NZ Herald

Shayne Currie and the mystery of the ever-changing statement

In my previous post, I quoted the statement posted online by Shayne Currie, NZ Herald editor, in response to questions as to Rachel Glucina’s ethics. It’s a statement that was initially posted, disappeared, and was then re-posted.

What I hadn’t realised is that some quite fundamental changes were made to the statement between being posted and then being re-posted. They’ve been mapped by Peter Aranyi, author of the excellent On The Paepae blog, via Twitter:

Shayne Currie statement

The most pertinent change would seem to be the removal of the words “No objections were raised” from the second-to-last paragraph. Did Mr Currie, on second thoughts, realise that such a statement was indefensible?

Then note, in paragraph three, the inclusion of the phrase, “Regardless of any confusion over the initial approach, all three agreed they wanted to make a public statement.” As I’ve previously written, the  confusion seems to have been manufactured by Glucina, as she first assured everyone involved that she was acting as a PR expert, before abruptly changing tack and donning her NZ Herald journalist hat. Currie seems to accept that Glucina, at the very least, was more than a little unclear about what her role was to be.

And note that final paragraph, in whichever iteration pleases you:

“By then [or By early evening I was assured that] no was in doubt that the article, quotes and photograph were appearing in the Herald.”

Again, Currie’s statement make it abundantly clear that the subjects of the article – the waitress and her employers – had not earlier been aware that Glucina was intending to release their quotes and photo as a Herald scoop. Presumably, after the objections were raised, they were simply told that the Herald were going to publish, regardless of the objections and ethical issues raised.

Questions, questions and more questions…

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Rachel Glucina and journalistic ethics (or the lack thereof)

As everyone knows, John Key yesterday became an international laughing stock thanks to his penchant for stroking or yanking women’s ponytails. The blog that yesterday outed the issue kept the waitress’s name secret – her account of John Key’s actions at the cafe where she worked was anonymous. Turns out it didn’t take long for her name to hit the headlines, thanks to the actions of NZ Herald gossip columnist / wannabe-real-journalist Rachel Glucina. You might remember Ms Glucina from Dirty Politics

An excerpt from Nicky Hagar's book Dirty Politics.

An excerpt from Nicky Hager’s book Dirty Politics.

The waitress has detailed her account of Ms Glucina’s overtures here, and, if true, Glucina’s actions (and, indeed, the actions of her editor, Shayne Currie) reflect appallingly on the Herald. Here’s the long and short of it:

  • The Parnell cafe, Rosie, in which this all went down, is owned by Hip Group.
  • Rachel Glucina’s twin brother, Henry, is employed by Hip Group.
  • Ms Glucina, through her brother, therefore personally knows the owners of Hip Group, Jackie Grant and Scott Brown.
  • During a speakerphone conversation with Glucina, the Hip Group owners introduce Glucina to the waitress as a PR expert. (Glucina is in fact in PR. According to her LinkedIn page, she is a director of ‘Pink PR’, specialising in ‘Media strategy, product planning, brand development, public relations’.) During the speakerphone conversation, Glucina’s last name is not mentioned. The waitress agrees to make a joint statement in order to protect her employers’ reputation. She also agrees to a photo being taken of her with her employers, to show they all still had a good relationship.
  • While everyone waits for Glucina to send through the draft statement, the waitress discovers Glucina’s last name. Alarm bells begin to ring. In fact, the waitress googles Glucina, and discovers the headline “Who is Rachel Glucina and why is John Key always phoning her up?”.
  • The waitress’s employers admit that Glucina works for the NZ Herald, but state that Glucina was not acting in her capacity as a journalist.
  • Upon contacting Glucina again, Glucina abruptly claimed that was acting in her capacity as a journalist. Despite the waitress then revoking permission to use the photo or her comments,  the story ends up in the Herald.

Given the ethical questions regarding Ms Glucina’s conduct, Shayne Currie has released a statement (then removed the statement from the Herald website, then re-released it…):

Rachel Glucina approached the Hip Group yesterday, after The Daily Blog broke the story. She knows the Hip Group owners personally. Glucina wanted to follow-up The Daily Blog post and urged the couple to front-foot the issue. She spoke to the couple and the waitress over the telephone. Regardless of any confusion over the initial approach, all three agreed they wanted to make a public statement. They also agreed to pose for a photograph and a Herald photographer was dispatched. They were told by the photographer that the photo would be appearing in the Herald. Herald editor Shayne Currie also spoke to the owners of the Hip Group yesterday afternoon following a call from a PR firm that had already been helping them. “When I spoke to the owners, they told me they had initially thought Rachel was working on a statement to go to all media, along with the photograph. “Given the situation, I wanted to absolutely ensure they knew this interview and photograph were for the Herald. To further ease any concerns, we took the very rare step of agreeing Rachel should run the quotes past the parties before publication. “By then, no one was in any doubt that the article, quotes and photograph would be appearing in the Herald.”

Note the phrase, “Regardless of any confusion over the initial approach, all three agreed they wanted to make a public statement”. And “When I spoke to the owners, they told me they had initially thought Rachel was working on a statement to go to all media, along with the photograph”. Is it just me, or does that corroborate the waitress’s story regarding Glucina’s actions? Why would the owners think a Herald “journalist” would be working on a statement that would go to all media outlets? Herald journalists write for the Herald. They don’t send their stories off as statements to Fairfax et al. “Initial confusion”? For instance, Glucina had told them she was acting as a PR expert? Glucina’s actions smell distinctly rotten, and given her previous Dirty Politics involvement, some on the left have posited that Key and his office must have contracted Glucina for a hit job on the waitress. It’s a conspiracy theory that doesn’t ring true. Key has apologised (albeit with a healthy dose of victim-blaming) and will simply want the story to disappear as soon as possible. He’s been humiliated on an international level, and will want nothing more than for the fuss to die down. Attacking the waitress guarantees that the story will have legs. This is all about Glucina trying to get a scoop, and, at this stage, she appears to have made it very clear that she’s not concerned about letting niceties like journalistic ethics get in her way.

Serious questions for Jared Savage & the NZ Herald

So, further to the Cameron Slater email that felled Judith Collins, there’s a particular line in the email that’s rather troubling:

I am maintaining daily communications with Jared Savage at the Herald and he is passing information directly to me that the Herald can’t run and so are feeding me to run on the blog.

Perhaps Jared Savage might like to explain what precisely he as a journalist was doing feeding information to Cameron Slater that Savage couldn’t publish himself. If the NZ Herald can’t use certain information in a story, it’s presumably because they’re worried about the legal consequences. So why would a reputable journalist then pass that information on to a blogger to use?

Let’s look at the Len Brown sex scandal story. It wasn’t something any mainstream media outlet was going to touch. Until it was all over the Whaleoil site, which meant that it was now news. Was/Is there a similar modus operandi here from those working at the Herald? We can’t run the story, but if we give it to Slater we can report on what he’s “reported”?

Or was it simply a Herald smear campaign against the then-SFO director? “We can’t report it, but we want to take him down.” Because if that’s the case, that’s not journalism; that’s a vendetta. Worse, it’s a vendetta performed in secret by the very people we are supposed to trust as impartial reporters of fact.

A very odd opinion piece from Audrey Young

In the NZ Herald this morning, political editor Audrey Young had an opinion piece entitled “Conviction delay blindsided Act MP“. She notes that John Banks had a plan prepared if and when he was committed to trial, the plan being to step down as ACT leader and announce his retirement come the next election. She then writes:

He was committed for trial and he duly resigned. It was well thought through and executed.

Not so for the verdict.

The fact that he did not have a plan ready last Thursday suggests he quite reasonably had prepared for only two possibilities: acquittal, or being forced out of his seat that day with a conviction.

The decision by the judge to delay a ruling on any conviction until sentencing on August 1 took everybody by surprise and complicated Banks’ options.

Except that the Judge didn’t simply make a surprise decision to delay entering a conviction until sentencing on 1 August. Mr Banks’ lawyer specifically asked for that to happen, so that an application for a discharge without conviction could be made, based on Mr Banks’ instructions to his lawyer. I find it difficult to believe that a QC would have failed to advise Mr Banks that a discharge without conviction application almost always requires affidavit evidence regarding the consequences of a conviction and written legal submissions regarding the gravity of the offending.

And leading up to the delivery of Justice Wylie’s judgment, it’s not as if there wasn’t discussion on the interweb about whether Mr Banks would apply for a discharge without conviction if found guilty. Obviously though, such discussion completely bypassed the NZ Herald.

A woefully ignorant Herald editorial on the evils of plea bargains

The Herald on Sunday published an editorial this morning criticising plea bargains. “Readers may be dismayed to learn in our report today how plea bargaining has become more common in public prosecutions,” screamed the editorial. The problem is, the associated Herald report – “The real cost of cut-price justice” – says no such thing.

Instead, the report notes two main points. Firstly, that the relatively new Criminal Procedure Act (CPA) allows Crown prosecutors to approach defence lawyers with deals before the trial, whereas “[b]efore the new Act, cases were frequently resolved on day one of a trial with offenders agreeing to plead guilty to lesser charges to avoid a trial”. Secondly, Crown prosecutors are now on a bulk funding model, meaning that there is a financial incentive for prosecutors to resolve cases earlier, with Meredith Connell (who hold the Crown warrant for Auckland) setting up an early resolution unit which identifies the cases most suitable for a plea bargained resolution.

What the report doesn’t provide is any statistics to show that the use of plea bargains is increasing. All that is described by the Herald is the formalisation of a system that already occurred. As the report notes, in Crown prosecutions, the plea bargain would usually occur on the opening day of the trial, costing taxpayers huge amounts in unnecessary Court time and other associated costs. The Herald presents no figures to show that there’s an actual increase in the number of plea bargains occurring, just that it’s occurring at an earlier stage in proceedings.

And is Meredith Connell plea bargaining out more cases, due to their budget restraints and early resolution unit? Again, the report provides no figures to indicate that is the case. The only figures presented come from Steve Haszard, Meredith Connell’s managing partner, who says the firm’s projected disposal rate is down 33% for the year (which would hardly support the thesis that plea bargains are everywhere), while total number of trial hours are down by 3.9% (not a substantial deviation, especially given that crime rates have been falling for the past few years).

That doesn’t stop the Herald editorial from raging about the inherent evils of plea bargains:

Out-of-court settlements are fine for civil disputes but criminal law is different. The litigation is brought by the state, not by an aggrieved party. The penalties can include imprisonment. For that reason, it is important that criminal justice proceeds in public view.

Plea bargaining offends the basic principle of open justice. Whatever is discussed between the lawyers that results in the bargain, it probably would not bear publication. It cannot possibly be a proper testing of the prosecution case. It is more likely to be about convenience and costs.

The Herald appears to fundamentally fail to understand how the CPA and courtrooms work. For a start, plea bargaining will often involve a testing of the police or Crown case. As a criminal defence lawyer, when I sit down with police for a Case Management Meeting (the first official chance for Police and the defence to sit down once a client has entered a not guilty plea) and I’m trying to persuade the Police that a deal should done, I’ll often be pointing out to police the problems that they’ll have in proving a vital element of their case. By that stage, police should have fully analysed their file – they’ll know the extent of their evidence and it will all have been disclosed to defence counsel; and if the investigation requires further work (such as additional ESR testing) that will be in train. A pragmatic prosecutor will often accept that a lesser charge might easily be proved, but that the evidence doesn’t quite stack up in relation to the initial, more serious charge laid.

There are many reasons why police might down-grade a charge in exchange for a guilty plea – for example, the effect on young or vulnerable complainants and witnesses if they’re forced to appear and be cross-examined; or further evidence coming to light after a charge is laid, which weakens the police case, but which may still support a lesser charge. Sometimes, especially in drug dealing cases, police may drop a number of charges relating to specific dates on which offending allegedly occurred, in order to lay a representative charge (one which covers a broad period in which the totality of the offending occurred).

Furthermore, the Herald fails to take into account how plea bargaining relates to the Sentencing Act, which provides for an early guilty plea as a mitigating factor that must be taken into account by the Court. That means that if you plead guilty at the earliest opportunity, you’re entitled to credit of 25% off your total sentence; vacate your not guilty plea on the day of trial and you get almost no credit. Parliament expressly provided for early guilty plea credit because of the advantages to not dragging complainants through the trial process and to recognise the financial savings to the State of not wasting Police and Court time by dragging out a matter unnecessarily. If someone believes they’ve been overcharged, but would accept that they are guilty of a lesser charge, the lack of an ability to plea bargain essentially robs them of the right to access the mitigating factor of an early guilty plea.

Let’s take an example of domestic violence in which a husband allegedly tells his wife he’s going to cut her throat. He then punches her to the head. He’s wearing a ring, which breaks the wife’s skin. Police arrive and charge him with Injuring with Intent to Injure (carrying a five year maximum jail sentence) and Threatening to Kill (carrying a seven year maximum sentence). It’s a perfectly valid pair of charges from a police perspective. There’s a witness who says he threatening to kill her, and an injury to her head (broken skin). The arresting officer is sure that in court, the evidence that he first threatened the victim’s life will allow a judge or jury to infer that there was an intent to injure the victim.

However, the husband’s lawyer tells police that what the husband really said was, “I’m going to cut you out of my life,” and that his wife misheard him. The husband’s lawyer says that his client accepts that an assault took place, but that there was no intent to injure his wife – he struck out with his fist and was horrified the moment he connected.

The prosecutor asks the officer in charge of the investigation to reinterview the victim, to check whether she stands by her statement that her husband said he’d cut her throat. She says she might be mistaken. They’d been arguing, she’d threatened to leave him, and she thinks that’s it’s entirely possible that he yelled that he’d cut her out of his life. The prosecutor goes back to the husband’s lawyer and says, “Okay, we accept we’ll have issues proving beyond reasonable doubt that your guy threatened to kill. Given that there was a single punch, that also puts at risk our inference that he intended to injure her, so how about he pleads guilty to a single Male Assaults Female charge?” The husband gives a thumbs up, and the deal is done.

Now, is the Herald really suggesting that such a case should go all the way through to a trial date, to resolve in exactly the same manner?

And to go back to the earlier quote from the editorial – “Whatever is discussed between the lawyers that results in the bargain, it probably would not bear publication.” What utter nonsense. Prosecutors and lawyers don’t meet in smokey back alley bars and exchange plea bargains for envelopes of cash, followed by congratulatory cigars at how easily justice has been dispensed with. Any visit to a District Court will see numerous cases where either the prosecutor or defence counsel briefly explains to the Judge the reasoning behind why a charge is being amended. Judges often ask off their bat, given that prosecutors are seeking leave of the Court to amend a charge.

The Herald needs to do its research better.

A complaint about the Herald’s reporting

The NZ Herald has to date published two articles online about the Maori Party’s fundraising dinner with John Key, both by David Fisher – the first published on 14 April at 5.25pm, the second published this morning. They’re largely the same, with the second article largely being a partial cut and paste of the first.

My issue is with a quote that is used in both articles, but is only attributed to someone in the first article. The second article states:

The event has been described as inviting accusations of “selling access” to the Prime Minister, but Mr Key’s office is defending it.

So who has described the dinner as inviting accusations of “selling access” to John Key? The article doesn’t say. In fact, the only person quoted as attacking the dinner is Hone Harawira:

Mana Party leader Hone Harawira was stunned to hear of the dinner after comments criticising a proposed Mana-Internet Party deal.

“Our dealings with [tycoons Kim] Dotcom and Gareth Morgan have been very open and we haven’t received a cent.”

He certainly doesn’t use the words “selling access”, so where do they come from? Has David Fisher been interviewing his typewriter?

It appears not, but either Mr Fisher or his editor have been somewhat sloppy. Readers of the Herald have to go back to the first article. Four paragraphs in (the same number of paragraphs as the second story), Mr Fisher writes:

Attending the event cost a minimum of $5000-a-head and has been described as inviting accusations of “selling access” to the Prime Minister.

Then, at the very end of the article, the author of the “selling access” quote becomes apparent:

Otago University political scientist Dr Bryce Edwards said the deal would feed the belief opponents pushed that the Maori Party was “too close to National and not independent enough”.

“It’s that criticism they have become a rich boys clubs,” he said. The venue of the Northern Club also played into that – “it makes them look elitist”.

“These people are pretty vulnerable to the criticism they are selling access to the people making the political decisions in New Zealand. I think it goes down very badly with the public.” [Emphasis added]

Unfortunately, in the second article, Mr Fisher or his editor completely forget to add in Dr Edwards’ comments. Journalism 101 – attribute quotes, please.

An odd article on the Problem Gambling Foundation

A few days after my post on the Problem Gambling Foundation funding saga, this new story appeared in the NZ Herald, which I’ve only just noticed. The story states that:

The Salvation Army says it was unaware it would be taking over as the lead agency for gambling addiction services after the Ministry of Health controversially cut funding to the Problem Gambling Foundation.

And that the Salvation Army’s national manager of addictions, Captain Gerry Walker, said:

His organisation had applied for its usual amount of funding for gambling addiction services – between $1 million and $2 million.

Instead, the ministry decided that it would take over as the national provider.

That seems fundamentally at odds with what Captain Walker told Checkpoint on 20 March 2014, when he told Mary Wilson that the Salvation Army had indeed applied for more than its usual funding. However, he was not prepared to reveal to Ms Wilson what additional funding had been sought, as it was commercially sensitive and no contract had yet been provided by the Ministry of Health.

I wonder if Isaac Davison, the Herald reporter, has misunderstood Captain Walker’s general obfuscation, and built a story on false pretences. It’s notable that no quote is provided from Walker to back up the statements quoted above; in fact, the sole quote from the Captain is that he had not yet been shown a contract and “did not know what the situation is”, which is essentially what he repeated ad nauseum to Ms Wilson.

Don’t get me wrong, I remain unconvinced that the axing of the PGF’s contract really is as above-board as Peter Dunne has been asserting, but this Herald story simply seems to have been based on a misunderstanding.