Justice Helen Winkelmann - a book is not 'news activity' in terms of the Privacy Act?
Justice Helen Winkelmann - a book is not 'news activity' in terms of the Privacy Act?
Opinion by
In the twilight world inhabited by legal folk reality is often blurred.
For example, lawyers think they are blessed with more knowledge than anyone else. This, of course, is wrong and lawyers should be made to pay their round.
Judges, on the other hand, believe they know everything. Anyone who argues with them risks being sent to jail.
Now, two High Court judges have assumed editorial roles to define journalism.
Chief High Court judge Helen Winkelmann has displayed her previously unrecognised editorial talents by declaring a book written by New Zealand Herald award-winning investigative journalist David Fisher about the secret life of Kim Dotcom is not news.
Mr Fisher's book and - more importantly - his sources, have become tangled up in Mr Dotcom's tiresome extradition wrangle.
Justice Winkelmann, who is no stranger to Mr Fisher's work, says his book is not a "news activity" in terms of the Privacy Act and therefore Mr Fisher's sources and resource material are not protected by conventional non-disclosure of a journalist's sources.
The judge says Mr Fisher's authorship of the book was not undertaken by a "news medium" and the book was not affiliated to his employer the NZ Herald.
She says the "writing and publication of a book cannot, at least in this instance, be construed as news activity."
Justice Winkelmann acknowledges investigative journalism takes its form in long, detailed articles, which she says are covered by the Privacy Act's definition of news activity.
"Books, however, are not," the judge says, when granting an application by the police and government communications security bureau for "further and better discovery" of documents previously withheld by Mr Fisher.
Mr Fisher, who expects the next move may be a formal approach for the information sought, says he cannot understand how Justice Winkelmann reached the decision that his 85,000 word book was not news.
Meanwhile, high-rating award-winning blogger Cameron (Whaleoil) Slater wants Justice Raynor Asher to recognise him as a journalist so he does not have to disclose sources in his defamation bun-fight with former Hell Pizza director Matt Blomfield.
Blogger Cameron Slater leaves Auckland High Court after appearing in a defamation case brought by Matt Blomfield. Photo / Doug Sherring
Ably advised by amicus curiae and defamation specialist Julian Miles QC, Justice Asher reserved his decision.
Interestingly, Justice Asher sits on an informal panel of judges and media representatives who from time to time consider court-related matters of mutual interest and is also on a panel reviewing the media's use - or abuse - of cameras in court.
Watch these spaces...
Late Billing Lawyer Not Named
The New Zealand Law Society won't name a lawyer with health issues who was found guilty of unsatisfactory conduct after sending out a bill more than four and a half years after a client had terminated his services.
The female client disputed an interim bill of $1697.50 sent in September 2006 and complained when the final "unsettling" bill arrived in September 2011.
In ordering him to write an apology, the lawyers and conveyancers disciplinary tribunal reckoned minimal harm was done and the lawyer is a good bloke so there is no need to tell folk who he is.
Seen And Heard
* Lowndes Associates consultant and Mexico honorary consul in Auckland Denis McNamara has been awarded the Order of the Aztec Eagle, the highest decoration Mexico awards foreigners.
* Nick Earle and Kelly Cotter have been promoted to associates at Tauranga law form Lyon O'Neale Arnold.
* Auckland barrister David Carden, who has more than 40 years experience in arbitration and mediation, is the new chairman of the health practitioners' disciplinary tribunal. He was previously deputy chairman.
* Mathew Gribben, formerly of Berry Simons, has joined Buddle Findlay's Auckland office as a senior environmental and resource management solicitor, advising infrastructure providers and local authorities.
Judges Ponder Being Hip
Concern has been raised in the Ladies and Escorts Lounge over a series of unintended consequences in the small print of the omnibus Judicature Modernisation Bill, currently before Parliament.
The revolutionary tome wants courts to be modern and efficient, complete with electronic processes and new-fangled gadgetry (some of which has already been biffed by Their Honours as unworkable).
But worse, it seems the new law will be drafted in "contemporary language."
"I can hear it now, CaseLoad," said Our Man At The Bar, slugging back a sly Crabbies.
"The courts will resound with fashionable patois terms such as Yo Dude, Gimme Five Honky, Chill Out, Daddy-O and Hit me with your Rhythm Stick...not to mention expressions more ribald."
"Just when Their Honours had come to grips with the language of Mr Checker's Limbo craze they now have to trade-in their stove-pipe breeks for laddered hose and denim hot pants..."
Judges globally are grappling with what to do about rogue jurors who are tempted to Google the often sordid backgrounds of accused folk, digging up all manner of stuff which could sink a fair trial.
Jurors are conventionally barred from seeking information outside the courtroom because, properly directed by a judge, they must give a verdict based only on the facts a judge deems admissible.
In 2011, US District Court judge Shira Scheindlin proposed jurors sign a written pledge promising not to turn to the internet to look up anything about a certain high-profile alleged arms trafficker until after his trial.
Backed by defence lawyers, those who signed the pledge would be subject to perjury charges if they were to violate the terms of the pledge.
In Florida in 2009 a mistrial was declared in an eight-week federal drug trial after the judge learned nine of 12 jurors conducted improper internet searches about the case.
An Illinois judge's 2012 article on the subject referred to examples such as an Arkansas death sentence set aside by a tweeting juror, a British juror who conducted a Facebook poll on how she should vote and a Florida juror who "friended" a defendant.
Also in 2012 an English judge jailed a university professor for six months after she researched the defendant in her case and revealed to fellow jurors he had previously been accused of rape.
In England and Wales last December a new criminal offense was recommended which would punish a "researching" juror with up to two years jail or an unlimited fine, or both.
How to stop jurors using search engines to check out facts about the case or the accused? Photo / AP
In 2013 the New Zealand Law Commission said it would investigate issues raised when lawyers researched jurors on the internet, then tailored their arguments to help them win cases - a practice labelled unethical by a British judge.
Last month Law Commission president Sir Grant Hammond suggested a more conciliatory "proactive" approach to steer jurors away from Googling conduct, rather than the harsh English punitive stance.
It is not surprising New Zealand judges - anxious to ensure an accused person's right to a fair trial - turn to blanket suppression orders in bids to keep the lid on the fact that information about accused people is much more readily available than it ever was.
Considering some cases before the courts, even mentioning such suppression orders in the context of this item could be risky - an unintended consequence which flies in the face of greater courtroom transparency.
However, the reality remains - New Zealand is a small village.
Not much goes on that people don't know about, hear about or can find out about - accurately or not.
But provided strong warnings and sensible directions are given by trial judges - and faith remains in the inherent fair-mindedness of Kiwi juries - it is debatable if any more laws, prohibitions and penalties will prove of any practical use.
More Legal Aid For ACC Court
The proposed establishment of largely legally-aided specialist courts to deal with ACC claims has been welcomed by thousands of eager beaver law students anxious to secure a future ripe with rich pickings.
Tamsyn, a spokeswoman for 2,300 youngsters currently enrolled at the Auckland University law school, says the new ACC courts would mean more earning opportunities for baby lawyers as well as enhanced career prospects in the judiciary.
"It's the taxpayers' way of thanking us for all our jolly hard work and makes Mummy's and Daddy's investment worthwhile," said a delighted Tamsyn.
A justice ministry senior communications advisor said the new courts would reverse a disturbing trend in recent years to reduce legal aid spending - currently hovering around a dangerously low $170 million.
"We are confident we can boost the annual legal aid spend to $250 million in no time at all."
