W G CLAYTON AGAINST THE EVENING POST

The New Zealand Press Council has not upheld a complaint arising from the widely publicised case of a Whangarei District Court Judge charged with offences concerning his travelling expenses. Mr W.G. Clayton of Paraparaumu, a retired barrister, laid his complaint, as a member of the public not involved personally in the case.

The essence of the complaint against the newspaper concerns the publication in July 1998 of an interim judgment given by the trial Judge before the trial proper in July 1997, of the defendant for criminal charges arising out of his expense claims. Further detail must be supplied in which timing plays a significant role. In the middle of 1996 information was passed to the Chief District Court Judge about the conduct of two District Court Judges over their travelling expenses' claims. It was an unusual case that the authorities decided required a different approach from handing the matter straight to the police for investigation. The strategy of appointment of an independent counsel was adopted, and Chief District Court Judge Ron Young appointed Mr. John O. Upton Q.C. to investigate and report on the results of his findings. That procedure ordained the production of a written report which was ultimately sought to be used in the criminal trial in the case where the Judge chose to plead not guilty. The other Judge involved pleaded guilty.

The article to which the complainant takes exception appeared in The Evening Post on 28 July 1998; almost exactly one year after the jury returned verdicts of not guilty on all charges. The newspaper article had been prepared from the interim judgment issued a year previously by the trial Judge. As the jury trial was yet to take place the Judge made an order that there was to be no publication until after the hearing and determination of the prosecution. The jury verdicts of not guilty determined the prosecution. Mention was made in the article that the previous day a national news channel reported the judgment's findings as a news item. It was clearly in the wider public arena before the newspaper article.

The complaint of Mr Clayton was expressed in these terms: “When a defendant is acquitted following due trial in the manner prescribed by law, it is not in the public interest, nor fair to the defendant, to publicize a contrary belief as to guilt by a person who has before that trial conducted an independent inquiry into the same facts.” This is but a very brief summation of the details of the complaint which was thorough, and included strong criticism of the Upton report. In a nutshell Mr Clayton’s point was “…[O]nly the jury’s verdict mattered.”. The Evening Post on 8 September 1998 published a fairly lengthy letter from Mr Clayton (abridged by agreement) criticising the newspaper for the article, and the Upton report.


The editor of The Evening Post responded that the decision to publicise the QC’s report had been taken after careful consideration and legal advice. In the end it was decided to go ahead on the basis that the trial judge did not permanently suppress the report or his judgment upon it; the contents of the report had been published in legal journals; the outcome of a trial did not automatically end discussion of high profile cases; and the Beattie case had continued to be a subject of public debate.

The article was considered by the Council to be a fair and balanced review of this intractable case in which one judge pleaded guilty to the charges he faced whilst another chose the course of defending the charges and was acquitted by a jury. This salient feature was mentioned in the article which also made abundantly clear that the view of Judge Beattie’s guilt was that of the investigating counsel alone, and had been firmly rebutted by Judge Beattie who at all times remained adamant he was not guilty of any offences. The headline “Beattie abused the system- - QC report” was correctly stated as counsel’s opinion. There was no complaint of any material errors in the newspaper article. The article brought out the firm rejection by the trial Judge of the Upton report as part of the prosecution case. Finally, contrary to Mr Clayton’s assertion the manner of publication of the article was not “sensational”, in the Council’s view.

The nub of the complaint was the publication of the interim judgment, which was concerned with a ruling on the admissibility of evidence in the then forthcoming trial. The Council does not overlook that Mr Clayton asserts “The article was defamatory of Judge Beattie.” but that is not an issue for the Council.

Mention has earlier been made that the Chief District Court Judge employed the strategy of an independent counsel preliminary investigation, which procedure has already caused controversy outside this jurisdiction. With the prosecution attempting to place the written report containing counsel's opinion on the guilt of the defendant into the evidence in the trial it could justifiably be said it was the actions of others, not the newspaper reporting the High Court judgment, that caused counsel's opinion to be made public.

It is not the function of a newspaper as a last resort to exercise self- censorship by suppressing a High Court judgment of unquestionable public interest. It was the court judgment that revealed the contents of the Upton report and the views held by its maker. It was absolutely necessary for the trial Judge to do that so as to dispose of the application made by the prosecution. Because that was the substance of the judgment, that was not a reason, or ethical obligation, to suppress the judgment.

The complaint is not upheld.

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