TV3 next in the dock…?
October 7, 2008
It’s an innocuous-sounding phrase, but it should be emblazoned on the memory of every court reporter: “identity is at issue”.
That means that the defence will be arguing that “it wasn’t me, it was someone else”. (This can be contrasted with a defence such as, “it was me, but it wasn’t a crime, or it was self-defence” etc).
That means the Crown will have to prove that it was the defendant. That means they’re likely to be relying on witnesses to identify the defendant. And that usually happens by the rather unsatisfactory method of an in-court identification.
“Do you see the man you saw knifing your neighbour in the courtroom today?”
“Yes – that’s him there, the man sitting in the dock between those two burly police officers”.
(Incidentally, the courts have often warned police that this isn’t the best identification evidence and they ought to be holding identity parades much more often. For a variety of reasons, the police hardly ever do. They’ll much more often show the witness some photographs, or have the witness do a walk-by to identify the defendant, neither of which is as good as an identity parade.)
Anyway, that puts a premium on the in-court witness identification, and the court needs to be sure that, weak as it is, it is as untainted as possible by outside influence. It would be outrageous, for instance, if a police officer whispered to a key identification witness just before the witness was about to give evidence: “don’t forget, the guilty guy is a tall Indian fellow with a scar on his forehead”.
That’s why the judge warned the media not to publish any images of Liam James Reid. And why he was so furious when TV3 did so.
Defence counsel might go to town on this. “How can this identification hold any water?” they might argue. “The witness admits she saw the TV3 report. How do we know she’s remembering what happened at the time of the offence – and not merely identifying the defendant from what she saw on TV?” In such cases, there may even be argument that the trial should be abandoned.
One problem, as I’ve said before, is that many journalists just don’t get contempt of court. They don’t understand what it’s for, or what it covers. They just have some dim memory of a class in journalism school when they were told that they mustn’t prejudice the administration of justice. Whatever that might mean. Something about previous convictions, maybe?
That applies especially to journalists who are drafted in to cover a case without much previous courtroom reporting experience, and journalists who skip in and out of court, just report on the bits they see,and don’t check with courtroom staff to see what restrictions might have been imposed. (That said, I don’t know who was responsible for the TV3 coverage).
UPDATE: I’ve just seen the story online. Reid’s face (I assume it’s him) is masked. I assume it wasn’t last night. But even without pixelation, if this is all that was screened, it seems a pretty distant and fleeting shot.
Topics: Contempt of Court | Comments Off on TV3 next in the dock…?
TV3 wrong about gong
October 3, 2008
TV3 misled viewers when it broadcast its Campbell Live interview with an actor playing one of the Waiuru Army Museum medal thieves, the BSA has ruled. Viewers were only told that the voice was that of an actor, and might well have thought the person they were seeing was one of the real thieves.
After Ursula Cheer made her complaint, TV3’s complaints committee adopted a heroically generous interpretation of the accuracy standard to avoid this conclusion. It argued that it corrected the report promptly afterwards, and so there was no ongoing breach of the standards.
The BSA noted that it actually took TV3 three days to fess up, and it never broadcast a correction on Campbell Live, or indeed, anywhere else on TV3. It did, however, admit the error in other media.
Here’s the rule laid down by the BSA:
The Authority accepts that there would be occasions, where an error was corrected very quickly, when it could not reasonably find a breach of the accuracy standard. However, the Authority considers that the broadcaster itself would need to have corrected the error in the same medium and for a similar audience as the original broadcast, and at the earliest reasonable opportunity.
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on TV3 wrong about gong
A plea for savvy election night coverage
October 2, 2008
It’s not too much to ask, surely.
Here’s what any sensible person, at least half-interested in politics, is going to want to know as the election results roll in:
1. What’s going on in the key electorates that might make or break a party? Winston Peters, Rodney Hide, Peter Dunne, Jim Anderton, maybe Ron Mark. Which electorates (and indeed polling places) are bellwethers, and what’s going on there? What’s going on in other signature electorates (eg Wellington Central) containing candidates that have some totemic signficance? By and large we don’t care about the other electorates.
2. Which minor parties are making the 5% threshold, especially if it’s clear that they need to (Greens, NZ First)? Okay, so you’ll probably tell us that. Hopefully, you’ll also tell us how close they are to that threshold. Two decimal places, please. But how about taking the next step: if a party is teetering on the threshold, tell us whether their votes are likely to go up or down based on which way the as-yet-uncounted polling places (and overseas/late-counted voters) voted last time. Want to really impress us? Jiggle the likely numbers by the existing information about the magnitude of the swing.
3. Convert the votes to a graphic showing how they affect the composition of Parliament. Okay, so you’ll do that too. But again, that’s not enough. Take the next step. If United Future has three members at the half-way stage of the counting – tell us how close it is. Is it only just three members? Or nearly four? That stuff can be crucial to getting a sense of the horserace (and incidentally, to the question of who’s going to be governing the nation). How many more votes will they need to get to four? Bonus points: if people vote in the remaining polling places the way they did last time, will they make it to four? What if you adjust it for the swing? And what about this: if United Future does get that fourth seat, which other party is likely to lose it? Give us some information about that instead of conducting another meaningless and repetitive interview with an ecstatic or disappointed candidate.
4. Extra bonus points: track which MPs at the margins of lists will get in and miss out as the vote tally progresses.
5. Track the overhang. Sure, you’ll tell us whether there is one, and how many it will be. But again, the next question is: how far away are we, on whatever counting is current, from that changing? How likely is that change, based on past voting/current swing data, which way would it be, and how will that affect the total composition of Parliament?
6. In short, run the scenarios. I want coverage that will tell me: “With 70% of the vote counted, National is on 48.05%. That would give it 60 seats in a 123 seat Parliament, and it could govern with Act. The swing this year is in favour of National, but even if we adjust last year’s voting pattern for that swing, the last polling booths are still likely to favour Labour narrowly, and we’re picking National will lose two of those seats. (Incidentally, that would be Stephen Franks missing out). One seat, though, would switch to United Future, which is right on the cusp of taking rising from one seat to two, and on the basis of past voting in the remaining precincts, looks good for taking that extra seat. Labour would also pick up one, but on that scenario we’d be looking at a likely National/Act/United Future government. But there’s something that could throw a spanner in the works! The Maori vote is also on a cusp, and on past voting patterns, they’re likely to fall below it. That won’t affect their number of seats, but it will blow out the overhang to 124 seats – and National/Act/United Future can only muster 62 between them. Then everything’s in the balance. The key numbers to watch right now, then, and you can see the updates across the screen, are whether National dips below 46.4% and whether the Maori vote falls under 2.6%…”[That data is made up and probably won’t bear any relation to reality, but you get the picture].
I’m not holding my breath that TVNZ or TV3 will provide this sort of nuanced coverage. They’ll probably be too busy playing with pretty graphics that tell us little more than the raw figures.
But how about a savvy blogger with a calculator and some skill at playing with the Elections website?
Can David Farrar be persuaded to put aside his partying for the evening for the good of the nation?
Topics: Electoral speech, Media ethics | Comments Off on A plea for savvy election night coverage
Open letter to Reading Cinemas
October 2, 2008
I like your comfy seats.
But you know that ad you run with the fat guy in front of the TV, stuffing himself with chippies? The one where one of the books gets fed up with him and flies through the air to drive him off the couch and out the door that swings open for him, inviting him to get out?
This might be a good ad for books. Or for, say, hiking. But isn’t it stupifyingly brainless to use it to encourage people to go and sit in another building, in front of another screen, stuffing themselves with your popcorn? People, I might add, who have already taken this step and are sitting right there in your cinema.
It only makes me think I should be buying a book and heading off for a swim and a picnic instead of vegging out in your theatre.
Topics: General | Comments Off on Open letter to Reading Cinemas
Nice Job 3
October 2, 2008
This week also sees a ripper of a decision from Justice Harrison, overturning Judge Treston’s ruling that the media can’t have a copy of the videotape evidence from the unsuccessful prosecution of the police officers accused of assaulting Rawiri Falwasser with batons and pepper spray in custody. (I have criticised Judge Treston’s decision here).
Among the many things to admire in Harrison J’s judgment:
- He sets out the context of the case, noting that “Mr Falwasser’s behaviour throughout the seven hour period [that he was in custody] placed the officers in a situation of accelerating difficulty”, and that it’s only when you look at the key pieces of the film in slow motion that you can see the threat that the police officers were responding to.
- He rejects the idea that the courts have taken a “cautious approach” to applications for access to court material. Instead, he suggests a presumption in favour of a right to search.
- He knocks on the head the argument that open justice has been served by allowing the presence of the media at the hearing itself. He accepts the argument from Adam Hopkinson (buy that man a drink, too) that “taken to its logical conclusion… leave would never be granted”. Later, the judge says the courts shouldn’t assume that “the media always acts as an adequate filter on the contents of a primary exhibit or source document when reporting a trial.” Journalists don’t necessarily know what’s important when they’re covering the hurly burly of a trial, with the limited information they have at the time. (The key issues might not even be clear to the lawyers until the trial progresses!) Besides, much of the time reporters are describing what happened: video evidence can tell a more complete story “which cannot be captured by a reporter’s summary”. And if reporters have already been given access, he says, what’s the harm, in the usual case, in letting them copy the video? Damn straight.
- Most importantly, he smashes the argument that “the media won’t use it fairly”. “The Court cannot deny a media request because of doubts that the video will be played or presented in a balanced or fair way,” he says firmly.
- He emphasises that the public interest in the trial doesn’t end with the verdict. Acquittals “do not disbar an inquiry into whether or not the verdicts were properly based.” That’s especially so where there’s public disquiet about the outcome. The judges shouldn’t add to the impression that there’s something to hide.
Topics: Court records, NZ Bill of Rights Act | Comments Off on Nice Job 3
Nice Job 2
October 2, 2008
Joanne Black’s article “Fair Facts?” in this week’s Listener (full text up on the 18th) gives a terrific overview of the key issues in the Fairfax contempt trial, based largely on the affidavits of the experts.
While I’m dishing out praise, let’s have a round of applause for the headline writer, too.
Topics: Contempt of Court, Media ethics | Comments Off on Nice Job 2
Nice job 1
October 2, 2008
Kudos to: Judge David Harvey for reversing course on the suppression order that applied only to the internet. As I’ve discussed, he had reasons for imposing the unusual order, though I thought they weren’t sufficient. When the media belatedly turned up to argue the toss, the judge accepted that:
absent an identifiable risk to a fair trial at this stage, together with the media’s ability to withdraw material at a later date if directed, it appears to me at this time in this case that s 14 freedom of expression [in the Bill of Rights] overrides the s 25 right to a fair trial.
Unfortunate point of confusion: the best reading seems of this to be that there was no evidence of any threat to a fair trial, so s 25 isn’t really being “overridden”.
Delightful irony: at the same time as the media were putting affidavit evidence in front of Judge Harvey insisting how easy it is for them to remove online material if need be, there were red faces at Fairfax when it was discovered during their contempt trial that one of the Crown lawyers had, by the simple expedient of a Google search, pulled up the material they said they’d taken down.
Extra bouquet: to Bruce Gray QC (and Bell Gully’s Alan Ringwood, and whoever they had beavering away at the research) who did a fine job for the media before Judge Harvey. Their submissions were rigorous and their Bill of Rights arguments, in particular, showed a degree of nuance and cogency I’ve rarely seen in media law cases.
Interesting aside: at Bruce Gray’s tentative suggestion, the judge accepted that the media may have additional rights that may not be available to the public. This line of thinking has important ramifications for access and source protection issues.
Topics: Internet issues, NZ Bill of Rights Act, Suppression orders | Comments Off on Nice job 1
Free advice for the Greens:
September 30, 2008
Ditch the idea of taking a broadcasting standards complaint about TV3’s decision to pull the leaders’ debate after the Clark/Key walkout.
For one thing, you can’t complain about a programme before it’s been broadcast. For another, you have to complain to the broadcaster first, and, as this isn’t a complaint about an “election programme” (see post below), you’re into timeframes that will probably take you beyond the election. For another, TV3 is right that it can supply balance in other ways, including, actually, asking questions of the PM and Key that are pulled from the other parties’ positions.
You’re right to be sceptical about whether TV3 will actually give your policies much time on-air. You’re right that you won’t have the same control over what they broadcast as you do in a debate. And no doubt you’re thinking that the main advantage to the debate would have been the image of you sharing the stage with the major leaders, and you’ll never get that back. Still, you can’t complain about the decision to pull the debate. And a complaint against the two-leader debate will almost certainly fail.
What you need to do is keep TV3’s feet to the fire. Monitor closely the coverage you are getting and remind them of their promise and obligation to provide balance over the election period. If it gets too far out of whack, complain then, though you’ll still have a job getting your complaint before the BSA in time.
What about a lawsuit, like Peter Dunne’s one last election? No chance, either. The problem with TV3’s debate then was its arbitrary selection of who to include, and who to exclude. The judge made it clear that a decision to take the two leaders only would have been fully justified.
Still, you have my sympathy. I think the Clark/Key withdrawal was a spit in the eye of democracy. They’ve calculated the political benefit: I hope the public’s disgust with the tactic shows it was a miscalculation and they both lose from it.
Topics: Broadcasting Standards Authority, Electoral speech | Comments Off on Free advice for the Greens:
BSA election ad complaint system
September 25, 2008
I wonder whether the BSA’s fast-track election-ad complaint system will get a decent work-out this year.
The system allows you to complain straight to the BSA about “election programmes”. This really means broadcast election advertisements, including opening and closing addresses, rather than, for example, election debates.
(Bonus question: was the televised press conference at which the PM announced the election date – with a 10 minute preamble about how tremendous Labour is and how the main election issue will be trust – an election programme or a news programme?)
For some bizarre reason, you have 60 working days to complain about election ads. The BSA recommends that you get in your complaint faster than that. Sound advice. They say they’ll try and crank out a decision in three days if the complaint is urgent. And good on them for that. What is “urgent” though? Presumably if you wait 60 days to complain, it won’t be treated as urgent. On the other hand, if it’s an ad that’s running repeatedly or the election day is imminent, it probably will be. It’s probably worth setting out your reasons why you think the complaint should be determined urgently when submitting your complaint.
What can you complain about? The usual standards, but not balance. I’m guessing the main grounds will be accuracy (here’s an example) and fairness. Denigration might get a look in, though the BSA has set the threshold pretty high. Don’t forget that the law and order standard isn’t generally about whether the ad itself breaks the law but whether it encourages lawlessness.
You can also complain in the usual way (ie first to the broadcasters) about other election programming, eg news programmes. And there, you can complain about lack of balance. Which is probably why Radio NZ’s morning report show announced that they are suspending their daily “listeners’ emails” slot for the election season, though I wonder if that was a bit of an overreaction.
Topics: Broadcasting Standards Authority, Electoral speech | Comments Off on BSA election ad complaint system
And speaking of defamation lawsuits involving fisheries…
September 25, 2008
The Simunovich case (discussed below) isn’t the same as Winston Peters’ defamation lawsuit against TVNZ, Radio NZ and others about the fisheries issues – the case that saw Rodney Hide ejected from the House late last month. Peters fumed that Hide was improperly trying to raise issues during question time that were being contested in that case. Peters insisted that this breached Standing Orders. Hide wasn’t inclined to agree, and there ensued, over the course of a couple of days, an amusing ping pong battle.
The rule is contained in Standing Order 111:
Matters awaiting judicial decision
Subject always to the discretion of the Speaker and to the right of the House to legislate on any matter, matters awaiting or under adjudication in any court of record may not be referred to—
(a) in any motion, or
(b) in any debate, or
(c) in any question, including a supplementary question,—
if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.
In the end, the Speaker ruled in Peters’ favour, saying Hide was in breach. “Nothing said in the House should prejudice, however slightly, the decision of any court,” the Speaker said. “The House applies more rigorous inhibitory standards on itself than apply to the media in reporting judicial proceedings.” This is because the legislature “should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding on individual cases”.
I don’t know what precisely is in issue in the lawsuit. But I think that ruling is wrong. I’m worried about the phrase “however slightly”. It’s a ridiculously low threshold, far lower than that applicable to the media. The rules applying to them say they can’t create a “real risk of prejudice” to an upcoming trial. That’s nebulous and chilling enough. This “however slightly” nonsense goes much further.Is it required by a sensible reading of the rules? Nope. In fact it flies in the face of the language that demands “a real and substantial danger of prejudice”.
Is it required by the needs of the administration of justice? Nope. If the courts can tolerate the media commenting on cases as long as they don’t create real risks of prejudice, then they can put up with MPs doing the same.
Is it good policy? Nope. There seems even more reason to cut our elected representatives some slack when conducting the business of the nation than there does for the media.
Is is good law? Nope again. The Speaker has forgotten that the Bill of Rights Act, which was passed by Parliament and says explicitly that it applies to Parliament, requires any restrictions on free speech to be demonstrably justified. You’d think that might be a relevant factor when considering how to interpret Standing Order 111. Apparently not.
Topics: Defamation, General, Parliamentary privilege | Comments Off on And speaking of defamation lawsuits involving fisheries…
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