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Veitch material un-juncted

By Steven | May 23, 2009

Not surprisingly, it seems that Tony Veitch has withdrawn his injunction proceedings.

That still leaves interesting questions about the police’s unusual willingness to release so much information here.

Topics: Injunctions, Official Information Act | 14 Comments »

14 Responses to “Veitch material un-juncted”

  1. ross Says:
    May 24th, 2009 at 3:31 pm

    Steven,

    I think the police acted in bad faith over this matter. Presumably, police were annoyed that many of the details of Veitch’s case had not been made public. Those who released the information may have felt that Veitch was treated leniently by the courts and so wanted to inflict their own form of justice. Of course, that’s speculation on my part but, as someone who has made a number of OIA requests to police and often been unhappy with their response, I suspect it’s correct.

    You only have to look at the Don Brash email saga to realise something dodgy happened over the Veitch material. Why did police refuse to release the Brash file and then, when it was released, heavily censor it? Then there is the Noel Clement Rogers case. Rogers confessed to murder only to retract his confession. He was acquitted but I understand his confession was inadmissible. A tape of his confession was later given to TVNZ. Again, it seems that police were annoyed that Rogers may have literally gotten away with murder, so decided to take justice into their own hands.

    This sort of conduct reflects poorly on police, as if they haven’t suffered enough publicity in recent times.

  2. ross Says:
    May 24th, 2009 at 3:32 pm

    as if they haven’t suffered enough BAD publicity.

  3. Steven Says:
    May 24th, 2009 at 3:47 pm

    As I think you accept, your speculations about the police’s motives aren’t going to get you far in court.

    I think you’re rather missed some of the context to Noel Rogers. TVNZ was actually on the scene when that confession was made, filming it themselves. The police gave them a copy of their own film very early on (probably in breach of police regulations, and possibly in breach of confidence). It’s not clear whether TVNZ made a request for it, thereby triggering the OIA. The terms on which they were given it are contested. But they got it well before the video was ruled inadmissible, and well before Rogers was convicted.

    Incidentally, the jury in Rogers was given plenty of information about Rogers’ confessions, which he made on several other occasions. It seems very unlikely that the inadmissibility of the tape (a decision I’m inclined to think was wrong) made any difference in the trial. There were plenty of other reasons for doubt, one of them being a virtual confession from Rogers’ uncle.

  4. ross Says:
    May 25th, 2009 at 11:34 am

    Steven, there is more context that you (and I) could have provided re the Rogers case.

    The police had already charged Rogers with murder at the time of his interview. His lawyer had told police not to talk to Rogers without the lawyer’s consent and without him being present. Police ignored this request and asked Rogers to re-enact the murder at the alleged scene of the crime. I understand that although Rogers had made prior confessions about the murder, police did not take them seriously. One wonders why, if that is true, police wanted Rogers to re-enact the murder.

    If Rogers had confessed previously and the jury heard evidence of those confessions, what exactly did the video add to the case? You seem to be suggesting – and the Court of Appeal made this point explicitly – that the video added very little (if anything). Presumably police knew the video added very little, so why did they give the video to TVNZ? You will be aware that the Supreme Court criticised the police’s decision to supply the tape.

    A TVNZ cameraman and reporter were present during the re-enactment. “How they came to be there has not been explained”, said the SC. TVNZ did its own filming which apparently was of poor quality. The SC said that “some explanation for the action [of Inspector Taare, who gave the tape to TVNZ] seems necessary if it is to be reconciled with the Police Regulations 1992”. According to Taare, the video was to be used only when Rogers was convicted of murder. Upon Rogers’ acquittal, Taare allegedly advised TVNZ not to use the video. TVNZ disputed Taare’s view.

    The SC noted that it was impossible to view the arrangements between Taare and TVNZ “without a sense of unease”. It went on to say:

    “Information gathered as part of their duties is not information police officers are entitled to deal with as they see fit. They cannot provide it or withhold it from private interests at whim…The video was obtained in breach of his [Rogers’] rights under the New Zealand Bill of Rights Act”.

    Justice McGrath was particularly critical of police:

    “What the police did amounts to an abuse of process because their actions have impeded the Court’s power to protect and important part of its record…The Court’s capacity to give due protection from misuse of such material on the Court’s record to those who participate in its process is necessary to maintain public confidence in the integrity of criminal trials”.

  5. Steven Says:
    May 25th, 2009 at 12:28 pm

    Did you see the TVNZ programme broadcast about the case? It contained clips from the inadmissible interview. I think you’d be hard-pressed to say that Rogers’ reenactment of the murder at the scene of the crime did not add important detail to the question of whether he did it or not. For their part, the defence lawyers were primed to argue that some of the parts of his reconstruction were inconsistent with the evidence about how the crime must have been conducted. Either way, as the Supreme Court and the Court of Appeal ultimately accepted, the video is relevant to the killing (which I note remains formally unsolved despite two confessions).

    When you say the police ignored Rogers’ lawyer’s request not to interview Rogers without him being present, aren’t you rather ignoring the fact that on, I think, five different occasions – some signed by Rogers and some recorded on film – Roger waived his right to have his lawyer present during the re-enactment?

    The CA’s ruling that this film was obtained in breach of Rogers’ rights was based on the following reasoning: although Rogers repeatedly agreed to waive his right to have his lawyer present, the interview was unfair because he wasn’t asked whether he wanted to specifically waive the agreement his lawyer had reached with the police that he be present during interviews. That’s a rather fine distinction. The second lot of CA judges pretty clearly disagreed with it. So does VUW’s evidence lecturer. So do I. I don’t think the police’s behaviour there provides much fuel for your contention that police acted abusively.

    You’re on stronger ground criticising the decision to release the video to TVNZ. As you point out, the Supreme Court judges mostly did too. I agree with that. But releasing a video on condition that it not be used until after the trial, at a time when every assumed it would be admissible, and in circumstances where TVNZ’s own camera crew was filming as well, and possibly in response to an OIA request (the Supreme Court doesn’t consider that possibility) – is hardly the most damning example of police misconduct either.

  6. ross Says:
    May 25th, 2009 at 4:11 pm

    Steven,

    No, I didn’t see the programme about the case.

    In a previous post you said that it was very unlikely that the inadmissibility of the tape made any difference in the trial. But now you say the tape added important detail. I am not sure the two comments are consistent but maybe they are. How much of what Rogers said was actually true and could he have obtained any accurate information from elsewhere before making his “confession”? Also, when he made his confession, was he of sound mind? Had he been taking any substances or medication that might have affected him? I don’t know. Maybe he was simply looking for attention. From what we know about wrongful convictions in the US, false murder confessions are not unheard of, though they are usually coerced. (But there’s the case of John Carr, who wasn’t coerced into falsely confessing that he murdered John Benet Ramsay.)

    Was the decision by Rogers to waive his right to a lawyer sufficient? Maybe Rogers didn’t think through the implications of waiving his rights. I don’t know but I do know that if had been in Inspector Taare’s shoes, I would have wanted to remove any possible concerns about Rogers’ confession by ensuring that my conduct was beyond reproach. When Rogers was taken to the alleged scene of the crime, I understand he was not told he was to stage a re-enactment. And how on earth did crew from TVNZ get there so quickly? Surely, Inspector Taare did not give them advance warning?

    My previous post was not criticising TVNZ’s decision to show the video – I agree with you (and the courts) that it was the correct decision. My beef was with the police’s decision to supply the video to TVNZ. But you’re right, there are far better (or worse, as the case may be)examples of police misconduct.

  7. Steven Says:
    May 25th, 2009 at 4:41 pm

    I’ve posted at length about Rogers here (http://www.medialawjournal.co.nz/?p=9) and here (http://www.medialawjournal.co.nz/?p=20)

    The detail in the tape is plainly relevant to someone trying to make up their mind about whether he did it, and plainly adds more to the confessions he’d already made, and that the jury were shown. You’d also want to bear in mind both the prosecution’s and the defence’s evidence about the crime, and whether the re-enactment was consistent with that. (TVNZ didn’t really do a very good job of bringing this out).

    Still, there are ample reasons for a jury to find him not guilty beyond reasonable doubt, whether they saw the video or not. There’s the confession by Borrie Lloyd. There’s the uncontested psychological evidence that Rogers was quite impressionable, which casts some doubt on his various confessions. There’s contested evidence about the crime scene and where Rogers was.

    As I remember it, there was no evidence before the court that Rogers was of unsound mind or on drugs when he gave consent to the re-enactment. The worst that could be said was that he was impressionable and vulnerable. Should the police refuse to interview every accused who’s like that? You might say they should take extra care to ensure they can prove that he has willingly waived his right to a lawyer. But didn’t they do just that? A signed statement. A videoed waiver. Four or five consents at different times. Is there really any doubt what Rogers would have done if the police had added, “oh, and are you also waiving your right to have your lawyer present as we’d agreed?”

    Maybe Rogers didn’t think through the implications of waiving his rights. True. But surely that’s his own lookout. Are police supposed to say: “well, yes, you’re confessing now, but really, you should go and have a good think about it, and then decide whether you want to confess to us. We won’t use it for now.”

  8. ross Says:
    May 26th, 2009 at 9:50 am

    Steven,

    I agree with you, up to a point, that Rogers has to be held accountable for his own actions. No, the police shouldn’t refuse to interview every accused who’s impressionable and vulnerable, but they might be expected to take a little more care than they did in this case. A signed statement and videod waiver may be insufficient in some instances. What happens when police interview children, for example? Presumably, different rules apply because kids are potentially impressionable and vulnerable. Of course, Rogers wasn’t a kid but that’s beside the point: it’s not a case of one size fits all.

    Based on the evidence you’ve referred to, it seems likely that police wanted to use the videod confession to try to shore up what was a fairly weak case. That in itself raises questions of justice and fairness – should police be in the business of trying to get an accused who’s impressionable and vulnerable to incriminate himself when the case against him is weak?

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