Bad journalism, bad blogging, bad case in Youth Court

A bad case in the Youth Court of two rapes, bad reporting, bad MP reactions, bad blogging and predictable blog comments rife with inaccuracies and misdirected blame.

Initial misleading report at Stuff: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager was spared jail for rape after a court heard he had a promising career as a sportsman ahead of him.

The now 18-year-old, who has previously represented New Zealand on the world stage, admitted charges of rape and sexual violation in the Auckland Youth Court.

But he will not be jailed after a judge took into account his “outstanding talent” when sentencing him for sex attacks on two teenage girls.

The teenager has automatic  and, aside from his record noting the Youth Court appearances, faces no punishment.

There was outrage on Twitter, only some of it justified.

David Farrar at Kiwiblog: Name suppression disgrace

He’s raped and assaulted two girls and he gets permanent name and not even a slap on the wrist – all because he is good at sports.

That is sickening.

I’m not saying he should go to prison. But to face no punishment at all is terrible, and no one should get name suppression for serious violent or sexual offending if they have been found guilty.

The victims must feel terrible that after what he did to them, he gets off totally. Not even community service, a fine, home detention etc. He gets zilch all because he is good at sports.

The Crown must appeal this travesty of a sentence.

Some of this is inaccurate because the Stuff report was inaccurate, but DPF has added his own inaccuracies. The offender got off very lightly, but did not get off totally.

Uninformed outrage ensued, including from a lawyer. other lawyers set the record straight…

GPT1

If you are going to rant and rave can you please get the law right. It was in the Youth Court. Suppression is the law. There was a time when you did analysis not talkback by blog.

…but as is common at Kiwiblog they were downticked for adding facts to the discussion.

Graeme Edgeler on Twitter also pointed out facts of the matter.

Stuff corrected their story: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager who has hopes of being a professional sportsman has failed in his bid to keep any record of his charges for rape and sexual violation from his record.

The teenager, who has previously represented New Zealand on the world stage, admitted the charges in the Auckland Youth Court.

The now 18-year-old has automatic name suppression and, aside from his record noting the Youth Court appearances, he faces no punishment.

An advocate for survivors of sexual abuse says the teenager has “got off very lightly”.

* CORRECTION: An earlier version of this story incorrectly reported that the teenager had been spared jail after a court heard of his promising sport career. In fact, because the case was heard in the Youth Court a jail term was not a sentencing option available to the judge. We regret the error.

That has been pointed out on Kiwiblog but it hasn’t stopped the outrage raging.

Even an ex-Minister of Justice jumped on the bash-wagon (albeit reacting to first the Stuff report).

For anyone who wants to understand the court judgment accurately 2018-NZYC-490_New-Zealand-Police-v-OV.pdf [311 KB]

Murder accused, name suppression and international media

The Grace Millane case has raised the issue of the ineffectiveness of name suppression (non-publication orders) when it only applies to New Zealand media. It has been simple online to find out the name of the person accused of the English tourist’s murder, even without trying.

To clarify the situation – at the first court appearance on Monday the accused person’s lawyer asked for name suppression based on fair trial rights, this was declined by the judge, but the lawyer immediately appealed as he is legally able to do. Under current law this gives the accused 20 days automatic suppression, and the judge will make another decision after arguments for and against have been made.

The police have made it clear what the current situation is:

It would be stupid (as well as illegal) to name the accused, or to aid identification of him in any way. Technically, saying ‘you can find it with Google’ could be deemed an aid to finding out, but it is so obvious a way of discovery that it would be ridiculous to take action.

Lawyer Graeme Edgeler tried to do something practical regarding the law: Name suppression appeals

I have long thought that the 20 working days allowed to appeal a refusal to make a suppression order is too long, when the law requires the court appealed from to make an interim suppression order for that period.

The law did not used to require this. There was no automatic right for interim suppression, which used to be a matter of discretion. A defence lawyer could tell a judge of the intention to appeal, and ask for interim suppression.

The judge might ask: will two days (a week/whatever) be enough to appeal? The lawyer might respond: I’ve a trial tomorrow and Thursday, I’d appreciate if I could have until Friday. And the judge could agree. It didn’t always work. But it also didn’t meant an automatic 20 days.

The new law treats an appeal from a refusal to make a suppression order the same as any other appeal – allowing 20 working days to file the notice of appeal, and automatically extending an interim suppression order.

Usually, delaying filing an appeal will be bad for a defendant (if you wait 20 days to appeal a refusal of bail, that means you’ve spent 4 weeks extra in prison), but this is one time where it doesn’t.

It also unreasonably affects the public and news media who wish to report on matters of public importance, and which a judge has ruled it is unreasonable to prohibit them from doing so. In light of this 20 working days is excessive.

So I have drafted a bill, the Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill, which would reduce the 20 working days allowed to appeal a refusal to make a suppression order to 5 working days.

If anyone knows an MP whom they think would like to propose it as a member’s bill, feel free to direct them to it, over at the Progressive Bills Wiki.

However the Prime Minister has used Labourese for ‘not interested in addressing this’ by saying “At this time, it’s not part of our agenda.”

NZ Herald:  Name suppression laws not about to change

Prime Minister Jacinda Ardern says the Government has no plans to change name suppression laws, even though international media have named the man accused of murdering Grace Millane.

This morning Justice Minister Andrew Little criticised British media for naming the accused, who has interim name suppression.

Little said it was potentially jeopardising a fair trial, which could heap more misery on the grieving Millane family.

I think that there is potential for ‘jeopardising a fair trial’ it is unlikely – I think that trials found to have been unfairly  jeopardised are rare (I think Edgeler has said that).

Ardern said she agreed with Little and that name suppression should be adhered to.

Asked if name suppression laws were out of date with global connectivity, Ardern said: “There’s no doubt the environment has changed.”

But the Government was not looking at doing any work on name suppression laws, she said.

“At this time, it’s not part of our agenda.”

So Ardern doesn’t want to fix something that is clearly not working.

If it is something obviously needing modernising because it has become a farce I would have hoped the Government would put it on their agenda.

This is more evidence that the current Ardern led Government can be quite conservative at times, despite claims by Ardern and others that they are ‘progressive’.

Suppression continues in Labour camp assault case

The man facing multiple charges of sexual assault at a Labour Youth summer camp in February has had his name suppression extended until either a verdict or other determination, on the grounds that “there would be a real risk to fair trial rights”. This is a common reason for suppression pre-trial.

NZH:  Labour Party summer camp indecent assault accused keeps name suppression

The 20-year-old was arrested in June and charged with six counts of indecent assault against four complainants.

Today, the accused appeared before Judge Russell Collins in the Auckland District Court seeking to extend his interim name suppression.

The man’s lawyer Emma Priest argued her client should keep his name suppression until determination of the charges, and may seek permanent suppression if there were valid grounds to do so.

Judge Collins granted interim name suppression until either verdict or other determination and bailed the man to appear in court again later this year.

“I am satisfied, and have been satisfied quite quickly, there would be a real risk to fair trial rights,” he said.

The judge continued there had been an “extremely high-level of media coverage” with many people talking in the press “without thinking that a prosecution may ultimately result”.

“Many people have commented publicly with the only inference to be taken from the comments is that the defendant must be guilty.

“His presumption of innocence is paramount,” Judge Collins said.

Given the level of public and media interest in the case I think this is a fair call, presuming that it will be a jury trial.

This suppression means that no attempt to identify the person in any way can be allowed here.

Permanent name suppression halved

Since the Criminal Procedure Act was introduced in 2011 the number of people granted permanent name suppression has halved.

  • 2011 – 640
  • 2012 – 407
  • 2013 – 354
  • 2014 – 336
  • 2015 – 317

The number of people getting interim suppression has hardly changed:

  • 2011 – 1,232
  • 2015 – 1,191

One News: Fewer people are getting permanent name suppression

The changes came amid calls for tougher conditions for name suppression, with many arguing that too many of those facing court were successfully keeping their identities secret for trivial reasons.

“New Zealanders made it clear they thought too many people were getting permanent name suppression” – Justice Minister Amy Adams

The Act made it harder for lawyers to justify name suppression for defendants by altering wording in the threshold from “undue hardship” to “extreme hardship”.

Justice Minister Amy Adams said the “law as it is now framed appears to be striking a better balance between the interests of the parties involved and the public’s right to know”.

But Queens Counsel Marie Dyhrberg says that it has become too hard to get suppression.

NBR Radio: QC Marie Dyhrberg ponders whether there is any point in seeking name suppression anymore

A high-profile criminal lawyer does not believe it is good the threshold for qualifying for name suppression has become “extremely difficult” as figures show cases have halved since 2011.

Dyhrberg was asked how the law has changed:

Marie Dyhrberg: The law has changed in the threshold that is required for someone to actually get suppression. It’s gone from ‘undue hardship’ to ‘extreme hardship.

Now that is threshold for both persons who are merely charged and have the presumption of innocence, as well as persons who are convicted or even acquitted of an offence.

That threshold extreme hardship we have found in practice in trying to achieve that is almost impossible to actually achieve. It is extremely difficult to qualify for suppression, and as I say that presumption of innocence is something that is not a consideration, really not a consideration that the courts can take into account.

Is the law the reason why name suppression numbers are dropping?

Marie Dyhrberg: As a lawyer I advise clients that the threshold is so hard to achieve you have to tell clients it’s going to cost x amount to actually try for name suppression.

If you fail well then of course it draws attention to their case which is what happens, and that most people don’t achieve it, you just simply cannot get name suppression.

So for lawyers and for clients you almost at that stage “What’s the point?” Why bother even trying, it’s so hard and so high a threshold very few people are getting it.

So is it a good thing?

Marie Dyhrberg: I don’t believe so. I think the threshold is too high, that there are very good reasons for people to have name suppression particularly when you are merely charged with an offence.

Publicity for someone who are in professional positions, they may lose clients, they old, well, mud sticks, there must be something there.

All of those things and that there are people that I think under the old law would still be hard, you still have to show that you are going to be affected in some way, but under the old standard they legitimately and quite appropriately got suppression.

But there are cases now where it’s so extreme that there are people who are suffering as a result.

So my view is that the threshold is too high.

And of course you have this justification to say well only famous people, they’re hiding behind their fame.

Well they are being penalised for being famous because nobody is interested in Mary Smith who has no media interest whatsoever and if she is appearing in court nobody publishes that.

But of course somebody who has a name whether they’re famous for whatever reason or well known, then suddenly that’s who the media want to be interested in so they are penalised more so than somebody who’s just ordinary.

And yet they are ones who are suffering as a result.

What does the profession thin k of it?

Marie Dyhrberg: I think most lawyers feel the same as I do. Ultimately of course it’s up to the client to go ahead with that application, but again when you almost have no chance of succeeding then of course the risk of drawing attention to your case means that by doing the application, not likely to succeed, therefore the chances of them being published is enhanced.

A tricky situation to be in, with a high risk of failure and a higher risk of greater publicity.

So you put that to clients, sometimes they say “so what do you think?” and I just keep emphasising it’s not easy, it’s virtually impossible, and this is the risk.

And I find most clients say well I don’t want to take that risk, we’ll just try and see if we can get by without drawing attention to ourselves.

With about 1,200 a year getting interim suppression it seems that she is overstating the difficulties, especially for those only charged and not convicted.

Prentice ignores lawyer advice on suppression

Lynn Prentice has graced us with an abusive hypocritical moan that suggests he is ignoring legal advice.

You were advised that we have no particular responsibility to limit speculation. We will stop people saying that a particular person was the cabinet minister or that their brother is the subject of the charges. That is, as far as I am aware, all that the suppression order states.

I’d take a bet that you have no further information on the suppression order yourself. It is a problem with the way that suppression orders are advised.

That was advised to the commenters in the comment stream where the speculation went on, and has been conformed with. In this case the court managed to spread speculation over a very limited number of Cabinet Ministers and their brothers because they did not or (more likely) could not cover the publication of the profession of the Cabinet Minuster – which the SST published.

Basically you are an lying arsehole who has no compunction in twisting words, be it emails, legal, or site policies. But what else do we expect from such an bullshitting illiterate…

Lynn,you have a very strict rule, strictly enforced, that no one at The Standard is allowed to attack or or abuse authors. Isn’t it somewhat hypocritical that you practice what you preach against?

But ignoring your wee character tirade (which is typical of your blog manners), how are you aware of what the suppression order states? Yesterday I thought you said you had no way of knowing. Here its is:

So to conform to the reported suppression, I will just limit people saying explicitly which minister it is.

I also note that there has been nothing reported about the alleged victims seeking suppression.

You seem to contradict yourself there with ” the reported suppression” and then “here has been nothing reported”. I don’t know how you can make a legally safe stance from that.

There has been opinion elsewhere about what what speculation that media should and shouldn’t allow in publications and comments. Like:

While suppression is in place, please do not speculate in the comments.  Doing so will earn you a permanent holiday.

I’ve quite often seem warnings like that, but I presume you won’t take much notice of what Whale Oil says.

What about this blogger/lawyer?

Please note suppression orders are in place.  There should be no Speculation on who this (person) is.

They carefully edited this comment:

Ever noticed how illiterate [Please be careful] writers can be while having an air of intellectual superiority in what they write?

I was googling blogs and found this

[Please be careful] report went virile and received over 700,000 views in a few days after its release. ”

And another author on that same blog:

it should be obvious that anything that identifies the person subject to the suppression order is not permitted. You’re bordering on wasting author/mod time, bud.

They sound quite definite about it.

And when someone asks “Mods with the blog site involved currently online including a recent update what is the consensus on linking to the site concerned? The lawyer urges caution:

Best not to. The treatment of name suppression is a valid topic of discussion but reinforcing the breach is not.

And the other author:

I imagine that would be a breach of the suppression order, which would put TS in legal jeopardy. Not a sensible course of action. I also note that the post specifically asks for there to be no speculation. That should be enough in itself.

Maybe Prentice doesn’t agree with Greg Presland and ‘Te Reo Putake’ either. So what about this view?

Simply put, if we don’t know what the suppression was on, then we can’t know what needs suppressing. So we act as if all such pointed speculation is someone trying to put us in the dock.

Court suppression orders are nothing to fool with. We don’t know what evidence was placed in front of a judge to cause them to issue the suppression order, so we don’t speculate.

I have a pretty basic rule. It says that if I see anything that might make a judge look at me and think that I may have deliberately allowed the name suppression to be violated, or that causes us problems with our privacy rules (ie having to give up some persons details) – then it is a problem.

Then I will act against the person involved immediately and rather ruthlessly to make sure that they never want to do that to us again. Other moderators may be kinder and simply cut out the offending passages.

Lynn, do you agree with that? It seems to be quite different to what you are claiming now. Or do you just make up your standards to suit who you are trying to be vindictive to?

Breach of interim injunction?

The Sunday Star Times (and Stuff) may have at least come close to breaching an interim injunction, and if covered by the injunction commenters on a major New Zealand blog have fairly blatantly breached it, and has so far the blog has taken no action about it. Tony Wall wrote:

A Cabinet minister’s brother is due to appear in court this week on child indecency charges.

The man has been summonsed to appear in the District Court on Tuesday — but the man’s lawyer, high-powered Queen’s Counsel Jonathan Eaton, last night went to the High Court in Christchurch to obtain an injunction stopping the Sunday Star-Times naming the man or the minister concerned.

Last night, High Court Justice David Gendall imposed an interim injunction preventing the newspaper naming the accused and the Cabinet minister.

But the article gives enough details to make it quite easy to narrow down possibilities.

And commenters on a major New Zealand blog have fairly openly and blatantly identified the Minister. And site moderators have taken no action, despite the comments being prominent, and despite being advise of possible legal issues, and despite a moderator being active on the same post.

And despite that blog having clear policy against this behaviour.

If we and/or our lawyers feel that the the comment or post oversteps a legal bound, violates good taste, invades the privacy of people outside the public domain, or goes beyond the scope of our site – then and only then will we do something about it.

Most of the time the moderators will be harsher on offending content than any court in NZ is likely to be.

The breaches began about 8.30 am this morning and subsequent comments confirmed what was heavily hinted at.

If they have identified the Minister then it’s clearly defying the intent to prevent revealing the identity which sounds likely to be subject to a name suppression application.

And the blog management would appear to be allowing these breaches to remain on public view.

UPDATE: I’ve been advised by the blog that if they haven’t been advised of an injunction then they don’t have to stop speculation (but they are obviously aware of the injunction).

They also claim that speculation is fine as ling as it doesn’t explicitly name the people protected by the injunction (despite the collective comments clearly identifying someone).

And the claim that suppression orders “just stop people being named, not speculated on”.

That surprises me – it’s not how I understand that name suppression works, and I’m surprised this blogger is taking this position.

UPDATE2: This question has been asked on the blog:

The courts granted an injunction to prevent publication by the SST of the Minister’s name. Does that injunction apply to the public?

A response from the moderator:

Likely. As I have no idea who it is, So to conform to the reported suppression, I will just limit people saying explicitly which minister it is.

From a legal point of view that surprises me. Taken as a whole the blog thread clearly identifies the Minister.

Mind you, after the questions on how Carmel’s mothers name got into media, I am only inclined to follow the letter of suppression orders.

From a blog and political point of view that doesn’t surprise me.

‘Child indecency charges’ awkward for National

This is a different case to the one so many talk about but no one can mention, but ‘child indecency charges’ will be very awkward for National.

Stuff reports: Cabinet minister’s brother faces sex charges.

A Cabinet minister’s brother is due to appear in court this week on child indecency charges.

The man has been summonsed to appear in the District Court on Tuesday — but the man’s lawyer, high-powered Queen’s Counsel Jonathan Eaton, last night went to the High Court in Christchurch to obtain an injunction stopping the Sunday Star-Times naming the man or the minister concerned

A family member of the sex accused  said the matter was in the hands of defence lawyers.

Yesterday, the accused man’s solicitor John Westgate said it would be “entirely inappropriate” to name the man, as it would undermine his ability to apply for name suppression.

Last night, High Court Justice David Gendall imposed an interim injunction preventing the newspaper naming the accused and the Cabinet minister.

The Sunday Star-Times asked to be heard by the Court but the judge granted the injunction without giving the newspaper’s lawyer that opportunity.

The article tries to liken it to when Carmel Sepuloni’s mother faced charges but there’s no indication whether the Minister  has any responsibilities that could be related to the charges.

Sunday Star Times also narrows the field in their coverage, something media sometimes pushes the boundaries on at times.

This case is at the stage where someone is still just accused, nothing is proven.

On it’s own it may not have caused National too much bother, but with other issues they have had to try and deal with this makes things very awkward for them.

If name suppression is granted then that will increase accusations that suppression is something exploited by prominent New Zealanders.

And there’s one unique aspect – if name suppression is granted then even if justified it would make the standing down of the Minister a tad awkward, as that would give a fairly clear hint as to who might be involved.

Regardless of the severity and the chances of conviction or acquittal this is another awkward issue for National to deal with.

UPDATE: A major blog has already as good as identified the Minister.

Prominent New Zealander case progress – slow

Stuff reports on the ‘prominent New Zealander’ case that apparently no one is allowed to know about – althouygfh with each step a bit more information seems to be eked out.

Prominent New Zealander will stand trial on indecent assault charges in 2016

A prominent New Zealander facing 12 charges of indecent assault will stand trial in April next year.

The man appeared in the High Court on Thursday, where Justice Paul Heath confirmed the man’s continued interim name suppression through to trial.

A trial date of April 4, 2016, was set.

The man has pleaded not guilty to all charges and was excused from attending a trial call over in June.

Most details of the case are suppressed to protect the identity of the alleged victims.

How serious must the charges be for it to be taking this long?

More details have been provided on a website It’s probably prudent not to link to.

Human Headline: “WARNING: for legal reasons access to this page is illegal in New Zealand”

The Official Derryn Hinch Webstite Human Headline is based in Australia so isn’t covered by New Zealand suppression orders (Hinch is a prominent ex New Zealander who has a radio show Hinch Live).

From time to time he has put up posts with warnings like this:

WARNING: for legal reasons, access to this page is illegal in New Zealand

I don’t know the law well enough so don’t know if that is correct. Every individual must judge for themselves whether they should heed Hinch’s warnings.

He has this warning on his latest post:

HinchWarningThat’s an image so you can’t follow the link from here as that may be illegal.

But it highlights the difficulty suppression orders have in the Internet age.

Name suppression lifting appealed

As expected the ‘prominent New Zealander’ who had name suppression lifted has appealed, a day before the lifting would have taken effect. NZ Herald: Prominent New Zealander charged with indecent assault appeals for name suppression.

A prominent New Zealander charged with indecent assault has lodged an appeal after losing his bid for name suppression.

The man lost suppression on February 19 but had his identity protected for one month to allow him the chance to appeal. That appeal was lodged today.

The man denies 12 charges of indecent assault against two people including two representative charges.

Heavy suppression orders mean the man cannot be identified, nor can his alleged victims or their ages.

The charges, which include allegations of touching the complainants on the breast, buttocks, groin and thigh, are punishable by up to 10 years’ imprisonment.

Several media organisations, including NZME. publisher of The New Zealand Herald, have lodged a joint request for the appeal to be heard with urgency.

I don’t know what timeframe urgency would enable.

He has elected trial by jury.

Perhaps coincidentally the herald also has Sexual violence trials delayed for longer.

Delays for sexual violence jury trials are increasing – a statistic the Government is claiming shows success in clearing old cases but one which the Greens label an indictment on the court system.

Figures provided to the Green Party show the longest period it has taken for a sexual violence jury trial to reach a conclusion – from the date charges are filed to their outcome – has gone from just over three years to four and a half years in the past six years.

At the same time, the median length for trials to conclude has gone from 388 days to 459 days over the same period.

The information about sexual violence jury trials was provided in answer to a Parliamentary question to Justice Minister Amy Adams from Green Party women’s spokeswoman Jan Logie.

So if a sexual violence trial was held about now the charges would have been laid some time ago, and the investigation would have started probably quote some time ago.

Serious alleged crime takes far too long to be dealt with.