Lynley Hood - Exposed hysteria

The Press
April 17 2007

Compensation payout a victory for process over justice
by Karl du Fresne

There is something deeply troubling about the compensation recently paid to the convicted murderer Andrew Ronald MacMillan for defamation.
MacMillan is serving a life sentence for the 1988 murder of Dunedin teenager Jayne Maree McLellan. It was as savage a killing as can be imagined.
Several Fairfax-owned papers injured the obviously sensitive MacMillan's feelings by calling him a rapist, when he was never charged with rape. With money provided by the Government's Legal Services Agency, MacMillan sued.
It was previously my understanding that you couldn't defame someone with no reputation left to protect, which I would have thought described MacMillan perfectly.
But it was the opinion of Fairfax's lawyers that he had a strong case – in fact, was likely to win. Faced with the prospect of expensive court proceedings, Fairfax decided to settle out of court by paying MacMillan an undisclosed sum in compensation for the error.
There are so many worrying aspects of this case that it's hard to know where to start. Let's accept, first, that newspapers have a duty to get things right. But surely that must be weighed against the damage, if any, suffered by the aggrieved party.
I would argue that MacMillan no longer had a reputation to defend. He committed a singularly sadistic murder.
He stripped his victim almost naked, sat on top of her, stabbed her repeatedly, broke her jaw, stuffed stones down her windpipe to stop her screaming and nearly bit off one of her nipples. How could his reputation in the eyes of ``right-thinking citizens'' – the standard test in defamation – be lowered by calling him a rapist?
So he didn't rape his victim, or at least wasn't charged with it. But he violated her in multiple other inhuman ways – including the ultimate violation, which was to deprive her of life. How could his reputation be further tarnished?
The legal position, evidently, is that someone who has done something unspeakably vile can still stand on their rights if they're wrongly accused of doing something else that's bad. Does this mean a mass murderer – say, Radovan Karadzic – would have grounds to sue if someone accused them of shoplifting, or parking in a space reserved for the disabled? Could Graeme Burton take me to court if I said he picked his nose? Interesting.
Then there's the role of the Legal Services Agency in all this. On Radio New Zealand's Checkpoint, Fairfax editorial chief Peter O'Hara was grilled as if he were responsible for this wretched state of affairs.
The Legal Services Agency was let off the hook. Yet it was the LSA which, by granting MacMillan legal aid, made it possible for him to sue and win compensation (The legal aid came to $9225, which has been repaid).
No doubt the LSA would say it was only fulfilling its statutory brief, but does that make it right? I think I know how most New Zealanders would answer that question.
The letter of the law may have been followed in this case, but justice wasn't done. It's an example of due process being followed but producing an outcome which, by any commonsense yardstick, was plain wrong.
* * *
It's a bit rich of Bill Ralston to accuse his former employer, TVNZ, of threatening to destroy a proud public broadcasting tradition with its plan to shed up to 60 news and current affairs staff. The destruction of TVNZ's reputation as a credible source of news and current affairs was accomplished long ago. It began nearly 20 years ago when TVNZ, acting on advice from outside consultants, began turning news and current affairs into tabloid infotainment.
That was when TVNZ started nurturing an in-house celebrity cult that made stars of people like Paul Holmes and Judy Bailey, and newsreaders adopted the practice of feeding viewers with cues (such as Bailey's arched eyebrows) as to how they should react emotionally to news items. Brian Edwards memorably called it the ``coochie-coo'' news. Ralston, as head of news and current affairs from 2003 till recently, could have done something to reverse the deterioration. As far as we can tell, he didn't. If anything, TVNZ news and current affairs became even more of a circus under his watch. It's a bit late now to be extolling the values of public service broadcasting.
* * *
Many of us have experienced a time in our lives when we have sensed that a serious wrong has been done, or was about to be done. Most of us put it out of our minds, deciding that we don't have the time, the ability or the money to do anything about it. Figuratively speaking, we turn over and go back to sleep. Thank God, then, for people whose conscience won't let them go back to sleep – people like Pat Booth, who campaigned for Arthur Allan Thomas; Lynley Hood, who exposed the hysteria behind the Peter Ellis case; and Joe Karam, who has campaigned tirelessly and at great expense for David Bain.
Karam will soon find out whether the last-gasp appeal on Bain's behalf, before the Privy Council, has been successful. I don't claim to know whether Bain is guilty or innocent; but I do know that society would be immeasurably worse off without people like Karam, who are willing to make enormous sacrifices, with no prospect of personal gain, where they believe an injustice has been done.





The Dominion Post
April 17 2007

Justice not always served by letter of the law
by Karl du Fresne

There is something deeply troubling about the compensation recently paid to convicted murderer Andrew Ronald MacMillan for defamation.
MacMillan is serving a life sentence for the 1988 murder of Dunedin teenager Jayne Maree McLellan. It was as savage a killing as can be imagined.
Several Fairfax-owned papers injured the obviously sensitive MacMillan's feelings by calling him a rapist, when he was never charged with rape. With money provided by the government's Legal Services Agency, MacMillan sued.
It was previously my understanding that you couldn't defame someone with no reputation left to protect, which I would have thought described MacMillan perfectly.
But it was the opinion of Fairfax's lawyers that he had a strong case – in fact, was likely to win. Faced with the prospect of expensive court proceedings, Fairfax decided to settle out of court by paying MacMillan an undisclosed sum in compensation for the error.
There are so many worrying aspects of this case that it's hard to know where to start. Let's accept, first, that newspapers have a duty to get things right. But surely that must be weighed against the damage, if any, suffered by the aggrieved party.
I would argue that MacMillan no longer had a reputation to defend. He committed a singularly sadistic murder. He stripped his victim almost naked, sat on top of her, stabbed her repeatedly, broke her jaw, stuffed stones down her windpipe to stop her screaming and nearly bit off one of her nipples. How could his reputation in the eyes of "right-thinking citizens" – the standard test in defamation – be lowered by calling him a rapist?
So he didn't rape his victim, or at least wasn't charged with it. But he violated her in multiple other inhuman ways – including the ultimate violation, which was to deprive her of life. How could his reputation be further tarnished?
The legal position, evidently, is that someone who has done something unspeakably vile can still stand on their rights if they're wrongly accused of doing something else that's bad. Does this mean a mass murderer – say, Radovan Karadzic- would have grounds to sue if someone accused them of shoplifting, or parking in a space reserved for the disabled?
Could Graeme Burton take me to court if I said he picked his nose? Interesting.
Then there's the role of the Legal Services Agency in all this. On Radio New Zealand's Checkpoint, Fairfax editorial chief Peter O'Hara was grilled as if he were responsible for this wretched state of affairs. The Legal Services Agency was let off the hook.
Yet it was the LSA which, by granting MacMillan legal aid, made it possible for him to sue and win compensation. (The legal aid came to $9225, which has been repaid.)
No doubt the LSA would say it was only fulfilling its statutory brief, but does that make it right? I think I know how most New Zealanders would answer that question.
The letter of the law may have been followed in this case, but justice wasn't done. It's an example of due process being followed but producing an outcome which, by any commonsense yardstick, was plain wrong.
It is a bit rich of Bill Ralston to accuse his former employer, TVNZ, of threatening to destroy a proud public broadcasting tradition with its plan to shed up to 60 news and current affairs staff.
The destruction of TVNZ's reputation as a credible source of news and current affairs was accomplished long ago. It began nearly 20 years ago when TVNZ, acting on advice from outside consultants, began turning news and current affairs into tabloid infotainment. That was when TVNZ started nurturing an in-house celebrity cult that made stars of people such as Paul Holmes and Judy Bailey, and newsreaders adopted the practice of feeding viewers with cues (such as Bailey's arched eyebrows) as to how they should react emotionally to news items. Brian Edwards memorably called it the "coochie- coo" news.
Ralston, as head of news and current affairs from 2003 till recently, could have done something to reverse the deterioration. As far as we can tell, he didn't. If anything, TVNZ news and current affairs became even more of a circus under his watch. It's a bit late now to be extolling the values of public service broadcasting.

Many of us have experienced a time in our lives when we have sensed that a serious wrong has been done, or was about to be done. Most of us put it out of our minds, deciding that we don't have the time, the ability or the money to do anything about it. Figuratively speaking, we turn over and go back to sleep.
Thank God, then, for people whose conscience won't let them go back to sleep - people like Pat Booth, who campaigned for Arthur Allan Thomas; Lynley Hood, who exposed the hysteria behind the Peter Ellis case; and Joe Karam, who has campaigned tirelessly and at great expense for David Bain.
Karam will soon find out whether the last-gasp appeal on Bain's behalf, before the Privy Council, has been successful.
I don't claim to know whether Bain is guilty or innocent; but I do know that society would be immeasurably worse off without people like Karam, who are willing to make enormous sacrifices, with no prospect of personal gain, where they believe an injustice has been done.