Murder trials reported in distressing detail

It's been almost impossible to avoid distressing details in the news this week from two big murder trials in which young women were the victims. But one big detail withheld is the identity of one of the accused. The media have railed against name suppression in the past but a recent law change has gone under the radar. 

Grace Millane’s death sparked a huge public reaction last summer and huge coverage in the news. 

Almost every detail discussed in the murder trial in court this week has been reported. Some online outlets have produced several stories each day. Some have run live blogs on their websites and sent push notifications about new evidence just minutes after it was heard in court. 

That sparked criticism that the coverage was gratuitous and unnecessarily distressing - even from current and former journalists.

A reflection on the ordeal of the court case for the parents from veteran investigative reporter Donna Chisholm drew this reply from former journalist turned lawyer Linda Clark on Twitter:  

I think one small thing that might help is if the media dialled back a bit. There's a gruesome level of voyeurism in how much detail is being reported.

— lindaclark1 (@lindaclark1) November 7, 2019

"The internet and online media make that information available to us all the time especially with alerts direct to our phones," former Dominion Post court reporter Fran Tyler told Mediawatch. 

"It can become a bit overwhelming but you can turn those alerts off," she said.  

It's not the first time high-profile cases have received blanket online coverage, she said. The Scott Guy murder trial received similarly intense coverage nearly ten years ago. Fran Tyler said there's a perception that media will publish every detail they can in high profile court cases, but that's not always so. 

"The media has been publishing gruesome details of of terrible crimes for 150 years. We have dialled that back already in terms of not publishing the most gruesome details in some cases," she said, citing forensic evidence.

Suppression to protect fair trial rights

There’s one detail media have not and must not publish - even though they want to.  The identity of the accused has been suppressed along with other details about him ever since he was first charged.

Judges can suppress information if they believe it could compromise the fairness of an arrested or accused person's trial. Publishing the details would run the risk of contempt of court - something the media here take seriously. 

Earlier this year, some overseas media covering Grace Millane’s death did reveal the accused’s identity - as did an internet company in a bulletin to subscribers of one of its news services. 

At the time, many in the media complained long and loud that the law was outdated, unfair and ineffective in the age of the internet and online social media. 

Coincidentally, the trial of another man accused of the murder of a young woman opened in Dunedin in the same day. 

In this case, the identity of the accused is no longer suppressed. Venod Skantha's name, age, details of employment as a doctor have all been aired in detailed reports of the trial.

Venod Skantha was granted interim name suppression after his first court appearance last year, but by that time his name had been circulated on social media in connection with the crime and then reported in the media.

In a reversal of the situation after the arrest was made in the case of Grace Millane, stories were posted on overseas websites which named Venod Skantha after his name had been suppressed by the court here.

The eagerness of news media  - both here and overseas - can clash with the courts when it comes to facts judges want to keep out of the public domain. 

By and large, media here do comply with suppression orders - even when citizens on social media and overseas media - don’t. 

This week most local media outlets did not post stories about the current trials on Facebook for fear of sparking more potentially prejudicial outrage - a responsible and proactive move. 

Fran Tyler - now a Massey University journalism teacher - has researched the suppression rules since they first emerged a century ago. 

'It appears that the 100-year-old suppression practices are past their used-by date," Ms Tyler and another former court reporter Dr Cathy Strong concluded in an article earlier this year. 

"Its frustrating for the media. I've been there. The public have the right to know who has offended against our laws," Fran Tyler told Mediawatch.     

"But the courts do have very good reasons for suppressing names. In some cases it's to protect the victims and there may be other cases which may be prejudiced. The names will come out at some point. We just have to be patient and trust the judge has made the decision for a very good reason," she said.  

But even after many in the media earlier complained about suppression orders hobbling their reporting of the case, next to nothing has been said about a change of the law which includes heavy penalties for media. 

In 2017 the Law Commission first proposed prohibiting the media from publishing or reporting on an arrested person’s previous convictions and any concurrent charges. It also proposed allowing the courts to make temporary suppression orders postponing the media publishing information posing “a real risk of prejudice to an arrested person’s fair trial”.

The Law Commission also said that in the digital age, courts should have the power to order stuff on the internet that breaches suppression orders to be taken down. 

The Contempt of Court Act - from a bill passed by Parliament in August - makes it an offence to intentionally publish any information that could prevent a person from having a fair jury trial.  

Penalties include imprisonment for a term not exceeding six months or a fine not exceeding $25,000 for an individual and a fine not exceeding $100,000 for a corporate body, though there are defences for errors made in good faith which reduce the jeopardy for journalists.

Journalists and publishers already risk prosecution if they are found in contempt of court, so does the new Act make any real difference?

"It codifies things that were just case law in the past. It was difficult to know where you were crossing a line,' says Fran Tyler. 

"It specifies at what point things happen and what you can and can't say. The new Act, for example, specifies things become sub judice at the point of arrest or charge," she said. 

The Act also sets what is considered to be prejudicial information that should not be published, such as possible gang affiliations of an arrested person. 

Ms Tyler says the Contempt of Court Act also gives judges the opportunity to order news organisations to take down online stories about someone's earlier convictions, but she says it's impossible to say how often that might be deployed. 

"If someone (facing trial) has a lot of previous convictions there could be a lot of stories you would have to take down," she said. 

"When name suppression first came in 1920 it wasn't clear how often it would be used - and it was used so much judges complained about the number of applications," she said. 

So watch this space when the new Contempt of Court Act comes in to force sometime before August 2020.