KERRYN MITCHELL AGAINST THE DOMINION POST

Case Number: 2868

Council Meeting: FEBRUARY 2020

Verdict: Not Upheld

Publication: The Dominion Post

Ruling Categories: Court Reporting
Misleading

Overview

On January 5, 2020 The Dominion Post published an article that was also on the Stuff website, headed “Stalker to get out of prison early but not to come to Wellington”.It outlined that Kerryn Mitchell, aged 51, had developed a fixation on a man (with whom she had had a relationship which ended in 2005), who with his partner had become the victim of various unlawful acts by her.She had been targeting the Wellington couple for more than 13 years, “sending letters from prison, showing up at their home or making nasty calls and texts”.A protection order had been in place since 2008.

It outlined the steps that the couple had taken to give themselves security at considerable expense, and Ms Mitchell’s long history of convictions for quite serious crimes against the couple.It referred to a recent appeal decision of Justice Francis Cooke in the High Court at Wellington, which had outlined the history of her offending, and where he had shortened a prison sentence from two years nine months imprisonment to one year six months imprisonment on the basis that the sentence appealed was outside the available range of sentence.

There is under the heading “Read More” reference to other articles outlining her offending against the victims.

The Complaint

The complaint is made on behalf of Ms Mitchell by her barrister Chris Tennet.He asserts that the article is falsely presented as a Court report from a staff reporter who was present in Court.It was, he says, not in fact a report of the Court proceedings.Moreover Ms Mitchell characterizes the article as her being stalked by the Media.If it had been properly researched the article would have been quite different.It gave the misleading impression that the reporter had attended the hearing, and that the article referred to matters not covered by the High Court judgment.

He refers to an article in the NZ Herald on the same day that he says was a more accurate report.He makes the complaint “…in my own respect as a Court lawyer who was present at the appeal (unlike the Dompost Staff)”.

The Response

The Dominion Post responded that the article was not misleading as it said “court reporter” and not “reporter in Court”.It is impossible to attend many cases, given factors like duration and cases being conducted at the same time. So reliance is placed on court documents and judgments. This Court decision was based on written submissions, which set out all the arguments, and which a reporter can access.The phrase “Court Reporter” enables them to employ someone who reports on a wide range of Court proceedings, often not attended by the reporter. In a similar way they also employ a reporter for the Council and its many committees, referred to in the byline as “Council Reporter”.

It is said that the key outcomes of the case were accurately and fairly reported.It is rare to run cases against a stalker, but this was an exceptional case.The different type of article in the New Zealand Herald came down to an issue of a different angle or approach.

The Decision

The statement that is the specific focus comes directly under the heading before the article begins, and reads “Wellington District Court reporter 13.03, Dec 12 2019”.On a plain reading and in context, it is a statement that the article has been prepared by that reporter and published at that time and date.The reporter is not named.

This is not a statement that the reporter was in Court at the time of the hearing.The words we have set out do not carry that plain meaning.The reference to the reporter is a statement about the title of the reporter, not about where the reporter was at any time.

It could be arguably implied that the reference to the writer being a Court reporter meant that the reporter had been in Court at the time, if the context supported such an implication.But such an implication cannot be implied in the context of the article as a whole.The article is not about the Court hearing.It is about the decision that was delivered by the judge.That decision was to reduce the period of imprisonment.The article also touched on parts of the factual background that led to the decision, as well as other features of Ms Mitchell’s behavior towards the victims.There is no reference to anything said or done in Court.The focus of the article is what was said in the High Court decision.

This is unsurprising as the article is not about a trial.It is about an appeal decision, following a hearing where lawyers have made written submissions about whether a sentence imposed by a District Court was manifestly excessive.Although such appeal hearings will on occasions attract Court reporters who attend, and who may refer in articles to what was said between the counsel appearing on the appeal and the judge or judges, this was not one of those articles.No such interchanges are reported.It is the decision that followed, not the hearing that took place before it was delivered, that is referred to.

We see no errors or unfairness in the other matters that are reported in addition to the decision.They are relevant in explaining what is an unusually long and extreme history of harassment, requiring numerous interventions by the Police and others to try to protect the victims, and deter and punish the perpetrator. The other offending referred to was part of the relevant background.

We also do not consider that the other articles referred to in the complaint give rise to any concern.They have reported on matters in a different way, but that is entirely to be expected in news reporting.

Summary

We see no misrepresentation in the role of the reporter who wrote the article, and no error or other fault in the reporting.

The complaint is not upheld.

Media Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Katrina Bennett, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff, Christina Tay and Tim Watkin.