Sensational newsbreak: Bain worships devil, shills Coke
June 11, 2009
I’m told that if you listen to the Bain tape backward, you can distinctly hear him saying “Oh here’s to my sweet Satan”.
Also, if you speed up one passage, you’ll catch him saying: “Drink Coca Cola. Coke adds life”.
[If you’re interested in our aural suggestibility, check out this fascinating site. You can listen to the famous backwards version of Stairway to Heaven – and note that it sounds mostly like gibberish. You can catch the odd “Satan” reference, but it seems pretty much random. Then listen again with the suggested lyrics in front of you. Blow me down, you can hear them right there. The site’s creator Jeff Milner repeats the trick with a lovely variety of other songs: “Another one bites the dust” becomes “it’s fun to smoke marijuana”, for example.]
This tape is hardly evidence that Bain didn’t commit the murders. But it doesn’t seem like evidence that he did, either.
Topics: General | Comments Off on Sensational newsbreak: Bain worships devil, shills Coke
Breathless reporting?
June 11, 2009
I was prepared to be outraged this morning.
What the hell? I thought. The Supreme Court overruled the High Court and the Court of Appeal and prevented telephone confession evidence from David Bain going to the jury? What were they thinking?
I’ve now read the judgment (note the bizarre url on Stuff’s website’s link to the judgment: http://multimedia.stuff.co.nz/rugby/images/Bainjudgement.pdf)!
If you’re inclined to criticise the judgment, I recommend that you read it too. What’s particularly striking is that, on the Supreme Court’s telling of it, the experts basically agreed. Even the Crown’s experts said that the evidence was “dangerous” and “unsafe” and should not be put before the jury. They said it was impossible to say whether he was even saying some words in that portion of the recording, or just breathing and gasping. They said if he was saying words, they couldn’t tell what was being said. Their first shot at a transcript had this bit as:
Y-yes (yeah, I can’t [touch it]. I can’t) – [whispered]
…but the expert transcriber still wasn’t confident about it. Another expert (for Bain, but from the same British university as the two Crown experts) says he first heard “I can’t breathe”.
All agreed that once someone tells you to listen for “I shot the prick” then, with effort, you can hear it. But they pointed out the dangers of suggestibility. We hear what we listen for.
One expert – for the Crown – likened it to seeing images in clouds. Random sounds can line up and seem like words.
Three of the judges found that this evidence simply wasn’t relevant. It needed to be reasonably open to the jury to rely on this evidence, they said, and here it wasn’t. The other two judges felt that the evidence was relevant. But they felt that it was unfairly prejudicial. Here’s Justice McGrath:
The prejudice, however, lies in the risk that in this unusual case, even with appropriate direction, the jury will not assess the evidence of whether there is an admission recorded on the 111 call with due caution, and will give what they hear on the tape more weight than it deserves. That risk is associated with the particular difficulty of suggestibility… The sounds on the recording may not be treated as simply one aspect of the Crown case to be weighed with other Crown evidence, including contextual evidence. The impact of a superficially reached perception that there is an admission is likely to be seen as more persuasive than the taped evidence actually is in the context of a Crown case which is otherwise almost entirely a circumstantial one.
The risk in the end is that the consequence of the indistinct and inaudible nature of the sounds will cause the jury to leap to a conclusion that the sounds which, with effort, they can hear are inculpatory words without that being a conclusion that is logically based on all the evidence relevant to the preliminary question, but the result of superficial reasoning to which they have been diverted. The likely prejudicial effect is substantial and, to my mind, outweighs the probative effect of the disputed part of the recording as evidence.
In light of all that, I’m really not outraged by this decision. Even if the full tape were put before the jury, there would have been a lot of argument about what exactly he was saying. We can’t be sure it would have made any difference to the jury. And if it did make a difference, the Supreme Court may be right to fear that it may have made too much of a difference.
One curious fact though: all the judges who listened to the tape (the High Court judge and the Court of Appeal judges) ruled it admissible. The Supreme Court didn’t listen to it, but relied solely on expert opinion and legal argument. Should they have assessed the recorded evidence for themselves to reach a rounded judgment? Or does this make their judgment more dispassionate, more closely based on the law and expert evidence, and less tainted by the very dangers of seeing faces in the clouds that they are trying to protect jurors from?
The media have applied for access to the tape itself. I hope it’s granted. Then we can decide for ourselves what we think he was saying, if anything, and feed that into our assessment of how well the judges have conducted themselves. But again, bear in mind that expert evidence…
Topics: Suppression orders | Comments Off on Breathless reporting?
Defaming David?
June 10, 2009
I’m on RNZ’s Checkpoint and TV3 this evening talking about whether all those comments posted on social networking sites that say “Bain is guilty” (and colourful variations thereon) are defamatory. I’ve also been interviewed for an NZPA story.
The answer: of course it’s defamatory to call someone a murderer. Yes, he could sue any number of people, including those posting on the websites, those who set them up, and even perhaps the ISPs. But he probably won’t.
Why not?
Mostly because he is likely to be met with a defence of truth. Ah, some might say, but didn’t he just prove that wrong – and to a jury? No. What happened in the criminal trial is that the Crown failed to persuade a jury beyond reasonable doubt that Bain was guilty of killing his family. What if that jury had been asked whether it convinced on balance of probabilities whether he killed them? We don’t know what that jury would have said (except perhaps the juror who hugged him).
What’s more, in a civil case, more evidence might be allowed in. Some of the evidence was suppressed in the Bain case, and may not be if he sues for defamation.
And in a civil case for defamation, other defences are available too. The most likely of these is Honest Opinion. That protects people expressing their views on facts truly stated or referred to. (That second part won’t be hard to establish. The facts of the Bain case are well-known.) Looking through the comments on facebook, many are clearly expressed as opinions. Others look much more like assertions of fact, and would struggle to attract an honest opinion defence, even bearing in mind the context.
The ones in most danger, I think, are those who are peddling inaccurate facts (eg misrepresenting the evidence from the case), and there seem to be plenty of them.
Still, do you think David Bain wants to spend the next two years of his life facing yet another court case revolving around the question of whether or not he killed his family?
And if he picks on some people posting on Facebook in the hopes of a quick settlement or retraction, he might find that those people get a lot of sympathy and support from others who may be prepared to help bankroll a fight. There’s appetite for one out there. Again, if he’s going to go against anyone, it will probably be those who aren’t simply saying that they believe he did it, but those who are bolstering their arguments with inaccurate assertions of fact.
Topics: Defamation, Internet issues | Comments Off on Defaming David?
The Bain of the media?
June 10, 2009
Team David has set up a very professional looking website, including a Bain blog, to raise funds for him.
The site credits TV3, TVNZ and the NZ Herald for “their support in making this site possible.”
I suspect that their role was restricted to allowing the site to use some photos. I hope so, anyway. I doubt they’ll be thrilled by the acknowledgement.
[And… gone. The credits have disappeared.]
Topics: Media ethics | Comments Off on The Bain of the media?
An alternative to defamation?
June 9, 2009
If defamation laws are broken, can we fix them? I’ve been thinking about what we could do instead. It seems to me that the biggest problem is process (defamation cases are notoriously expensive, technical, slow, and stressful). I thought I’d toss an alternative process around for discussion.
How about a different way of protecting people’s reputations that doesn’t involve resort to the courts, where considerable argument and expense is going to get sidetracked on issues of pleading if one party wants? What about an ACC-like trade off where we dump defamation laws in exchange for a statutory reputation complaints tribunal with a first-tier mediation arm? The primary remedy would be a speedy mediated correction, clarification, or agreed statement. The tribunal can resolve cases that can’t be mediated, and can impose damages (with a moderate cap) for serious cases, but again, the main remedy would be an ordered statement. I’d envisage lawyers having a fairly limited role – like the BSA. (And like the BSA it would be subject to appeal and/or judicial review).
This would in many ways be great for the media. They’d save in costs enormously. They’d probably have to publish a few more corrections. Plaintiffs would also get what they want: a quick correction, or, failing that, a prompt ruling on the accuracy of the publication. At the moment, the system really doesn’t benefit anyone except lawyers (and I say that having been on both sides). The best that can be said about it is that defamation litigation is so awful that it encourages settlement. But not necessarily quick ones. And not necessarily principled ones. Of course, the flip side is that it gives wealthy people an extraordinary ability to burn people off.
You might ask: why treat defamation differently to other legal claims? Well, for one thing, we do carve off some important issues that the courts don’t necessarily handle best and set up alternative processes: eg employment issues, immigration matters, copyright licensing, broadcasting standards, data privacy, human rights. Defamation doesn’t sit so oddly among that lot.
Secondly, most other lawsuits don’t affect speech (and particularly the core speech that we most want to protect, as opposed to commercial speech that most jurisdictions accept can be regulated differently)
There’s also an argument that defamation laws are more easily abused by plaintiffs than most other laws, which again would justify taking a different approach. The threshold to get a defamation suit off the ground is extraordinarily low.
Would it be overused by perennial complainants? Maybe. But the BSA is also free to complainants, and while it gets its share of quack complaints, they don’t cripple the system.
I’m sure there would be disadvantages. But the question is: would they be worse than our defamation laws?
Topics: Defamation | Comments Off on An alternative to defamation?
Reading the tealeaves
June 9, 2009
I’ve just been watching argument in the Supreme Court in the Simunovich defamation case.
For those interested in the fairly arcane (but nevertheless quite significant) issues at stake, my sense is that the media don’t have the upper hand. The Supreme Court judges do not seem attracted to the idea that the media should be able to use information gathered on a privileged occasion (for example, fair and accurate reports of Parliament, or a judgment) to support a plea of truth, when the allegation is what’s called a “tier 2” imputation (that is, an allegation that there are reasonable grounds to believe that the plaintiff has done something disreputable). Nor did they seem very open to the alternative argument that the repetition rule doesn’t apply in these circumstances, or that some exception should be made to it, though they weren’t quite as hostile to this contention.
The case continues tomorrow.
Topics: Defamation | Comments Off on Reading the tealeaves
Karla Cardno’s dad suppression case: not much of an issue
June 9, 2009
You might have caught me on TV3 last night explaining that it was worth a shot for Karla Cardno’s dad and his new wife to seek name suppression for their sex charges on the grounds that they’re going to get extra publicity given the notoriety of those past (but unconnected) events. If you’re het up that I seemed to be supporting that application, bear in mind that, in the bits of the interview TV3 didn’t broadcast, I said:
— I wasn’t at all surprised that the application failed since the courts have said that the risk of publicity goes with being a defendant, and even the likelihood of particular media attention won’t usually be sufficient to justify name suppression;
— The defendants had given evidence of adverse health effects, which is a stronger ground, but even so, the Court of Appeal said it wasn’t sufficient to overcome the presumption of open justice;
— The Court pointed out that there was no suggestion that the fairness of their trial would be prejudiced;
— The test is whether the harm caused by publicity would be out of all proportion to the gravity of the alleged offences, and these were serious charges that the public had a strong interest in;
— The higher courts generally take a fairly hard line on suppression issues;
— Overall, this struck me as a fairly routine case and an unremarkable decision by the Court of Appeal. Sure, the notoriety argument was worth a shot, but it was always unlikely to succeed.
Topics: Media ethics, Name suppression | Comments Off on Karla Cardno’s dad suppression case: not much of an issue
Oops?
June 7, 2009
Did this Saturday’s NZ Herald, in publishing the information suppressed in the Bain trial, overlook the fact that the Supreme Court had recalled its judgment last month to make it clear that the publication restriction continued until further order of the court?
The story doesn’t seem to be on the Herald’s website any more.
The recall was probably to guard against the possibility that Bain may have been found guilty, and successfully appealed, so that there may have been yet another trial. So there may well not have been much harm done.
[PS. I see that three Court of Appeal decisions on the Bain case, from 31 October 2008, 24 December 2008 and 20 January 2009 have been posted on the Courts of NZ website…]
[PPS. It seems that the NZ Herald was breaching a suppression order in running that story (though the suppression order has now been rescinded), but the Supreme Court had nothing to do with this one. It’s evidence that was suppressed by the Court of Appeal and not appealed. As I understand it, it wasn’t suppressed for a time, then as the verdict loomed, the suppression order was put in place in case Bain lost and wanted to appeal, but the NZ Herald wasn’t notified.]
Topics: Suppression orders | Comments Off on Oops?
New High Court search rules
June 4, 2009
There are new rules about access to court documents (including exhibits), both criminal and civil. They are more detailed and to some extent more liberal than the old ones. They open up a range of documents subject to the overriding power of a judge to seal them. Some documents, however, can only be searched with the leave of the judge, such as interviews with sex complainants and mental health patients.
There’s a welcome movement in particular toward greater openness while the matter is before the courts, when it’s most likely to be of public interest. Both sets of rules outline a (largely informal) application process, and set out the factors to be considered where leave is required. These generally reflect recent developments in the case law:
-
the right of the defendant to a fair hearing [criminal cases only, of course]:
-
the orderly and fair administration of justice:
-
the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
-
the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:
-
the freedom to seek, receive, and impart information:
-
whether a document to which the application or request relates is subject to any restriction…
-
any other matter that the Judge, other judicial officer, or Registrar thinks just.
I think these rules are a great improvement, but they don’t go as far as the Law Commission suggested.
Topics: Court records, General | Comments Off on New High Court search rules
The case against defamation
June 4, 2009
Nicky Hager explains how he thinks hardball Aussie political consultant Lynton Crosby (of Crosby Textor fame) used defamation laws try to bully him for criticisms he made during a radio interview. You’ll remember that Nicky’s book The Hollow Men contained some pretty ugly revelations about the advice Crosby Textor gave to the National Party at the last election. They didn’t sue him for that. But Crosby came after him for making similar comments on Radio NZ later on. I think this really should be worrying for anyone involved in covering politics, or other matters of national importance. (Disclosure: I act for Nicky).
Nicky describes his experiences at greater length here.
Topics: Defamation | Comments Off on The case against defamation
« Previous Entries Next Entries »