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March 20, 2008

Do it now. It takes a minute or so. The lesson might last a lifetime. And I think it has something to say about the media, too.

Topics: General | Comments Off on Just click the link

HC overturns BSA privacy decision

March 16, 2008

Last August, the BSA upheld a complaint from Dr Stephanie du Fresne, the medical director of a mental health clinic, about an interview with one of her committed patients conducted without the clinic’s knowledge. TV3 News interviewed the woman about her electric shock treatment, which she didn’t want. The story revealed that she was bipolar and manic depressive. She said she suffered night terrors and had attempted suicide twice because of fear of the treatment. Her husband supported the treatment, and was seen on the programme trying to stop the interview. But the woman seemed lucid and in control; she overrode her husband.

There’s no doubt the programme revealed private, personal details about her, and that without informed consent, the broadcast of such details was highly offensive. But did she give informed consent? TV3 said yes. She seemed to know what she was doing. Her lawyer supported her. There was some evidence that, even after her release, she did not regret the interview. “Informed consent” was a judgment to be formed by journalists, not doctors. It felt that the patient had the right to speak out against her treatment.

Dr Du Fresne said no. The clinic’s medical judgment was that she was not capable of giving informed consent. They told TV3 this when they became aware of the upcoming broadcast. TV3 got no second opinion. It ran the story, but broadcast Dr Du Fresne’s view about her incapacity.

Du Fresne complained to the BSA, which upheld the complaint:

The Authority understands that a broadcaster may, in some circumstances, be required to make difficult judgment calls about whether a person is capable of consenting to a breach of their privacy. However, in circumstances where the broadcaster was advised by a forensic psychiatrist and treating clinician that the individual was not in a position to give informed consent, the Authority considers that it was not appropriate to ignore that advice and proceed with the broadcast. Although JS appeared to be “coherent and capable of expressing herself”, the broadcaster should have accepted that it was not better able to assess JS’s capacity to give consent than her treating clinician.

But the High Court disagreed. (The case isn’t online yet). Simon France J found:

1. It was a breach of natural justice to determine the complaint without reference to the patient. The BSA found she wasn’t capable of consenting, though she seemed to do so. Upshot, I think: if a “third party” privacy complaint raises the prospect of an adverse finding about the person affected, that person needs at the very least to be given a chance to comment before the finding is finalised. This may apply more generally to other complaints that raise issues about non-parties.

2. In fact, in these circumstances, the BSA should have declined to hear the complaint, because it necessitated an inquiry into a third party’s mental health status. Is this limited to the (fairly narrow) facts of this case? Or might it suggest a rather wider principle about the BSA needing to decline jurisdiction when it may need to make adverse findings about someone who has not chosen to complain? The judge does say that there may be cases where third parties can complain about privacy breaches.

3. The general test for informed consent is whether a person has “an awareness of being interviewed, of knowing the true context of the interview, and of being aware of the purposes to which the interview is to be put.” In general, this does not require an appreciation of the ramifications of broadcast, including what publicity it might generate, or how it might impact on the interviewee’s health. Still, “more might be required in a specific case, and this may indeed be such a case” (particular care may need to be taken to ensure mental health patients’ understanding is real and sufficiently complete). The judge suggests that this interpretation of the notion of informed consent is required for consistency with the NZ Bill of Rights Act, but provides no more detailed reasoning about this.

4. It wasn’t clear what test the patient’s clinical team were applying for “informed consent”. (This is a bit rich, I think, given that Simon France J himself hasn’t said what the test requires in cases like this! Still, he finds that the question would need to be determined in light of fuller argument and better evidence, including proper evidence about what the patient thought and understood at the time.)

5. Public interest will never be a defence to the failure to get informed consent to the release of such personal information.

6. The case is not to be taken as an endorsement of TV3’s conduct. In particular, there was plenty of time for it to work through the clinic’s concerns as there was no urgency in the story.

7. As a general rule, the BSA should not usually appear in court and make submissions in defence of its decision. (This is probably right as a matter of law. But no other judge has expressed this concern in BSA cases, and it will mean that there will usually be no-one arguing the other side in BSA appeals.)

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | Comments Off on HC overturns BSA privacy decision

Highlights from Press Council forum

March 16, 2008

Top 10 most interesting points from Thursday’s public forum, “The Press and the Right to Know Under Siege”, where the speakers were Law Commissioner John Burrows QC and the chairs of the Australian and NZ Press Councils, Professor Ken McKinnon and Barry Paterson QC:

  1. Barry Paterson, a retired High Court judge, “hated TV in the courtroom”.
  2. He thinks that in most cases, media publicity doesn’t prejudice fair trials: “I don’t subscribe to the view that juries are usually influenced by media comment.” He said he had presided over two murder trials where defendants were acquitted despite the wrongful prior publication of their terrible records.
  3. He is worried that statutes and regulations may be chipping away at freedom of expression. Examples: restrictions on reporting about suicide in the Coroners Act; the proposal to restrict access to births, deaths and marriages registers; the restrictions on policitcal speech in the Electoral Finance Act (he was surprised that the Crown Law Office vet deferred to the government’s political judgment, and that this “margin of appreciation” could tip a finely balanced freedom of expression issue in favour of allowing encroachment); the possibility of wide codes, and later regulations, aimed at non-communicable diseases, affecting the advertising, sponsorship and marketing of particular goods under the Public Health Bill; and the proposal to amalgamate regulation of various media platforms. As to amalgamation, he says it is “logical perhaps”, and the different rules for different platforms “need to be made more standard”, but “government regulation of freedom of the press is a contradiction in terms.” (I wonder quite what he means by this. Surely he’s not suggesting we should dump the Defamation Act, for example. Does he object to the BSA’s jurisdiction, thinking, perhaps, that self-regulation would be better? Isn’t the press regulating freedom of the press also a bit of a contradiction in terms?)
  4. Paterson says the tension between freedom of expression and privacy rights is “the Press Council’s greatest challenge”, and the Press Council will have to tackle the definition of the “public interest” exception, as Australia has done. (The Australian PC has developed a detailed set of standards about privacy. Public interest is defined as “involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.” For myself, I don’t think this adds much, and immediately raises a question about public interest in stories that only affect a sector of the population.)
  5. He believes the tort of privacy was inevitable.
  6. He says suppression orders are often given for good reasons, and although they are “too readily granted”, this is often because poor District Court judges are faced with long lists of cases in a short time frame with many finely balanced suppression issues to resolve.
  7. Paterson is concerned that we don’t value freedom of the press enough. He points to a 14-country BBC poll revealing that while 56% of those polled felt that freedom of the press was very important to ensure a free society, 40% felt that it was more important to maintain social harmony and peace. (He wondered whether a factor in that was the finding that 29% of people in the US, Britain and Germany felt that the press did a bad job of reporting accurately.) The poll also noted that many people thought that media ownership was an issue of concern.
  8. John Burrows listed recent advances for freedom of the press, notably the Bill of Rights Act, the Official Information Act, the loosening of defamation law, the abolition of sedition and increased protection of sources under the new Evidence Act.
  9. But he said we need to be vigilant to ensure any restrictions on the press are properly justified. He thinks objectives of the Electoral Finance Act are okay, but its provisions “may well have gone further than they should”. He, too, was concerned at proposals to limit access to the births, deaths and marriages registers. He was worried that security information classification and new police surveillance powers need to be watched. And he thinks that the Privacy Act is being misapplied to deny the media information that it needs, but “I don’t know how you fix that.”
  10. Ken McKinnon mostly spoke about Australian issues, but made some comments relevant to NZ:

Topics: General, Internet issues, Media ethics, Name suppression, Press Council, Privacy tort, Suppression orders | Comments Off on Highlights from Press Council forum

Another backward step for the Bill of Rights

March 15, 2008

The best measure of a country’s commitment to free speech is its willingness to protect speech it doesn’t like. At the very least, a respect for free speech involves ensuring that any restrictions are clearly justifiable. That’s how our Bill of Rights works.

The Supreme Court passed this test in R v Brooker, using the Bill of Rights Act to rein in the police’s power to use the offence of disorderly behaviour to penalise a protester.

Justice John Hansen in the High Court has just faced the same test, and flunked it.

In Evans v R, he upheld the conviction of a sloshed guy attending a concert at a Queenstown winery last March who was annoyed that the police had closed the bars at 9pm, and taunted two police officers, thanking them sarcastically for ruining everyone’s fun, then accusing police of all being rapists and saying he’d better protect his girlfriend in case they raped her using batons. He was convicted of using insulting language. (He was also convicted of resisting police during his subsequent arrest).

Were his words insulting? Sure. Were they worth a criminal conviction? Come off it.

The judge seemed to accept that R v Brooker meant that “there must be a level of insult as to raise the prospect of public disorder”. (In Brooker, Tipping J talked of behaviour that “causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.”)

The judge also accepted that police officers are unlikely to respond to such insulting language with violence. There was no real threat to public order. It doesn’t seem that anyone else overheard the words being used. So there was no aspect of public humiliation. Nor any element of bullying. The judge said that the guy “implied that both constables… would personally indulge in behaviour that involved serious criminal offending… aggravated when it involves elements of kidnap and brutality. The comments were calculated to hurt the personal feelings of the constables and the conclusion that it [sic] did was inevitable.”

Oh, please. He wasn’t seriously suggesting these things. He was just being a jerk because they’d closed the bar. (Actually, it’s not clear from the case whether or not the police were responsible for the closure of the bars, but if they weren’t, it doesn’t seem that they told him so.) Their feelings were hurt? That’s not enough for a criminal conviction.

The judge, to his great credit, considered the core values underlying freedom of expression, to see if they were in play here. Because the speech was “purely to insult and rile the police officers” and “for no other purpose”…

He was not trying to advocate change or persuade others in the hope of improving his life or anyone else’s. He was not trying to influence wider social, political or economic environment. He comments were not even social commentary…

Well, good on him for identifying some of the hallmarks of speech we should take particular care before restricting. And I’m not going to argue that Evans’ speech falls at the core of the sort of speech that’s vital to the nation. But the judge downplays the value of the defendant’s speech in three ways. First, Evans was in fact plainly trying to make a point. He thought the police had acted high-handedly in closing the bars early. He wasn’t insulting the officers for the sake of it. That may not be a lofty issue of political principle, but it was something that mattered to his life.

Second, the judge overlooks one of the other reasons we value speech: as an outlet for hostility. Evans was venting his spleen, expressing his frustration. On this rationale, if we give people some latitude to do that, then they’re less likely to react in even less acceptable ways.

Finally, the judge barely acknowledges that Evans was tapping into a well of deep public concern at abuse of police powers. That concern had even led to an inquiry into police rapes. I think this was very much “social commentary”, though it might not have been to the judge’s taste.

But Justice Hansen does seem to accept that there was something behind Evans’ insults:

I accept the topical nature of the insults, but I do not consider that to be a mitigating factor. If his comments had been to the effect that his trust in the force had been diminished by the behaviour of a minority of officers in the North Island it could be considered differently. But clearly he was angry at not being able to access more alcohol, and the insulting comments were designed to offend and aggravate the officers with the undoubted prospect of public disorder.

Right. So what Evans should really have said was this: “Good sirs, I must protest at the unseemly haste with which you have discontinued the refreshment factilities. Nor is this the first occasion upon which members of the police have acted to the public detriment. Indeed, my confidence in the police force has been much diminished by recent reports of abuses performed against young women. (By a tiny minority of police officers, I note. In the North Island). I verily believe it would be beneficial to all if the entire police force would act with more respect toward the interests of those from whom they ultimately derive their powers.”

That would have been okay. But judge: that’s pretty much what he did say. He just said it his way. I don’t believe for a second that the police officers actually thought Evans was suggesting that they personally would rape his girlfriend. Freedom of speech involves giving people room to express themselves in their own manner, particuarly when they’re saying things that are unpopular, or saying them in an uncivil way.

The judge continued:

I also accept that police officers, by virtue of their office and exposure, are of course required to put up with being exposed to a higher degree of invective and abuse. But in this case the comments in my view cross the line. There are no indications that the grossly inappropriate behaviour of the small number of officers permeates the entire force, and the public at large generally accepts that the police force is made up of a majority of dedicated and professional officers.

Um, is there actually evidence that this is what the public at large generally accepts? Or is it simply what the judge believes? I think this passage in the judgment is pernicious. Evans isn’t restricted to saying what’s true, or what the public or the judge generally accepts. Speech can be exaggerated or provocative or sarcastic, as this clearly was, to make a point. I worry about reasoning that says, it’s all right to be insulting if I think your insult was justified, or if the public might agree with it.

So: a bad call. Evans’ speech was hardly vital to the workings of democracy, but there’s no real justification for punishing him for it. I hope it gets appealed. 

Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Another backward step for the Bill of Rights

Press Council bouquet

March 12, 2008

I’ve been hard on the Press Council lately. I tend to blog about the stuff I disagree with. But usually, I think the members of the Press Council get it right. In the latest bunch of decisions, they ping the Northern Outlook for misreporting local council committee hearings. One mistake was put right in a later story, without reference to the earlier error. Was that enough? The Press Council said:

the second report did not go far enough to correct the misleading impression of the first story. It made no reference to the first, incorrect, report and may well have left readers confused about two apparently conflicting stories concerning the fate of the proposed new set fee.

They also found the paper in error when it said that the committee had “shied away again” from deciding a particular issue. Yet the Press Council found that there was nothing to support this impression that the committee was unwilling or unable to make the decision; the deferral may not have been a “shying away”.

I’m not familiar with the nuances of the events and the coverage here. But it’s not uncommon for the press to carelessly sling about perjorative language under the guise of neutral reporting. In the past the Press Council has usually let this pass. For example, when a paper accused a political candidate of trying to “fabricate an issue where non [sic] exists”, the Press Council in 2001 accepted the argument that this simply meant “build” an issue – there was “no negative connotation”. This seems unreal.

The latest decision may be signalling a more robust approach. But hair-splitting about language can be taken too far: in this case the Press Council says that a paper has latitude to characterise an ERO report as saying a school was “excelling” when the report was at least “largely complimentary” of the school.

Two for two, I say.

Finally, this case split the Council. I’m not surprised.  What do you do when someone submits an ambiguous letter, you publish in edited form, apparently preserving its key point, but it turns out that the letter-writer meant it in a different way, and when you take a look at it again, you can see his point? 

Here’s the letter:

The very strong reason to reappoint Graham Henry is that he has now participated in a World Rugby Cup as coach and knows the pressures, the need for a cool head and how to make decisions under pressure. That is experience beyond a price.

It was precisely because they had the same experience playing in the previous World Cup, that Aaron Mauger should have started and Reuben Thorne should have been on the bench against France.

The paper published the first paragraph, thinking that second paragraph seemed peripheral, but the basic point was fair enough.

The letter-writer fumed that the second paragraph was his basic point, and the first paragraph was highlighting the irony.

The majority felt that the editing was not unfair.  Nor was the paper’s refusal to publish a correction or acknowledgment, though it wasn’t very gracious.

Two members dissented, saying that the original editing may not have been unfair because of the ambiguity, but the Press should have published a correction once the writer had made his true views known. The two dissenters (including the chair, Barry Paterson) said elegantly, and I think fairly persuasively:

It left on record a statement from Mr Meates which did not express his view. It was no answer, and in the members’ view disingenuous, to say that the publication did not change the meaning of the first paragraph, when publishing only that one paragraph had the effect of completely reversing the implication in Mr Meates’ letter when read in its entirety. The members would have upheld on failure to correct.

Topics: Press Council | Comments Off on Press Council bouquet

Website in contempt?

March 9, 2008

Today’s Sunday Star-Times has a story about a website set up by the daughter of a Zimbabwean immigrant accused of sexually violating killing his niece. The website contains detailed commentary about the life of the family and the events surrounding the death. The niece was HIV positive, but the Crown’s case is that this did not explain her death (and has evidence of the uncle’s semen stains on the niece’s underwear). The trial is scheduled for next month. The Solicitor-General has asked the family to take down the parts of the website alleging his innocence.

This is a tricky issue. Is the website creating a real risk of prejudice? Which bits? Does it matter how many people have seen it – given that the number could rocket at any time? Is a story about the website itself prejudicial, given how easily people reading it can find the site with a google search?

The story paraphrases me as saying that trials can be prejudiced by information posted on websites if jurors viewed the site and its content was wrong. (I also say that the Solicitor-General needs to work together with the mainstream media to come up with a protocol to take prejudicial material down while trials are going on).

That’s accurate, as far as it goes. But my views were rather more nuanced. For completeness, here’s my email to the reporter:

Anything that creates a real risk of prejudice to a fair trial can be a contempt of court. There may be a little more wiggle room when asserting innocence rather than guilt, but in general the same rules apply.

Much of the material on the website doesn’t create such a risk – their general experiences as an immigrant family, for example. A lot of it might not be at issue in the trial. And it seems they’ve made some attempt to pare back some material that might be prejudicial.

What’s more, some seems to be in response to things the police have said that they regard as unfairly prejudicial against the family. That doesn’t necessarily excuse it, but there may well be arguments of prejudice that go both ways.

Still, the website does explicitly assert the father’s innocence. It paints a picture supporting that innocence, including statements about his character and his behaviour at key times. (Incidentally, I have no idea of the accuracy of what’s written, or whether anything significant has been omitted. I have no particular reason to doubt the accuracy, but the courts have said that inaccurate statements carry greater risk of contempt). It seems to put forward a version of events that will be at issue in the trial. That is usually regarded as prejudicial.

Is it creating a real risk? Not too many people have seen it so far, but that hit-count could balloon at any time. The trial is to be held soon, as I understand it, which makes this sort of comment more dangerous. What’s worse, there’s evidence that jurors sometimes do internet research on the cases they’re hearing about, even when warned not to. I’d expect a judge to order it to be taken down at the very least during the trial, if it was drawn to his or her attention.

Topics: Contempt of Court, Internet issues | Comments Off on Website in contempt?

Injunction continued again

March 7, 2008

The Hawkes’ Bay Health Board injunction has been continued by consent until after the report is finalised and made public, slated for 17 March. The parties can bring it back before the court before then if circumstances change.

I think this is probably a savvy move by Fairfax and APN. It will blunten the “we’re just protecting the process” arguments in favour of suppression, and sharpen any public interest arguments about what’s been changed or deleted, once we’ve seen the official report.

Topics: General, Injunctions | Comments Off on Injunction continued again

Press Council upholds Bill English complaint

March 7, 2008

Remember the kurfuffle about Bill English’s 14-year-old son posting homophobic remarks on Bebo? The Press Council says that the Southland Times’ coverage breached the paper’s duty to respect privacy of “person, space and personal information” and to exercise “particular care and consideration when reporting on and about children and young people.”

The Southland Times’ front-page story was headed “English may sue on GayNZ article”. It named Rory, though other media (including GayNZ) apparently had mostly just called him English’s son. It quoted from the remarks Rory had made. English complained that there was no justification for “selecting my son for special treatment” which was harshly critical and unbalanced. (He wasn’t complaining about balance, but apparently argued that these factors showed a lack of consideration for Rory). English said his son was entitled to privacy and that he wasn’t a public figure or prop for English’s political activities.

The paper noted that the website was open to public view, and that English had written a column stating “I am totally responsible fro my children’s physical and moral welfare… in fact too many parents now lack confidence in their ability to give children direction.”

The ruling isn’t available on the website, so I’ll post the key part here. The decision was unanimous.

The Southland Times has essentially justified publication of this article on the fact of Mr English’s local and national prominence and on what the newspaper believes to have been his public advocacy of “family values”.

The Press Council finds it unacceptable that a regional newspaper should justify naming and – in effect – shaming a 14 year-old on the grounds that his father is a local representative in Parliament and a national figure and on the basis of assertions as to the father’s political position on morality issues.

 

This is the more so since the newspaper seems to have had little heed for the requirement to proceed with care in reporting on the activities of a young person, who, in this case may simply have done something very immature. 

 

The boy, after all, is a minor.  As Mr English points out, he would have been entitled to name suppression, even if he had committed a crime – up to the age of 17.  Mr English had also made the point that he had no obligation to comment, when asked to do so by the reporter, since he had never brought his family into the public arena. 

 

The newspaper had a point in respect of the principle of privacy.  The Bebo website is public and users who put out comment and other information on it should understand that. If they do so in their own name they must anticipate the consequences, including a reaction from groups who take exception to remarks made.

 

There is, however, a linkage between the twin grounds on which this complaint is based – privacy and the need for care and consideration in reporting on young people.   This is because a child’s privacy is one of the factors which needs to be taken into consideration when reporting on or about children.

 

The need to protect a young person from being harmed by the glare of publicity necessarily means that matters that can be published about an adult should be treated with greater circumspection and sensitivity in the case of a child.

 There is now considerable debate about the extent to which celebrities and those identified with them are entitled to the protection of privacy. But the Press Council does not see that Mr English’s privacy is a factor in this matter.    

The Press Council accepts nevertheless that a public figure has the same right as every other citizen to expect his or her young children to be protected, unless there is a demonstrable justification for drawing the young person into the limelight.

 

The Council upholds Mr English’s complaint.

I have a few misgivings about this decision. I am still inclined to think that Rory’s remarks were using homophobic epithets to attack emo devotees. It wasn’t pretty, but it wasn’t extreme homophobia. And although it was a public website, people using them can paradoxically have something approaching a reasonable expectation that it will only be read by a small community of people. And he was 14. I wouldn’t want everything I said at 14 flashed up in the national media. So I have some sympathy for the criticism that the media overdid this.

But there are a couple of aspects of the decision that don’t make much sense to me. First: is this really about privacy at all? The comments were on a public website. He had already been identified in the media as Bill English’s son. Cat’s out of the bag, guys. I can’t see that there’s any private information (ie Rory’s name) left here to protect. Note that the Press Council’s principle dealing with privacy excludes matters of public record. Wouldn’t the Press Council regard something on a publicly accessible website as a matter of public record in most other circumstances? I can’t imagine the BSA upholding a complaint based on privacy here. There’s no “private fact”. I think this points up the undeveloped, ad hoc, and intuitive nature of the Press Council’s privacy jurisprudence. Perhaps the decision is best read as resting on the “care and consideration” of children and young people. To the extent that the decision is founded on privacy, or even a “linkage” with privacy, I think it’s flawed.

The other point is the Press Council’s acceptance that English “had never brought his family into the public arena”. Really? So he’s never used happy family snaps in his political campaigns? And what about that column he wrote? Arguably that’s not enough to make his son fair game. But there’s no recognition in the decision that the family or associates of public figures may have reduced expectations of privacy in some circumstances, something even the courts have accepted. Nor is there any recognition that the attitudes revealed in the “toxic diatribes“, posted in public, by the son of a man who would be deputy PM and who champions family values, might be a “demonstrable justification” for running the story.

I’m not entirely sure I buy these arguments. But I don’t dismiss them either. For me, I think, this story lies in the grey zone: it should be open to criticism but not sanction.

Bonus zinger: as long as the the Press Council is going to throw about the language of “demonstrable justification”, it really ought to remember that under the Bill of Rights Act, the question is whether there is demonstable justification for its ruling interfering with the freedom of expression of the paper.

[I’ve received a comment that I am over-emphasising the privacy aspect of the decision, and under-emphasising the consideration-of-child’s-interests aspect. On one reading, the decision is not based on the principle relating to privacy at all. Privacy is merely a factor that makes the lack of consideration for the child greater. At any event, it is clear from the decision that this complaint would not have been upheld if it was about an adult. Comment was also passed that the Press Council carefully refrained from naming the boy. Was I too mean in doing so?]

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Press Council | Comments Off on Press Council upholds Bill English complaint

Name suppression not automatic in diversion cases

March 6, 2008

Fairfax has won a significant victory in the Court of Appeal, which has ruled that people who have been given diversion should not automatically have their names suppressed. Justice Wild had held that they should, absent “compelling reasons” or “very special circumstances”. That effectively upended the usual presumption of openness.  The Court of Appeal said:

… Wild J has put the matter too high in so far as diversion is treated as, in itself, a special circumstance justifying a departure from the open justice principle.

The Court of Appeal noted that suppression in these cases is usually granted by the Registrar, but insisted that Registrars actually use discretion not a rubber-stamp. What’s more, under the statute, the police must “agree” to the suppression. It seems that the current practice is for police “not to object”. The court said that’s not enough.

Still, it’s not a complete victory for the media, for three reasons:

1. While the court said Registrars must turn their minds to the balancing exercise (that is, open justice vs particular interests of the offender), it ought not to be a heavy decision-making burden, and Registrars

 … are not likely to require a great deal of information in order to be satisfied of the need for suppression. In that context, the effect of publication on rehabilitation in particular will in many cases be obvious.

2. It is now clear that the media have no right of appeal in name suppression cases (though they may take judicial review against District Court orders). This gap in the law ought to be filled (that’s my view, not the court’s).

3. Technically, that means the court’s points about diversion are obiter (that is, not strictly necessary to decide the case, and therefore not part of the core of the decision), though it’s pretty thoughtful and high-powered obiter.

Interesting point for train-spotters: check out the court’s use of Hansard to determine the proper interpretation of the statute at paras [59] to [62].

Topics: Name suppression | Comments Off on Name suppression not automatic in diversion cases

Banned book: get your copy now

March 4, 2008

Anne Hunt’s book Broken Silence, which I think I’m right to say is the only book ever to be banned and ordered to be pulped by NZ’s High Court, is now available for you to buy.

The ban was overturned last year in a case I argued in the Court of Appeal (Hunt v A [2008] 1 NZLR 368). The book hit the news again last November when Anne criticised her former lawyer, David Collins QC, who’s now Solicitor-General, for his involvement in the saga.   Broken Silence chronicles the tribulations of a New Zealand woman with borderline personality disorder who accused her therapist of sexually violating her.  The book explores the life and experiences of “Annette”, a woman with a borderline personality disorder. It contains a remarkable account of the ingredients that produced her mental illness: her domineering and violent father; her anorexia, attention-seeking behaviour, and fainting spells; her unhappy marriage at 18; her post-natal depression and alienation from her children; the trauma of marital rape; and her resulting depression, mood swings, hallucinations, self-harm and suicidal tendencies. A major theme is the way she is let down by a series of people and institutions she trusted: her father, the medical authorities who botched her tubal ligation, ACC, her therapist and ultimately, parts of the justice system.

The book raises a vexed question: can somebody with serious mental health problems obtain justice?   Much of the book focuses on “Annette’s” allegations against her therapist, the respondent (who is given the pseudonym “Wayne”). “Annette” claims “Wayne” sexually abused her during therapy. The book describes the three legal proceedings that resulted:  the criminal trial, at which the therapist was acquitted; “Annette’s” disciplinary complaint against the respondent, which was ultimately stymied by a rather technical judicial review finding; and her $250,000 civil claim for exemplary damages against the therapist, which went all the way to the Privy Council, and which ultimately ended in a settlement.   Anne Hunt is a District Councillor who fell a few hundred votes of winning the Horowhenua mayoralty last year.     A few sentences in the book have been redacted to protect confidential information, but the rest of it is the original version.  Anne has autographed all the copies and is willing to sell them for $25, including p & p. Order them from Anne at 17 Nash Parade, Foxton Beach.

Topics: General | Comments Off on Banned book: get your copy now


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