ERIC FORSTER AGAINST STUFF
Case Number: 3162
Council Meeting: DECEMBER 2021
Decision: Not Upheld
Balance, Lack Of
 Eric Forster complains about an article Misdirected: How one judge’s failure left a trail of injustice behind published by Stuff on 3 October 2021. The complaint falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance. The complaint is not upheld.
 The article focused on the conduct of one District Court judge when running criminal trials involving a jury. One of the key things a judge must tell a jury during the course of a criminal trial is how to work out whether or not the standard of proof (beyond a reasonable doubt) has, or has not, been met in relation to the person who is on trial. Describing this in a consistent way can be difficult and judges have been given direction on the point by the Court of Appeal in a case colloquially known as Wanhalla.
 The story is wide ranging. The aspects of it relevant to this complaint are:
- That a large number of convictions had been overturned by the Court of Appeal on the basis that in each case the judge in question made an error in explaining the meaning of ‘proof beyond a reasonable doubt’ by not addressing each of the points identified as necessary in Wanhalla. In particular, in each case the judge had not said that defendants were innocent until proven guilty or that being “sure” of someone’s guilt was an extremely high standard.
- The story explored the effect having these cases overturned had on both victims and accused. It also explored the Court of Appeal decisions noting similarities between the judge’s conduct in each case.
- It noted a statement by the Chief District Court Judge that the judge in question had told him that after having been corrected by the Court of Appeal in 2018 he had given an approved direction about reasonable doubt in each case.
- It contains an overall question about how this judge might be held accountable and how many other cases might have resulted in unsound convictions. It notes the efforts of one lawyer to try and establish how many jury trials this judge presided over but that a formal review is very unlikely given the view of the Crown Law Office and Attorney General that the appropriate process was for a person concerned about their conviction to bring an appeal.
 Eric Forster complains that the article is inaccurate and unbalanced:
i. The article inaccurately said that the case of Wanhalla set a precedent for how judges must describe the concept of proof beyond a reasonable doubt. Rather, the case set down non-prescriptive guidelines.
ii. From 16 May 2018 on (the date on which the Court of Appeal indicated that a Wanhalla direction was mandatory) the judge complied with this. The article did not report this as a fact, but only said that the judge had told the Chief District Court Judge that this was his practice.
iii. In relation to one of the cases noted as involving a successful appeal (with the accused being interviewed about how the experience had impacted on him) the Wanhalla misdirection was only one appeal point that lead to the successful appeal (and on its own would not have been enough). As a result, the article was misleading.
iv. There are many parts of a Wanhalla direction. The article was not balanced because it did not balance what the judge had instructed the jury about and what he had omitted to instruct the jury about. The story was cast as an absolute failure. It would have been better to say that the judge’s instructions did not go far enough, because they omitted to say that the “defendant was presumed innocent” and “a reasonable doubt is an honest and reasonable uncertainty about guilt … after you have given careful and impartial consideration to the evidence”.
v. He notes the ‘vulnerable’ position that judges are in given the very difficult nature of their job and the decisions they have to make, coupled with an inability to defend themselves. Articles that are critical of judges can wrongly legitimise grievances. Care should be taken to make sure any report about a judge’s conduct is accurate and balanced. This article ignored key factors that would have provided readers with a fairer view of the judge’s work. Stuff got it wrong.
vi. In his final comment Mr Forster points to particular aspects of the article he does not consider Stuff has addressed in its response. Broadly these are subsumed by his other complaints, although he does highlight that although the Court of Appeal had said there was a “real risk” a jury may have found people guilty when they were not (a “miscarriage of justice”), the article is written as if the cases were miscarriages of justice.
 Stuff’s Editor in Chief Newsrooms responded to Mr Forster’s complaint point by point:
i. The story did not say Wanhalla was mandatory. Rather it said that judges must describe the concept of proof beyond a reasonable doubt, highlighted aspects of the Wanhalla decision that indicated it is not necessary to read out the direction word for word but judges do need to make three key points.
ii. As there has not yet been an audit of all the cases presided over by the judge, it was not possible to independently verify if the judge in question had any more cases overturned following the Court of Appeal decision in May of 2018 making Wanhalla mandatory. Instead, the article referred to the judge’s word – given to the Chief District Court Judge.
iii. The story states “His convictions were quashed, partly because of an error by the trial judge”. This was not misleading.
iv. The story was balanced as it described the defects in the judge’s application of Wanhalla. It noted, for example, “He gave directions, but they differed widely from the model, and he did not instruct the jury the defendant was presumed innocent. [This] fell … “decisively short” of the standard because there was no discussion of what “sure” meant.” This indicates that the judge had not applied those essential bits of the Wanhalla direction and this lead to the convictions being overturned.
v. On the vulnerability of judges, Stuff considers that the story was well researched, accurate, balanced and they have received no other complaints. The reporting was focused on the appeal process and documents relating to that found the judge wanting, this was not a result of Stuff’s reporting.
 Overall, Stuff considers that the article was fair and balanced. It centred on ten miscarriages of justice and the judgments that led to them.
7] This case falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance, which states:
Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view …
 The Media Council does not consider that this principle has been breached. It is not necessary for journalists, when writing for the public, to capture the distinctions and detail that is necessary in court.
 The story’s description of Wanahlla appears accurate. It clearly states that it is not necessary for judges to read the script word for word, but is necessary to capture several key points. It also notes the increasingly mandatory nature of the Wanahlla ‘script’ over time.
 It was not misleading in the context of a news story to summarise the cases without reference to other grounds of appeal or note that it was only in combination that some were successful. This is a level of detail that may confuse readers and it appears that problems with the judge’s instructions to the jury were a factor in each of these cases. The story also notes that by the time the Court of Appeal got to the fifth case, the other grounds of appeals were not being addressed (i.e. they turned solely on this point).
 The descriptions of the judge’s application of Wanhalla appear balanced. The central point here was that something had gone wrong, on a number of occasions, in the judge’s summing up. It was not necessary to specify for each case what aspects the judge had got right and which bits the Court of Appeal thought had not gone far enough. The story referenced a number of cases and in summarising them drew many of the adverse comments in the article directly from the Court of Appeal judgments, including transcripts of what occurred in court.
 We do think that the article could have more carefully addressed the question of whether the judge had given the ‘correct’ Wanhalla direction in all cases since the Court of Appeal indicated that it was mandatory in May 2018. Stuff suggests that it relied on the judge’s statements to the Chief District Court Judge because there has not been an audit of the judge’s decisions and it is, therefore, impossible to tell for sure. However, while we do not agree with Mr Forster that the inference here is that the judge lied to the Chief District Court Judge, Stuff had clearly done its own research into the judge’s cases. As it notes in the story it “has been unable to find an unsuccessful appeal on the Wanhalla point”. Stuff could equally have noted, if true, that none of the appeal cases it found were decided on the basis of a trial that took place after May 2018. If it had found such a case that would have been newsworthy. Simply relying on the judge’s statement to the Chief Judge did leave the question open in a way that might have led readers to wonder if the judge had continued with his own practice even after May 2018. However, while confusing and not best practice, we do not think this goes so far as to warrant an uphold.
 The Media Council accepts that judges have a very difficult and important job to do and that is not possible for them to speak out to defend themselves. However, the security of tenure they are afforded in order to “… do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will” places them in a position where there is limited accountability. We consider that the media has a vital role in our democracy in holding all those who hold power to account. Providing some transparency to what goes on court and how judges perform and behave is an important aspect of this. Of course, there must be accuracy and balance. This story displays both.
The complaint is not upheld.
Media Council members considering the complaint were Liz Brown (Chair), Rosemary Barraclough, Craig Cooper, Jo Cribb, Ben France-Hudson, Sandy Gill, Hank Schouten, Marie Shroff and Tim Watkin.
Hon Raynor Asher and Jonathan Mackenzie took no part in the consideration of this complaint.