The media coverage of the trial where a young man was convicted of murdering the young British backpacker Grace Millane, was both thorough and sensational.
For many people it was the story to follow. It was the daily lead by all major news organisations who had reporters in court digitally tapping out every crucial piece of story detail. It was also covered by international journalists. For critics it posed obvious questions such as how much information is too much information to broadcast or publish, given the sensitivity of the case before the Court. A man was on trial and he may or may not be found guilty of murder, but rarely has that premise ever been enough to quench or limit the appetite of media.
Personal dating details exposed
Personal details of a woman who could not speak on her own behalf were broadcast and published daily, including her dating habits on internet dating site Tinder, all while her distraught parents sat in the High Court, listening to what often appeared to be an expose of their daughters private life. Each day the Crown and defence argued as to whether the man in the dock with name suppression intended to kill Grace Millane or whether it was a case of misadventure through rough sex, resulting in death, as claimed by his defence.
In the end, the jury of seven women and five men unanimously found the man guilty of her murder beyond reasonable doubt.
Social media debate over saturation of details
During the over one month trial, the social media hive was alive and buzzing with debate over whether aspects of this young woman’s life needed to be revealed and reported on. Did we really need to know what type of dating sites she apparently visited, or what style of sex she might have been exploring or curious about? And first and foremost, did her parents need to endure this narrative in their quest for justice?
Criminal law specialist provides perspective
Don Mathias is co-author of Criminal Procedure in New Zealand, along with emeritus Professor Jeremy Finn. Dr Mathias practised as a barrister from 1978 until his retirement in 2018, and in 1980 he completed his PhD in Criminal Law. He has provided some insight on how possible suppression issues are managed, particularly with cases before the court that are of high public interest.
“I don't know if the Crown sought a suppression order for part of the evidence under section 205 of the Criminal Procedure Act 2011. It is wrong for people to think that the Crown should have suppressed the evidence. The Crown has no power to suppress evidence, only a judge can do that.”
He says either side in a trial can seek an order suppressing evidence, and the Judge may take the initiative and make an order without an application.
“There might have been discussion in chambers about suppression, and the judge may have decided not to make an order suppressing the evidence,” he says.
After seeing CCTV footage of the victim and the defendant enjoying a night out, people may have been uneasy by what was presented as a step-by-step account of the subsequent events. That account, central as it was to the unsuccessful defence, was a necessary part of the proceedings to ensure the fairness of the trial. The question is, how much publicity should be allowed?
People want open and free media
And as Dr Mathias reminds us, people also want an open and free media.
“There is a strong presumption in favour of open reporting of trials, and special circumstances are required for suppression. Section 205(2) sets out what must exist before suppression can be considered, and here the ground stated in paragraph (a) may be the most applicable: that publication would be likely to cause undue hardship to any victim of the offence (understanding that "victim" includes the family members). But even where a ground for suppression exists, the judge must decide whether to make an order in view of the strong presumption in favour of open reporting,” he says.
Speaking of CCTV footage, Dr Mathias says in one case (unrelated to the recent Auckland proceedings) there was CCTV footage of victims (WINZ employees) being shot, and to protect the dignity of the victims and to avoid stress to their families, the footage was suppressed although still photos of the offender on his own could be published.
“The point here is that a suppression order can be made to avoid stress to the victim's family. The stress must amount to "undue hardship", which was found to exist in the WINZ case. Plainly, seeing a family member being killed is hardship of the highest order. In the present case the judge would have to decide whether the victims' privacy interests were such that publication would be an unwarranted intrusion on those interests in the light of the strong presumption in favour of open reporting,” he says.
Dr Mathias says the rights of the media to report court proceedings have been described as a dominant factor, and the judge would have to decide whether suppression of some of the evidence would unreasonably impede or curtail the fair and accurate reporting of the trial or the details of the offending.
“I assume that these matters were considered at the case management stages of the proceedings (pre-trial) and perhaps also during the trial if there were breaks for legal matters to be considered.”
“If the non-suppression is disagreed with, the question becomes whether the law should be changed by Parliament. Arguments might then address whether inroads into the strong presumption in favour of open reporting are necessary in cases like this one,” he says.