The New Zealand Press Council has not upheld a complaint made by Mr Craig Lundy concerning the publication of a photograph of him in The Dominion on 9 March 2002. The circumstances in which the photograph was taken are not fully revealed on the papers before the Council but it is accepted the photograph was taken outside the courtroom.

Mr Craig Lundy was a witness at the trial for murder of Mark Edward Lundy, which took place at the Palmerston North High Court commencing February 2002. Mr Lundy had applied for and had been granted by the trial judge what is conveniently called B6 protection against publication of any material identifying him by way of pictorial or voice means.

After lengthy consultation with all principal interested parties (including media representatives) on behalf of the judiciary Chief Justice Sian Elias published in May 2000 “GUIDELINES AND VOLUNTARY CODE OF CONDUCT FOR EXPANDED MEDIA COVERAGE OF COURT PROCEEDINGS”. This case concerns Rule 2B6(i), that states as follows:

“Any witness who conveys to the Judge prior objection to being identified shall have their identification (whether pictorially or by voice) protected.”

Furthermore in the notes headed Voluntary Code of Conduct under 2 is the following:

“There are likely to be some media organisations who decide not to take part in in-court coverage and who will therefore be gathering news material in the conventional way. In that case the Guidelines do not apply to that news organisation.”

The central purpose of the Guidelines, as stated in the covering promulgation signed by the Chief Justice, is to provide a consistent framework for in-court media coverage. The B6 protection also extends to witnesses, where applicable, out of the courtroom.

It is central to the decision in this complaint that a procedure exists in which individual members of the media make application to the trial judge to be present inside the courtroom to take television, still photography and voice recordings in that particular trial.

In the trial of Mark Edward Lundy applications were made before trial on 5 February 2002 and the trial judge made appropriate orders permitting certain media representatives to be present in the courtroom able to take recordings. It is common ground that The Dominion made no such application.

When the complainant gave evidence he asked for and was granted by the trial judge B6 protection. As already stated the Guidelines are drafted so that only those who apply come within the regime of the Guidelines. One readily understands that a witness from the public who asks for and is granted by the trial judge B6 protection would be of the understanding that all media are thus bound. But not so, as only those who made the application are bound.

In the New Zealand Press Council adjudication No. 755 this very point was made by the Council in upholding a complaint against The Dominion. The last sentence of the adjudication states:

“The Council also notes that there are inherent difficulties in the application of rule B6 capable of causing confusion for the public, but that matter is left to the appropriate authorities to address.”

That adjudication was published on 2 October 1999 before the final promulgation of the Guidelines in May 2000.

The Council has sympathy for the complainant but in its view the Guidelines are clear in that The Dominion, not being an applicant, is not bound by the Guidelines and in particular B6. It chose to retain its general right to publish a photograph taken in a public place.

It is up to the Media in Courts Committee to remedy the anomalous situation that has arisen

The complaint therefore is not upheld.


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