Editorial: Interview that ought to be seen

Lawyers, like most people, can take their profession a little too seriously. That is not to deny the extreme importance in any society of its standards of justice. But no judge would claim justice is infallible, and courts should be careful when they are asked to impose forensic definitions of fact on what can be said and seen by the public.

At the weekend a judge in the High Court at Auckland granted an interim injunction against TVNZ to prevent the screening of a criminal confession that could not be used in a trial that has concluded. The case concerned the murder of Katherine Sheffield, aged 23, at Mangonui 11 years ago. A man spent seven years in prison convicted of her manslaughter before police were convinced the crime had been committed by someone else. Police obtained a confession from their new suspect, Noel Rogers, but the Court of Appeal ruled that the confession was procedurally unsound and could not be put before a jury. Rogers was acquitted in the High Court on Friday night.

His lawyer, Michael Corry, moved to stop TVNZ putting to air a tape of the disputed confession. It would, he argued, undermine the judicial process, particularly the jury system, and breach Rogers' civil rights. The effect of the Appeal Court ruling, Mr Corry said, was "as if the tape never existed". He succeeded in obtaining an interim injunction from Justice Helen Winkelmann, at least until Thursday when the case for a permanent order will be heard. But it is all too likely that his argument will persuade the court to suppress the dubious confession permanently.

Courts are concerned with admissible evidence and as far as the courts are concerned, it is indeed as though "the tape never existed". But it does exist, of course, and people have an interest in seeing it.

The television programme obviously would explain the reasons the Court of Appeal did not think it fair to play the tape to the jury who decided Rogers' fate. The police had taken the confession when allegedly he was in a vulnerable state in custody and it is said his rights to silence and to a lawyer were not properly met.

Those are perfectly valid grounds for the courts to exclude a confession from proceedings in which a person's freedom is at stake. But the public has an equally valid interest in more general questions of law enforcement and justice.

Nothing the public might learn from watching a fair report of the case will change the outcome for Rogers. His civil rights have been protected by judicial decisions. The jury that acquitted him would not have been told even that he had made a confession that a higher court had ruled to be improperly taken. That is how far our judicial process goes to ensure a fair trial and it is right to do so.

But when a trial is over, other considerations come into play. The courts are adjudicators of the truth of conflicting claims of individuals and law enforcement agencies but they are not, and should not try to be, adjudicators of all truth. The courts may decide that the tape of Rogers' disputed confession does not exist as forensic evidence but it certainly exists.

The fact of its existence was able to be reported after the jury had given its verdict. The issue to be decided now is whether the pictures may be seen. The videotape might give viewers a picture of a confession extracted under duress or it might not. It might damage confidence in the Judiciary or it might not. The courts ought not prevent the public seeing material needed to form a view.

To insist that the tape be treated "as though it never existed" would enlarge a fair forensic ruling into an enforced lie. It would be a step in an oppressive direction.