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TV3 broadcasts “I shot the prick” tape extract

By Steven | June 12, 2009

Here.

Was it legal? As I understand it, there’s still an application before the High Court for access to the deleted part of the tape from the Court file. It might be happening right now. But I’m not aware of any decision granting access yet.

TV3 told us that “the Supreme Court said the material could be made public”. I think that’s wrong. The Supreme Court said the reasons for its decision – including reference to the contents of the tape – could be made public. Not the tape itself.

It looks like TV3 jumped the gun. Was the broadcast unlawful?

I don’t think so. I’m guessing TV3 had the tape from the 1994 trial, where it was played in full. (Or perhaps they got it from the police – maybe from an Official Information Act request). They didn’t need to get access to the court file. As far as I know, the tape itself, or its contents, were not suppressed. The file had not been sealed. TV3 wasn’t doing an end run around a court order. The alleged content of the tape was now public. I think TV3 was entitled to broadcast it.

In A v Hunt, the Court of Appeal made it clear that it’s not a contempt (by itself) to use information you hold, just because it also happens to be on a court file.

There’s just one nagging question mark. There is a suggestion in the Rogers case by Justice McGrath that in some circumstances it may be an abuse of court process for a party to undermine the court’s ability to protect its processes (including its record) and thereby prejudice the administration of justice. (There, the police had – improperly, said McGrath J – leaked to TVNZ a copy of a video confession that was later ruled inadmissible).

If TV3 got the tape from the 1994 trial, it’s hard to see that those comments apply to TV3’s actions here. If it got it from one of the parties, it’s still hard to see that there’s a risk to the administration of justice. Besides, it’s not clear that McGrath J is saying any more than the courts may have a jurisdiction to restrain such a publication after they had asserted control over it – as opposed to punishing the recipient of the evidence for publishing it where there had been no such assertion of control or even an application triggering this jurisdiction, and no unlawful release of the information to the media. Nor does the point seem to have been fully argued. And none of the other judges adopted his analysis. Finally, Bain isn’t a case where the evidence has been obtained in breach of someone’s rights, as Rogers was.

So I think TV3’s in the clear. Good on them for broadcasting it.

Topics: Court records, Name suppression, NZ Bill of Rights Act | 6 Comments »

6 Responses to “TV3 broadcasts “I shot the prick” tape extract”

  1. mattb02 Says:
    June 12th, 2009 at 2:25 pm

    TVNZ’s lawyers presumably took a different view, which is why TV One did not broadcast the recording yesterday. They did this morning, though.

  2. Steven Says:
    June 12th, 2009 at 3:11 pm

    I didn’t know that. That’s odd. Seems like they didn’t take a different view, then, or at least changed their minds, since there’s still be no decision on the access application. Perhaps they decided it was safer once TV3 had done it. Perhaps they had only just got hold of a copy.

  3. ursula cheer Says:
    June 12th, 2009 at 3:42 pm

    And just what did it add to the public understanding of the trial and the outcome, against the background of those headlines ‘I shot the prick’?

  4. Andrew Geddis Says:
    June 12th, 2009 at 4:09 pm

    Ursula,

    Probably added nothing to the public understanding of the Bain trial and its outcome, but it sure helped with understanding why the Supreme Court decided it should be suppressed. After hearing it, I can’t see how anyone could think it ought to have gone in as evidence (I include Panckhurst J and the Court of Appeal in this) … thus the broadcast made me much more comfortable that the Court got it right.

    And no – I don’t think the word of the experts involved was sufficient … hearing the actual audio added a lot more.

  5. ross Says:
    June 13th, 2009 at 1:27 pm

    Ursula,

    I think it helped a lot in understanding that the Crown was desperate to get a conviction. Why did the Crown even bother trying to admit this evidence? Its own experts said that they could not decipher exactly what (if anything) was said. So why did the Crown pursue the matter?

  6. ursula cheer Says:
    June 16th, 2009 at 10:53 am

    Andrew,

    I absolutely think the tape should have been released and in fact predicted it would be (no hard task). The thing is, it is abstract rhetoric about adding to the public understanding of the Bain trial which is used to argue for release of court exhibits (indeed, Steven did exactly this). I guess I was just being rueful that the circumstances of the release only assisted ‘experts’ like you and me to better understand technical questions around the suppression of evidence. Unless we get access to the media to discuss this ( a pretty hit and miss affair, I am sure you will agree), then how much we are able to then assist the public to understand it all is pretty limited.

    Cheers

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