BRENT BAILLIE AGAINST STUFF
Case Number: 2923
Council Meeting: JULY 2020
Decision: Not Upheld
Balance, Lack Of
Comment and Fact
(1) On May 18, 2020 Stuff published a story online Oamaru businessman's drink-driving case thrown out. The story reported on a Dunedin District Court judge-alone drink-driving hearing, which ended with the charge being dismissed. The judge’s decision has been made available as part of this complaint – Stuff were declined the decision after the trial ended.
Brent Baillie complains that the story breaches Media Council principles:
1: Accuracy fairness and balance 2: Privacy 4: Comment and fact
(2) The story says a drink-driving case against businessman Brent James Baillie was ‘thrown out of court’ after a legal matter was discussed ‘behind closed doors’. Mr Baillie had appeared at a judge-alone trial on the charge.
(3) The story says that during the trial, Mr Baillie’s lawyer revealed there had been a secret recording made at the Dunedin Police Station. The recording was on Mr Baillie’s cellphone, which was in a police officer’s pocket while Mr Baillie was talking to his lawyer.
(4) This led to a ‘closed door’ discussion, and the case was later thrown out. The story also referred to evidence given earlier in the hearing, by a Senior Constable and a plane passenger.
(5) The story said the plane passenger who sat near Mr Baillie confronted him at Dunedin Airport on August 22, 2018, after a flight landed from Auckland. The passenger was concerned Mr Baillie had been drinking and should not be driving. The story said Mr Baillie was belligerent after police spoke with him.
(6) The story reported that according to court documents, Mr Baillie had a blood alcohol reading of 122 milligrams of alcohol per 100 millilitres of blood. The blood alcohol limit is 80mg of alcohol per 100ml of blood.
The story said Mr Baillie declined to comment when approached by Stuff after the case was dropped.
(7) Mr Baillie says the story is ‘littered with untruths’ and that as the charge was dismissed it was ‘akin to a finding of not guilty’. He wants Stuff to remove the story from online.
7a) he is not a businessman – he is an employee.
7b) stating there was a secret recording was untrue – his phone was unlawfully confiscated by a police officer who pocketed the phone, which was recording events ‘as they unfolded’.
7c) the introduction of the secret recording and the ensuing closed door discussion was not the reason the case was thrown out. Mr Baillie says stories published by Stuff and theOtago Daily Times ‘disclosed evidence’ being ‘controlled’ by the judge, and this led to ‘charges’ being dismissed. The judge observed that media had “jumped the gun’.
7d) a witness was wrong to say he sat near Mr Baillie, as he (Mr Baillie) was at work in Oamaru.
7e) it is untrue to say there was a brief chase and Mr Baillie was processed for drink-driving – this was fabricated by the reporter.
7f) it was untrue to report a police officer stating that Mr Baillie smelt of alcohol, was unsteady and slurring – this was fabricated by the reporter.
7g) it was untrue to say Mr Baillie refused a breath-alcohol test – Mr Baillie says court documents prove a breath screening test (not breath alcohol) was refused and all other testing was carried out.
7h) it was wrong to report his blood alcohol level as this was unproven, and never presented as evidence.
Mr Baillie also says that the judge’s decision dismissing the case did not name him, nor was he named during ‘witness testimony’.
(8) For Stuff, Kamala Hayman says the story was an accurate report of court proceedings. She cites the provision of qualified privilege, under the Defamation Act 1992, which allows media to publish a fair and accurate account of what has been said in court. She says no suppression orders were made during this case.
(9) Re the secret recording – Ms Hayman says it was secret, in that those party to the conversation did not realise they were being recorded. The story does not state whether this recording was intentional.
(10) Ms Hayman states that Mr Baillie clearly fits the Merriam Webster dictionary definition of a businessman - ‘a man who transacts business, especially a business executive’.
(11) Re Mr Baillie’s claim that media “jumped the gun” by reporting on the case during the lunch break – Ms Hayman says Ministry of Justice media guidelines make it clear that media can publish recordings, including words, images and video, of court proceedings almost as they occur, as long as there are no suppressions ordered. The only requirement is for “a minimum 10 minute delay”.
(12) Re Mr Baillie’s reference to a witness statement being untrue – Ms Hayman says it is not the media’s role to determine the veracity of witness statements, only to ensure a fair and balanced account of proceedings.
(13) Re Mr Baillie’s assertion that the judge did not use his name - it is clear from court documents that the judge was referring to Mr Baillie, and Mr Baillie himself appeared in court.
Mr Baillie’s Final Comment
(14) Mr Baillie says his complaint regarding opinion pertains to the story stating “The case looked straightforward”.
(15) As part of his Media Council complaint, Mr Baillie submitted a copy of Judge KJ Phillips’ written Minute which outlines why the charge against him was dismissed.
Mr Baillie quotes selected passages from Judge Phillips in his final comment. The quotes include:
15a) “I held concerns about (the passenger’s) evidence”.
15b) “I take judicial notice of the fact that it would be highly improbable for a person to have got himself drunk on the Air New Zealand Happy Hour on the flight”.
15c) “We have issues of credibility of police officers’ evidence. We have issue in relation to (the passenger’s) recall in his evidence. We do not appear, in my view of the evidence, to have any identification of Mr Baillie as being the defendant”.
15d) “I am going to dismiss it (the charge) on the basis that there is not any evidence as to the blood alcohol level before me, but more importantly there is not evidence from the independent witness that the man, that he spoke to the man that was on the plane, the man doing the drinking, the man in the car, was Mr Baillie”.
15e) Mr Baillie also says he has supporting evidence that he was at work on Oamaru on ‘’that date”.
(The Media Council has shared Judge KJ Phillips’ Minute with Stuff as part of the discovery process of this complaint).
Stuff’s Final Comment
(16) Ms Hayman says Stuff had applied unsuccessfully for the written decision, and appreciated the opportunity to read it. Ms Hayman says she “remains concerned’’ by the suggestion in the judge’s Minute that the identity of the alleged drink driver remains unconfirmed.
“Even if (the passenger’s) evidence is entirely dismissed, it remains the case that Brent James Baillie was the man charged by police and was the man sitting in the courtroom as the defendant.’’
(17) Ms Hayman says her understanding is that the repeated reference by Mr Baillie (and the judge) to the accused’s identity remaining unconfirmed, was due only to a technical failure to ask the independent witness to specifically identify the accused in the courtroom.
“It is important to remember that Mr Baillie’s name was on the court documents and he was the defendant sitting in the courtroom. At no point did his lawyer suggest his case was one of mistaken identity.”
(18) The Media Council agrees with the judge’s observation in his written decision – this was an unusual case.
(19) Media are afforded Qualified Privilege, under the Defamation Act 1992, which allows open court allegations to be reported in a fair and accurate manner. There were no suppression orders made. Stuff was entitled to report Mr Baillie’s name, the charge he faced, the evidence given in court and the outcome of the hearing.
(20) Therefore the Media Council’s role in examining this complaint narrows down to whether the following Media Council principles were breached.
Principle 2: Privacy.
(21) Stuff was entitled to publish Mr Baillie’s name, the details of the charge, the witness allegations and the outcome of the trial.Not Upheld
Principle 4: Comment and Fact.
(22) Mr Bailie contended that this unattributed sentence was opinion: The case looked straightforward until Baillie’s lawyer Nathan Laws introduced a secret recording taken at the Dunedin Police Station. The Media Council considers that this was a fair observation about what appeared, at the beginning, to be a standard judge-alone case.Not Upheld
Principle 1: Accuracy Fairness and Balance.
(23) Mr Baillie makes multiple accuracy allegations. The Media Council believes the following are the two key Principle 1 points that need addressing.
Point A - The story states that witnesses named Mr Baillie
(24) Mr Baillie says witnesses who gave evidence did not name him in court.
The Stuff story says He (the witness) alleged Baillie had four wines on the flight, after he initially asked for a rum. He was concerned that Baillie, like him, was planning on driving to Oamaru after the flight, a journey of 110 kilometres.
(25) In the Minute of Judge KJ Phillips, it is clear that the legal reason the charge is dismissed, is because no witness who gave evidence referred to/identified Mr Baillie.
(26) The Minute also details how two police witnesses who were yet to give evidence had read anOtago Daily Times (not Stuff’s story) May 18 news report of the trial. Judge Phillips states that the reporters (plural) had ‘jumped the gun’ by publishing the story and says “I put it down to their professionalism, no more than that.” The judge also acknowledges the evidence published had not been suppressed.
(27) This led to Judge Phillips ruling that the two incoming police witnesses had to be excluded, after seeing theOtago Daily Times article.
(28) The judge states: “The police prosecutor realised he was between a ‘rock and a hard place’ as a result of that ruling. But I have taken it from him not to seek leave to withdraw the case as I am going to dismiss it. I am going to dismiss it on the basis that there is not any evidence as to the blood alcohol level before me, but more importantly there is not evidence from the independent witness that the man, that he spoke to the man that was on the plane, the man doing the drinking, the man in the car, was Mr Baillie.”
(29) The Media Council notes that Stuff were declined access to this decision. Mr Baillie’s name was listed on court documents, and other than in the judge’s decision, no issue of his identity was raised in court, that the Media Council is aware of. Regardless, the Stuff article is incorrect to report that the plane passenger (and Senior Constable Wheeler) referred to Mr Baillie.
(30) This error is mitigated by the fact that Stuff did not have a copy of the judge’s decision, which raises this point. It appears that until the judge’s decision – made available to Stuff as part of this complaint - verified Mr Baillie’s complaint on this point, Stuff were not aware of, or could not confirm, this error.
(31) Point B – the reason the case was dismissed
(32) Mr Baillie disputes that the disclosure of the secret recording led to a legal matter discussed in a “closed door” meeting, and the charge was later dropped.
(33) Mr Baillie supplied the Minute (written decision) of Judge KJ Phillips as part of his complaint. The Media Council notes that Stuff was declined access to the Minute. In the absence of this information, Stuff reported the outcome of the case by stating:
The case looked straightforward, until Baillie's lawyer Nathan Laws introduced a secret recording taken at the Dunedin Police Station. The recording was on Baillie's cellphone, which ended up in the pocket of a police officer as Baillie talked to his lawyer. That led to a legal matter being discussed behind closed doors. The case was later dropped.
(34)Stuff asked Mr Baillie for comment on the case. He declined. Stuff also asked for a copy of the judge’s decision, and was declined. Stuff appears to have reported what it saw in open court – a meeting was held after the secret recording was revealed, the charge was later thrown out. This may not be incorrect, but it is clearly not the full picture. As the story currently stands, a reader will infer the wrong reason for the dismissal of the charge.
(35) The Media Council believes this portion of the story is mitigated by Stuff’s attempt to seek the written decision, and seek further comment from Mr Baillie
(36) Given the mitigating points in (29), (30), (34) and (35), the Media Council does not uphold this complaint under Principle 1.
(37) However, as per (29) and (34), the story is inaccurate and does not tell the full picture re the charge’s dismissal.
We note that Principle 12 of the Media Council states:
Corrections: A publication’s willingness to correct errors enhances its credibility and, often, defuses complaint. Significant errors should be promptly corrected with fair prominence. In some circumstances it will be appropriate to offer an apology and a right of reply to an affected person or persons.
(38) As a result of this complaint, Stuff has been given a copy of Judge KJ Phillips’ Minute/decision and is able to correct or update the existing story, or write a new one.
The Media Council would encourage Stuff to use the Minute to ensure the case is now accurately reported.
Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Marie Shroff, Hank Schouten, Christina Tay and Tim Watkin.