Case Number: 927

Council Meeting: JUNE 2003

Verdict: Not Upheld

Publication: Northern Advocate

Ruling Categories: Balance, Lack Of
Letters to the Editor, Closure, Non-Publication

Kim Cohen complained about an article which appeared in The Northern Advocate on April 16 and was headed "Judge questions competence of North lawyer".Ms Cohen, the lawyer in question, also lodged a complaint against the same article run in the New Zealand Herald the following day as a New Zealand Press Association story from The Northern Advocate.It had a similar heading:"Judge questions youth advocate's competence" and a subsidiary heading "Grounds for appeal 'lacked tenable merit'."

Since the story in both papers about an appeal in the High Court was the same, and the New Zealand Herald has relied on the responses of The Northern Advocate editor, the two complaints are treated here as one.

The Press Council has not upheld the complaint against either newspaper.

The appeal before Justice Nicholson was about a Youth Court finding, but the High Court released the judgment for publication after a request by The Northern Advocate.

Before the story appeared, a Northern Advocate reporter contacted Ms Cohen, alerting the lawyer to the article reporting the decision of Justice Nicholson containing adverse comments about her.The paper was giving Ms Cohen a chance to respond, which she did, using very restrained language in order not to breach legal ethics.

Later the same day and before publication, Ms Cohen's solicitors faxed a letter to the paper defending Ms Cohen's handling of the appeal.They acknowledged "now that the High Court has pronounced on the issue, Ms Cohen accepts that there is a binding ruling on the point".But in a virtual plea of mitigation countering the judge's criticism of their client, they said the judge made his adverse comments and allowed the judgment to be published without giving Ms Cohen the chance to be heard on these points.

They argued that although Ms Cohen's legal research failed to turn up direct [case law] authority for her new point - that a particular breach by the police of the provisions of the Children, Young Persons and their Families Act should mean automatic dismissal of a charge - she had not acted irresponsibly in pursuing the appeal, and was not to be criticised for having done her duty as a lawyer.

In his judgment Justice Nicholson set out the facts of the case and his assessment of the grounds on which Ms Cohen appealed.He dismissed the appeal, and then added a surprisingly strongly worded criticism of the lawyer and the merits of her case.While saying "it may be that this was an isolated and uncharacteristic failure to exercise sound and responsible judgment" Justice Nicholson unusually made public his request that his concern be drawn to the attention of the Principal Youth Court Judge.

After publication of the article, Ms Cohen's solicitors complained to the newspaper that it had failed to use the information in their faxed letter.The editor Tony Verdon responded that generally a newspaper would report only the facts contained within a judgment, but the reporter had offered Ms Cohen the chance to comment because of the adverse nature of the judge's comments. He invited extra comment from Ms Cohen in a letter to the editor, and said she would be contacted for any follow-up story,

The complaint to the Press Council said that the article was unfair and showed a lack of balance.On behalf of the naturally aggrieved lawyer, the solicitors reiterated points that in their view would have provided balance, 1 and 2 that the judge did not offer counsel the chance to address either the criticism or the release of the judgment, 3 and 4 that Ms Cohen was arguing a new point which explained why there was no previous authority but she had been reinforced in her view by legal research and consultation, and points 5 and 6 finally that she was careful and dutiful in preparing and carrying out the appeal.

The editor responded that after the newspaper gave the lawyer the chance to comment on the story to be published, she spoke with the reporter for about ten minutes.He believed the newspaper had faithfully reported her comments - there was no issue of accuracy in the complaint - even though it was not usual practice to seek comment from people criticised in such a judgment.The Principal Youth Court Judge who was contacted for the story was reported citing the referral of Justice Nicholson's criticism of counsel to him, and said such a notification was "rare".It would be investigated, and he was sure the particular youth advocate would be able to give a full and detailed response.

The editor explained to the Press Council that points 1, 2 and 3 raised by the solicitors were not matters for the paper but issues between Ms Cohen and the court, and 4, 5 and 6 were no doubt true but again not matters for the newspaper.

The Press Council agrees that the newspaper has fulfilled its duty in publishing a written High Court judgment accurately and gone further by seeking extra comments.The newspaper had also offered a further forum for Ms Cohen's comments.Counsel who take exception to what they perceive as judicial extravagance have naturally sought to engage the newspaper in their advocacy, but in this case it is clearly not the newspaper's duty.Blaming the messenger for not advancing their case, where it is simply undertaking the normal considered reporting from court, is not a solid ground for complaint.

There is a matter that the faxed letter did not arrive at The Northern Advocate's editorial floor in time for consideration before the newspaper went to press (The Northern Advocate is printed in Auckland).But as the newspaper's treatment of its article would not have been altered in substance by this, it is more a question of both the correspondents to the newspaper and the editor needing to be aware that the logistics of the newspaper's publication may present obstacles when speedy communication is needed.

Mr Jim Eagles took no part in the consideration of this complaint.