Law

Restorative Justice changes – thus far, a dog’s breakfast

Late last year, I wrote about a new change to the criminal sentencing process, involving the mass rollout of Restorative Justice:

Essentially, in every criminal case in the District Court where a guilty plea is entered and there is a victim or victims, the case must be adjourned for an investigation into whether a restorative justice meeting should occur. That’s a meeting between the offender and victim, presided over by a restorative justice coordinator, with the results of the meeting able to be taken into account at sentencing.

My post was in response to a column by Mike Yardley, who appeared to have simply reprinted a anti-Restorative Justice press release from the Sensible Sentencing Trust. In my post, I criticised Yardley and the Trust for their knee-jerk antipathy towards the entire concept of pre-sentence Restorative Justice. On the other hand, I agreed with the other main thrust of his column, which was that the new Restorative Justice system was likely to be hugely time-consuming and expensive.

To date, the new system has come under heavy fire, from both lawyers and judges. In Christchurch, earlier this month, Judge Alistair Garland described the forced delays as “an appalling situation”, before going on to state that:

“Not only do we now have this mandatory referral, but there appears to have been no consultation between the legislature and the community. It was wholly predictable that Restorative Justice Services would be completely overwhelmed.”

Meanwhile, in my home court of Gisborne, Judge Tony Adeane last week said that the court, and others in New Zealand, would grind to a halt if the requirement is carried out in strict compliance.

The major issue is that very basic projections don’t appear to have been carried out. In Christchurch, Restorative Justices services are apparently funded for only ten referrals per week. With current referrals this year estimated at about 70 per week, it’s obvious that things will grind to a halt. In Gisborne, a staff member at Te Runanganui o Ngati Porou, who run the region’s Restorative Justice services, confirmed that they were funded for just one referral per week. They would need to be applying for further funding, based on the number of referrals coming through.

I’m at a loss as to why these numbers hadn’t already been estimated and provided for by the Ministry of Justice on a court-by-court basis. The MoJ should surely have access to court-by-court figures regarding the percentage of cases that involved a specific victim or victims (as opposed to victims in general, for crimes such drug dealing, or victimless crime). It is mind-blowing that resources would not have been made available up front, ready for the influx of referrals, based on easily calculated projections.

However, on a tangent, let’s look at Judge Adeane’s criticism, cited above, that the courts would grind to a half if the requirement is carried out in strict compliance. What is strict compliance?

Section 24A of the Sentencing Act states that:

(1) This section applies if—

(a) an offender appears before a District Court at any time before sentencing; and
(b) the offender has pleaded guilty to the offence; and
(c) there are 1 or more victims of the offence; and
(d) no restorative justice process has previously occurred in relation to the offending; and
(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2) The court must adjourn the proceedings to—

(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

The key issue to me is the requirement that a “suitable person” is to inquire as to whether Restorative Justice is appropriate. Just who a “suitable person” is isn’t defined. Must it be a Restorative Justice co-ordinator? Surely not, given that at Gisborne District Court those initial inquiries tend to be made by the Court’s victim advisor services.

If it doesn’t have to be a Restorative Justice co-ordinator, why then can’t the courts simply deem the police officer in charge of the case to be a suitable person? When the officer in charge takes a Victim Impact Statement, all they’d need to do is canvas with the victim whether they want to undergo Restorative Justice. If it’s made clear on the Victim Impact Statement that Restorative Justice isn’t wanted, why then adjourn the case? Sentencing should surely be able to proceed immediately.

And speaking of strict compliance, here’s another thing. The Registrar must have informed the court that an appropriate Restorative Justice process can be accessed. If there’s no funding for Court referrals, and Restorative Justice staff simply cannot cope with the workload, can the court simply rule that an appropriate process simply cannot be accessed?

That’s not to say that Restorative Justice is a Bad Thing. My previous post on the matter should make it clear that I’m a supporter of it. As the Howard League points out:

[R]esearch shows that it reduces reoffending by 12 percent, and that’s surely what matters. Less offending means less victims of crime.

Furthermore, the overwhelming majority of victims who undertake RJ benefit too: as one Ministry of Justice study shows, rates of satisfaction among victims who attend RJ are very high, with 74 percent saying that they felt better after attending a conference, 77 percent saying they were satisfied with the overall experience and 80 percent saying they would recommend restorative justice to others.

The initial failure of the new Restorative Justice system is one of logistics and bad drafting. It’s the fault of our lawmakers and their advisors. They failed to consult with the courts, the judges or the criminal bar. They seem to have failed to run basic projections, and even if those projections have been compiled, they’ve failed to provide funding based on them. All in all, they’ve completely failed to consider how the law would work in practice.

And in doing so, they’re giving Restorative Justice a bad name that is undeserved.

Freedom to offend?

In the wake of the Charlie Hebdo shootings, much has been written about the importance of freedom of speech. And many here in New Zealand have waxed lyrical about just how much freedom of speech we have here. It’s enshrined in s14 of our Bill of Rights Act, which states that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

“Free speech includes the right to offend others and the right of others to denounce you in equally offensive terms,” trumpets a Dominion Post editorial. Which is all very well in principle, but is that really true in practice in New Zealand?

Not so much, apparently.

Lets take a look at at s4 of the Summary Offences Act 1981. Section 4(a) makes it a criminal offence to, within view of any public place, behave in an offensive manner. Likewise, s4(b) criminalises someone who in any public place, addresses any words to any person intending to insult or offend that person.

Of course, s4 of the Summary Offences Act must, where possible, be interpreted in a way consistent with our right to freedom of expression. So what is one to make of last year’s case involving the Queenstown police constable who was convicted of using offensive or insulting language, after she racially abused a Malaysian taxi driver?

Constable Jenny McNee, while pissed as a chook, told a taxi driver to:

“Fuck off to India, you come here and get all the Kiwi jobs. Eat your fucking curry and fuck off to India. This is a Kiwi job.”

Now that’s certainly a fairly offensive and insulting thing to say to a guy who’s just trying to earn a living. In addition to her getting his nationality wrong. Should it be a criminal act though? In my opinion, certainly not. Individual concepts of what is offensive or insulting are frighteningly diverse. Make a derogatory comment about Lorde to one of her devoted fans and you’ll see what I mean…

If “[f]ree speech includes the right to offend others”, then s4 of the Summary Offences Act needs to be drastically rewritten. In the meantime, the idea of a blanket freedom to offend is somewhat hyperbolic…

Mike Yardley & the Sensible Sentencing Trust attack restorative justice

There’s a new tweak to the criminal justice system. Essentially, in every criminal case in the District Court where a guilty plea is entered and there is a victim or victims, the case must be adjourned for an investigation into whether a restorative justice meeting should occur. That’s a meeting between the offender and victim, presided over by a restorative justice coordinator, with the results of the meeting able to be taken into account at sentencing.

Last week, when I had no time to blog, Mike Yardley wrote a column in The Press entitled ‘Restorative justice of little benefit to victims‘. Mr Yardley describes himself as “predominantly focussed on travel media”, but he evidently also does a good line in rehashing press releases from the Sensible Sentencing Trust.

The main thrusts of his column are twofold, one of which I agree with, one of which I don’t. The first is that the new system is going to be hugely expensive and time-consuming. That’s true. In a significant proportion of cases, there’ll be an added one or two court appearances before a Judge. A basic common assault guilty plea (involving an offender with not enough criminal history to raise a Judge’s eyebrows) would ordinarily intimate the guilty plea at a Registrar’s List, before confirming the plea before a Judge. The Judge would then usually hand down a sentence on the day, generally ranging from a good behaviour bond to supervision to community work. An additional step now needs to be added, whereby restorative justice is investigated, and a second additional step may then be required if the victim wants to go ahead with restorative justice.

That’s a time cost, but it’s also a financial cost. Apparently, it costs around $10,000 per day to run a single courtroom. Plus, with legal aid files, lawyers can apply for an additional $120 flat fee for the additional appearances plus actual hearing time at $48 per half hour.

Nonetheless, if restorative justice works – reducing recidivism, and helping victims – then the additional cost may well be worth it. The second thrust of Mr Yardley’s column is of course that it doesn’t work. He writes:

The Sensible Sentencing Trust is pillorying the new regime, arguing that restorative justice should only apply in situations where it’s possible for the victim to have restored to them whatever they may have lost as a result of an offence. For example, the theft of a bike or damage to their letterbox.

But serious violence, really?

Yes, really.

I remember a case involving a young man who pleaded guilty to kicking another man in the head at a party, while the victim was already unconscious. A restorative justice meeting was held, and my client and his parents were able to meet with the victim, his parents and his girlfriend. From the transcript of the meeting, it was obvious that hearing a heartfelt apology from my client meant an awful lot to the victim and his family. And the victim was moved to tears when he was presented with a cheque for the several thousand dollars that my client had managed to save up, to help make up for the victim’s lost wages and other expenses.

It was a case involving serious violence, and restorative justice worked for both the victim and the offender. I would be extremely surprised to hear that my client has ever reappeared before the courts.

Nonetheless, the SST’s and Mr Yardley’s main issue is that a good restorative justice meeting might result in lighter sentences for offenders:

Sensible Sentencing’s biggest beef is that these restorative justice conferences are actually offender-driven. They will be taken into consideration as part of sentencing, potentially resulting in brownie-points and lighter penalties.

My response is, “So what?” Our Sentencing Act already required the court to take into account the views of victims. The outcome of a restorative justice conference is essentially an extension of a Victim Advisor’s report. The SST and Mr Yardley are essentially arguing that victim’s voices should be heard, but only if the victims are denouncing those who offended against them. It’s a somewhat hypocritical stance.

When it comes down to it, the SST simply opposes pre-sentence restorative justice conferences full stop. Such conferences might assist an offender at sentence; they must, therefore, be A Bad Thing.

Mr Yardley fancies the New South Wales model, where restorative justice can only take place post-sentence. But where’s the incentive for an offender to engage in the process post-sentence? They could be forced, which seems implicitly acknowledged by Mr Yardley when he notes that in NSW restorative justice conferences “often [occur] in conjunction with rehabilitation programmes at the end of a sentence”. However, that seems like a recipe for over-burdening an already over-stretched probation service.

At the end of the day, the stats I’ve seen confirm that restorative justice helps reduce recidivism. Young burglars who sit down across a table from the people they stole from are less likely to burgle again. Those who commit drunken assaults in town are less likely to engage in that behaviour in future if they see with their own eyes the effect of their offending on a victim. Victims become real people, not just names on a Summary of Facts.

To my mind, the old system of voluntary opt-in restorative justice worked well, and ways of opening up the system further should certainly be looked. Whether the benefits of the new “opt-out” regime outweigh the costs remains to be seen. However, the knee-jerk antipathy shown by the SST and Mr Yardley to the very concept of pre-sentence restorative justice seems rather foolish.

The folly of name suppression orders

“The law’s an ass” declared a “former National MP” after appearing in Waitakere District Court this morning, having been charged with breaching a name suppression order. The alleged breach relates to the naming on Twitter of a “well-known New Zealander” who was convicted of indecent assault.

The words “former National MP” are the description used by this report from the NZME News Service, used by the NZ Herald online. The article states that:

NZME News Service has chosen not to name the ex-MP because to do so would make the organisation complicit in helping to identify the well-known New Zealander.

That’s because the offence of breaching a suppression order could well be construed in quite ridiculously wide terms. The ex-MP’s tweet is still up on his Twitter page, meaning that naming the ex-MP would essentially direct the public to the information that allegedly breaches the suppression order. A Court may well consider the naming of the MP to therefore be “other information in breach of a suppression order” – an offence against s.211(2) of the Criminal Procedure Act 2011.

Section 211(2) is a strict liability offence. If you publish anything in breach of a suppression order, it doesn’t matter what your intent was: you’re guilty. However, the concept of “other information in breach of a suppression order” is a tricky one, given our Bill of Rights-mandated freedom of speech. At what point is “other information” allowed to be published, despite it leading people to the initial information that allegedly breached the order?

NZME News Service and the NZ Herald are evidently worried that naming the “former National MP” could result in legal consequences for them. But what about even providing the description “former National MP”? It’s not difficult to work out how many former National MPs are on Twitter, and a quick search through the obvious targets’ Twitter feeds would easily provide the identity of the MP and therefore the suppressed name of the criminal.

On the other hand, another major news organisation has published an article this morning naming the ex-MP. Now if that’s a breach, then if I were to name the news organisation or link to their article, I could conceivably be in breach of the suppression order myself. Of course, we don’t have too many major news organisations here in New Zealand, so by pointing readers to the existence of an article naming the former MP, could I be said to have breached the order regardless?

The inanity of the situation is perhaps best summed up by the person who tweeted this to the ex-MP:

“Best of luck @[name of ex-MP], in that thing we can’t talk about because of the thing we can’t talk about you talking about, today.”

You’d have to hope that if our news organisations were prosecuted for breaches, based on their articles reporting on the ex-MPs Court case, that our courts would read s.211 in such a way as to grant a wide scope for freedom of speech.

And the Banks saga rolls on…

It’s just been reported that John Banks has been successful in his appeal, with the Court of Appeal overturning his conviction and ordering a new trial.

The appeal hinged on the evidence of two US-based businessmen, David Schaeffer and Jeffery Karnes, who were at the lunch with Dotcom, Banks and their respective wives, when Dotcom claimed the donations were discussed. The Court has stated that:

“Although it was not fresh evidence, the Court was satisfied that if the evidence has been before Justice Wylie the outcome may have been different.”

The new trial will certainly be interesting, given the hit Dotcom’s credibility has taken over the Moment of Truth, and the forged email. However, the key piece of evidence for Justice Wylie wasn’t the lunchtime conversation. Instead, it was Mr Banks’ phone conversation on 8 February 2012 with Dotcom’s lawyer, Gregory Towers, in which Mr Towers called Banks to try and get Dotcom a better mattress in prison. Justice Wylie wrote at para 128 of his judgment:

“He [Mr Towers] said that Mr Banks told him that as much as he wished to publically [sic] support Mr Dotcom, it might backfire on Mr Dotcom if “it b/comes known about election support etc”. Mr Towers recorded this comment in a contemporaneous file note. He was confident that he had recorded the words that were spoken to him as best as he could. There was no evidence of Mr Dotcom having provided any other “election support” for Mr Banks. … I was satisfied that the discussion recorded in the file note could only have been a reference to the $50,000 donation by Mr Dotcom to Mr Banks’ 2010 mayoral campaign. In my view, Mr Towers’ evidence, and the file note, was compelling evidence, from a witness whose testimony was unimpeachable, that Mr Banks knew that the donations had, in fact, been made by Mr Dotcom.”

Will the new evidence lessen the impact of Gregory Towers’ evidence? Can Banks point to what other “election support” was provided by Dotcom? We shall see…

The saga rolls on…

Charging petrol station workers for drive-offs

So workers at Masterton’s Night ‘n Day store have had their pay docked when criminals drive off without paying. From the flood of complaints coming from around the country, it’s not a practice that is confined only to Masterton, nor is it confined to Night ‘n Day or Gull service stations.

Now I’m not an employment lawyer. My experience with petrol station drive-offs instead comes from the criminal law side of things, when the petrol station staff have CCTV footage or a staff ID of a numberplate and driver, and the information results in an arrest. BP stations seem to have a system where staff won’t activate the pump until they’ve ensured that their CCTV cameras have picked up the numberplate. Presumably it’s not a system that is widely used, as a spokesman for Z Energy has said that drive-offs cost Z about $1 million per year.

At any rate, the Night ‘n Day manager at the centre of the whole furore, Nick Lucas, seldom reported thefts to Police, even when a positive ID was made, because (according to his former staff members) he’d already got the money back by docking his staff’s wages.

As I’ve said, I’m not an employment lawyer, but the employment lawyers I’ve spoken to seem to think that it’s likely an illegal practice. Anyway, here’s some thoughts:

  • If service station employees are expected to prevent drive-offs by physically preventing vehicles from exiting the forecourt, surely that raises some significant health and safety issues? If the first clue to a drive-off is the customer getting back into their vehicle and starting their engine, is the staff member supposed to put their body on the line and be driven over by a departing criminal?
  • Service stations can mitigate the cost of drive-offs by having their pumps on pre-pay. They often choose not to, presumably because it’s more lucrative to have customers pay afterwards, when they’re more inclined to buy a sandwich and a soft drink.
  • If service stations put up decent cameras and record the licence plates and faces of all customers, most offenders can therefore be prosecuted by Police. If the prosecution is successful, the cost of petrol taken can generally be recouped by way of a reparation order at sentence.
  • If a service station fail to put in place systems to reduce the likelihood of drive-offs (by way of pre-pay pumps or cameras that might deter potential offenders) or to mitigate the costs of drive-offs (using evidence from said cameras to file Police complaints, resulting in reparation orders), then the service station has only itself to blame.
  • When I worked at Waste Management during my student years, staff could be fined if damage occurred to machinery due to employee negligence. That’s very different from docking a staff member’s pay due to events over which the staff member essentially has no control.

Idiot/Savant at No Right Turn suggests a boycott of the service station chains that allow the practice to continue at their franchises. As of right now, that seems to be Night ‘n Day, Gull, Mobil and Caltex…

Brownlee unfairly fined

When Gerry Brownlee and two of his staff attempted to bypass security at Christchurch Airport in July, there was much frothing at the mouth from commentators such as John Armstrong as to whether John Key should have accepted Mr Brownlee’s resigned as Transport Minister. Central to the frothing was the assertion that Mr Brownlee had committed an offence that carries a maximum sentence of imprisonment.

I argued at the time that no offence had been committed, as none of the offences set out in the Civil Aviation Act fitted the facts of the case. Well, this morning it’s been revealed that Mr Brownlee has been fined $2,000, while his two staff members have received warnings. The fine and warnings have been issued under Civil Aviation Rule 19.357(b), which reads:

(b) Subject to paragraphs (c) and (g), no person shall enter or remain in any security area or security enhanced area of any designated aerodrome or designated installation, unless that person—

(1)  wears an airport identity card on the front of his or her outer garment; or

(2)  has in his or her possession another identity document or other identity documents for the time being authorised under paragraph (a).

Yes, Gerry Brownlee was in a security area without an ID that had been authorised by the Director pursuant to Rule 19.357(a), but para (g)(3) gives Mr Brownlee an out clause. It reads:

Nothing in paragraph (b) shall apply to any passenger who enters or leaves a security area or security enhanced area for the purpose of joining or leaving a flight, if he or she is in possession of a valid boarding pass for that flight or is being escorted by a crew member or a representative of the operator.

Now, in this particular case, Mr Brownlee was attempting to board a flight that he and his staff had been running late for. They approached an airport security officer, and that security officer allowed them to duck through a side door, bypassing the security gate in order to to get to the plane in double-quick time. Mr Brownlee and his staff were in possession of valid boarding passes. Furthermore, they had the consent of the airport security officer to be where they were.

What does this mean? Well, it means that Gerry Brownlee is entirely innocent of the infringement that he’s been fined for. Nonetheless, it’s not a criminal conviction, and Mr Brownlee is no longer Minister for Transport (the role having gone to Simon Bridges, post-election). For political purposes, Brownlee will take the fine on the chin. He’s been seen to be punished; our authority figures are seen to not be above the law, even if the law has been incorrectly applied.

 

The Blomfield v Slater judgment – what does it mean for your average blogger?

So with the finding of the High Court that Cameron Slater is a journalist (see my previous posts here, here and here), and that his Whaleoil blog is a news medium, there’s been some presumption from some on the internet that political bloggers as a class have now been raised to the level of journalists. Lprent at the Standard, for example, says:

I was rather expecting that Justice Asher would make me and other authors here honorary journalists under section 68 of the Evidence Act 2006, and that is what he did.

I’m not entirely certain that lprent is right. There are a few fishhooks spread throughout Asher J’s judgment that seem to indicate that the Courts would consider Cameron Slater to be a bit of a special case among bloggers.

For a start, there’s the definition of a news medium s 68(5) of the Evidence Act: “a medium for the dissemination to the public or a section of the public of news and observations on news”. The key word there – “and” – means that for a political blog to be considered a news medium, that blog must not only disseminate observations on news (which is the general blogging modus operandi), but to also disseminate news. Justice Asher notes at para 54:

Given that the medium must be “for the dissemination to the public of news …” a blog that publishes a single news item would not qualify. The blog must have a purpose of disseminating news. Some regular commitment to the publishing of news must exist before a blog is a news medium.

So what is news? Well, that’s where things get fuzzy. Following reference to the New Zealand Oxford English Dictionary, Asher J states that “[t]he reporting of news involves this element of providing new information to the public about recent events of interest to the public”.

It’s a definition that doesn’t necessarily advance matters. If a radio news bulletin, for example, simply involves the repetition of news broken by others, is the bulletin in fact disseminating news? You’d assume so. So if a blog essentially does the same thing – repeating news stories broken by mainstream news organisations, but providing coverage through the blogger’s voice – is this really any different to a radio news bulletin? Where does the distinction between disseminating news and disseminating comment on news begin and end?

Justice Asher’s judgment, in finding that Whaleoil was a news medium, dwells on Cameron Slater’s investigations and stories that he broke (see paras 58 to 59, and 63 to 64). There’s an implication that a blog must be breaking stories to the public in order to be considered a news medium. Simply reacting to stories already broken, and repeating those stories (with or without additional editorial comment) doesn’t seem to be enough.

At para 62 of the judgment, Asher J states, “In my assessment, Mr Slater’s reports contain genuine new information of interest over a wide range of topics”, while at para 65 it is stated:

It is this element of regularly providing new or recent information of public interest which is in my view determinative. He was not doing this as often as would occur in a newspaper or a television or radio station, but that could not be expected of a single blogger. Such a person would not have the resources to operate on that scale. I do not see it as a pre-requisite that the quantity of stories must be equivalent to that of a substantial corporate news organisation. His motives for reporting are not crucial either. Because Whale Oil at the relevant time with reasonable frequency provided such information, as well as commentary and the opportunity for debate, it was a news medium.

 So are the authors at the Standard, Pundit, The Daily Blog or Public Address journalists? Is Danyl McLauchlan at the Dim-Post a journalist? Or David Farrar at Kiwiblog? Or Pete George at Your NZ? Or yours truly? From the High Court’s judgment, who knows. Most blogs, such as Occasionally Erudite, simply involve commentary on topical news items – the individual blogger’s view on the story or stories of the day – which seems unlikely to reach the threshold of being a news medium or journalism.

But at the Standard, lprent has reported live from the NZ First conference, or attended the Blomfield v Slater High Court hearing and provided a report on what occurred. At Public Address, Russell Brown provides additional background to stories he covers on his Media Take show or provides details of interviews with Patrick Gower, while Graeme Edgeler has exhaustively researched and posted on issues such as the secrecy of the Coroner’s Court.

Are these examples of journalism? One would assume so. Do they occur regularly enough for those particular blogs to be considered news mediums, according to Asher J? Hard to say. The test seems to be on a case by case basis, with regular provision of new information to the public being relative to the individual blogger.

Nonetheless, it seems that most bloggers wouldn’t be considered to be journalists, following Asher J’s reasoning. Repeating stories on a blog and providing comment won’t get you over the threshold. And even if you break stories, it has to happen on a regular basis (whatever “regular” may mean).

Cameron Slater seems to be a special case.

 

 

Blomfield v Slater : the judgment

So Cameron Slater is now officially a journalist, for the purposes of the Evidence Act 2006. Here’s a copy of the High Court’s judgment, thanks to Peter Aranyi at The Paepae (whose post ‘High Court serves a mixed bag for PR attack blogger Cameron Slater‘ is worth reading).

With the unfolding of the Dirty Politics saga after the High Court appeal hearing had occurred, commentators had wondered whether the Judge would reopen the hearing. Mr Blomfield attempted to produce additional evidence that had flowed from the Dirty Politics book, but was quickly rebuffed. In the judgment, Asher J merely notes that leave was declined to introduce further evidence “on the basis that it is hearsay or privileged”.

This gives rise to elements of (possibly) unintentional humour, such as where the Judge states at para 66, “While he [Slater] will often refer to other materials, there was no evidence presented to suggest that he was only regurgitating the writings of others”. Given the evidence presented in Dirty Politics, that Slater was regularly receiving posts written by Carrick Graham and others, and posting them word for word under his own byline, one wonders whether Asher J winced as he wrote that.

Nonetheless, the Court confirms that Slater is a journalist and that the Whaleoil blog is a news medium, as defined in s 68(5) of the Evidence Act. Essentially, Whaleoil was considered big enough, and Slater considered a regular enough breaker of stories and provider of news content, to meet the requisite definitions.

There are some interesting observations in the judgment about whether bloggers could generally be considered to be journalists, and blogs generally considered to be news mediums. For example:

[54] I have no doubt that many bloggers are not journalists because they are not obtaining and disseminating news to the public or a section of the public on a regular basis. Some may not deal with news in the sense of providing new or recent information, and some may not deal sufficiently with the public or a section of the public. Nevertheless, I conclude that a blogger who regularly disseminates news to a significant body of the public can be a journalist. Given that the medium must be “for the dissemination to the public of news …” a blog that publishes a single news item would not qualify. The blog must have a purpose of disseminating news. Some regular commitment to the publishing of news must exist before a blog is a news medium.

and:

[61] I accept that a news medium that was shown to be using news as a basis for comment only might not be a news medium. I also accept that a news medium that published articles of such a low standard that they could not objectively be regarded as “news” might not qualify. Although the definitions in s 68(1) do not include a quality requirement, quality would be relevant to the extent that a writer who was shown consistently to invent stories or be inaccurate on a regular basis might not qualify. An article that is false is not news. I deal with what is a “journalist’s work” in the next section.

That means that very few blogs might actually be considered to be news mediums, and that very few bloggers might be considered to be journalists, but I’ll examine that issue in a separate post.

Suffice it to say that Cameron Slater achieved a victory in part one of the judgment – as a journalist, he (quoting from para 92) “is in general entitled not to disclose the identity or identities of his informant(s)”.

But that of course was merely the beginning. Justice Asher then had to address the issue of whether, pursuant to s 68(2) of the Evidence Act, the public interest in the disclosure of the source’s identity outweighed firstly, any likely adverse effect of the disclosure on the source or any other person, and secondly, “the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts”.

Section 68(2) poses a tough threshold. The ability to maintain confidentiality of sources can be fundamentally important to the ability of journalists to do their job effectively. Without the ability to promise to a source that their identity will not be revealed, journalists would effectively be neutered in their ability to hold the powerful to account.

Justice Asher adopted the five step process originally set out in Police v Campbell [2010] 1 NZLR 483 by Randerson J:

(a)  The issues to be determined in the proceeding;

(b)  The public interest in the disclosure of the identity of the source in the light of the issues to be determined, if any;

(c)  The likely adverse effects of disclosure on the informant or any other person, if any;

(d)  The public interest in the protection of communication of facts and opinion to the public by the news media and the ability of the news media to assess sources of facts, if any; and

(e)  Whether factor (b), if it exists, outweighs factors (c) and (d).

In the course of working through the five step process, Asher J is often scathing of Slater (as scathing as a Judge can be when they’re only ruling on an interlocutory application, with the substantive application still to be heard). Justice Asher notes at para 114:

As a general proposition, when a journalist such as Mr Slater has presented to the public extreme and vitriolic statements about a person such as Mr Blomfield alleging, as he has, serious crimes by him, there is a public interest in the fair airing of those statements and the circumstances of their making when the issues are traversed in defamation proceedings. The vitriolic remarks indicate that Mr Blomfield is a danger to society. The remarks being deliberately put in the public domain by Mr Slater show there is a public interest in all the circumstances relevant to Mr Blomfield’s challenge.

Likewise, at para 118, Asher J states:

The pleaded expressions of opinion of Mr Slater are extreme. He accuses Mr Blomfield amongst other things of the exploitation of trust involving children, and of being involved in wrongly changing the amounts shown as donations. It is said that he ripped off a charity, that he is a psychopath and that he loves extortion, that he is a pathological liar, that he launders money, and that he is part of a network of crooks. Some of the exchanges between the alleged informants and Mr Slater show a gleeful attitude towards his shaming Mr Blomfield. In one blog post Mr Slater referred to the portable hard-drive as “just over 1 Tb of juicy dirt”. In the context of such extremely perjorative assertions, whether the pleaded honest opinion was genuine is likely to be very much an issue.

Essentially, the Court found that Slater’s Whaleoil campaign against Blomfield was in the nature of a personal vendetta and/or a personal or commercial attack. Or at least, that it’s likely enough that it was, that Blomfield needs disclosure of the source to be able to properly prosecute his case. With the only adverse effects of disclosure to the source being the possible joinder as a party to defamation proceedings, the Court deemed that there was no public interest in Slater’s protection of the source.

In the end, it’s rather a Pyrrhic victory for Slater. Despite being found to have been a journalist, he still has to disclose his source, and the Court’s unflattering description of his and his source’s prima facie motives would suggest that a rather large rabbit will need to pulled from a hat for Slater to avoid a significant loss in the substantive defamation proceedings. Certainly, the revelations (or, for some, confirmations) in Dirty Politics that Slater performs corporate and personal character assassinations for money will hardly have helped his case.

Cameron Slater – journalist? Yes.

Back in May, I wrote a post entitled ‘Cameron Slater – journalist?‘. Well, now, apparently, the question mark is no longer required. Justice Asher, in the High Court, has over-turned the District Court’s decision that Slater was not a journalist.

The decision doesn’t surprise me. In my original post I argued that for all the Whaleoil blog’s faults (and there are many, publicised at length in and since the release of Nicky Hager’s Dirty Politics), Whaleoil was a news medium and Slater was a journalist under the very broad definition provided in s 68(5) of the Evidence Act.

The full decision has yet to be made publicly available. At the time of posting, Cameron Slater has merely released a picture of the first sentence of para 145 of the judgment, which states:

“Therefore, Mr Slater was a journalist and Whale Oil a news medium, and he could invoke the protection in s 68(1).”

What Cameron Slater doesn’t say is that he is still required by the Court to disclose his source, as there is no public interest in the source’s identity being protected. As AAP reports:

Although Whale Oil was considered journalism Slater still has to disclose his sources because the case wasn’t in the public interest, the sources weren’t whistleblowers, and the case had the mark of a “private feud”, Justice Asher said.

“Any public interest in protecting sources must be further diminished when there is evidence that a personal vendetta appears to be driving the disclosures,” he said.

I’ll post more fully once the judgment is made public.