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Decision highlights problems with court reporting

31 August 2018 - By Nick Butcher

In July, the New Zealand Media Council strongly criticised a leading news organisation’s coverage of a major court case.

This followed a complaint by a Crown Solicitor about inaccuracy. The complaint was upheld.

The story in question was published by news website Stuff with the headline ‘Children admit making up sex claims against Auckland teacher to get him fired.’

A journalist interviewing a lawyer outside the High Court

It was also published in The Press, Manawatu Standard, Waikato Times, Timaru Herald, Taranaki Daily News, Southland Times, Nelson Mail and the Marlborough Express.

The case involved the prosecution of an Auckland intermediate school teacher in relation to three separate allegations of indecent assault from different complainants.

The first sentence of the article read: “Intermediate school students admitted they lied that their teacher indecently assaulted girls so he would be fired after yelling at them in class, a court heard.”

The concern was that the story didn’t match the evidence presented in court.

Auckland Crown Solicitor Brian Dickey, a partner at law firm Meredith Connell, made the complaint to the Media Council. One of the firm’s senior prosecutors had been representing the Crown during the case.

No problem with acquittal, it was about the evidence

Mr Dickey says he doesn’t have any problem with the acquittal of the man accused – his complaint was purely about the facts and whether what was reported in the media had been presented as evidence.

“If they’d reported that an intermediate school teacher was acquitted having gone to trial and having denied the charges and having maintained his innocence, I’d have been fine with that.

“But this article’s headline and first sentence in particular wasn’t an accurate report of any evidence given, whereas it was presented as being the evidence given by the witnesses,” he says.

Mr Dickey accused Stuff of breaching two Media Council principles – one on accuracy, fairness and balance; the other on children and young people.

He immediately emailed Stuff after reading the story, asking the news organisation to correct what he considered falsehoods – the headline and first sentence.

Mr Dickey says the article created the impression that the alleged admission essentially amounted to acknowledgement by the three complainants of a conspiracy to pervert the court of justice.

“It also created the impression that the New Zealand Police and the Auckland Crown Solicitor’s office would actually conduct a trial to verdict with the complainants having retracted and admitted that they’d made it all up to get the teacher sacked, which casts both the Police and the Crown as reckless, irresponsible and unprofessional,” he says.

The Media Council decision says: “It is obvious that if the girls had in fact made the concession as reported, the Judge inevitably would not have left the matter before the jury but would have dismissed it at the close of the prosecution case.”

Brian Dickey thought such a severe mistake in reporting the case should have been picked up by a senior member of the editorial staff.

“I don’t know the hierarchy but I’m surprised that someone in the newsroom didn’t question – ‘are we really saying that the children admitted lying in evidence, yet the case went on to verdict without the judge dismissing the charges.’ Someone in the editorial process should have raised a red flag on this.”

He also spoke on the phone with the journalist, who told Mr Dickey that she had not attended much of the trial and had relied on comments made to her by counsel for the defendant who had supplied her with his closing notes.

Time enough to check transcript, says Council

The Media Council decision says that, given the jury’s verdict was delivered on 12 March, there was ample time for the journalist to be able to check the transcript of evidence to ensure certainty of the facts. The story was published on 5 April.

The Council says the lack of resource can never, in its view, be reason for not meeting the appropriate standards.

“While accepting that it is impossible for reporters to attend all trials, or even all significant trials, we find the approach taken here surprising, even alarming. Even a very junior reporter would understand that counsel’s closing addresses are not evidence. They are designed to persuade the jury one way or another, and by their very nature interpret or comment on evidence in the manner most favourable to the prosecution of the accused. They can never be a substitute for the evidence itself. In every summing up to a jury a judge will make that very point. It is also unwise of a reporter to accept notes used in a closing by one side or the other. Those notes suffer from the same flaws of objectivity that apply to the actual closing addresses themselves,” the Council says.

The disappearing court reporter

Mr Dickey remembers a time when he knew many of the seasoned court reporters on a first name basis. Those were the days before news organisations became more focused on digital technology and the ability to grab something sensational from the trial and leave.

“These days I see a lot less of those familiar and reliable journalists for the duration of a case. I might see them for the opening statements. Then they’ll be back if there’s a particularly gruesome or juicy bit of evidence. Otherwise, we’ll see them at the closing statements. The journalists are quite open about it. A senior reporter I was speaking to told me that he’d like to stay longer but he was being called back to the newsroom because he couldn’t justify being there during what would be considered the more dull parts of that particular trial,” he says.

The New Zealand Coats of Arms on a building

He doesn’t see any need for journalists to be in a courtroom all day and every day but says to achieve accuracy and balance, they need to be there for enough of a trial to report that way.

“If you can’t be there to report on a significant amount of the trial, then at least say ‘the defence said in closing or the Crown said in closing’ or ‘the judge summed up the case and said such and such’,” Mr Dickey says.

The Media Council report says it was not satisfied there was any imbalance in the reported case involving the school children because any court case that leads to an acquittal is likely to focus more on the defence position, in the same way that where a conviction is entered, it is more likely to focus on the prosecution case.

“The problem here is that the reporter reported inaccurately, by depending on a closing address, by unwisely depending on defence counsel’s closing notes, and by failing to check the transcript. Such falls well short of what is expected of the media in reporting court cases,” the Council says in its report.

Court reporting veteran says standards have dropped

Jock Anderson is a semi-retired journalist based in Timaru. He has covered courts and other legal matters for over 50 years. He is perhaps one of the last of a breed that came from the classic period of typewriters, shorthand and ear-to-the-ground journalism.

“The public have a great thirst for court news, adequately covered and skilfully written, but the media fails them badly in all respects,” he says.

Mr Anderson agrees with much of the criticism directed at the Stuff coverage of the court case involving the Auckland intermediate school teacher, but is also unsurprised.

“The standard of court reporting these days, from what I see, is poor, sketchy and haphazard. There is a lack of understanding of the court process and an off-hand disrespect for the process by some reporters.

“There are few designated court reporters and as a result some reporters are sent to court with little, if any, knowledge or training in how the courts work. You can tell by the way their stories are worded they often have not grasped or understood what’s been going on in court. They don’t stay there long enough to find out,” he says.

Sensationalism over fact?

Mr Anderson says too often reporters are being sent to grab the “headline story of the day”.

“Too often sensationalism is featured over reality. A run of the mill drink driving charge would rarely be reported but if it involves a sports star it becomes major ‘news’ around that person’s identity,” he says.

He agrees that it is difficult for journalists to attend all trials.

However, that’s because reporting staff have been deliberately pruned back over the past decade. As a result court reporting has become more selective, with essentially only major criminal cases getting mentioned. These cases are often the ones with some sensationalism attached, he says.

But the veteran journalist doesn’t think, as the Media Council said in its report, that “even a very junior reporter would understand that counsel’s closing addresses are not evidence”.

“How would they know that if no one tells them? This is part of a lack of understanding of the court process and the language and foibles of the courts. There is a lot to learn about reporting court which can only come from a more experienced reporter being able to tutor a new recruit in how the system works,” he says.

Brian Dickey says if a journalist sat through just one case, they would hear a judge explain to the jury that closing counsel addresses are not evidence.

“You’d only have to attend one case to hear it said several times. I suppose it’s conceivable that if a journalist had only sat through extracts of a case, then it’s possible. But it’s troubling that some people are covering sensitive jury trials that involve children, without having an understanding of the procedures and protocols because they’ve never sat through an entire case before.

“I’d be staggered if responsible media let people cover extracts of sensitive jury trials without having the experience of observing a whole trial and the directions that go with it, from a judge,” he says.

Digital media and interviewing lawyers

Jock Anderson says digital media and instant reporting has affected how court reporting is done.

“Mainly because it does not cater for any long-term reporting. It is only there for the clickbait headline.”

An illustration of a tv reporter

He also warns that interviewing lawyers can be hazardous.

“To begin with lawyers have to be very careful what they say about a case, before, during and even after it is concluded. I have sometimes asked lawyers to clarify something for me, particularly in complex commercial cases. But I don’t think lawyers should be given the chance to re-litigate through the media arguments that may have failed in court.

“If a lawyer is being interviewed the reporter should be very careful in how this is reported to ensure it does not usurp or impinge on the role of the court,” he says.

Mr Anderson filled in as Acting Editor of the Timaru Herald earlier this year and issues with court reporting were raised with him then.

“I was approached by a senior court official who asked if something could be done to get better coverage by the Timaru Herald and to ensure that reporters turned up at court tidily dressed and knowing what they were there to do. I have also had a discussion with a High Court judge about why there is not, generally, better High Court coverage in Christchurch. Judges are concerned by the lack of meaningful court coverage. Judges understand why court coverage is important, so why don’t those who own and run the news media?” he says.

Other well-known court reporters were approached for comment by LawTalk about the Media Council decision. However, they did not want to speak out because they felt it would be unfair on the journalist whose court coverage was the subject of the Media Council investigation. Some were also reluctant to criticise their employer.

Establishing good relations with journalists

Brian Dickey knows most of the seasoned court reporters and has established a good rapport, including being phoned for updates or other related information on a case.

But with fewer of the well-known journalists covering court, has that professional integrity between lawyers and media been undermined?

“It means that the next time you’re phoned by a journalist that you don’t know or whose work you are unfamiliar with, you’ll be guarded with your dealings with the journalist which I think is a real shame. I really want journalists to be there and report, but accurately,” he says.

The Media Council does have the power to censure a publication but has never done so.

“The Council considered imposing a censure in this case but felt the case falls just short of such a drastic step,” it said in concluding its decision.

Chief District Court Judge’s concerns

Decisions such as that made by the Media Council and the implications of it are far reaching. Yesterday news is not tomorrow’s fish ‘n’ chips wrappers anymore.

The Chief District Court Judge, Jan-Marie Doogue, says she has concerns about court coverage, but acknowledges that many media organisations are resource poor.

“The sheer volume of cases in the District Court poses a significant challenge to judges and court administration so it is not surprising that news media struggle to assign enough reporters to cover court.

“Many District Court judges report rarely, if ever, seeing a court reporter in their courtrooms, though it is noticeable that many parts of regional New Zealand remain well served by dedicated court reporters. Some bigger centres stand out for the high quality of their court reporters, but even these are thinly spread,” she says.

Media vitally important

Judge Doogue says the media has an important part to play in ensuring an open justice system in terms of keeping it transparent and accountable.

“There are several ways the District Court can encourage or assist transparent justice, such as the current publication online of judicial decisions through the District Court website, and also through observing clear and timely processes for requests for access to court documents. This year I established a District Court Media Committee for court reporters to raise practical problems they encounter.

“However, none of these are a substitute for a skilled independent journalist actually attending court to bear witness on behalf of the public to the delivery of justice.”

Covering court remotely risky business

Judge Doogue says it is worrying that journalists are more often attempting to cover court remotely or retrospectively, by relying increasingly on court documents or the recall of interested parties.

“The practice is fraught with risk, particularly for the public’s right to a full, fair and balanced picture of proceedings,” she says.

She says it is understandable that editors and news directors focus on the most high-profile or sensational cases when assigning staff.

“They are in the news business after all. But in doing so, the public often misses out on learning about many more relevant examples to their communities of the administration of justice which happen in courtrooms up and down the country every day.

“These cases may point to underlying community, support agency or societal problems, or successful restorative and rehabilitative efforts. Airing these sorts of issues is in the public interest.

“If we view the courts as a component of a much wider justice system where a well-informed and engaged community is part of finding solutions, then competent independent court reporters have a particularly important role. Any erosion of their number and skills is counterproductive to open justice in a decent and democratic country,” Judge Doogue says.

The times they are a-changing

Richard Williams is the regional manager for Courts and Tribunals for the lower North Island. He has been doing this work for 37 years and has extensive experience in dealing with the media.

In the past, journalists would take notes down by shorthand, then put the story together on typewriter. Nowadays, journalists go live from outside court, or send stories via laptops being used inside the courtroom. There’s an instant urgency that wasn’t achievable in the past, which might help explain why fewer reporters are spending long periods of time covering cases.

“I’ve seen a lot of change – most courts would have dedicated reporters representing various media organisations and they were generally well known to staff and judges and lawyers. These journalists would be really aware of how the courtroom operates, the dos and the don’ts,” Mr Williams says.

“The reporter numbers have definitely reduced over the years. In some of our regional courts, the long-serving reporters are still there, but not so much in the bigger areas,” he says.

Mr Williams wouldn’t be drawn on the Media Council decision on Stuff’s reporting but he has some sage advice.

He describes the media as the eyes and ears of the public and they’re people they get to know and trust because court staff are seeing them on an almost daily basis.

“They play a critical role and the best way to report on court proceedings is to be in court. We’ve had an increase in requests for information on cases, such as court records. The best we can do in these situations is notify next appearance dates regarding a person.

“If they’re after more information, then a formal request is needed and that would have to be considered. Sometimes this has to be referred to a judge and that takes time. If you’re looking for a scoop, the time delay may negate what you’re trying to achieve,” he says.

Mr Williams says when news organisations send an inexperienced journalist into a courtroom to grab part of a story, it creates challenges for both parties.

“The experienced journalists know where they can set up, including where they can connect up technology and cameras. Not being familiar with the surroundings can really slow things down as opposed to the flow of the seasoned reporters.”

Last updated on the 31st August 2018