The complainant is the defendant in criminal proceedings that are currently before the courts. A pre-trial interim name suppression order prohibits the publication of the complainant’s name, address, occupation and any particulars likely to lead to identification.

The complaint, which is partially upheld, relates to a story in The Devonport Flagstaff, on 19 May 2005, reporting on part of the depositions.

The complaint has four parts: breach of suppression order, inappropriate pre-emption of the Court’s decision on committal, inaccuracy and lack of balance. The Press Council declines to adjudicate upon the issue of alleged breach of the suppression order. One aspect of the complaint of inaccuracy is upheld. The remaining grounds of complaint are not upheld.

Breach of suppression order and contempt of court

Breach of a suppression order is an offence against s 140 of the Criminal Justice Act and it is not for the Press Council to determine criminal guilt. The Press Council has, in exceptional circumstances, considered complaints that required it to form a view about whether a suppression order had been breached. There is nothing exceptional about the circumstances in this case. If the complainant wishes to press his case, he must do so through the courts.

For completeness, the Press Council notes that the complainant also argues that the report may jeopardise his right to a fair trial by prejudicing potential jurors. Again, that is not a matter for the Press Council. It is a matter for the complainant to raise with the Solicitor-General and/or the trial judge.

Pre-empting the Court

The story closed by noting that the depositions were continuing and that “a trial is expected to take place next year.” The complainant objects that the word “expected” pre-empted the decision of the Court on whether to commit him for trial and that it was pure speculation. It is not an uncommon way to end reports on pre-committal proceedings. It is a rough guide to the future progress of the case, generally based on the prosecutor’s knowledge of the Court’s trial schedule. The word “expected” clearly signals that the matter is yet to be determined. There is nothing inherently inappropriate in that practice. However, care is required to ensure that the reportage remains accurate. In the present case, the depositions were only part heard and the Court was yet to hear argument relating to matters that were important to the defence case. It would have been wiser to stick to the standard closing formula “proceedings are continuing” but, as written, it was not inaccurate or misleading.

Inaccuracy and lack of balance

The complaints of inaccuracy and lack of balance are intertwined. In essence, the complainant claims that the story lacked balance in that it was tilted in favour of the prosecution case. That, in large part, (he says) is because the evidence of a prosecution witness was misquoted.

The story reads:
In her evidence at depositions [the witness] said it was clear the funds had been embezzled for private gain. The defendant claimed he had invested the money in bonus bonds and at one stage arrived at [the office] with $2000 from the bonds in an offer of reparation. However by that stage [the bank] had already repaid the money and the matter was being investigated by the police, [the witness] said. The defendant has denied taking the money without authority and had used the cheques to obtain goods in lieu of payment owed to him.

It is obviously a paraphrase of the witness’s evidence; quotation marks were not used and it was a condensed version of question and answer testimony. However, relying on the transcript of evidence taken in Court, the complainant objects that the words “for private gain” (which were not said) change the meaning of the word “embezzlement” (which was said) and that the phrase “offer of reparation” (which was not said) implies an admission of guilt (which is denied).

As to the first part, the words “for private gain” do not add to, alter or qualify the meaning of the word embezzlement in any way so it is not an inaccurate summary of what the witness actually said. This aspect of the complaint is not upheld.

The second part is not so cut and dried. The word reparation means payment to redress a wrong and it entails an admission (or finding) of guilt. Reading the relevant passage of evidence, it is clear that the witness interpreted the complainant’s actions as an attempt to restore embezzled funds – in other words an offer of reparation. But she did not actually use the phrase “offer of reparation”. It was, therefore, inaccurate. The story went on to clearly summarise the defence case but that did not correct the error. This aspect of the complaint is upheld.

The third part of the complaint of inaccuracy is that the story summarised the prosecution case “according to the police summary of facts presented to the court”. The complainant argues that the summary of facts was never actually presented to the Court. The Press Council does not have access to the Court file. However, even if it was incorrect to say that the summary had been presented to the Court, the error is a trivial one that does not require the intervention of the Press Council. The complainant accepts that the summary was prepared for the Court and given to the reporter. He takes issue with the contents of the summary but he does accept that it is an accurate summary of the prosecution case. This aspect of the complaint is not upheld.

The complaint of lack of balance is not upheld. Read as a whole, the story does not lack balance. The report is one of proceedings that are ongoing. The essence of the defence case – a denial of wrongdoing and alleged procedural irregularities – were reported. Further detail about the defence case will no doubt be reported when it is presented at trial.


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