KEY POINTS:
When, 13 years ago, Lawrence "Borrie" Lloyd confessed to killing Katherine Sheffield after a night of drinking and dope smoking at his ramshackle bach in the Far North, it seemed an open-and-shut case. Sure, he couldn't remember anything - but he'd woken up, seen the stab wounds to her neck and chest: he must have done it.
And so it seemed until, six years after his conviction, his nephew Noel Rogers wrote to his aunt (Lloyd's sister, Lydia) while in prison himself for an unrelated offence, confessing he'd done it. But Rogers' defence would successfully argue this confession was a fantasy.
Police reopened the case but decided Rogers' admissions were unreliable and they had got the right man.
But two years after Lloyd was released on parole, Rogers was charged with the murder and Lloyd's conviction was overturned.
Rogers' acquittal, in December 2005, left the police doubly embarrassed: two confessions, three investigations and no closer to finding out what really happened that night in August 1994.
Then came the long-running video sequel.
Last week, a Supreme Court ruling allowed TVNZ to screen, on its Sunday programme excerpts of a police video of a reconstruction in which Rogers shows how he says he killed Sheffield, and the chaotic events leading up to it.
It was billed as the confession that jurors were prevented from seeing, but it's worth remembering why.
The evidence was suppressed by the Court of Appeal because of grave breaches by the police of Rogers' rights - he was entitled under the Bill of Rights to have a lawyer present and to remain silent.
The tape was made while Rogers was in custody, charged with Sheffield's murder. His lawyer had asked the police to have no contact with Rogers at which he was not present. Yet the police arranged for Rogers to be taken from prison for three days for interview and the reconstruction.
Immediately after his acquittal, Rogers obtained an interim injunction (and a subsequent High Court ruling) preventing TVNZ from screening the video.
He claimed its broadcast would breach his right to privacy and his attempts to rebuild his life. He raised concerns about his safety, pointing to anger and threats coming from the community.
Its broadcast would also undermine the "remedy" for the police breach of his rights - the Appeal Court ruling suppressing the evidence.
Two years on, the Supreme Court decision was hailed by TVNZ as historic and an important endorsement of the public's right to know. It confirms that evidence suppressed because it was improperly gained may still be aired in public, even after the accused is acquitted. A majority of the five judges felt the public interest merits outweighed Rogers' privacy interests.
Does the broadcast finally bring closure to one of the most bizarre sagas in New Zealand legal history, or merely force an ill-fitting lid on a can of worms?
The Supreme Court decision - which swung on a bare 3-2 margin after 11 months of deliberation - casts considerably more light on this thoroughly messy case than the excerpts from the 17 minutes of police footage shown in the Sunday item.
It certainly raises some fresh issues: What were the police up to, 15 months before the trial, giving the media video footage that would be used in evidence? In doing so, did inquiry head Inspector Jim Taare break any laws? How did a TVNZ crew come to be present, observing from a distance, while the reconstruction took place?
One of the five judges, Justice Blanchard, said the manner in which the tape came into TVNZ's hands was a disturbing feature of the case. The police appear to have acted beyond their powers because they are required to treat evidence as secret unless there are operational reasons to disclose it.
The judges raised the possibility that Rogers could have sued the police for "breach of confidence" for abusing their powers in passing on sub judice information.
If the police erred in passing on the video, what happens next?
Chief Justice Sian Elias said whether Taare had authority to hand the tape to TVNZ was not at all clear but "is critical to understanding the legal status of the video and whether it is confidential information."
Nor had the basis on which TVNZ received the video been determined. Taare claimed he gave it on the understanding it would only be used after a conviction. TVNZ maintained it would be free to use it after the trial, whatever the verdict.
The police were not a party to the Supreme Court case.
Elias and McGrath wanted the issues clarified by referring the matter back to the High Court for a full hearing where both TVNZ and the police could properly explain themselves. Justice Anderson: "There are too many important issues of public importance for this inchoate case to be summarily dispatched."
A police internal investigation into the release of the video has not been concluded.
Is the decision a victory for freedom of information and the principles of open justice?
The decision makes important points about the circumstances in which media freedom and public interest can override individual privacy rights.
Justice Blanchard: "In the absence of information about what a jury could not be told, a significant component will be absent from public discussion concerning the operation of the legal system in a particular case. Ill-informed commentary is likely to occur if the public is left to speculate ... "
Media law lecturer Steven Price of Victoria University is encouraged that the judges uphold the principle that the media should be free to exercise editorial judgment in the use of such material. He believes there is legitimate public interest in the video in that it helps the public to decide whether the Appeal Court was right in suppressing the tapes as evidence and to understand "how, after two confessions, we still have no one in jail."
But Price is concerned the judgment leaves open the possibility that the courts could block the media from using such material in future.
"This is not entirely a blow in favour of free speech. It could even have a restraining effect."
Jim Tucker, head of the Whitireia Polytechnic Journalism School in Porirua, told TVNZ that the criticism of the police for passing on sub judice material might affect future cases. "It may mean that the media will be denied that sort of material and that will be to the detriment of [the public] knowing exactly what happened during a criminal investigation."
Does it add to public understanding of the case and ability to decide on Rogers' guilt or innocence?
The tape was billed as showing something that jurors were prevented from seeing - with the implication that, had they seen it, the verdict may have differed. Yet the tape adds little to Rogers' previous admissions which were put to the jury. This included a detailed explanation in 2001 of how the killing was said to have been carried out. The videotape also shows discrepancies in Rogers' explanations which could have helped the defence.
So why let the video be shown, knowing the damage it would do to Rogers' reputation?
The judges said there were other public interests, such as maintaining faith in open justice and the light the broadcast might shed on the police actions and the courts' handling of the case. Justice McGrath said there was a legitimate interest in being fully informed of the nature of the excluded evidence, so the public could make its own assessment of the Appeal Court's reasons for excluding it.
What the tape did show, which the judges felt important, was Rogers' demeanour. Justice McGrath: "Images on a videotape often contain significantly more information than a textual description."
At one point, Rogers shows remorse, sobbing after demonstrating on the accompanying police officer how he says he slit Sheffield's throat. But mostly he is matter-of-fact, re-enacting what he has already told police and agreeing with the officer's promptings.
Another important factor, said McGrath, was open justice. After two trials neither accused was convicted. There was high public interest in why this should be so, and the decision to exclude Crown evidence had contributed.
"Further media scrutiny of what happened in this case may well extend to all aspects of the operation of the judicial process as well as how the police conducted the investigation."
Is it a blow for privacy claims in the hands of the courts?
The judges say someone who agrees to make a statement while under investigation cannot expect what's said to remain private and must understand that, if used in court, it may be reported by the media.
Justice Blanchard said someone acquitted at trial could not expect to be freed from ongoing public debate about the case.
The decision highlights the lack of case law on privacy rights in New Zealand - each of the judges cited the Hoskings case in which journalist Mike Hoskings failed to stop a women's magazine publishing photos taken in a public place of his twin daughters. That case appeared to establish a tort of privacy, where a breach could be established if something so private was published that a reasonable person would find it highly offensive. But some of the judges argue that the existence of the tort is still open to question.
But wouldn't the expectation of privacy change once the evidence was suppressed?
Most judges felt Rogers could have no reasonable expectation of privacy because the taped confession was not a "private fact" - there was widespread awareness that he had confessed to the murder, and on more than one occasion.
It was a balancing exercise and in this case, said Justice Tipping, Rogers' right to privacy was relatively slender against freedom of information concepts and the public interest.
But, hang on, shouldn't the privacy right be heightened in cases where the police have illegally obtained information?
Chief Justice Elias argued: "It is in the interest of society as a whole that those who have stood public trial and been acquitted should not be harassed by publication of information obtained in breach of rights."
But most judges felt the breach was sufficiently remedied by the Appeal Court decision making the evidence inadmissible.
Justice McGrath said Rogers was seeking to limit one right - that of TVNZ to impart information, and of all New Zealanders to receive it - to remedy the police's breach of another. But TVNZ and the public were not responsible for the police breaches.
So where does that leave us?
The decision to release the video may not help the public conclude who killed Katherine Sheffield - but it at least confirms that the law at the intersection of privacy and freedom of information is less than clearcut. And, 13 years on, the Sheffield murder continues to elude the police and exercise the judiciary.
TRIALS AND TRIBULATIONS
1995: Lawrence "Borrie" Lloyd, 44, is jailed for 11 years for the August 1994 manslaughter of his friend (and former girlfriend) Katherine Sheffield, aged 23.
Oct 2001: Lloyd's nephew, Noel Clement Rogers, confesses to the killing in a letter to his aunt, Lydia Lloyd (Lawrence's sister), sent from prison. Police open a second inquiry, during which Rogers makes further admissions.
Jan 2002: Lloyd is released on parole.
May 2002: Police conclude Rogers' confessions are unreliable and they got the right man.
Early-2003: Police open a third inquiry after a cousin gives a statement about a further confession by Rogers.
July 2004: Rogers is charged with Sheffield's murder. In response to a request from TVNZ, inquiry head Jim Taare gives the broadcaster a video of a police reconstruction in which Rogers shows how he says he killed Sheffield.
Aug 2004: Lloyd's conviction is overturned.
Oct 2005: The Court of Appeal rules that the taped police reconstruction cannot be used as evidence at Rogers' trial, because it was obtained in breach of Rogers' rights.
Dec 2005: Rogers is acquitted and obtains a High Court ruling preventing TVNZ from screening the video.
Aug 2006: The High Court decision is overturned on appeal but Rogers is given leave to appeal to the Supreme Court.
Dec 2006: Rogers appeal is heard.
Nov 2007: The Supreme Court dismisses the appeal and TVNZ's Sunday programme uses footage from the video in a report on the case. The full 17-minute police tape is placed on TVNZ's website.
