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Comments on Rogers case

By Steven | November 21, 2007

The missing angle in the media

Did anyone in the media report that virtually all the Supreme Court judges seem to believe that, as Blanchard J puts it, “the police would appear to have acted beyond their powers” in releasing the videotaped confession to the media, because they are required to treat evidence as secret unless there is some operational reason to disclose it? Police illegally leaking material to the media? Isn’t that a bit… topical?

The missing angle in the judgments

The police gave the video to the media after TVNZ had asked them for it. Isn’t that… an Official Information request? If the resulting handover of the tape was in good faith, then section 48 applies to protect the police and the media from civil or criminal proceedings for making it available “or for any consequences that follow from the making available of that information.” (Still, it wouldn’t prevent TVNZ being sued for breach of confidence: see section 48(2).) This section is a bit complicated, and my analysis here is superficial. But my point is that surely it’s relevant, though it didn’t get a mention.

This was fairly close

The judges decided 3-2 to allow the broadcast. Two would have continued the injunction and sent the case back to the High Court. One wonders whether any of the other three might have been tempted to do the same thing, but were embarrassed to do so given the length of time it has taken them (damn near a year) to put out this judgment.

The case is a mess

The parties never produced pleadings to clarify the issues. Several important evidential issues had not been resolved. For example, it wasn’t clear on what conditions TVNZ received the tape. The police were given leave to withdraw from the case early on. What should have been treated as an interlocutory decision (ie a holding-pattern case prior to trial) was treated as a final decision (disposing of the case for good.) The Supreme Court produced five different judgments. Two of them moan about the process that had been followed and would have sent it back. Three of them launch on a hypothetical discussion about what would have happened if TVNZ had made an application under the search rules (an exercise the Chief Justice slams as “having no very sound foundation”). I’m inclined to think this case isn’t much of a precedent for anything.

What about the Court of Appeal’s decision to exclude the videotaped confession?

Reading between the lines, it looks like at least some of the Supreme Court judges think the CA got that right. Blanchard J describes the police breaches as “grave”.

Does the case affect the privacy tort?

Not really. Justice Anderson tries to explain that he agrees with the Chief Justice that the existence and scope of the tort of invasion of privacy is still an open question “and will fall to be reviewed by this Court in an appropriate case”. You’ll remember that he was in the minority in Hosking v Runting. He thought there should be no such tort.

He’s right that the Supremes will have the last word on that. But he’s stretching things a bit to say that the Chief Justice doubts the “existence” of the tort. She says that the “limits” of the tort are not firmly settled. (Interestingly, she casts doubt on whether we need an element that publication be offensive, as well as the element that there must be a reasonable expectation of privacy. This change would potentially expand the tort). I can’t see that the CJ anywhere casts doubt on the existence of the tort.

The other judges simply apply Hosking and say that Rogers could have no reasonable expectation of privacy in a confession video. There seems to be a tentative convergence toward the time of the making of the video as the time at which the reasonable expectation has to arise. This must still be regarded as being in doubt. The CJ cites overseas authority suggesting that it’s the time of publication that’s relevant.

There seems to be some disagreement about the injunction threshold for privacy cases. Tipping J says the position is “broadly analogous” to defamation (ie very hard to get an injunction if you assert any sort of defence) [66]. The CJ suggests that injunctions ought to be granted more readily in privacy cases [38], saying that the analogy is imperfect, since a failure to grant an injunction in privacy cases means the ballgame is over.

Congratulations to Nicole Moreham and John Burrows

…who picked this as a breach of confidence case, if anything. That’s what the CJ and Anderson say. The other judges don’t really disagree, they just note that it wasn’t argued on that basis.

I’d have to say that given that there’s a strong flavour of public interest that comes through most of the decisions, it’s hard to see how it would be any different under breach of confidence. I’d also wonder whether the material is “obviously confidential” under the Spycatcher case (cited by the CJ) given that (a) the contents of the video had been described publicly and in a judgment and (b) TVNZ was on the scene when it was made.

Hypothetical consideration of a search application – legitimate?

Three judges asked themselves what they would have done had this been an application under the search rules for access to the video. MAYBE we should read this as a way of saying, well, if TVNZ could ask for it now and be given it, then the rest of the argument doesn’t matter much. That might be okay. But in fact, they seem to go further. They seem to import all the factors that they would apply to a search application to the test for an injunction against the media who already have the tape. Isn’t that different? What rule of law are the courts referring to when they give themselves the power to restrain the media on the basis of a hypothetical application that the media don’t need to make? Isn’t the starting point that they should be able to use it unless there’s some law that can be used to restrain them? It may be comforting that the judges come to the conclusion that the search application would have been successful. But what about the next case?

McGrath J goes further (and Tipping J indicates agreement with McGrath’s reasoning). He says the courts have the power to restrain the use of the tape as an abuse of the court’s process. That seems like a long bow to me. I might have a bit of a bias: with this piece of dicta, McGrath has called into question the principle laid down in the case I argued (Hunt v A) that a person who obtains material from the court record from a party is free to publish it without making a search application.

Use of the Bill of Rights Act – legitimate?

This is also a bit startling. The judges seem ready to consider the proposition that excluding evidence from a court may not be a sufficient remedy when it has been illegally obtained. They contemplate the possibility of restraining the media (where here, there is no evidence that it did anything unlawful in acquiring the evidence) from broadcasting it – as part of a remedy for the police breach of the defendant’s rights. Again, they find that excluding the evidence is sufficient vindication of the rights breached (right to silence; right to consult a lawyer). But again, they seem to leave open the possibility in a future case, I think. I would have thought the starting point would have been, again, to ask whether there is any law that prevents publication, and then to ask whether its application in the circumstances would be a proportionate restriction on the media’s right to freedom of expression.

It’s a bit murky, and I may not have read the case closely enough. But I guess what I’m saying is that this case is no ringing endorsement of the right to free speech and open justice. Fair to say, though, that the facts of the case are very unusual, as is the process that was followed. So I’m not sure it stands for anything much. And there’s lots of useful dicta about how court decisions aren’t the last word on a person’s guilt or innocence: the media have the right to ask those questions for themselves afterward, and the importance of allowing the public to see the actual evidence in such cases. (What I don’t like, though, is the continuing idea that if the public get to sit in on the case, that’s enough for open justice. As I’ve said before, what if the significance of the case only becomes apparent afterwards? It may be only then that a journalist can really get his or her teeth into it – and the public interest may well require access to the evidence.)

Topics: Breach of confidence, Contempt of Court, Court records, Injunctions, NZ Bill of Rights Act, Official Information Act, Privacy tort | No Comments »


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