More Blood in the Water

When is offence reporting too much reporting

Introduction

In July 2023 there was a bar attack in Whangarei. The Herald reports, in an article written by David Fisher, that CCTV footage of the assault shows the attacker walking up behind the Whangārei man with a solid glass beer jug in his hand before swinging it overarm into the back of his victim’s head.

No charges were laid against the attacker. A complaint was made to the Independent Police Conduct Authority after private investigator Mike Sabin gathered evidence to support a case against the attacker.

As a result of the IPCA complaint a fresh investigation is now underway.

Given that there is a new investigation the Herald has graciously

“opted not to name the man so as not to interfere with any charges that might be laid.”

So far, so good.

But the article and the way it treats the matter has a number of problems.

The Problem

The first thing is that the following statement appears in the article

“The Herald has since identified the man, who denies the attack”

The matter than goes on to state that the man is

“currently facing charges from a second bar attack that happened in November 2024.

The discovery of the later attack – an alleged stabbing – has raised questions as to whether it would have even happened if police had arrested him after the initial brawl.”

So if the Police had taken action on the bar-room attack it is suggested that the second attack may not have taken place.

There are three problems that arise here.

The first is that both matters are allegations at this stage. Nothing has been proven. The suspect is entitled to the presumption of innocence.

Mr. Fisher, an experience senior reporter is well aware of this. He damped down the media frenzy surrounding allegations against Golriz Ghahraman in January and which was the subject of a post entitled “Blood in the Water” about trial by media.

The second immediate problem is that there is a statement that the suspect has been identified and approached by the Herald. He has denied the allegations. The reason that I say this is a problem is that the process of identification is not made clear. Judges direct juries about the care that must be adopted with identification evidence. But in this case we have only the Herald’s say so.

The third problem is that it is disclosed that the alleged offender was involved in another incident and that goes against the usual rules that involvement in other offending can only be relevant in certain circumstances.

But the Evidence Act does not apply in the Court of Public opinion.

But there is a wider problem with the approach that the article adopts. It goes into some detail about the allegations and circumstances surrounding the incident.

The details of the incident are graphically outlined from the perspective of the victims. There seems to have been a somewhat one-sided approach adopted.

To aggravate the situation there is a photograph taken from CCTV footage which identifies the alleged offender although his features are blurred, but not very well.

The account goes on the detail which this person did – all from the CCTV footage. So the report of the event and what happened is taken from CCTV. I think we have been down this track before.

Then there is some material from the alleged victims of the alleged assault together with extraneous and irrelevant material such as:

“The couple, who both work and do not have criminal records, arrived at the bar shortly after 10pm. She wasn’t drinking as she was the designated driver for the night and he had only a few drinks over the evening.”

Does the absence of criminal records make their accounts any more reliable. This is a gratuitous inclusion of material that is designed to evoke a response from the reader.

The account then goes on to deal with interactions with the Police.

But wait, there’s more.

In an outrageous addition to the allegations is the suggestion that

“The woman then suffered the shock of seeing the man who had swung the jug wearing a security guard’s uniform at Pak’nSave in Whangārei.

“As I was walking up to Pak’nSave, my heart dropped. I saw his face. I had a panic attack. I can’t get away. Whangārei is too small.”

Given that “Whangarei is too small” the Herald’s gracious decision not to publish the man’s name becomes less gracious given that they have displayed a phoito of the suspect and then revealed that he works as a security guard at Pak’N Save although he is with that firm no longer.

This prompted to complainant to engage a private investigator to do what the Police should have done.

The Herald then approached the suspect. The report reads as follows:

“The Herald has linked the man in the images to a Whangārei Heads man with the same appearance, haircut, jewellery, clothing and tattoo as that seen in the CCTV footage.

When contacted, the man said he knew which bar the Herald referenced. However, when it was explained which incident was in focus, he said: “I don’t remember anything. I don’t know what you’re talking about. No comment.””

If the suspect had been approached by the Police he would have been advised of his right to silence. But a Herald reporter’s investigations, approach or questions are not governed by the New Zealand Bill of Rights Act.

The real thrust of the story and indeed the emphasis of it should have been on the Police failure to properly investigate the allegations, the shortcomings that were uncovered by the investigator and the complaint to the IPCA. Any reference to the actual facts of the offending should have been incidental if at all.

But no. Seized with righteous indignation and a sense of seeing justice done the story leaves it to the reader to make up his or her mind about whether or not an offence had been committed and if so by whom. No presumption of innocence. No proof beyond a reasonable doubt.

The Contempt of Court Act

The Contempt of Court Act sets out the circumstances in which publications of details of any information relevant to the trial of any person that may be prejudicial to that person’s fair trial right.

A person must be arrested or charged with a category 3 or category 4 offence. No one has been charged so far.

This used to be known as the sub judice rule.

The only way that the Herald avoids the sanctions contained in the Contempt of Court Act lies in the fact that the alleged offender has not been charged. – for this offending.

However, he has been charged with an offence arising allegedly in November 2024. Mercifully the details of that offending are not detailed and it may be that the Herald is sailing very close to the wind as far as contempt is concerned in respect of that offending. Perhaps not enough to engage the Contempt of Court Act but enough to warrant a review of the language of the Act just in case.

However, if that person is charged with either of the offences as detailed it is my view that the report referenced earlier in this article should be removed from the Internet by way of a take-down order on the grounds that the availability of the information in Mr Fisher’s article may be prejudicial to a fair trial in respect of both. That would be one of the first matters that the alleged offender’s legal representatives should consider.

Of course such an eventuality could be avoided had the Herald (or Mr Fisher) not had a rush of blood to the head and decided to publish details of the offending and the surrounding prejudicial circumstances. Better that the focus had been on an inadequate Police investigation. And the Herald is well aware that investigation is under way.

But once again the Herald decided to rush to judgement in the Court of Public Opinion and ignore the importance of proper process with its protections for victims, prosecutors and defendants.

Unless, of course, the Herald would like to replace the Rule of Law with vigilante justice and trial by newspaper.