Catriona MacLennan: Court TV - don't blame the cameras

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Giving the public a close-up view of justice at work is a benefit, whatever the legal critics might say

The trials of Ewen Macdonald (above) and Clayton Weatherston were covered by TV cameras, stimulating a lot of public debate. But surely this is a good thing.
The trials of Ewen Macdonald (above) and Clayton Weatherston were covered by TV cameras, stimulating a lot of public debate. But surely this is a good thing.

Television cameras stand accused of sensationalising criminal court coverage and misinforming the public, rather than educating and informing the community about the courts.

Some senior lawyers have claimed that television presents unbalanced coverage and demonises some of those involved in court cases.

After those criticisms, Justice Minister Judith Collins has said there will be a review of the use of television cameras in court.

New Zealand has had televised court coverage for 16 years. During that time, there have not been any cases of mistrials caused by television coverage.

However, New Zealand Law Society president Jonathan Temm in a speech to the 13th International Criminal Congress in Queenstown on September 15 called for a review of the decision to permit television coverage in criminal courts.

He said television coverage of the Clayton Weatherston trial in Christchurch, the Ewen Macdonald trial in Wellington, the Kahui murder trial in Auckland and the findings of the coroner into the deaths of the Kahui twins had been prominent.

Mr Temm said that a rethink of allowing television cameras into court was needed for four reasons:

•Much public debate had been engendered by these trials.

•The debate had flowed from, among other things, the television coverage.

•The debate had been ill-informed and misinformed.

•The abolition of the defence of provocation had much to do with public perception based on television coverage and political point-scoring, and little to do with logic or fair trial processes.

Auckland Crown Solicitor Simon Moore, SC, barrister Judith Ablett Kerr, QC, and Law Society criminal law committee convener Jonathan Krebs have also spoken out in favour of rethinking television cameras in court.

I completely disagree with them.

Let's look at each of the above four points.

Mr Temm says much public debate has been engendered by these trials.

Surely this is a good thing ? Debate is healthy and the advent of the internet has democratised public discourse so a far broader range of members of the community can now express their views.

Contrast that with the past, when only the elite's views were aired, and surely that is a positive development.

The courts are public institutions and one of the cornerstones of our system. Public confidence in the courts is a fragile and intangible quality and it is important that the public has knowledge of, and access to the courts.

Secondly, it is suggested that debate has partly flowed from the television coverage. This is undoubtedly so. Television brings the courtroom to the public in a way that is difficult for other media to emulate.

That can be an extremely powerful thing. Another recent court case which sparked public debate was the conviction and sentencing of Guy Hallwright after the running over of Sung Jin Kim.

In my view, television performed an extremely important public service in this case by broadcasting lengthy excerpts of the judge's sentencing remarks.

It was the judge's remarks and the sentence imposed which caused the public disquiet, not any sensationalism on the part of television.

Thirdly, Mr Temm says public debate about the trials has been "ill-informed and misinformed".

Those are strong words. Sometimes, such words are used to criticise people with whom one disagrees, as an alternative to responding to the substance of the comment. The fact that a person has a different viewpoint does not automatically make that person ill-informed.

It can be easy for lawyers to dismiss the media and the public as ignorant. But both are often very good at cutting to the heart of an issue, when lawyers might take far longer to get to the point.

If the legal profession wants the public and journalists to be better-informed about the courts, it could perform a considerable service by lobbying for District Court judgments and sentencing notes to be easily accessible.

Fourthly, Mr Temm says the abolition of the defence of provocation had much to do with public perception based on television coverage and political point-scoring.

The partial defence of provocation was abolished in 2009 after the murder trials not only of Clayton Weatherston but also of Ferdinand Ambach. Then-Justice Minister Simon Power in August 2009 introduced the Crimes (Provocation Repeal) Amendment Bill to Parliament and it was passed that year.

But the law relating to provocation had been examined by the Law Commission both in 2001 and in 2007, and the commission at both times recommended that the partial defence be abolished.

By 2009, it was inevitable that this would occur. There was simply no longer room in the legal system for a partial defence which excused people lashing out in violent, homicidal rage and, moreover, was extremely sexist in its operation since the overwhelming majority of beneficiaries of the defence were violent men.

In addition, the historic rationale for the defence - to allow people to avoid the mandatory sentence for murder - no longer existed as the Sentencing Act 2002 allows the judge to depart from life imprisonment when it would be manifestly unjust.

Television coverage in the Weatherston case provided the public with a graphic illustration of the horrific ways in which victims and witnesses are often treated by our legal system.

Growing public disquiet about this has been important in motivating governments in recent years to take steps to provide for better treatment of victims in courts.

That has been a positive development.

The United Kingdom has also been debating television cameras in courts, and the Government decided this year to allow some very limited coverage.

Opponents are raising some of the arguments now being used in New Zealand.

In particular, they argue that the televising of Parliament in the United Kingdom has led to a lowering of public esteem for politicians.

I would argue that it is not the cameras which are at fault here, but the behaviour of the politicians. The cameras are merely the conduit which conveys this information to the public.

Criminal court trials do sometimes result in people being "demonised" in the public mind. However, this can often be because of the tactics adopted by defence lawyers, who seek to convince juries that someone other than their client has committed a crime.

This is part of the "theory of the case" approach to trials, which results in some utterly spurious explanations to juries as to why someone other than the defendant is the culprit.

It is time for a review of that aspect of trials.

Catriona MacLennan is a barrister and journalist.

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