BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

District Court Judge Martin Beattie was acquitted on 1 August 1997 on a number of dishonesty charges after a jury trial. It was a high-profile case. On 27 July 1998, a news item revealed the contents of a High Court ruling made before the trial in which the judge had ruled inadmissible a report prepared by a QC at the request of the Chief District Court Judge in the early stages of the investigation. The item reported that the judgment disclosed the QC’s opinion that Judge Beattie was guilty of fraud.

Mr Clayton complained to Television New Zealand Ltd, the broadcaster, that the QC’s opinion about the judge’s behaviour was "utterly irrelevant", and the disclosure not only breached broadcasting standards, but also invaded Judge Beattie’s privacy. Because of the potential impact of the news item, Mr Clayton called for "bold and imaginative action" on TVNZ’s part in response to the complaint.

On the basis that a news media organisation should closely examine the justice system in the public interest especially in cases involving people with a high level of public accountability, TVNZ pointed out the judge’s ruling was contained in a public document. Further, the item contained both the QC’s opinions and Judge Beattie’s response to them. It declined to uphold the complaint.

Dissatisfied with TVNZ’s decision, Mr Clayton referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendix). In this instance, the Authority determines the complaints without a formal hearing. While Mr Clayton referred to a news item in his complaint, TVNZ advised that the matter was discussed during an item on Holmes. The issue, it said, was not dealt with on One Network News. In these circumstances, the Authority has viewed the item on Holmes and has determined the complaint on that basis.

The trial of District Court Judge Martin Beattie was referred to in an item broadcast on Holmes on 27 July 1998. Judge Beattie had been acquitted on 1 August 1997 on a number of dishonesty charges after a jury trial. It had been a high profile case, and another District Court Judge in Whangarei, Robert Hesketh, had pleaded guilty to similar charges to those facing Judge Beattie. Judge Beattie gave evidence at his trial as to his honest belief in his entitlement to the allowances to which the charges related. The outcome of the trial was, at the time, the subject of questions to the Minister of Justice, and comments in Parliament.

The item broadcast on 27 July 1998 disclosed a pre-trial judgment given by the judge who presided at the jury trial (Justice Penlington). By way of background, when the issue of Judge Beattie's entitlement to the allowances first came to the attention of the Chief District Court Judge, he had asked for an independent report from a Queen’s Counsel – Mr John Upton. When criminal proceedings were taken against Judge Beattie, the prosecution sought leave from Penlington J to produce the QC’s report as evidence. Because of its potential prejudicial impact, Penlington J ruled that the report was inadmissible. He also directed that his ruling on the application be suppressed until the conclusion of the trial.

The item on 27 July focused on Penlington J’s ruling, which contained extracts from the QC’s report, and included the QC’s opinion on Judge Beattie's culpability. It also reported Judge Beattie's responses to the findings of the QC’s report, which were also included in the judgment. Penlington J’s judgment disclosed that the QC had concluded that Judge Beattie had been dishonest, and must have known that he was abusing the system. Further, the QC considered that Judge Beattie should be dismissed from office as a District Court judge. The judgment also recorded Judge Beattie's rejection of the QC’s conclusions, and his belief that he was honestly entitled to claim for the allowances in question.

Mr Clayton complained to TVNZ that the item which dealt with Penlington J's judgment breached standards G4, G5 and G6 of the Television Code of Broadcasting Practice, and, in addition, that it breached Judge Beattie's privacy. Because the trial judge had ruled that the QC’s report was inadmissible, Mr Clayton maintained that the barrister's opinion was now "utterly irrelevant and should never have been published". He called for an apology.

TVNZ assessed the complaint under the nominated standards. They require broadcasters:

G4 To deal justly and fairly with any person taking part or referred to in any programme.

G5 To respect the principles of law which sustain our society.

G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

Section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain

standards consistent with the privacy of the individual.

As a general point, TVNZ began by arguing that the media should subject the justice system to close examination in the appropriate cases.

Turning to the specific standards, TVNZ did not accept that the item had been unfair to Judge Beattie pursuant to standard G4. It was unable to discern in what way Mr Clayton believed standard G5 had been contravened, and it stated that the item had been balanced as required by standard G6. The high level of public interest in the case, TVNZ concluded, was a complete defence to any claim for privacy.

When he referred his complaint to the Authority, Mr Clayton explained that standard G5 was central to his complaint. The criminal justice process for determining innocence or guilt, he wrote, was the principle of law in question. He dealt at length with the manner in which the QC’s report had been commissioned and compiled. While he accepted the media's right to make reasonably based criticism about the criminal justice process, the sensational way in which the QC’s views were advanced, he said, was an unreasonable criticism of the jury's verdict. Thus, he maintained, a breach of standard G5 had occurred.

A consequence of the breach of standard G5, Mr Clayton contended, was to foster some degree of doubt about the correctness of the jury's acquittal of Judge Beattie. This was unfair to him, and accordingly amounted to a breach of standard G4. Because Judge Beattie had not been in the news, to his knowledge, since November 1997, Mr Clayton questioned the applicability of standard G6. Should it be considered applicable nevertheless, Mr Clayton argued that it was contravened by the item's lack of fairness.

Finally, dealing with privacy, Mr Clayton considered that because of the time which had elapsed since the trial, the events had become private again and thus the item had breached the privacy of Judge Beattie and his family.

In conclusion, Mr Clayton acknowledged that the trial, at the time, had a high profile. However, he wrote, the debate was not ongoing and the item broadcast on 27 July 1998 was unfair to Judge Beattie. That unfairness was not balanced by reporting Judge Beattie's response to the QC’s report as, he pointed out, while the report had questioned Judge Beattie's honesty, a subsequent trial had acquitted him. As a former legal practitioner, he observed that he felt an obligation to defend the judiciary and the system of justice.

In its report to the Authority, TVNZ stated that as a media organisation it had a responsibility to broadcast items in the public interest. It believed that the item complained about fell into that category. It explained that the broadcast dealt with a public document which had been obtained from the court records, and it noted that Penlington J could have, but did not, impose a permanent suppression order.

In view of the high profile nature of the case, TVNZ maintained that it was entitled to examine the case further as new material became available. TVNZ did not accept that the item had sensationalised the conclusions in the QC’s report. Further, it did not agree that the item had criticised the jury's verdict. It noted the unusual post trial comments from a number of sources reported in the media which, it argued, indicated the ongoing public interest in the trial. TVNZ objected strongly to Mr Clayton's suggestion that the item involved smear tactics.

In his final comment when he dealt with the public interest, Mr Clayton wrote:

It is obvious TVNZ still fails to appreciate its correct meaning. No verdict can be impugned by some inadmissible opinion unrelated to the trial process.

The Authority's Findings

Standard G5

Mr Clayton considered that standard G5 had been infringed because once Judge Beattie had been acquitted by due process of law, Mr Upton's opinion was completely irrelevant and should never have been published. When he referred his complaint to the Authority, Mr Clayton expanded on this theme and wrote, in essence:

* The principle of law is that guilt is to be determined by fair trial conducted in Court;

* In this context, standard G5 requires respect for the legitimacy of both the method of trial 
  and the decision;

* The standard does not preclude criticism of a verdict where such criticism is "reasonably
  based";

* In the broadcast on Holmes complained about, Mr Upton's views were sensationalised
  and this amounted to unreasonable criticism of the verdict.

By way of response, TVNZ disputed the claim of sensationalism. It maintained that the item did not criticise the verdict. All it did, it said, was to report the excerpts from the QC’s report as referred to in the High Court judgment.

The Authority accepts the general proposition that unreasonable criticism which is without foundation and which tends to undermine the legitimacy of a verdict or the trial process, may be within the ambit of standard G5. However, it is not persuaded that this is the situation in the present case.

The Authority notes that the QC’s report was called for by the Chief District Court Judge in circumstances where a judicial officer’s conduct was seriously in question. In the Authority’s opinion this situation itself raised a matter of public interest, and one which the media could be expected to report. Further, the contents of the report would also be of public interest, unless there were other compelling considerations which would warrant secrecy being maintained.

In terms of court process (which is at the heart of Mr Clayton's complaint), the Authority acknowledges that the issue of disclosure was a matter already determined by the High Court. As we know now, Penlington J had been called upon to rule on the admissibility of the QC’s report as part of the Crown case. He did so before the trial started, and ruled it inadmissible for reasons he then made plain. Perhaps more importantly for present purposes, the Authority notes, Penlington J also embargoed his judgment from publication until the prosecution had been determined. He did this no doubt for the very sensible reason that a release of the judgment pre-trial could have been prejudicial to the case.

The prosecution has now taken its course, and Penlington J's ruling is now a matter of public record. To the extent that the judgment contained extracts from the QC’s report, they are also now part of the public record.

The Authority has decided before (Decisions 1998-007/008/009 and 1998-080) that there are strong public interest elements in the full reporting of what happens in our Courts. Here it was relevant for the general public to know why the QC’s report had been ruled inadmissible by the Court, and that inevitably involved a consideration of its contents. The judgment, and the extracts from the report it contained, were legitimate matters for inquiry and report by broadcasters, subject of course to their usual legal obligations and compliance with broadcasting standards.

It is a matter of opinion as to whether this broadcast could truly be said to have been critical of the jury's verdict. Nevertheless, even if it was, the Authority is not persuaded that it would be in that category of criticism which is so unreasonable or ill-founded as to tend to undermine the legitimacy of either the trial process or the verdict. The Authority concludes that the broadcast was not in breach of standard G5.

Standard G4

Under this standard, Mr Clayton asks the Authority to conclude that one of the consequences of the item was to foster public doubt as to the correctness of the verdict of acquittal. That, he said, was unfair to Judge Beattie.

For the reasons already made plain in the ruling on standard G5, the Authority does not accept that the item did in fact foster such public doubt. Furthermore, the Authority does not necessarily accept that a broadcast which tends to "foster public doubt about the correctness of a verdict" will infringe any standards. In some circumstances, it might well be necessary for a broadcaster to question a verdict in a public and somewhat adversarial way.

Next, the Authority turns to Mr Clayton’s claim that the item was defamatory of Judge Beattie, and because a defence of qualified privilege could not be invoked by TVNZ (on the basis that it was not a fair and accurate report), it was unfair to Judge Beattie to broadcast the item. Mr Clayton expanded on this ground in his referral to the Authority. He maintained that the item did not mention those aspects of the report which led Penlington J to exclude it from the trial. In particular, he said, it did not mention the four prejudicial elements in the report which Penlington J relied on. On that basis, he contended, TVNZ could not claim that the item was fair or accurate.

First, it is not for the Authority to determine whether the report was defamatory. Secondly, as TVNZ points out, that issue may still have to be decided in the proper forum. However, these points do not dispose of what the Authority discerns to be the essence of this part of the complaint – ie that the item was unfair to Judge Beattie. Mr Clayton submitted that the broadcast was unfair to Judge Beattie because it did not articulate the reasons given in the judgment for not admitting the evidence.

TVNZ has disputed this, and has maintained that the complete and utter denial by Judge Beattie of the QC's findings was given prominence in the item.

The Authority accepts that this was so. Moreover, while noting that Penlington J's reasons for making the evidence inadmissible were dealt with scantily in the item, if at all, it observes that the item very clearly recorded the Justice's decision that the evidence was highly prejudicial and unsafe to put to the jury. That coupled with the report of Judge Beattie's denial of the main points contained in the QC’s report were, in the Authority's opinion, sufficient to discharge any obligation of fairness. Accordingly, the standard G4 aspect of the complaint is not upheld.

Standard G6

Mr Clayton questioned whether this standard was relevant, in that he doubted that the item dealt with "a controversial issue". He pointed out that Judge Beattie had not been in the media since November 1997. The Authority is unhesitatingly of the opinion that the trial of Judge Beattie remains "controversial", and the programme one which attracts the standard.

However, as the points raised by Mr Clayton under standard G6 referred to "fairness", and as "fairness" has been the issue canvassed above, the Authority on this occasion subsumes the standard G6 aspect of the complaint under standard G4.

Privacy

The Authority has developed some privacy principles pursuant to which it assesses complaints which allege a breach of the privacy requirement contained in s.4(1)(c).

Mr Clayton specifically referred to principle (ii) which reads:

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

The matters disclosed in the broadcast were contained in a public document – a High Court judgment. They were thus "public" facts. The Authority has concluded that the trial remains a matter of ongoing public interest. It also considers that sufficient time has not elapsed to make these public facts private again through the passage of time. Thus, the Authority decides, the privacy complaint is not upheld.

Conclusion

Overall, the Authority concludes, an important story was dealt with during an item on Holmes in a way which gave sufficient attention to the background and the context of the incident to ensure that the broadcasting standards were complied with.

For the reasons above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
26 November 1998

Appendix

W G Clayton’s Complaints to Television New Zealand Ltd – 3 August 1998

Mr W G Clayton of Paraparaumu complained to Television New Zealand Ltd about an item on One Network News broadcast on 27 July 1998 between 6.00 and 7.00pm.

Mr Clayton recalled that about a year previously a District Court judge (Judge Martin Beattie) had been acquitted of dishonesty after a jury trial. The news item complained about (and a subsequent item on Holmes) disclosed and discussed a pre-trial judgment given by Justice Penlington. In that judgment, Penlington J had ruled inadmissible a report prepared by a barrister (a QC) who had carried out an investigation at the request of the Chief District Court Judge before the criminal proceedings were begun. The items, Mr Clayton wrote, were a breach of standards G4, G5 and G6 of the Television Code of Broadcasting Practice. There was also, he added, an invasion of Judge Beattie’s privacy.

Because Judge Beattie was acquitted after due process, Mr Clayton considered that the barrister’s opinion prepared as part of the initial investigation was "utterly irrelevant and should never have been publicised". He continued:

It is hard to believe that TV One was not aware that this was the position, the more so when it knew that the very material publicised had been the subject of a considered decision of the trial judge excluding it. In these circumstances, the publicity was disgraceful.

Furthermore, Mr Clayton noted, the material only became available as it was contained in a High Court judgment after the Crown’s unsuccessful attempt to include the report as evidence at the trial.

Turning to the issue of appropriate action, Mr Clayton stated "bold and imaginative action" was called for in view of the impact of the national news bulletin. He called for an apology and an expression of regret from TVNZ, to be presented by the Chief District Court Judge or, if he was unavailable, the president of the Criminal Bar association or the NZ Law Society.

TVNZ’s Response to the Formal Complaint – 14 August 1998

Assessing the complaint under the nominated standards, TVNZ said the item referred back to the trial of Judge Martin Beattie, and revealed for the first time the contents of a judicial ruling on the admissibility of a report prepared by Mr John Upton QC at the request of the Chief District Court Judge. The item, TVNZ added, showed why the trial judge considered that Mr Upton’s report was prejudicial and inadmissible as evidence at the trial.

As a general point, TVNZ began:

It is our view that it is quite right and proper that a news media organisation should subject to close examination the workings of the justice system. It is equally right and proper that cases involving people who have a high level of public accountability should come under special scrutiny. It is the role of the news media to serve the public interest.

Referring to the cases of Arthur Alan Thomas and Derek Bentley, TVNZ did not accept the argument that a jury’s verdict brought a case to an end. As for the Upton report, TVNZ said it had been part of the Crown’s case and the judge’s ruling that it was inadmissible became a public document after the trial ended. Justice Penlington, TVNZ observed, could have, but had elected not, to suppress his judgment totally.

With reference to standard G4, TVNZ did not accept that the item was unfair to Judge Beattie as it concerned a high profile case, and the case continued to be discussed regularly. Further, TVNZ stated, the item had given equal prominence to Judge Beattie’s objections to Mr Upton’s findings.

TVNZ was unable to discern in what way the complainant believed that standard G5 had been breached, and as the item was a balanced account of the judgment, it did not accept that standard G6 was contravened. Finally, turning to privacy, TVNZ considered the high level of public interest in the case was a defence in this case to an individual’s claim for privacy.

TVNZ declined to uphold the complaint.

Mr Clayton’s Referral to the Broadcasting Standards Authority – 11 September 1998

Dissatisfied with TVNZ’s decision, Mr Clayton referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Clayton explained that, prior to Judge Beattie’s trial, the Crown had applied unsuccessfully to produce as evidence a report prepared by Mr Upton QC at the request of the Chief District Court Judge. In his ruling, Justice Penlington ordered non-publication of his judgment until after the case was heard in order not to prejudice the pending trial. Thus, Mr Clayton wrote, the report was not as TVNZ claimed, part of the Crown’s case. That case consisted of the matters put forward at the trial. He continued:

The judgment necessarily disclosed the general thrust of Mr Upton’s report, cited certain passages from both it and the ancillary notes on the one hand, and Judge Beattie’s response on the other. Such information as the judgment disclosed about these three documents was obviously the only source relied on by TV One (since none of the three documents is publicly available).

Mr Clayton also recorded his unsuccessful attempts to obtain a transcript or video of the item complained about, commenting that he believed that this material should be made available to a complainant at a reasonable cost.

Despite not having a copy of the item, Mr Clayton said he had a reasonably accurate recollection that the broadcast had "sensationalised" Mr Upton’s conclusions that Judge Beattie "had been knowingly dishonest". Mr Clayton also enclosed a copy of Justice Penlington’s judgment.

Mr Clayton stated that standard G5 was central to his complaint. It followed that the item also breached standard G4 and privacy, both in general terms and in relation to principle (ii) specifically.

Mr Clayton considered that it was apparent from TVNZ’s response to his complaint that it had not understood that a criminal trial according to due process was a "principle of law". While standard G5, he argued, required trial by jury to be respected, the full principle of the criminal law was somewhat wider. He recorded:

Under our system of criminal law the guilt or innocence of an accused person is to be determined by a fair trial conducted under the adversary system in accordance with certain recognised rules and procedure. The decision making tribunal may be a judge alone or a jury depending on these rules.

However, before advancing the reasons why he considered that TVNZ had failed to respect this principle, he dealt with Mr Upton’s report in some detail.

Justice Penlington, he noted, had likened Mr Upton’s investigation to a departmental inquiry, where he had set his own procedure. It was apparent from the judgment, Mr Clayton continued, that Justice Penlington considered Mr Upton’s conclusions to be seriously flawed. He had also ruled that its prejudicial effect on the jury would outweigh any probative value. Further, although Justice Penlington had specifically observed that it had not been unnecessary to decide whether Mr Upton’s report was less than objective and dispassionate, Mr Clayton contended that, in view of some of Penlington J’s comments which he cited, that he would have made such a finding had he been required to.

Mr Clayton noted both the inquisitorial style of Mr Upton’s enquiry, his initial interviews of court staff, and the apparent hostile atmosphere of the Whangarei Court staff to Judge Beattie (as had had apparently been revealed at the trial), and wondered if this had played a critical factor in leading Mr Upton to disbelieve Judge Beattie. Mr Clayton concluded his observation on the report:

It was undoubtedly Mr Upton’s recommendation in respect of Judge Beattie that ultimately led to the prosecution of both judges by the Serious Fraud Office even though Mr Upton recommended merely a warning to Judge Hesketh … . In retrospect the prosecution was arguably a ghastly error of judgment in which Mr Upton shared. A diligent reading of Justice Penlington’s judgment should have alerted a perceptive journalist to this possible view. Since it reflected on the soundness of Mr Upton’s judgment it would have been prudent to keep silent as to the latter’s views.

Mr Clayton then referred to the trial at which Judge Beattie gave evidence about his honest belief in his entitlement to allowances which the jury, he said, accepted. He observed:

While it may be stating the obvious, the trial and its verdict constituted the only mode of determining guilt or innocence recognised by the law. The acquittal of Judge Beattie was final. The law has no machinery to challenge an acquittal.

"Post-trial Events" was the heading in the next section of Mr Clayton’s letter of referral, and he recalled that there had been some calls after the trial, especially from politicians, for Judge Beattie’s resignation. He referred to the situation where Judge Beattie’s fellow judge in Whangarei, Judge Hesketh, had pleaded guilty and eventually had been struck off the roll of barristers and solicitors. He also mentioned the effort by some Auckland lawyers to obtain Judge Beattie’s resignation. Mr Clayton summarised this point:

I mention these post-trial developments to stress that none involved anything in the way of new facts impugning the correctness of the jury’s verdict. They were either politically motivated or prompted by the unfortunate contrast between Hesketh’s fate and Judge Beattie’s continuance in office. They did however demonstrate a degree of prejudice against Judge Beattie despite his acquittal by a jury. I suspect it is largely on account of these post-trial events and the prejudice they generated, that TV One has relished the opportunity to publicise Mr Upton’s views.

Mr Clayton then turned to the standards. While standard G5 did not preclude criticism of both the method of the trial and a decision, he argued that the criticism must be "reasonably based". TVNZ had misunderstood his complaint when it assumed, incorrectly, that he had said that a jury’s verdict was necessarily the end of a case.

Mr Clayton asked whether the sensational way in which Mr Upton’s contrary views were advanced in the item was a reasonably based criticism of the court’s decision. He added:

I submit the only appropriate yard stick to apply to decide this is to ask "was the main fact involved of the kind the law would recognise (mutatis mutandis) for the purpose of challenging a wrongful conviction", since it is only in that situation the law enables challenge.

The answer, he wrote, was a "resounding" no, adding:

Therefore the sensationalism of Mr Upton’s views amounted to an unreasonable criticism of the jury’s verdict and so was a failure to respect the principle involved.

A consequence of a breach of standard G5, Mr Clayton contended, was to foster some degree of public doubt about the correctness of the jury’s acquittal of Judge Beattie. The wrongful fostering of such doubt, he continued, was unfair to Judge Beattie and in breach of standard G4. It was also unfair as it publicised Mr Upton’s opinion, to which the parties who had appeared before Penlington J, had agreed was of no evidential value in itself.

Mr Clayton questioned whether standard G6 was applicable as, before the broadcast in July 1998, Judge Beattie had not been in the news to his knowledge since November 1997. If the Authority considered that the events nevertheless remained current, Mr Clayton maintained that the broadcast breached the fairness requirement of standard G6.

In regard to privacy, Mr Clayton began:

While I concede this is not a familiar field to me, the personal embarrassment the feature must have caused to the judge and his family and to him in the performance of his official duties seems to me an invasion of his privacy.

He noted first that the judgment had been a "public fact" since 1 August 1997 following Judge Beattie’s acquittal, secondly that the contents of the judgment were published in a sensational and offensive manner, and thirdly that the reasons why Mr Upton’s report had not been relevant remained valid. On these bases, he considered that principle (ii) had been transgressed. Further, he suggested that as Mr Upton’s report could still be considered a private fact, principle (i) was contravened. Mr Clayton commented:

I raise this alternative possibility because the report as a whole certainly was and is a private fact – being a private and privileged communication between Mr Upton and the Chief District Court Judge of which a copy was supplied to Judge Beattie. I am by no means sure that extracts from it ceased to be private merely because they were cited in a public document.

Mr Clayton then responded to TVNZ’s letter of 14 August in which it had declined to uphold the complaint.

He considered that TVNZ had misunderstood Justice Penlington’s ruling in that he had ruled that the report was inadmissible, not "suppressed" as TVNZ had written. He agreed with TVNZ’s general description of its role in examining the justice system. However, he argued that the item on 27 July had not examined the workings of the justice system, for example by considering the correctness of Justice Penlington’s decision. Rather, it had fastened on to the fact that a QC, before a trial, had expressed the opinion that Judge Beattie was dishonest.

Secondly, rather than giving special scrutiny to a case involving a person with high accountability, the report had involved "a blatant attempt to smear" Judge Beattie by sensationalising the conclusion of a pre-trial "inquisitorial" inquiry.

Thirdly, Mr Clayton stated that the "public interest" was not served by a broadcaster impugning a jury verdict by publicising a QC’s opinion unrelated to the actual trial. This involved, he said, confusion between the public interest, and something which was interesting to the public.

As for TVNZ’s argument about the public availability of the document, Mr Clayton repeated that the court had ruled that the Upton report was inadmissible – it had not suppressed the report. He also reiterated that the release of the information, while interesting, was not in the public interest. As for the limit on the non-publication order, Mr Clayton argued that Justice Penlington could not have foreseen that post trial events, which had created "more heat than light".

Examining TVNZ’s letter further, Mr Clayton acknowledged that the case was high-profile, but he did not accept that the debate was ongoing. Mr Clayton said he was not impressed with TVNZ’s reliance for this opinion on anonymous high-ranking members of the legal profession, and he described TVNZ’s reference to "public interest" in this context as specious. He noted:

The unfairness to Judge Beattie of the feature was not saved merely by recording his denials in his response to Mr Upton’s report. What was essentially unfair was to publicise the fact that a QC, whose status tends in the public mind to carry more weight than it perhaps deserves, had considered Judge Beattie to be dishonest, even though a jury had subsequently decided otherwise.

In conclusion, Mr Clayton said that he did not know Judge Beattie, and remarked:

I refrain from considering whether or not he should have resigned by reason of the mistake (albeit honest) which subsequently attracted so much attention to him. That question involves different issues. My sole concern is to ensure that the medium of television is not allowed on the pretext of public interest to abuse the enormous power it possesses. That is what it has done here. It may seem I have gone to considerable length in what is merely a labour of love but as a retired professional I feel I have some obligation to society to defend the institution of the judiciary (which by tradition cannot defend itself) and our system of justice.

TVNZ’s Response to the Authority – 29 September 1998

While noting that Mr Clayton had included a great amount of detail, TVNZ stated that he had summed up his complaint in the following way:

"My sole concern is to ensure that the medium of television is not allowed on the pretext of public interest to abuse the enormous power it possesses."

In response, TVNZ denied that it had misused its "enormous power". The public interest, it continued, was not a pretext. The role of every news media organisation was to serve the public interest, and it maintained that the item complained about fell into that category.

TVNZ reiterated that the item was based on public documents obtained from court records, and that the content of the documents was adequately summarised in the item. Penlington J could have imposed a permanent suppression order, TVNZ observed, but he had not, adding:

We stress our view that the news media is entitled to further examine any case when new and relevant material comes to light – indeed the serving of the public interest requires that it should.

TVNZ then dealt with some of the specific points raised by Mr Clayton. First, it accepted that it had initially been incorrect in stating that Mr Upton’s report did not form part of the Crown’s case at the trial, conceding that the Crown had sought to include it as part of its evidence.

Secondly it disputed Mr Clayton’s claim that the item sensationalised Mr Upton’s conclusions, and said that no evidence had been produced by the complainant to justify this aspect of the complaint.

Next, although Justice Penlington had commented about Mr Upton’s report, TVNZ said that he had not made a finding as to whether it was, or was not, objective or dispassionate.

Fourthly, in reply to Mr Clayton’s point that the prosecution was a "ghastly error of judgment", TVNZ pointed out that that Justice Penlington apparently did not share his view, as he had allowed the case to go to trial.

After observing that neither it nor Mr Clayton knew exactly why the jury acquitted Judge Beattie, TVNZ commented that the unusual post-trial comments as reported in the media was one of the reasons why the broadcast of the item was justified.

TVNZ did not accept that the item criticised the jury’s verdict, maintaining that it reported the views of Mr Upton, views, it said, which it knew to be shared by "leading barristers" and, possibly also by judges.

In response to the claim that the item would foster doubt as to the correctness of the verdict acquitting Judge Beattie, TVNZ contended:

We aver that it is not the role of the news media to ensure that there is no fostering of public doubt about any acquittal or indeed conviction. It is the role of the news media to place in circulation such material as contributes to an informed public opinion.

Denying that the item was defamatory, TVNZ insisted that the Upton report was not a private fact and, it said, the point that some months elapsed before the judgment became public was irrelevant.

TVNZ accepted that it should have used the word "inadmissible" in relation to the report, but maintained that the effect of the order was to suppress it until the end of the trial.

As for the relevance of Mr Upton’s report, TVNZ wrote:

… we observe that surely it is of interest to the public that the Crown (represented by a Queen’s Counsel who has since been appointed a High Court Judge) endeavoured, without success, to include Mr Upton’s report in its case? The item did not question that decision, but rather reported the strong views contained in Mr Upton’s report. As indicated earlier, whether Mr Upton’s report was flawed or not is a matter of opinion.

Of special interest in this particular case is the fact that another judge was prepared to admit his guilt and take the consequences, a decision which makes the Beattie trial that much more perplexing and intriguing for an inquiring public.

Arguing that it was accepted in common parlance that the Crown represented the people, TVNZ concluded with Mr Clayton’s allegation about "smear tactics", stating:

Given that the reporter who worked on this item is clearly identifiable we would have thought that this remark verges on the defamatory – especially given the emphasis the journalistic profession places on impartiality and fairness. What evidence does Mr Clayton have of "smear tactics" – a phrase that carries a strong implication of malice?

Mr Clayton’s Final Comment – 8 October 1998

Mr Clayton said that his complaint focused on the item on One Network News not the following item on Holmes which dealt with the same issue. The sentence quoted by TVNZ as summarising his complaint, he said, in fact stated his motive.

Mr Clayton did not accept that the freedom of expression provision in the New Zealand Bill of Rights Act 1990 provided the criterion which TVNZ was bound to pursue. The Bill of Rights provision, he noted, yielded to specific statutory provisions pursuant to s.4 of that Act. As for the public interest, Mr Clayton wrote:

It is obvious TVNZ still fails to appreciate its correct meaning. No verdict can be impugned by some inadmissible opinion unrelated to the trial process.

In regard to the reason why Judge Beattie was acquitted, Mr Clayton recorded:

I concede that in theory they could have done so on the basis of reasonable doubt as to Judge Beattie’s alleged dishonesty. However, as a barrister with experience of scores of jury trials in my earlier practice, I firmly believe that, because of the nature of the issue, the jury would not have acquitted unless they believed the Judge.

Mr Clayton’s final comment referred to TVNZ’s claim that many leading barristers thought that Judge Beattie should have been dismissed. The Solicitor General, he began, did not think so. Further, following his letter on the topic published in the Evening Post, a distinguished senior barrister had sent him a note. Mr Clayton’s letter concluded:

My distinguished colleague said "I agree with you about the attempt by the media to make capital about a report which was inadmissible and should never have been tendered in evidence" (emphasis added). So much for the judgment of the Crown counsel, now Justice Young, whose professional experience would not be half that of my colleague. I have complained to the Press Council about [the] Evening Post.