Papers filed with the district court reveal Newsroom’s arguments against a charge of breaching the Family Court Act. David Williams reports

Newsroom’s written court submissions throw light on police and Crown Law behaviour the news website’s lawyer maintains is unfair and, perhaps, predetermined.

Yesterday, Newsroom appeared in the Christchurch District Court – a first appearance on a charge of breaching the Family Court Act in November last year. A plea of not guilty was entered.

Wellington barrister Tim Castle said Newsroom would strenuously defend the charge, related to a video story that, authorities say, identified children in an Oranga Tamariki ‘reverse uplift’.

Because of a High Court order sought by Solicitor-General Una Jagose the video has been taken down.

The legal submissions, handed to District Court Judge Jane Farish yesterday, set out a chain of events, starting on May 7, when police sought a formal interview with Newsroom co-editor Mark Jennings. The request came after police reviewed material supplied by the Solicitor-General, who made a complaint on November 27 last year. (That date’s important, but we’ll come back to that later.)

Jennings replied Newsroom wanted to get informed legal advice on the police request for an interview and asked for information, including a copy of the letter of complaint, complete copies of the “material” received from the Solicitor-General and anything else considered by the police.

After a day’s consideration, on May 14 police refused to provide the information – apart from a copy of Newsroom’s own video – “as making available of that information would be likely to prejudice the maintenance of the law, in particular the investigation of offending”. The investigation was still active, the police email said, and, if a prosecution was launched, the information would be disclosed under the Criminal Disclosure Act – but only once proceedings commenced.

Advised it had the right to ask the Ombudsman to review the police refusal, Jennings indicated, on May 18, Newsroom intended to do just that. His email queried the version of the documentary police had seen, as changes had been made at the behest of Jagose. Jennings also noted Newsroom was seeking leave to appeal Justice Francis Cooke’s decision granting the interim injunction to take down the video, and costs.

Based on legal advice, Jennings said he wouldn’t make himself available for an interview. On May 24, police formally notified Newsroom it had been charged.

Castle writes: “In essence by that step, the police denied Newsroom a reasonable opportunity to have its responsible officer [Jennings] submit to interview as had been requested, with the benefit of knowing, considering and understanding the information in the possession of the police.”

It wasn’t a straight refusal, Castle said, but non-acceptance pending the Ombudsman review. “That was a reasonable and fair approach. However, the police determined not to wait. That refusal is considered unfair and unreasonable; and was clearly predetermined.”

Such unfairness is contrary to the views espoused by Police Commissioner Andrew Coster in a recent Stuff article, Castle argued.

He also referred to a Waitangi Tribunal report, which urges ministers to watch Newsroom’s May 2019 video of an incident known as the “Hastings uplift”, as a sign of the news website’s continued professionalism and an acknowledgement of the legitimate public interest in Oranga Tamariki uplifts.

Newsroom asked Crown prosecutor Aaron Harvey for any written submissions but didn’t hear back by publication deadline.

Email exchanges

Appended to the evidence are email exchanges between Jennings and Solicitor-General Jagose from November last year. Castle says they reveal Newsroom engaging constructively and sensitively to refine what was published.

The Solicitor-General advised Newsroom she didn’t intend to stifle its reporting, and recognised the importance of media in a democratic society, including the website’s freedom to criticise Oranga Tamariki. But the email, sent at 4.09pm on November 26, said the documentary contained identifying information of the children and, in her opinion, breached the Family Court Act.

She invited Newsroom to take the documentary down urgently and edit it so the children weren’t identifiable. “If you do not do so then we will need to consider what further steps to take.”

Jennings’ reply, at 4.44pm, said many days were spent blurring the faces of children, and the story was checked by multiple editors. He asked if Jagose could be specific. “We will be very happy to make the necessary alterations as we believe this is a story that has significant ramifications for children and whanau.”

Thirteen minutes later, Jagose thanked Jennings for the “constructive response”, and while she’d tasked colleagues with a more detailed reply, she noted the Act’s mention of identifying details including their school. Jennings offered to remove all school shots.

The next email, from a Crown lawyer, at 5.47pm, opened a divide between the two parties. She pointed to a “cumulative effect” of the footage. They were a large family in a small town, the pixelation was “light”, children’s faces were not pixelated in profile, school buildings and the foster family home were shown, and the foster parents’ voices weren’t altered.

“We take no issue … with the interviews with third parties or the audio of the meeting between Oranga Tamariki and the foster parents.”

Jennings responded at 6.36pm to respectfully disagree. While it would remove all shots of the school, and add further blurring, Newsroom disputed the points raised, and the idea of a cumulative effect. “We don’t believe we have breached the legislation and the documentary remains balanced and in the public interest.”

At 8.30pm, the Crown’s lawyer responded: “We will take another look at the footage and let you know our views.” She added: “Could you advise please who your legal counsel is if we need to serve you with any court proceedings?”

No further views from Crown counsel were forthcoming. At 10.28am the next day, November 27, Crown Law advised it had filed an injunction application in the Wellington High Court. Unbeknown to Newsroom, the Solicitor General had in fact complained to police the same day.

Castle said in his written submissions Newsroom “transparently committed to trying to ensure it did not publish identifying information about children whose identity is suppressed under the statute”.

In court yesterday, Castle noted for Judge Farish that the charging document lodged in court by the police had identified all of the children (the subject of the reverse uplift story) by name, a surprising apparent breach by the police themselves of the suppression orders in place. He said Newsroom had ‘very responsibly’ brought this to the attention of the police in advance but asked the court to remedy the police breach by ordering again suppression of that detail. The court made that order.

A case review hearing for the District Court charge is set down for September 3. Next week, however, Newsroom seeks leave from the High Court to appeal its decisions on the injunction and costs.

If found guilty of breaching the Family Court Act, Newsroom faces a maximum fine of $10,000.

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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