentenced to 6 weeks in jail after the second one.
He objects that he was tried “in absentia” – he was overseas at the time of the second trial. Which might be outrageous, except for the fact that he’d known about the hearing date, hadn’t filed any documents, hadn’t engaged legal counsel, and had simply emailed the court to say he wouldn’t be making it. They said he needed to formally apply for a different date. He didn’t.
It should probably also be noted that the evidence against him at this hearing included an email confession:
Gentlemen, Now that the Court of Appeal has ignored the evidence that your injunction was improperly obtained, I hope you don’t mind that I ignore the injunction.
His websites still contain some of the same content identified by the court as being in contempt. Six weeks in jail didn’t work. What’s a Solicitor-General to do? Putting him in jail until he agrees to comply with the court order is an end-of-tether penalty. But it doesn’t seem unreasonable to me.
Topics: Contempt of Court, Defamation, Injunctions, Internet issues | Comments Off on Feeling sorry for Vince?
Hello?
June 10, 2008
Is that the courts’ decisions of public interest department? [Note: I originally unfairly said that the Ministry of Justice ran this. But it’s the judges who run this website and decide what gets posted].
Don’t you think Justice Miller’s decision on abortion law might qualify?
A media release explaining its essence might be helpful, too. Really, you’ve only got yourselves to blame if your decisions get badly explained by a rushed media and lobby groups whose job is to highlight what suits them rather than provide balance and context.
And while you’re at it, how about sticking up the High Court’s rulings on the Electoral Finance Act cases? And Justice Miller’s decision on Valerie Morse and Mark Rawnsley’s offensive behaviour protest case? The judgment of Justice Keane disagreeing with Justice Fogarty on cameras in court?
The public ought to be able to see the decisions themselves rather than have to rely on the media coverage of them.
[Update: you can find some of them, including the abortion decision, here. Thanks to the Ministry of Justice, actually.]
Topics: General | Comments Off on Hello?
No Sentence or Sensibility
June 5, 2008
I’m not sure the implications of this extraordinary Dominion Post story have been explored quite enough:
The practice of offering rewards in murder cases is under review after the defence in the Foreman trial used the proposed payout to undermine the Crown’s star witness.
The Sensible Sentencing Trust was set to pay $50,000 to Donna Kingi if Murray Foreman was convicted of the murder of Hawke’s Bay farmer Jack Nicholas, but Mr Foreman’s lawyer, Bruce Squire, QC, said Ms Kingi was motivated only by money and discredited her evidence.
Mr Foreman was acquitted on Wednesday, and trust spokesman Garth McVicar said it was unlikely rewards for information leading to conviction would be offered in future.
Memo to Garth: good plan. Quite apart from handing the defence the witness’s head on a platter, the reward is probably a contempt of court. It creates a real risk of influencing the evidence of a witness. Fair to say, many witnesses might manage a surprising clarity of recall of incriminating evidence if fifty grand is riding on the outcome.
The Sensible Sentencing Trust: committing crimes so the criminals can get away with them.
(I know, I know… that last sentence is cute, but I need to note that I didn’t follow the Foreman trial closely enough to have any idea of whether it’s fair to say that he got away with murder).
Topics: Contempt of Court | Comments Off on No Sentence or Sensibility
Judicial Smackdown II: The Empire Strikes Back
May 31, 2008
Well, one judge does anyway.
You’ll remember that Justice Fogarty controversially ruled that some of the the guidelines for cameras in court were illegal (I discussed the ruling here). Another High Court judge, Keane J, has disagreed. In R v Crutchley, he said that the guidelines are “entirely compatible with a trial judge’s duty to secure that justice is done.” He notes that they are merely guidelines. He doesn’t think that the filming of an accused person in the dock is akin to pillory. He says that a degree of humiliation is part and parcel of the trial process, and is not enough to exclude the public from the courtroom, including the amplification that cameras provide.
I think he’s right.
Topics: Cameras in Court, General | Comments Off on Judicial Smackdown II: The Empire Strikes Back
Review of Review of the Law of Privacy
May 28, 2008
Earlier this year, the Law Commission released its Review of the Law of Privacy. It’s well worth a read.
It demonstrates what a nebulous and problematic concept privacy is. The review is part of a four-stage inquiry into the whole gamut of privacy laws, including the Privacy Act, public registers, the tort, and other privacy-related laws. This paper really just sets the scene, summarising current laws and exploring issues and challenges, including its application to the media, the health system, the workplace, and surveillance.
There’s lots of food for thought here. For example, the paper busts the myth that we live in an age when privacy is under greater threat than ever before. In fact, the notion of privacy barely existed a few generations ago. Until pretty recently, we spent most of our lives in extended families in small towns, eating, sleeping, working, traveling and even poohing directly under the gaze of others.
That’s not to say that galloping technology isn’t creating privacy problems hitherto unseen. The paper canvasses some of the threats, which seem to have come straight from the pages of a science fiction novel:
Next generation facial recognition softeware may also allow cameras to gauge a person’s thoughts by mapping facial geometry using algorithms.
One hybrid project aims to produce camera-carrying insects whose nerves have grown into their internal silicon chip and whose flight muscles can be remotely controlled.
A market research company has patented a system which identifies shoppers and tracks their purchase patterns using facial recognition.
The paper also tracks the vast range of laws touching on privacy, the growing international efforts to tackle privacy issues, the extraordinary diversity of public opinion about them (including different attitudes emanating from different cultures and age groups), and the scary amount of false information out there about us.
Refreshingly, it’s grounded in a discussion of the principles underlying privacy and other related principles (such as freedom of expression). Too often NZ tends to muddle through with jury-rigged solutions to particular problems so that our law develops without any coherency. (By contrast, for example, German law is rooted in the fundamental constitutional norm of human dignity). The Commission finds that privacy is rooted in values of respect and autonomy, but that it needs to be considered in particular contexts. You can’t make general rules about privacy.
The Commission also notes that:
— most authority is against corporations having privacy rights.
— our law is inconsistent on the question of dead people’s privacy rights.
— the right to receive information (often an aspect of freedom of expression) has been interpreted to relate only to information that others want to give you and not, for example, to include rights of access to government information.
— privacy language is increasingly finding its way into other areas of the law, eg name suppression
— the tort of invasion of privacy still has uncertain boundaries, but by its nature is unlikely to lead to many court cases (plaintiffs concerned about keeping their images clean hardly like to launder their washing in the court).
I think this is a terrific report. But there was one passage that struck me as so gob-smackingly wrong that it made me gasp out loud. It’s in the section dealing with surveillance. It imagines a scenario in which Ms X, a well-known actress, is bathing topless beside her swimming pool in a garden surrounded by a high fence. A photographer climbs a tree some distance away and takes some snaps using a tele-photo lens. These are published. Might she succeed in a lawsuit for invasion of privacy?
Hmmm, says the Law Commission. Maybe. But maybe not:
What Ms X does in her leisure time may be the subject of legitimate public interest given her prominence. She is clearly a person well known to the public.
A public interest defence to the publication of private topless photos? What were they thinking? Can anyone conceive of a situation in which these might be in the public interest?
Topics: General, Privacy Act, Privacy tort | Comments Off on Review of Review of the Law of Privacy
Regulating broadcasting content
May 26, 2008
You may know that the government is having a big think about what to do about the patchwork of increasingly moth-eaten laws and regimes that govern broadcasting content.
It has produced discussion papers and invited feedback. The submissions are here.
Topics: Advertising Standards, Broadcasting Standards Authority, Copyright, General, Internet issues, Media ethics, Press Council | Comments Off on Regulating broadcasting content
The biggest mystery about the Kahui case…
May 25, 2008
… is why so many journalists seem to have no idea of what an acquittal means.
I’m getting pretty sick of statements like this one, from today’s Herald on Sunday:
…the jury of seven men and five women were unanimous in their view that he was not the killer.
No, they weren’t (or if they were, their verdict doesn’t tell us so). All they found was that the charge hadn’t been proved against him beyond reasonable doubt. For all we know, every man jack on that jury believed he was guilty – but just couldn’t be sure enough to convict.
Juries don’t find people innocent. Nor do they “clear” people, really. A juror can be 90% convinced of guilt and still vote to acquit. This shouldn’t be difficult for journalists to understand and write about properly.
Topics: Media ethics | Comments Off on The biggest mystery about the Kahui case…
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