MEREDITH CONNELL AGAINST STUFF
Case Number: 2673
Council Meeting: JUNE 2018
Balance, Lack Of
Children and Young People
Defamation/Damaging To Reputation
Names Suppression Of
1. Mr Brian Dickey, the Auckland Crown solicitor, and a partner in the complainant firm, complains about the reporting by Stuff/Fairfax and www.stuff.co.nz, regarding a trial that concluded with not guilty verdicts, in early April this year. The complaint is broad in that it names Stuff/Fairfax as well as Stuff Online. However, it does not name any other specific publications.
2. The case involved the prosecution of an Auckland intermediate school teacher in relation to three separate allegations of indecent assault from different complainants.In general terms, the indecent assaults were said to have involved hair stroking and touching of the chest/breast area.The three complainants had statutory name suppression, and name suppression was also granted to two child witnesses.
3. Prior to the commencement of trial, defence counsel brought an application pursuant to s 147 of the Criminal Procedure Act 2011 seeking that the charges relating to the stroking of hair be dismissed on the basis the conduct was not indecent.No such application was brought in relation to the chest touching charges: that could only be on the basis that defence counsel conceded there was a case to answer on those charges.That application was declined by the District Court Judge.The matter went to trial, and a further application was brought by defence counsel to dismiss all charges at the end of the Crown case.This was on the basis the evidence was unreliable and inconsistent.This application was dismissed by the trial Judge, and the matter went to the jury, which brought in not guilty verdicts on all charges on 12 March.
4. On Thursday 5 April 2018, an article appeared on www.stuff.co.nz with the headline: “Children admit making up sex claims against Auckland teacher to get him fired”. The first sentence read: “Intermediate school students admitted they lied that their teacher indecently assaulted girls so he would be fired after yelling at them in class, a court heard.”
5.On the same day, Mr Dickey wrote to Stuff by way of email, and asked them to remedy what he considered to be falsehoods in the article that were not borne out by the evidence.In particular, he was concerned with the headline and the first sentence of the story which gave the impression to the public and other news media outlets that the child witnesses had admitted lying in effectively inventing the complaints in order to get the teacher fired.It was Mr Dickey’s position that there was no such evidence at trial.
6. He said the next morning, on 6 April at 8.26 a.m., he received an email from David Gadd, who was described as the Chief News Director of the Auckland newsroom of Stuff.This email acknowledged the complaint and claimed the errors had been amended.Mr Dickey says that around the same time he spoke with the reporter concerned.He said in that conversation the reporter acknowledged she had made mistakes, and that she had not attended much of the trial, and instead had relied upon addresses of counsel which she had been given access to by the Court.She also relied on comments made to her by counsel for the defendant who supplied her with his closing notes.(This has not been denied).
7. Mr Dickey states that the Crown’s closing address did not contain or acknowledge that there was evidence as set out in the headline and first paragraph above.He then goes on to make a comment about what may or may not have been in the defence address to the jury, which is irrelevant for current purposes.
8. In any event, as a consequence he responded to Mr Gadd’s email of 6 April.The major concern expressed there was the first sentence of the article remained inaccurate, because the children did not admit in evidence they lied so the teacher would be fired.Mr Dickey pointed out that one complainant admitted lying about what she saw occur to another girl, but maintained she herself had been touched, and her motive in lying was to support the friend.A second non-complainant child witness admitted wanting to report the teacher to put an end to the touching, but he maintained he was telling the truth.He did accept he may not have seen one incident, but did witness others.
9. Mr Dickey’s further concern is that the incorrect reporting would suggest to a reader that, the alleged admission essentially amounts to acknowledgment by the three complainants of a conspiracy to pervert the course of justice. He stated it also would also be read as the Crown and the Police acting improperly in continuing the prosecution in the light of such a concession from all three complainants.
10. As a consequence of the above, Mr Dickey accuses Stuff of breaching Media Council Principles 1. Accuracy, Fairness and Balance, and 3. Children and Young People.
11. We have recorded some changes to the story made by Stuff Online. However, we have now been advised by the Chief News Director Auckland that the story was also published on the 6th of April inThe Press, Manawatu Standard, Waikato Times, Timaru Herald, Taranaki Daily News, Southland Times, Nelson Mail and theMarlborough Express. The Press story was slightly different but all published stories stated that the complainants had deliberately lied to have the teacher sacked for shouting at them in class. We are advised that no correction was published in these publications and we assume that the matters raised by Mr Dickey in his emails was not communicated to them.
- 12. In a lengthy response, the Chief News Director Auckland addresses first accuracy, fairness and balance.He says that because of the sheer number of cases heard in the Auckland Court system it is not possible for Stuff’s reporters to monitor every trial.In relation to this case he says Stuff was contacted and advised of the outcome and notified of its potentially newsworthy nature.It is unclear who notified Stuff of this.He said it is common practice for media organisations to report on the outcome of some cases once completed, based simply on the court documents.He said in this case the court reporter applied for access to the court transcript and the Judge granted approval to listen to the court audio of the closing statements.He also goes on to say that defence counsel provided his notes summarising the basis of the defence case.He goes on to say that, based on the closing arguments made, it was his understanding the defence case was that lies were told, that more than one child told lies, that there was an element of collusion, and that “there was a plan to get the teacher fired”.He said this was accurately reported.For some reason, he reports that defence counsel raised no issues about the accuracy of reporting, but we are unsure what relevance this may have.
- 13. He further stated that, given it was an acquittal, it was reasonable the defence case received greater prominence.He acknowledged the initial version of the story omitted some matters of balance and misreported some material facts.He accepted the story should have told the audience that all three of the girls making complaints continued to allege the teacher had inappropriately touched them, and that defence counsel had made and lost an application to dismiss all charges before the case went to the jury.
- 14. Following the complainant’s allowed response; another document was filed by the Chief News Director Auckland, which he had no right under the rules of procedure of the Media Council to file.In our view it takes the matter no further, and it is somewhat overwrought and emotional document.
15. The media play a critical role in reporting court cases. They ensure the courts and justice are open and are the eyes and the ears of the public. But the importance of that role requires that reporting of court cases is accurate.
16. In the response of the Chief News Director Auckland, a comment is made that were journalists restricted to only reporting on cases they physically attended, many significant cases of public interest would never come to light, and the principal of transparency of justice would not be served. That, coupled with the comments relating to the lack of resource, suggests to us that the Chief News Director Auckland considers that in these circumstances normal best practice should not be observed.The Council has previously made plain that the same standards apply to digital reporting as to print editions.In the same way, the lack of resource can never, in the Council’s view, be a reason for not meeting the appropriate standards.
17. Given the jury’s verdict was delivered on the 12th of March there was ample time for a reporter to fully check the transcript of evidence to have certainty of the facts, rather than rely on closings and defence counsel’s own notes. This was not a case where there was “any rush to judgment”.
18. While accepting that it is impossible for reporters to attend all trials, or even all significant trials, we find the approach taken here surprising, even alarming.Even a very junior court reporter would understand that counsels’ closing addresses are not evidence.They are designed to persuade the jury one way or another, and by their very nature interpret or comment on evidence in the manner most favourable to the prosecution or an accused.They can never be a substitute for the evidence itself.In every summing up to a jury a judge will make that very point. It is also unwise of a reporter to accept notes used in closing by one side or the other.Those notes suffer from the same flaws of objectivity that apply to the actual closing addresses themselves.
19. In this case it seems to be accepted that the reporter only accessed the closing addresses.She sought, and was apparently granted, access to the transcript.There is no earthly reason why she would not be given access to the transcript of the evidence itself, but it appears she made no effort to check the evidence. The Council cannot understand why that fundamental step was not taken.This is far, far removed from best practice.In both the original and corrected versions of the story there appear to be actual quotes from witnesses.Certainly a reading of them suggests they form part of the evidence given at the hearing.It is unclear to the Council how a reporter could possibly quote evidence without actually having read the transcript of that evidence or having been present in court.
20. Furthermore, the headline and the first sentence of the original version of the published story, (and the first sentence that continued for some time after the removal of the headline), is quite sensational.Stuff does not now suggest the evidence contains such an admission. Their reliance is on closing and defence counsel’s notes.Not only does that make it the story inaccurate in terms of the evidence; it also carries with it the necessary supposition that, despite an admission that the stories were made up, the Crown improperly continued with the prosecution.Furthermore it effectively alleges criminal offending by the three complainants.
21. It is further obvious that if the girls had in fact made the concession as reported, the Judge inevitably would not have left the matter before the jury but would have dismissed it at the close of the prosecution case.
22. It follows that the story is inaccurate, and in our view an egregious error was not corrected in time to enable Stuff to take advantage of principle 12.The first complaint was received at 3.33pm on 5 April. The first edit did not occur until 6am on 6 April. It is alleged it covered all complaints. It did not as the erroneous and egregious first sentence remained. An error of this nature needed to be corrected very quickly. The headline was changed at 6.45 am but the first paragraph was not changed until 9.02 am. Indeed, the position still taken by the Chief News Director Auckland publication is contrary to that.
23. Furthermore it appears no effort was made to have corrections published in the newspapers listed above. It is the Council’s views that the Chief News Director Auckland ought to have advised the other publications of his email exchange with Mr Dickey and the consequential changes made. Those publications had no other way of knowing what was occurring.
24. We have not addressed a number other issues raised by Mr Dickey. Some of those could only be resolved by reference to the transcript which we do not have. We have focussed on the main complaint.
25. We are not satisfied there was any imbalance, because any story of a Court case that leads to an acquittal is likely to focus more on the defence position, in the same way that, where a conviction is entered, it is more likely to focus on the prosecution case.The same often applies in remarks at sentencing.
26. Nor do we think Principal 3 can be invoked by Mr Dickey.The girls and the school and other witnesses had name suppression.They were not identified.The media must have freedom to report on their evidence.
27. The problem here is that the reporter reported inaccurately, by depending on a closing address, by unwisely depending on defence counsel’s closing notes, and by failing to check the transcript. Such falls well short of what is expected of the media in reporting court cases.
28. Publications should also give some thought to an increasing practice of running comments by counsel and parties to court proceedings into the reporting of court cases. The first is often a subjective view. The second is about the accurate reporting of the evidence and what was actually said in court. There is always a risk of the two being conflated if the two are run together.
29. If a reporter cannot attend a court hearing and wishes to report on the evidence the proper steps are
(i) obtain and check from the court transcript of the evidence in chief and the cross examination.
(ii) clearly differentiate between evidence and counsels’ closing.
(iii) do not rely on closings or notes obtained from counsel as the evidence.
30. The Council does have power to censure a publication. It has never done so. The Council considered imposing a censure in this case but felt the case falls just short of such a drastic step.
31. While the other publications above were not specifically mentioned in the complaint the Council does have power under 7b of the Complaints Procedure requiring a publication to publish a correcting statement in the circumstance that occurred here. We require the publications listed above to publish the statement forwarded with this ruling.
32. The complaint relating to inaccuracy is upheld.
Press Council members considering this complaint were Sir John Hansen (Chairman), Liz Brown, Craig Cooper, Chris Darlow, Tiumalu Peter Fa’afiu, Hank Schouten, Marie Shroff, Christina Tay and Tracy Watkins.
Addendum to the Meredith Connell against Stuff Decision
 After the Executive Director had contacted Stuff regarding the publication of the Council’s decision she received the following email from Patrick Crewdson the Stuff Editor in Chief. It reads:
Thanks for your time on the phone earlier. As discussed, we would appreciate if the Council could reconsider aspects of its decision - in particular, criticism of Stuff for not obtaining the full trial transcript.
On 15 March, we applied for access to court transcripts of the trial and the closing statements.
On 27 March, the court advised that the judge initially declined our application. However, we were told that after the judge had heard from counsel, he was reconsidering. We were asked to resubmit our application so he could make another ruling.
We submitted our application. That same day, 27 March, we were advised the judge granted access to the audio of the closing addresses and we were given a fixed day to come into the court and listen to the audio recording with a court staff member sitting in court with our reporter while she listened.
The judge did not grant access to the court transcripts.
Given that the trial judge had decided the closing addresses were all that we required, we regarded those addresses as providing an accurate summation of the prosecution and defence cases, suitable for reporting.
Considering we worked with the information the judge allowed us to access, we would appreciate if the Council would reconsider its comments around our reporting practice.
Stuff Editor in Chief”
 In response to the Chair’s request for an explanation why this material was not placed before the Council in the course of the complaints procedure Mr. Crewdson replied:
“We did actually address that point, in this sentence: In this case, our reporter applied to the court for access to the court transcript and the judge granted approval to listen to court audio of the closing statements.
Perhaps that explanation was not comprehensive enough. If we'd realized it was going to be a significant point for the Council, we would have elaborated to make sure it was clear.
As to whether the evidence was dealt with in open court, it was a jury trial so to the best of our knowledge it was conducted in open court. If that question is getting to the point of why the judge declined access to the transcript, unfortunately we weren't offered a reason and could not speculate.” (Emphasis by Mr. Crewdson.)
 We are at a loss to understand why Stuff failed to bring this important information to the attention of the Council. It ought to have been made available to avoid what has now occurred and Stuff bears responsibility for that decision.
 While the Council should have been given all the relevant information we acknowledge that Stuff made plain that they relied on the two closings and defence counsel’s notes as supplied to the reporter. We also need to retract our statement that we could see no earthly reason why the transcript would not be made available. Clearly, the judge had a reason not to release the transcript but he apparently did not make that reason available.
 While this changes certain matters before us overall it compounds the reporting. We will deal first with the lack of the transcript of evidence. No reason appears to have been given by the judge for the refusal to make this available. The new material does show that Stuff acted with reasonable timeliness which we acknowledge. Like Mr. Crewdson the Council cannot speculate why the Judge refused access to the transcript. However, if there had been any sort of suppression orders in place (other than the names of the complainants, some witnesses and the name of the school we are aware of) we are confident Mr. Dickey would have brought that to our attention. So we retract our comments as to those steps taken by Stuff.
 Mr. Crewdson says:
“Given that the trial judge had decided the closing addresses were all that we required, we regarded those addresses as providing an accurate summation of the prosecution and defence cases, suitable for reporting.”That may very well be true but it misses the point. We repeat our comment from  of our decision:
“Even a very junior court reporter would understand that counsels’ closing addresses are not evidence”.
Yet what Stuff has done is report matters from the closing in the headline and the first sentence of the original story as evidence. It is not qualified by stating it was part of defence counsel’s closing which is quite a different matter from evidence. Furthermore, as we noted at  of our decision quotes appear in the story as if they came from the evidence. The only other source would have been the witnesses themselves and there is no suggestion the reporter spoke to them.
 If Stuff wished to rely on closings, and defence counsel’s notes, they needed to make it clear in the story that the source of what they were reporting was defence or prosecution’s closing (as the case may be) not evidence. Stuff failed to do that. They allowed it to appear that the complainants conceded lying to get the teacher sacked in their evidence. That is inaccurate.
 A further point arises in relying on these closings. We did not uphold the complaint regarding balance based on our knowledge of the matter at the time of our decision. That now changes. It appears that there was some contact with defence counsel, extending to him giving the reporter his notes. But if reliance was merely on the closings then we are satisfied that it was incumbent on the reporter to achieve balance by contacting the prosecutor. We understand that was not done before publication. If all the additional material had been before the Council it is likely we would have found a breach of the balance principle as well as the inaccuracy.
 For completeness we note Mr. Dickey’s evidence that he spoke to the reporter who acknowledged the mistakes. That has not been denied.
 As we noted in the main decision apparently Stuff lacks the resources to have reporters in all court rooms. We can well understand that. If later it is decided that the public interest requires a court case to be reported in such circumstances the only way that can ensure the story is accurate, fair and balanced is if the reporter has access to the evidence. As we say we do not know why the reporter was denied the evidence in this case. But to address the situation in the hope of future improvement we will send a copy of this decision and addendum to the Media in Courts Committee.
 We repeat it is court reporting 101 to clearly distinguish between counsels’ closings and evidence. The former are not evidence. The failure to alert the other publications to the need to make corrections is a breach that is almost as serious as the inaccuracy.