Legal Beagle by Graeme Edgeler

40

Suicide Reporting; or, The System Doesn't Work

Back in January, Edward Livingstone shot and killed his son and daughter, before turning a gun on himself, taking his own life.

It was, unsurprisingly, a major news story, raising questions of high public importance over police and court responses to breaches of protection orders, and more recently, to information sharing with Australia.

I fielded a few questions on twitter on legal matters related to the case, like why is someone who is the subject (object?) of a protection order allowed a firearm? [They aren’t.]

There was some somewhat ill-informed discussion about a few issues, and I thought, given what had happened, there might be aspects of it that could benefit from having bits of the law laid in public view.

I was reluctant, however, to discuss the case more than obliquely. Section 71 of the Coroners Act imposes restrictions on the reporting of self-inflicted deaths. How, for example, do you discuss the consequences of protection orders on firearm ownership, without giving a pretty good steer as to method of death?

In the best traditions of journalism, the news media ignored the legal restrictions, reporting the facts, while – from what I saw – avoiding unnecessary sensationalism.

I like to think that if I edited a newspaper or produced a news bulletin, I'd do the same, and damn the consequences. But, while I think that some of what I write here qualifies as journalism, I am a lawyer, and didn't feel like pushing that boundary.

This was another aspect of the event that is noteworthy: despite laws restricting the reporting self-inflicted death as such, there was breaking news, with a high public interest, and (most of) the major news organisations in the country said, in effect, stuff the law, this is important, we’re journalists, this is journalism, and New Zealanders deserve to know what has happened.

And I say good for them. But not for me.

Section 71 of the Coroners Act provides:

71 Restrictions on making public of details of self-inflicted deaths

(1) No person may, without a coroner's authority, make public any particular relating to the manner in which a death occurred if—

(a) the death occurred in New Zealand …; and

(b) there is reasonable cause to believe the death was self-inflicted; and

(c) no inquiry into the death has been completed.

You will note that it doesn’t provide for a total ban on reporting information about a self-inflicted death. Rather it places a requirement to obtain permission from a coroner before reporting how a death suspected to be self-inflicted has occurred. There’s a bit of debate about what is actually banned, which Steven Price has blogged on. I tend toward Steven’s view, that the prohibition extends to references to a death being a suicide, and not merely to information describing the manner of a self-inflicted death (by gunshot, for example), but this is something we are probably unlikely to have determined until a prosecution is laid, and I can’t recall the last one of those. For the media who have reported on Edward Livingstone’s death, it isn’t relevant anyway, as they’ve described both.

Despite the legal complications of writing about the events, there were still aspects of the case I was considering writing about (particularly around the reporting of it), so with both the conservatism of a lawyer, and the curiosity of a journalist, I set about attempting to do so legally.

I recalled some information from the Chief Coroner that Steven Price had relayed through his blog Media Law Journal:

The law allows the media to seek permission from the coroner to report the details of an apparent (or confirmed) suicide. Last night, I asked Chief Coroner Neil MacLean how often the media sought such permission. He said it was extremely rare. How often had they asked him for reporting permission, during his 30-year career as a coroner, I wondered.

He said: never.

Well, that a few years ago now. Though reasonably confident this is unlikely to have changed, so many news organisations had run stories on the deaths in the blaze of publicity, I thought I’d check whether anyone had, and asked how one would go about getting authority from a coroner to publish particulars.

The murder-suicide occurred on the evening of Wednesday 15 January. It was major news on the 16th, and having seen it across a range of media that night, around lunchtime on the 17th decided that I would – as a blogger – seek authority to publish on the deaths.

Even to a lawyer, it’s not immediately obvious how one goes about this. I didn’t completely rule out that a formal application filed in court would be required. However, I hoped this would not be the case. Approaching it as a media person might, I went to the website of the Coroner to seek out contact information. It’s here. I saw that there was a “media centre” page, and thought, ‘hey, that’s me! (today anyway)’. It carries information about access to inquests, and notes that “media should also be aware of the reporting restrictions required by the Coroners Act 2006 when it comes to self-inflicted deaths.” but does not mention that consent can obtained, or provide for the process to do so. It concludes: “The media contact can be found here: justice.govt.nz/media”.

Unfortunately, it can’t. There is media contact information, but none obviously connected to the Coroners Court.

The page does carry some information generally useful to journalists: for example, there’s a form for applying to photograph, record or film in Court. There is also a document explaining the various statutory prohibitions on publication that apply under different laws; oddly, this makes no reference to rules around the Coroners Court, or reporting of suspected self-inflicted deaths.

There is also a media guide. The media guide includes information about the Courts and protocol, and a number of other things that might be useful for journalists to know. The first place I looked for information about the Coroners Court was in the section on the Coroners Court. I was somewhat surprised that it made no mention of reporting restrictions at all, which would seem important information to the media, but then noticed a later chapter headed “Courts with special media provisions”, and guessed there might be something in there. It included this description of the rules that apply to the Coroners Court:

Media may publish any information that they hear except in relation to a suicide. The Coroners Act 2006 restricts details relating to a suicide from being made public without a coroner's permission. Only the name and age of the deceased may be made public before the publication of a coroner's finding. After a coroner's finding (if any) has been released, only the name, address and occupation of the person concerned and the fact that the coroner found the death to be a suicide can be made public without a coroner's permission.

I’m interested in the views of non-lawyer readers, but if that was all I had to go on, I think I would conclude that permission to report on further details about a death believed to be self-inflicted was something that could only be sought after an inquest had finished. The description appears to contain four basic points:

  • There are special rules around the reporting of suicides.
  • These rules restrict what you can publish without permission.
  • Before a coroner has made a finding, you can only report the name and age of the deceased.
  • After a coroner has made a finding, you can request permission if you want to report more than the name, address, occupation, and mere fact of a finding of suicide.

And still, no information on how, exactly, one goes about getting permission to publish details. And, of course, no clear contact point for journalists (or anyone) approaching the Coroner’s Court for that permission. So, instead of going to the Coroner’s Court page on the Ministry of Justice website, I thought to look for the information is on the Courts of New Zealand website. It isn’t there. There are sections for the Supreme Court, the Court of Appeal, the High Court, and the District Court. There’s a promising-sounding section for “Other Courts”, but this only lists the District Court, Employment Court, Environment Court, Family Court, Maori Land Court and Tribunals (this takes you to a page on the Ministry of Justice which lists 30 tribunals, in which the Coroners Court is (accurately) not included).

Luckily, I noticed the contact a court button in the footer. (I say ‘luckily’, but not really). It took me to a list of courts (unhelpful, because the Coroners Courts aren’t there), but the page includes a “media enquiries” button. There’s a name and contact details for the Judicial Communications Advisor, but also a note:

Note regarding media enquiries

  • The judicial contact is for enquiries to the judiciary only.
  • Enquiries relating to court proceedings, including requests for court documents, need to be directed to the appropriate registry.

I’m pretty sure an inquest will count as a court proceeding, so this is rather unhelpful, given the Courts of New Zealand website barely recognises the existence of Coroner’s Courts, let alone lists registry contacts.

I headed back to the media contact page on the Ministry of Justice website, and knowing that the Chief Coroner is also a District Court Judge, decide that the media contact person for the District Court is my best bet. Ultimately, they weren’t the right person, but I explained the lack of clarity, and asked for their assistance, and it got through to someone who was able to “help”.

My email was in pretty simple terms:

Are you able to confirm whether any media have sought coronial permission to report on the recent shooting deaths in Dunedin?

And can you advise the process for seeking permission? I'm considering writing a post about the reporting, and would prefer to be able to mention the events directly if possible.

This email was sent around 1:45. Two minutes later I got a reply. I had approached the wrong person, but it had been forwarded on.

The person it was sent it to seems to have forwarded it to a third person, and at 4:10 I was sent the reply to my query:

Hi Graeme - your message has been forwarded through to me. I am not aware if the Coroner has given any direction to media in this case. I suspect he has not but cannot say for sure. I cannot get hold of him at the moment. The reporting of suicide is covered off in ss71 to 74 of the Coroners Act 2006.

I responded around 25 minutes later:

thank you for the reply. It was section 71 of the Coroners Act that made me ask the question, particularly the bit which says "No person may, without a coroner's authority, make public any particular relating to the manner in which a death occurred ...". I wondered if anyone had sought a coroners authority before reporting on the case, rather than whether a coroner had given a general direction, as has happened sometimes in the past.

In light of this, and the possibility I may want to make public a particular (as defined in the act), I was hoping someone could point me to how I would go about getting the coroner's authority to do so. Sections 71 - 74 of the Coroners act don't appear to say.

I had a reply within 15 minutes:

Hi Graeme - I think the best way to do this would be to put it in writing and send it my way. I will forward it to the Coroner's case manager. Feel free to give me a bell if you have any questions. I am about to duck off for the weekend, and will be back at my desk on Tuesday.

And I responded 8 minutes later:

thank you for the quick response. Brief request follows:

I write a blog that frequently deals with legal issues, and am considering writing a piece looking at the reporting around the recent deaths in Dunedin, which have been reported in a range of media. I am aware that section 71 of the Coroners Act limits what can be published, including on the Internet, about suspected suicides. I request authority from a coroner to include information about the particulars of the death in question. I consider they add to the legitimate public interest in the story, and to the reporting of around these deaths.

I called as soon as I pressed send at 5:00pm, but didn’t get through to anyone. I think I left a message saying I’d sent an email, but it was several months ago now, and can’t be sure.

The following Thursday, six days later, I followed up:

Hi [Name Removed],

just thought I'd follow up to see where this was at.

I got the reply the following morning:

Hi Graeme - I forwarded to the Coroner's office - feel free to follow this up directly with [Name Redeacted] in the Dunedin office (CC'd into this email).

I waited a month. On 24 February, I followed up again:

[Name Removed] advised that he forwarded my email(s) to you a little while ago now, so I thought I'd follow up to see if anything came of it.

And on April 1, when the release of the Law Commission report reminded me I had sent these requests, I wrote again:

Hi [Name Redacted] (and [Name Removed]),

with the release of the Law Commission's report on suicide reporting, I was reminded that I sought permission under the Coroners Act a while ago to publicly discuss a presumed suicide, do either of you have any idea where my request is at?

Many thanks

Eight minutes later, my original contact replied:

Hi Graeme - I'll chase this up and get back to you.

A little under three hours after this, I received a memorandum from Coroner Richard McElrea. I was initially prohibited from republishing it, but have sought permission to quote from it (more on this later). It states in part:

4. I have insufficient information to grant any order pursuant to section 71, Coroners Act 2006. I invite further information to allow me to consider this further. I suggest that the applicant supply a selected passage or passages from the proposed “blog” relevant to section 71 and relating to the death of Edward Hamilton Livingstone.

5. I also request a timeframe as to when the applicant proposes to publish the material in question. I will endeavour to respond within 14 days of receipt of any such information.

6. Pending completion of my inquiry I prohibit publication of this memorandum and any further memoranda issued.

7. The email address is csu.christchurch@justice.govt.nz.

I was in contact with media contact people within the Justice system in the aftermath of a major news story. My emails were generally replied to quickly, yet after almost three months, the best I could get was a request that I forward an article I wasn’t even sure I could have permission to publish, to a coroner who would try to respond within 14 days.

With work, and life, it took me a little while to complete this post. Well, not that long, I completed it just under six weeks later, and forwarded it to the Coroner on 4 May, with some arguments as to why I thought I should have permission: the information was already in the public domain, the risk of harm was low, and there was a substantial public interest in how the system of seeking permission under the Coroners Act operates.

It is, of course, now 20 June. It’s taken a little longer to get the final permission needed.

I got the first reply to my 4 May request on 12 May, from registry staff. On 22 May, the Government released its response to the Law Commission’s Report. I’d lost my opportunity to publish while there was a chance to influence the Government’s response, but I sent a quick follow-up:

I write further to my requests of 17 January, 1 April, and 4 May (resubmitted on 12 May). I note that the Government has today released its response to the Law Commission's Report on Suicide Reporting, tabled last month, and announced its intention to amend the Coroners Act. I consider my intended blog post would be timely in light of this, and would like to publish it soon, so I seek your urgent consideration of my request.

A week later, I got a response:

Good afternoon, Coroner is currently unavailable and we expect him in his Chambers later next week.

I have forwarded your earlier reminder but I cannot comment on Coroner's timeframe for response.

And 11 days later (9 June, if you’re keeping track), I had a memorandum from the Coroner answering my request:

I have received a further message from Mr Graeme Edgeler.

Ruling

1. My prohibition of publication remains including details of the csu. Christchurch contact address.

2. Application in terms of s71 is declined.

[Signed]

Coroner RG McElrea

Almost five months spent trying to republish publicly available information, and not only was I prohibited from publishing the details of Edward Livingstone’s death, and prohibited from quoting from the ruling suppressing that, but I was now prohibited from telling you about the existence of a Coroner’s Court in Christchurch.

I guess this should probably have been the lede.

The Coroner has a website. Some of the information I was prohibited from telling you is on that website.

A little taken aback that a court could supress its own existence, I sat on it a couple of days, and asked some friends what they thought: would I have to judicially review the decision in the High Court? They advised me better of it, and I wrote a letter to Coroner McElrea asking him to reconsider. That was 12 June. On 16 June, I got a reply from my media contact point (that’s “[name removed]” for those keeping track):

Hi Graeme - I'm just letting you know the Coroner is unavailable for the next five weeks.

Still not really wanting to take the case to the High Court, I wrote to the Chief Coroner, Judge Neil McLean. I wasn’t particularly hopeful that it would get me somewhere (heads of bench can’t direct other judges), but it seemed worth a go. I sent my letter by email overnight on Tuesday, and on Wednesday afternoon, I had a very thoughtful email back, with not only the Judge’s explaining some of his views on suicide reporting, but also some cause for hope:

As you know while I have a duty of "oversight" of the Coroners as independent judicial officers I cannot direct them as to what to do in an individual case.

To cut to the chase if you would like to let me know what you would like to publish I am happy to explore options for dealing with this.

It was quite nice to be asked.

I sent my draft blog post overnight, and got permission yesterday morning. I’m not sure quite how it worked. I updated my post last night, and here we are. The Chief Coroner even included a note:

Very thoughtful piece. I am happy to authorise you publishing this via your blog post.

I think the points you make are valid and worthy of discussion.

That was very thoughtful, but the process suggested has left me somewhat discomfited. Some of what I write here, I think of as law, some as scholarship, and occasionally, I see it as journalism. Although I have felt constrained by the fact that I am a lawyer, this was one of those journalism times, and I’m not a fan of submitting my work in advance to someone effectively acting as a government censor. That this sort of prior restraint is apparently involved in applications under section 71 of the Coroners Act may provide a partial reason why news media are loath to use it.

I cannot claim that my experience is typical, although, of course, it may be archetypal if the experience the Chief Coroner relayed to Steven Price is indicative (I asked in my email to him, he didn't have an update). However, I am going to extrapolate from it anyway. The system does not work. And I do not see that any system of seeking advance permission to publish details in high profile cases like this one can work. The idea that news media will provide live coverage of an armed siege, like that ending in the self-inflicted death of Jan Moleenaar, that it will reach its end, and the news will announce: “the siege is over; we will tell what happened in 14 days” is laughable. There will always be cases where the speed with which the information needs to get out and the importance of particular information to a particular story (for example, where the self-inflicted death ends the need for a suburb to be in lockdown), will mean that the law will not be followed. It shouldn’t take five months. I’m not sure it should take five hours.

I’m not aware of any prosecutions for breaches of the Coroners Act such as those that appear to have occurred in this case (the Law Commission isn’t either). It seems unlikely that there will be any in respect of the multiple reports of the death of Edward Livingstone. And I am not sure we will ever actually use the criminal law to enforce the prohibition we currently impose, or may re-impose if the Law Commission’s proposals are adopted.

The Law Commission’s report has the heading “Media Reporting of Suicide”, but its proposals are not limited to news media, covering new media like Facebook as well. And as ineffective as the current prohibition is in proscribing the behaviour of the most news media in high profile cases, it is even less effective in proscribing behaviour beyond the news media. In blog comments, and on TradeMe forums, people discussing high profile news stories are less distracted by legal restrictions like the Coroners Act than news media.

I have never felt the need to comment on the Facebook page of a friend who has died. But I do not suppose that my way of dealing with loss is the way everyone else should adopt. And I certainly do not want to criminalise others’ grief if, following a self-inflicted death, some people come to terms with it in ways involving the publication of the fact of suicide or some of the details, on their friends’ Facebook walls or their own.

That the law will not likely be *enforced* against people posting on the Facebook wall of a dead friend is not enough. If we are going to continue to prohibit some categories of Facebook mourning where the prior permission of the Chief Coroner has not been obtained, then the system for getting permission needs to work. People should be able to call the Chief Coroner for free to discuss (and seek permission to publish) Facebook comments before they post them, and the Chief Coroner should be available at all times to enable this. The law prescribes how people may grieve. No-one should have to wait until office hours to be able to do so lawfully.

I accept that the evidence shows that publication of details around suicide often precedes an increase in attempts. There is therefore a societal interest in limiting the wide public dissemination of harmful information about a suicide. But even if it is true that heightened publicity of a suicide leads to further attempts, I am not sure I would ever want to use the criminal law to enforce society’s interest.

I anticipate that the major concern about copycat attempts arises from publication in broad-reach media like newspapers, radio and television (the Law Commission notes that the evidence in respect of new media is weaker, or absent). If this is so, then the criminal law is not the only solution. This is, helpfully, something that the Law Commission addresses, and I’m quite pleased to have come up with it independently.

The Ministry of Health has published guidelines on reporting about suicide. The Law Commission recognises that these have been problematic, and recommends change to encourage more buy-in from the media, but I see no reason why appropriate rules adapted from those guidelines could not be dealt with in Broadcasting Standards, or the Rules of the Press Council. If the Broadcasting Standards had a rule that, in the absence of a finding from the Coroner, broadcasters should refer to a suspected suicide and not to a suicide, I anticipate that it would be followed (or, at least, followed as stringently as the other prescriptive broadcasting standards, which is most of the time, with the occasional slip-up). Would this not achieve the Commission’s principal aims?

Why the Law Commission considers that the non-punitive regulatory approach will work for dealing with issues around public discussion of suicide in general, but the threat of criminal prosecution is needed in respect of specific deaths is a little baffling, especially given the Commission notes that we are the only country to involve the criminal law.

One reason might be that the regulatory approach, through the guidelines, or broadcasting standards, doesn’t address public behaviour generally: it affects academics, and journalists, but not Facebook mourners. To affect them, you pretty much need the criminal law. But that seems unlikely to be the advantage the Law Commission seeks by using the criminal law, given the likelihood of prosecution, and the lack of knowledge of the law.

In explaining its view, the Law Commission notes

… there is a risk that such public comment may influence the evidence of witnesses to the coronial proceeding. Public reports that a death was in fact a suicide may affect a witness’s evidence by making that person either more confident or less confident in their recollection of events. We note, however, that in Beckett v TV3 Network Services Ltd Robertson J was not persuaded that a television broadcast prior to a coronial inquest would be likely to affect the recollection of witnesses to that inquest. He held that the plaintiffs had not demonstrated that “the integrity of that process might be affected by what was contemplated by the defendant”.

Beckett was not a case of suicide, but we agree the effect on witnesses is likely to be similar. Reports that a death was in fact a suicide are unlikely to have a significant impact on a witness’s recollection of events at a coronial inquest. The greater harm in this case is to the integrity of the coronial process.

However, the protections afforded to the Coronial process in respect of its decisions over self-inflicted deaths are not afforded to other inquests, including, in this case, into the deaths of Livingstone’s two children. There is no statutory prohibition on saying that a death as a result of a police chase was caused by alcohol-affected driving, or overzealous policing. Coronial inquests into high profile deaths like those in the CTV Building, or at Pike River or Cave Creek, do not benefit from the protections applied to self-inflicted deaths, and which apparently risks undermining the coronial process. If the Coronial system is threatened by public Facebook grief, or the premature drawing of conclusions in a specific category of cases on TradeMe message boards, then the issues this raises over the reporting of self-inflicted deaths probably aren’t its most pressing concerns.

The threat to the integrity of the Coronial system, such as it is, is not from Facebook posts. And I’m not sure there’s much of a threat from media reports either. That, apparently (I haven’t checked, but am prepared to take the Law Commission’s word for it), no other country in the world uses the criminal law in this way to protect their coronial systems, strongly indicates that the integrity of coronial systems can be maintained without creating state censors, or threatening prosecution for journalists who wish to report their own conclusions.

The Law Commission recommends a relaxing of the rules around the reporting of self-inflicted deaths (before a coronial finding, you would need permission to publicly refer to a suicide, but could call a death a suspected suicide). There are good reasons to refrain from making claims without convincing evidence – not least because it is dishonest to imply false certainty. However, we abolished criminal defamation a good many years ago, and the effect of this is essentially to impose criminal liability for one very specific category of defamation. You cannot defame the dead, except it seems, if you miss the word suspected in front of the word suicide. And this defamation is punishable by a criminal conviction.

The Law Commission report is really pretty good, but the reasons it gives for proposing the continued oversight by the criminal law of suicide reporting are weak: our coronial system is not so fragile to need state censors to allow it to reach final conclusions unmolested by journalism. Coupled with the problems inherent in a law that requires prior permission for the posting of Facebook comments, I cannot see that it is likely that this is a law that the Commission actually wants to work in the form it proposes.

In light of the swift resolution of my request over the last couple of days, I am hopeful that the proposed law, which would place the power to decide on all requests for permission with the Chief Coroner, will see requests dealt with more promptly. The law doesn’t work in theory, but given the extent to which it is likely to continue to be ignored, it may work in practice.

I don’t think that’s quite good enough. As a society, we fall upon the criminal law far too often as a ‘solution’ to a societal issue, without asking what involving the criminal law in an issue actually means. The dissemination of details of self-inflicted deaths can have serious consequences, but does a criminal law – especially one police seem to have no interest in enforcing – actually help? And if we are really concerned about publicity around self-inflicted death, what benefit is a law honoured in the breach?

I have opened the comments on this post. My preference is for any discussion to focus on the general issue. If you do feel compelled to comment directly on the death of Edward Livingstone, you can seek permission from the Coroner. Contact details are on the website. I would prefer that anyone who wants to comment directly on Livingstone’s death do so elsewhere, just know that if you want to do so legally, permission is required. Please do not publish anything illegal.

28

All of these things are quite like each other

The following scenarios, based on cases that have made the news, or which I'm aware of because I've been around the courts for a while have something important in common:

  • A group of drunk high school students scale a fence at a holiday home to use a spa pool, drink alcohol, and generally make a mess of the place: trampling all over the plants and breaking glass bottles.
  • A sex offender climbs through a bedroom window looking for a victim. 
  • Peace protesters cut through the external fence of a spy base to deflate the dome shielding a satellite dish.*
  • A reveller at popular beach on New Year’s eve rifles through someone else’s tent looking for alcohol.
  • Greenpeace activists climb aboard an oil drilling ship, using bolt cutters to get access to drilling tower, staying there for four days in a protest.
  • Not realising there’s a metal grille behind it, someone uses a crowbar to break a shop window in the hopes of stealing cigarettes.
  • Someone climbs onto Hikitia (the crane ship near Te Papa), to nab a ‘souvenir’.
  • Someone purchases a marijuana joint from a drug dealer who is using the wall of an enclosed car yard to avoid being seen. (ok, this one hasn't happened yet, that I know of.)

If you’re not new here, you’ve probably guessed. These are all examples of the criminal offence of burglary, listed here in light of the ACT Party’s release of a three strikes for burglary policy.

I oppose the policy, but to be honest, if ACT limited it to burglaries of private dwellings, and applied the same protections that are in the three strikes system for violent offending, I probably wouldn’t. I wouldn’t campaign for it exactly, but a three year prison term is pretty standard for a repeat burglar of the type ACT is campaigning over, and may even by a little on the low side. The fact that it’s a non-parole period means there’s an increase, but it’s not a particularly large one, and parole is still available if the nominal sentence is higher than 3 years, which is likely.

But, with the expansion of the burglary offence, encompassing a far greater range of offending than previously, any law prohibiting justice in those edge case is a bad law, and should be opposed.

* I realise the burglary charge faced for the Waihopai protest resulted in an acquittal. A law change means the defence relied upon at that trial would no longer be available in the circumstances it was used.

54

John Banks: what next?

Justice Heath has released his decision on John Banks' application for judicial review (.pdf), which, as anticipated, did not take long.

There are a few points of note. The removal of the trial into the High Court has been confirmed, and it has been indicated that a trial may be able to be heard in the first quarter of next year. This may depend on whether Banks continues with a jury trial, or tries to have it set down before a judge-alone. Jury trials take longer, and must also take place in courtrooms that have space for a jury, so are more difficult to schedule at shortish notice.

In the judicial review itself, Justice Heath accepts that there were some errors in Judge Gittos's decision, but he simply didn't think they made a difference.  As well as concluding that the "truly exceptional circumstances" needed to succeed in a judicial review of a commital decision just weren't present, Justice Heath also looked through the evidence that the prosecution has presented. And he was of the view that there was enough evidence for there to be a trial. A jury might believe the evidence of Kim Dotcom and others about the circumstances of the donations, and agree that Banks knew he wasn't declaring a donation, and based on that might find Banks guilty of the offence of knowingly filing a false return. That's all you need.

John Banks' next step will probably be an application to have the charges dismissed under s 347 of the Crimes Act. This will be his last chance to have the prosecution ended before trial. However, it strikes me as unlikely to meet succeed. While Justice Heath wasn't considering a 347 application, his ruling pretty much addresses the arguments likely to come up in one if an application is made. And while a Judge hearing a 347 application can look at new evidence, it is difficult to see what further evidence might seriously be advanced on behalf of John Banks that would alter this conclusion that a jury might listen to the prosecution evidence and believe it

Of course, they might not. Or they might believe it, but also believe enough of the other evidence presented to have reasonable doubt. Those are matters for trial. A conviction is far from certain, but John Banks standing trial next year pretty much is.

And whatever the result of the trial, that it will occur without major complications will hopefully give Police enough of kick to consider advancing a few more of the investigations they still have outstanding from the 2011 general election.

19

Not burglary?

Yesterday the Otago Daily Times carried a story (reprinted by the New Zealand Herald) of a bunch of high school students who appear to have gotten drunk, and decided to have a party in the grounds of someone's holiday home, using their spa pool, urinating, and breaking bottles.

This probably not a unique occurrence, nor a particularly newsworthy one outside of Queenstown, but it gives me a good example of a concern I expressed in an earlier post On Burglary, or: Dropping the Ball.

Police say they are investigating the students with a view to laying charges of being unlawfully on property (maximum penalty 3 months prison, or a $2000 fine). That's probably the right level of offence, but there is a problem with it. An element of that offence is that you have to be "found" on the property, and it appears these students weren't. There's also a defence to the charge if they can prove that they weren't intending to commit a crime (but more on this later).

The problem I have with these facts, is that following recent changes to the Crimes Act, what we have isn't being unlawfully on property, but burglary (maximum 10 years imprisonment). Burglary used to be entering (or staying) in a building (which includes an enclosed yard) with the intention to commit a crime. It's now entering (or staying) in a building (which includes an enclosed yard) with the intention of committing an imprisonable offence. And wouldn't you know, but breaking glass (which was not a "crime" under the old law) is an imprisonable offence under the Litter Act 1979 (maximum penalty 1 month imprisonment, or a $7500 fine).

With the law change, the majority of factual situation where someone could properly be convicted of being unlawfully on property (which includes buildings, ships, and enclosed yards) will now also constitute burglaries. Possession of a weapon during these burglaries (perhaps a broken bottle?), will mean there's a strike-eligible offence of aggravated burglary.

Burglary charges probably will be very rare, and aggravated burglar charges rarer still, but there was surely a better way of amending the definition of burglary than one which opens up the intention requirement to all imprisonable offences. Most importantly, we should not have to rely on police discretion to minimise the consequences of overly broad law-making.

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Q&A: John Banks' judicial review

John Banks’ judicial review of the District Court decision committing him for trial on a charge of knowingly filing a false election return for the 2010 Auckland mayoral election is being heard in the Auckland High Court on Wednesday.

Why is John Banks judicially reviewing the committal decision?

Well, Banks would like the prosecution to be over (if it goes to trial, it will be in the run-up to the election), and getting it thrown out for insufficient evidence is one way of doing it.

But why not just appeal the decision?

In criminal cases, you can only appeal certain types of decisions. They’re individually listed in legislation, and this one isn’t there. He is judicially reviewing, because that is what you can do if an inferior court (a court that ranks lower than the High Court) makes a decision you don’t like. It’s not as easy as appealing, but it’s an option.

How does a judicial review differ from an appeal?

In quite a few ways (an appeal would be a criminal case, a judicial review is a civil case) but one is particularly important: in a judicial review, the “relief” (what the judge orders if you’re successful), is discretionary. Even if you prove there was an error, the High Court can simply decide not to give you what you ask for.

Is it common to judicially review a court?

Well, it’s not uncommon. Search on any database of New Zealand court decisions (there’s a free one here). If a District Court is named as a party, it’s probably a judicial review. Most of the time, however, you won’t judicially review a court decision, because there are a lot of things you can appeal instead, or you may just go to trial, and if necessary, run the arguments you wanted to at an appeal of the final decision.

What about judicial review of committal decisions?

These are rare. Justice Heath, the High Court Judge who is dealing with the judicial review on Wednesday, has released a minute to the parties (more on this later), in which he draws their attention to a 1995 decision of the Court of Appeal, where the Court of Appeal dealt with an appeal from a judicial review of a committal decision, and notes that there are very narrow grounds of which an appeal will succeed.

What is Banks’ argument?

His main argument is that the Judge Gittos simply got the evidence wrong. A judge is supposed to decide a case based on the evidence, and Banks’ lawyer, David Jones QC, says that Judge Gittos made findings that simply weren’t available. For example, the Judge mentions the (in)famous helicopter trip that was arranged by Kim Dotcom to have Banks visit his Coatesville property for lunch. The judge describes the evidence of Dotcom explaining how the two discussed funding for Bank’s mayoral campaign, and two cheques were handed over. He argues that even though Banks and Dotcom disagree on things, they agree that the meeting with the helicopter trip had no mention of a campaign donation, and that the money wasn’t mentioned until a different meeting, months later, which Banks drove to by car. He says that there isn’t even an allegation that any cheques from Kim Dotcom or Mega were handed to Banks personally, at either meeting.

Why would this be important?

Well, if Banks was personally handed cheques, that would be really good evidence that he must have known that Dotcom and/or Mega had made donations to his campaign, so they couldn’t be declared anonymous. But it may not be crucial.

What happens if Banks convinces the High Court the District Court made a mistake?

There are a number of options. The usual result in a successful judicial review is that you order the decision-maker to make the decision again. On a case like this, this is unlikely. Rather, the High Court would probably make the decision itself.

What are the options?

The High Court might decide: you’re right, the District Court argument was completely wrong, and there’s no way there’s enough evidence for us to spend court time on a trial.

Or it might decide: you’re right, the District Court argument was completely wrong, but there in fact was enough other evidence that was before the District Court for this to go to trial.

But you said judicial review of committal decisions are only on very narrow grounds!

They are. It might also decide: actually, this is the type of case where the Court of Appeal was saying judicial review shouldn't be used, and I’m staying out.

Well, what are you picking?

I’m always open for a Court to surprise me, but I think Banks’ chances of winning this case on a judicial review are low. The types of cases where judicial review of a committal decision will succeed are process ones, and Banks simply isn’t arguing anything like ‘the judge should not have committed me to trial because one of the witnesses is his brother-in-law’.

This type of case is pretty much exactly the type of thing the Court of Appeal was warning us about. A decision committing someone to trial doesn’t finally resolve anything (unlike say, a judicial review of a decision about where a mine can be built). Banks hasn’t been convicted of anything, and being committed for trial doesn’t mean Banks stops being a member of Parliament, so even if the Court agrees there’s a problem, I suspect it will just exercise its discretion to stay out of it.

Any other reasons?

When the judge issues his minute, he included a couple of suggestions for the parties. First, he noted that he thought the criminal case was the type of trial that was important enough for the trial to happen in the High Court. He asked the two sides whether they agreed, and my understanding is that they did. I suspect the order has already been made. The judge doesn’t give a reason, but I suspect that the consequences of conviction (Banks ceases to be an MP) will have played a part. An appeal doesn’t affect the automatic vacating of the seat, so you want to do what you can to ensure that as few mistakes happen as possible in the trial.

What does that mean?

The High Court hears all judicial reviews. If it is also the trial court, then it can also exercise the powers it has under the criminal law, which gives the Court, and Banks, another option.

If someone thinks that there isn’t enough evidence for them to be tried, they can ask the trial court to throw out the charge. This is more common in cases where the committal occurred without an assessment of the evidence, but even if (as in this case) the decision to commit to trial involved an actual decision after hearing evidence, you can simply ask the trial court to look again.

This is another reason why I think that the High Court won’t uphold Banks’ judicial review, even if it thinks he is right: he has another – much simpler – option. The Judge can simply look at the evidence himself and decide whether there is enough evidence on which a jury could convict, which is the same test as was applied by Judge Gittos.

What chance is there?

There’s definitely a chance, just as there was a chance before Judge Gittos. It’s still not an easy test for Banks to win on: it basically assumes that all the prosecution evidence that’s not completely unbelievable is true, and then asks: accepting that all the prosecution evidence is true, would there be enough for a conviction?

This sort of application – known as a section 347 application – is common at trials. A witness who you were expecting to give some evidence just doesn’t, and that means there is no evidence about a necessary element of a charge (a trial for illegal importation I did a few years ago succeeded on a 347 application, after we pointed out at the end of the prosecution case that none of the prosecution witnesses had actually given any evidence that the material had come from overseas).

So, in this case, Dotcom’s claim that Banks specifically asked him to split his donation into two donations of $25,000 in order that he could declare them as anonymous will be accepted. And that gets you quite a way toward a finding that Banks knew about the donations, and knew they were falsely declared as anonymous.

At trial, a jury might listen to Dotcom, and decide they can’t be sure that that claim is accurate, and they might decide on that basis that there is reasonable doubt. But the test at this stage isn’t proof beyond reasonable doubt. The question is: is there evidence that a jury could accept that would be enough for a conviction beyond reasonable doubt? Whether any jury accepts that evidence is a matter for it. It may or may not. But if it did, would they convict? And if the answer is “yes”, then we go to trial to find out.

Why did the judge suggest this?

Mostly, to make sure that there isn’t any unnecessary delay. If Banks was just arguing a judicial review on Wednesday, the result might be: I’m not really going to look at this, because you have the option of bringing an application under section 347 of the Crimes Act, which is a better approach than a judicial review of a committal decision. And if that happened, Banks would probably then make an application under section 347 of the Crimes Act. By raising this now, both matters can be dealt with together (or at the very least, preparations can be under way for a 347 application shortly after).

How long will we have to wait?

I doubt it will be long. Judges make rulings on 347 applications on the spot all the time. I suspect we’ll get a reserved decision, if only so the judge can make sure to not make the types of errors Banks’ team says Judge Gittos made (Judge Gittos gave an oral decision). I would be very surprised if a decision wasn’t out before the Christmas break, and it will probably within a week or so.

And then what?

If Banks wins, it’s over.

If Banks loses, then, while he could appeal the judicial review, he probably wouldn’t. And as he couldn’t appeal any decision on a section 347 application (and he can’t judicially review it either, if it’s made by a High Court judge), there would be a High Court trial sometime next year.

You’ve mentioned a “jury” a few times, would it be a jury trial?

The default assumption in Banks’ case is that it will be a jury trial, but it’s essentially up to Banks. Banks would have to apply to have the trial heard before a judge without a jury, and he has given no indication that he intends to do that. The deadline for the easier type of application has already passed (if you apply within 28 days of committal, you use a different section of the Crimes Act, which is easier to meet). This does not appear to have happened. He can still apply, but the test is now slightly harder. However, the fact there was a judicial review, and it’s still months from any trial, would probably mean an application looked at now would still be looked upon favourably. But, again, he has given no indication that he wants a judge-alone trial.

If Banks goes to trial and is convicted, then what?

We’re a little ahead of ourselves, but a conviction on the offence Banks faces would mean he would lose his seat. This happens even if he appeals. Unless Banks is sentenced to prison (which won’t happen), he could run in an Epsom by-election (but probably wouldn’t). If a vacancy occurs less than six months from a general election, the House of Representatives can decide to forgo a by-election.