KELLY-ANN STOIKOFF AGAINST THE NZ HERALD
Case Number: 3502
Council Meeting: April 2024
Decision: Upheld with Dissent
Publication: New Zealand Herald
Principle:
Accuracy, Fairness and Balance
Privacy
Comment and Fact
Ruling Categories: Court Reporting
Overview
- Kelly-Ann Stoikoff complains about an article Teen’s fight for justice after alleged pack rape by Auckland gang members published by the NZ Herald on 27 January 2024. The complainant raises Media Council Principles (1) Accuracy, Fairness and Balance, (2) Privacy and (4) Comment and Fact. The complaint is upheld on Principal (1) Fairness. It is not upheld on Principal (1) Accuracy, or on Principles (2) or (4).
The Article
- The article tells the story of a teenager who alleged she had been gang-raped by three men only weeks after she had allegedly suffered another rape. It described, in some detail, what she said she experienced and noted that the men involved had been charged with sexual violation by rape. It noted that one of the men was awaiting trial and that others were before the courts in various ways. The article also noted that, although no name suppression applied to any of the men accused of the rape, the NZ Herald was choosing not to name them, or the gang they belonged to, in order to protect their fair trial rights. Relevantly the article states “There is a fire inside [the teenager] and it burns brighter with every day she inches closer to seeing her alleged rapists in court.”
The Complaint
- Kelly-Ann Stoikoff is a lawyer who represents one of the men allegedly involved. She states that he was facing trial in February 2024. Although the NZ Herald had not published her client’s name, she considered that he would be immediately recognisable as one of the alleged rapists. As a result, she felt she had no choice but to apply for the trial to be adjourned. Ultimately, this request was successful after it became clear that one of the jurors had read the article and remembered much of what it reported.
- She also noted that her client was not a member of, or affiliated with, any gang. It was inaccurate to say that he was, and this also prejudiced her client putting a fair trial at risk. Moreover, the language of the article, such as the quote above, was sensationalist. Indeed, that statement was also factually incorrect as a complainant never comes face to face with a defendant in this type of case.
The Response
- The NZ Herald notes that the focus on the story is not on one man, or his alleged offending, rather it is focused on the voice of the victim, her experience with the justice system and her desire to see justice served. It also notes the article was prepared by a specialist division of the company focused on open justice and stressed the important role the media plays in the justice system.
- It notes that this sort of reporting is not uncommon. It also notes that none of the men have name suppression. It acknowledges defendant’s rights to a fair trial, and beyond noting their ages, it chose not to provide any other specific details about the men involved. It also notes that although the article was originally published on 27 January 2024, it was deactivated five days later. This occurred after the teenager contacted the reporter having been told by police that an upcoming trial might be put off because of the story. However, at the time of publication the NZ Herald understood that no trials were to take place until later in the year and that the only upcoming matters were the sentencing of one of the men involved (who had pleaded guilty) and a pre-trial matter for Ms Stoikoff’s client. Following the deactivation the NZ Herald made extensive inquiries of the officer in charge of the case, police media (who suggested contacting the Crown but would not say specifically who to contact) and two firms that may have been prosecuting the matter. It received no responses other than from the court, who would only say the next appearance was still a pre-trial matter.
- The NZ Herald accepts that the trial was adjourned, but it has not received any other complaints or received any communication about the article from the judiciary, police or Crown. The inference here is that it would have expected to hear something if there was deep concern over publication of this article. However, it has attempted to find out more about what happened, with the prosecutor confirming the trial had been adjourned but stating that no concerns were raised about the article or the NZ Herald’s role in the trial being adjourned.
- On accuracy, the NZ Herald denies it was inaccurate to describe the Ms Stoikoff’s client as a gang member or affiliate. It stands by the reporter’s research, which found multiple suggestions on social media that would suggest, at the very least, her client is a person who associates with gangs. It also denies that it was sensationalist or inaccurate to say that the victim had a fire inside her that burns brighter as she gets closer to seeing her alleged rapists in court. This was a fair description of the comments she made in her interview. She wants to see justice done. It also disagreed that a rape victim will never see a defendant in court. Having given evidence a complainant is at perfect liberty to sit in the public gallery if they wish. They can also read a victim impact statement in open court at sentencing.
- The NZ Herald does not consider anyone’s privacy was breached by the article. The victim was the motiving force behind the article and happy to be referred to by a pseudonym. The article did not infringe on Ms Stoikoff’s client’s privacy; he is facing serious charges that are a matter of public interest.
- The NZ Herald also does not consider that article breached Media Council Principle (4) Comment and Fact. This requires a clear distinction be drawn between factual information and comment or opinion. It is unclear which bits of the article Ms Stoikoff is concerned about, but the article clearly details the incidents from the victim’s perspective.
The Discussion
- Principle (1) Accuracy, Fairness and Balances states:
Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.
- We do not consider the article is inaccurate. The story stated that the three men concerned were “all gang members or associates”. Beyond Ms Stoikoff’s assertion, there is nothing to suggest that her client is not affiliated in some way with a gang. This appears to be a reasonable inference from the victim’s account and also appears to be supported by the research undertaken by the reporter.
- We also do not consider it was inaccurate or sensationalist for the article to state that the victim looked forward to seeing her alleged rapists in court. In addition to the NZ Herald’s points, which we broadly accept, we do not think the language here needs an overly careful parsing, or read in a strictly literal sense to mean actually viewing them in court. It could equally mean the victim was looking forward to knowing the accused are in court facing justice.
- We also agree with the NZ Herald that there has been no beach of the privacy or comment and fact principles. The victim was a willing participant in the reporting. Any privacy she may be entitled to, she waived. Any privacy the accused may have is outweighed in this case by the public interest in open justice. This, in turn, has been appropriately balanced by the degree of anonymity provided by the NZ Herald not using his name or other identifying features, despite the fact that his name was not in fact suppressed by the court.
- Returning to Principle (1), this complaint raises the question of whether the article should have been published at all, given all the men involved were still before the courts in some capacity and there was a real risk of unfairness to them.
- Publishers should exercise great caution in publishing the detailed narratives of victims when that narrative is going to be the subject of a defended hearing against a defendant who may be able to be identified. Once the hearing has occurred and a verdict delivered, the account of the victim can be published and their voice heard. After the trial it will not matter if the defendant can be identified. However, unless it is certain that the trial is a long way off and memories of the article will be forgotten, the risk is too great.
- The NZ Herald argues it did make sufficient enquiries. It says in its formal response:
The article was deactivated on February 1 after the victim contacted our reporter. She said police had suggested an upcoming trial might be put off because of the story. NZME chose to voluntarily deactivate the story while we tried to find out more. At the time of publication, our understanding was the only upcoming appearances within the next month were the sentencing for the man who had pleaded guilty and a pre-trial matter for a second man, Ms Stoikoff's client.
It was our understanding both trials were scheduled to take place later in the year. After talking to the victim our reporter contacted the Officer in Charge of the case, who she had spoken to earlier while working on the story but was referred to police media. Police media referred our reporter to the Crown but wouldn’t say who specifically to contact. Emails to two firms we believed were prosecuting went unanswered. The courts would only tell us that the next appearance was still a pre-trial matter.
- This account does not make it entirely clear whether the enquiries outlined were made prior to or after the publication. However, assuming the interpretation most favourable to the NZ Herald, and accepting that they were made prior to publication, those enquiries were not enough. It was incumbent on the NZ Herald before they published a disturbing victim’s account before a defended trial, to find out with certainty when the trial was to take place. It was not acceptable for NZH to rely on the information that “both trials were scheduled to take place later in the year” without taking other steps to corroborate this. A certain date of hearing can always be obtained eventually by pursuing enquiries of the Court or counsel actually involved in the trial. Until that certainty is obtained, the risk of causing a trial to be aborted is too great to make an assumption.
- We have some sympathy for the NZ Herald. Enquiries were made and it was the NZ Herald’s understanding “both trials were scheduled to take place later in the year”. So it was decided to publish. However that was a mistake. The difficulty getting confirmation about the date of the hearing should have prompted a re-evaluation of whether the article should have been published at that time.
- This was a harrowing and poignant article that would not be easily forgotten. As it turned out, a trial began about two weeks after publication, a juror had read it and the case was adjourned. Whatever the NZ Herald’s beliefs and intentions this was by Media Council principles an unfair outcome for those involved in the trial, especially Ms Stoikoff’s client. It could and should have been avoided.
- Decision: The complaint is upheld under Principle (1) on fairness. The complaint is not upheld under Principle (1) on accuracy or Principles (2) Privacy or (4) Comment and Fact.
- Dissent by Ben France-Hudson and Jo Cribb: At the time of publication, the NZ Herald understood that “both trials were scheduled to take place later in the year”. We do not know what enquires the NZ Herald undertook to reach this understanding. We think it would be unfair to uphold against the NZ Herald as there is nothing to suggest that their understanding was wrong on the information they had. The majority suggest the fact of unfairness on the basis a trial actually occurred about two weeks later. The majority assert the NZ Herald should have tried harder, but there is no evidence as to what investigations they did undertake. The difficulties faced by the NZ Herald in trying to get accurate information following their decision to deactivate the article suggests this criticism is too strong. We consider that there is a place for this sort of reporting, albeit that a great deal of care is required. The NZ Herald appears to have considered this risk. As it happened the NZ Herald was wrong, and it may be useful for the NZ Herald to reflect on whether in future they would take further steps, but we would not uphold in this instance. Regardless of the decision, providing a vehicle for victim voices is an important role for the media.
Council members considering the complaint were Hon Raynor Asher (Chair), Hank Schouten, Rosemary Barraclough Tim Watkin, Ben France-Hudson,
Jo Cribb, Judi Jones, Marie Shroff, Alison Thom, Richard Pamatatau.
Council member Katrina Bennett declared a conflict of interest and withdrew from the meeting.