"... anything you say may be shown on television."

Even improperly obtained confessional statements, that are excluded from evidence at trial, may be permitted by the court to be shown on television. In Rogers v TVNZ [2007] NZSC 91 (16 November 2007) this was held by the 3-2 majority. No doubt, as a result, lawyers will be warning their clients about this when giving advice in response to a police request for an interview.

The minority, Elias CJ and Anderson J, considered, in separate judgments, that there were too many unresolved issues, particularly concerning what relevance, if any, the method by which the media obtained a copy of the videotape of the excluded confession, had to the ultimate issue.

The majority, Blanchard, Tipping and McGrath JJ - also delivering individual judgments – preferred to treat the proceedings as if they were an application under the Criminal Proceedings (Search of Court Records) Rules 1974. This made sense, because TVNZ could have simply said, never mind about the copy we have, give us another. What was important for the majority was the need for open justice, for public discussion at an informed level about the decisions made in this case.

Public interest is high. I have previously blogged the Court of Appeal’s decision in the present proceedings (see 8 August 2006). There I suggested that public discussion that is properly informed will be difficult to achieve, because of the complexity of the issues relevant to the admissibility of the evidence here. The Supreme Court majority did little to further inform the public, leaving people to hope that the media give them sufficient material, or to fossic it out for themselves.

Mr Rogers’ uncle, Mr Lloyd, had been tried for a murder and acquitted, but was convicted of manslaughter. He was sentenced to 11 years in prison. Eventually, when the sentence was almost served, the police became doubtful as to the correctness of Mr Lloyd’s conviction. This was because Mr Rogers had made admissions to family members, and had demonstrated how he alone had killed the victim. The Crown consented to Mr Lloyd’s appeal against conviction being allowed. Mr Rogers was arrested and charged with the murder. His lawyer obtained an agreement from the police that they would not interview Mr Rogers unless the lawyer was present. In breach of that agreement, the police arranged for the temporary release of Mr Rogers from custody (he had been denied bail) so that he could, without his lawyer’s knowledge, go with the police to the scene of the murder and demonstrate, on videotape, how he did it.

The High Court ruled that this tape was admissible evidence against Mr Rogers. On appeal, the Court of Appeal overruled that decision, holding that the tape was inadmissible. This was because the police had improperly obtained the evidence on the tape by breaching Mr Rogers’ right to legal advice and his right to silence, in circumstances where the police should be held to their agreement with Mr Rogers’ counsel. A full balancing exercise was not carried out; that would have involved detailed consideration of the seriousness of the impropriety by which the evidence was obtained, and the public interest factors including the importance of the evidence in the overall context of the other evidence that would be before the jury.

At trial, Mr Rogers was acquitted.

The Supreme Court in these subsequent proceedings did not elaborate the balancing factors. The case came before it as an appeal by Mr Rogers against a Court of Appeal ruling that TVNZ could broadcast a copy of the tape that the police had given it at a stage before the Court of Appeal had ruled it inadmissible. The Supreme Court expressed concerns about the propriety of the police dealing with what should, it seemed, be treated as information not for public release. A problem with these proceedings was that proper pleadings, identifying issues and providing for the development of legal argument, had not occurred because of the urgency of this case (the issue of broadcasting) in its early stage.

Among the points made in the Supreme Court are the following:

• Acquitted people cannot expect to be able to prevent public discussion of their cases (Blanchard J at 47; Tipping J added that an acquittal is not a declaration of innocence, at 66).
  

• Open justice is important, indeed it is the dominant interest here. The courts should not be perceived to be discouraging criticism (Blanchard J, at 56). A defensive attitude by the courts would undermine public confidence in the judicial system (Tipping J, at 74).
  

• The public have an interest in being fully informed so they can make their own assessments of the reasons for exclusion of the tape, and uninformed commentary is not in the interests of the administration of justice (Blanchard J at 51; McGrath J at 124).
  

• An interview with the police is not (at least, here) private information (Blanchard J at 48; McGrath J at 99, although Elias CJ disagreed at 23, and Anderson J at 145 would not go as far as Blanchard J).
  

• The issue here was how far the consequences of the ruling of inadmissibility should affect the use of the tape for other purposes (Tipping J at 64).
  

• The approach to search of court records should be to release information unless there is good reason to withhold it (Tipping J at 67).
  

• The court might have an inherent power to prevent access to information, even before it becomes part of the court’s record (McGrath J at 109 - 113, but Anderson J would not encourage the courts to arrogate to themselves a broad claim of inherent power used to constrain rights (at 152).
  

• The argument, advanced by Mr Rogers, that publicity at this stage would disrupt his rehabilitation, was met by the fact that he was responsible, by opposing publication, for the delay, and if publication had occurred earlier (with reports of the verdict) it would not have had a disruptive effect (Tipping J at 70).
  

• The breaches of Mr Rogers’ rights were adequately remedied by the exclusion of the tape from evidence at his trial (Blanchard J at 49; Tipping J at 65; McGrath J at 132 but noting that broadcasting might be seen as undermining this vindication of Mr Rogers’ rights; Anderson J doubted, at 148, that exclusion will necessarily always be a sufficient remedy, and Elias CJ was of similar view at 28-29).
  

• Knowledge by suspects that their statements to the police might be broadcast will not deter them from talking to the police (Blanchard J at 48, noting that the police don’t seem to be concerned about this; but Elias CJ was not so sure at 30).
  

No doubt, public discussion will first focus on whether Mr Rogers was really guilty. Whether the verdict would have been different if the jury had seen the tape can only be a matter of speculation. More interesting, at least to lawyers and informed commentators, is the propriety of excluding the tape from evidence in this case. This is difficult to assess, because the judgment of the High Court (ruling it admissible) is not readily accessible – at least at present – and the Court of Appeal, as noted above, did not conduct a detailed analysis. The Supreme Court judgments do not criticise the Court of Appeal’s decision. Blanchard J was careful, at 54, not to indicate any doubt about the legal soundness of the Court of Appeal’s ruling, but at 53 he said that the tape may have assisted the prosecution case, and Anderson J at 149 said it was “weighty” evidence. Tipping J refrained from expressing any view on whether a correct balance had been struck in this case between redressing breaches and the effective prosecution of crime: 72. It is not clear whether the Supreme Court Judges viewed the tape; probably they did not.

In not giving fuller details of the relevant facts in its judgments the Court leaves it to the media to supply the public with sufficient information for proper debate of the issues.

The television programme broadcast on Sunday night, 18 November 2007, on TV One, did not discuss two matters I would like to know more about: first, why was Mr Rogers’ lawyer’s agreement with the police treated by the Court of Appeal as if it were a right supplementing the right to counsel in the Bill of Rights, and second, why didn’t the Court of Appeal treat Mr Rogers as having waived his right to counsel before going with the police to make the reconstruction of the murder?

On the other hand, the excerpts of the tape shown on television did not suggest to me that the confession made there was likely to be true, as opposed to being a re-enactment of a fantasy that, apparently, evidence in the trial had suggested Mr Rogers thought was true. There seemed to be some pressure on Mr Rogers from family members to admit guilt, and he had indeed made several previous admissions to them, but the police had not thought they were believable. Perhaps an issue of voluntariness arose; it is difficult to say without full knowledge of the case. The television programme left me with the impression that the police investigation of the case had not resulted in persuasive evidence so a confession was necessary. But as to its reliability, who can really say? It does not seem appropriate to call the part of the tape shown on television “weighty” evidence for the prosecution, and comments in the Supreme Court judgments about the inadequacy of a verbal account of the video (Tipping J at 72; McGrath J at 123) may seriously underestimate the power of words and imagination compared with the relatively mundane visual presentation.