Legal Beagle by Graeme Edgeler


Breaking News: Man Shot by Police; or the $600 tweet

On the evening on Sunday 2 August, Police shot and killed David Červeň in Myers Park. He died at the scene. At a press conference the following day, Superintendent Richard Chambers, the Auckland City District Commander of the New Zealand Police, stated that the death occurred after Mr Červeň declared he had a firearm and was about to use it.

Almost all of you will know this already. The information, after all, comes from a press conference, excerpts of which early in major news programmes on television and radio, and which made it into stories in New Zealand’s major newspapers, and on-line News sites.

But this is still an exclusive, as I am the first person to be able to tell you this legally.

Until Friday afternoon, shortly before I ‘broke’ the news on twitter, the Coroners Act forbade any publication of the fact that someone had been shot by police in Myers Park.

This is obviously ridiculous. The law should not automatically suppress the fact that police have shot and killed someone. Not only should it not automatically be suppressed, I’m not sure it should ever be suppressed. The death of someone at the hands of those exercising state power is an issue of the highest public importance.

Anyway, I thought this was important. And, as I have before, I sought permission from a Coroner to publicly discuss the salient details.

I should be clear, the law does not ban the publication of all police shooting deaths. Rather, the circumstances of this death, as relayed by police at their press conference, bring into play section 71 of the Coroners Act, which limits the discussion of particulars of the manner of a death if “there is reasonable cause to believe the death was self-inflicted”. I considered there was a chance that that applied here. It is difficult to see a distinction that could clearly distinguish a death resulting from someone purposefully stepping in front of a train as self-inflicted, but allowing that a death resulting from someone (especially someone unarmed) telling armed police officers that he was about to use a firearm could never be self-inflicted. As it happens, the Coroner agreed. Deaths at the hands of Police have previously been ruled suicides, and although there is no conclusion yet, there is at least reasonable cause to believe that may be the case here.

The death was on Sunday 2 August, the press conference on Monday 3 August, and I made my request for permission on the Tuesday. By Thursday, I had a response: “Coroner Greig will not be commenting about this case until the investigation is complete.”

I hadn’t asked for comment, so I followed up, and had a formal reply later that day:

It is early days in the inquiry into Mr Červeň’s death. However, given the reports in the media, it appears that section 71(1) of the Coroners Act 2006 may apply. Accordingly no person may, without the Coroner's authority, make public any particular relating to the manner in which Mr Červeň’s death occurred until her inquiry into the death has been completed. Such authority is not granted.

A man was dead, shot by police, and the public could not lawfully be told this.

I thought this was a little off.

The following day, I filed an application in the High Court, seeking a statutory review of the decision. To ensure there would be as little delay as possible, I also filed the necessary evidence, and my submissions. It had its first call a week and a half later, and was set down for second call for four weeks later (tomorrow, as it happens), allowing the Coroner and the Crown Law Office time to consider their position on the application.

And late Friday afternoon, I received a decision of the Coroner, granting the permission I had sought five and a bit weeks ago. Permission was granted to release the following particulars:

  • David Červeň was shot by police officers in Myers Park, Central Auckland on 2 August 2015.
  • David Červeň died as a result of the injuries he sustained when shot.
  • Prior to being shot, David Červeň had told attending police that he was armed.
  • After being shot, David Červeň was found to be unarmed. No weapon was found at the scene.
  • The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted though this is in no way a concluded view on the matter.

    This suggests to me one of the problems of the whole process of requesting permission from a Coroner. For a journalist, or a blogger, a request for permission to make public particulars of a death is a request to report what they would ordinarily report: quotes of eyewitnesses and information made public by police. That first, rough draft of history, not firm conclusions. But for a Coroner to give their approval to report a particular, that Coroner may feel it necessary to be satisfied that something is, in fact, a particular of the death.

    And if that it is the approach, the system is only going to get worse. A bill to amend the Coroners Act recently went through select committee and is awaiting second reading. The bill contains some improvement over the current law: for example, it permits reports that a death is a ‘suspected suicide’. For most suspected suicides, that will enable a freer discussion in the media: the possible method is usually not of public interest. But the restrictions will still apply to all of those other examples I gave in previous look at this matter, like Facebook mourners. And it will still prevent publication (without permission) in cases like the one, where the manner of death is itself the story.

    In other respects, however, the law is getting stricter. The penalty for a breach is increasing, and the law now more clearly proscribes the details that may be published, banning publishing not only the method (or suspected method) of a self-inflicted death but also the publication of “any detail (for example, the place of death) that suggests the method or any suspected method of the self-inflicted death”.

    And perhaps most importantly, the bit of the law limiting the effect of the ban to potential self-inflicted deaths occurring in New Zealand has been removed.

    The Select Committee notes in its report that:

    This prohibition does not work well in practice. Although this reporting restriction applies to suspected suicides occurring in New Zealand, it does not cover overseas suicides, which are able to be reported in New Zealand media.

    And then, without further explanation, they remove the words “This section applies in respect of a death if … the death occurred in New Zealand”.

    I’m not really sure whether this means what it looks like it means. If Coroners currently have difficulty allowing the publication of a particular that they have yet to determine is a particular, I can only imagine the difficulty that will be presented when the Chief Coroner is asked for permission to publish particulars of a death over which she has no jurisdiction, and which no New Zealand coroner will ever investigate.

    At some point, information arose suggesting, perhaps even giving rise to reasonable cause to suspect, that the deaths of those on Flight MH370 may have been a result of the deliberate action by a pilot. We may never know. But the suspicion is there, and it may be that should a similar event happen again, it would be illegal to tell New Zealanders that a plane has crashed, lest the manner of the pilot’s death be revealed. If the Select Committee’s unanimous recommendations are adopted, the Chief Coroner will find she has much broader job than she is expecting, with oversight not only of the New Zealand coronial system, but of coroners throughout the world.

    Of course, the likelihood of anyone other than me actually bothering to ask for permission in a high-profile case seems low. And the likelihood of all the Facebook friends of who someone who overdoses, seeking permission before mourning is even lower.

    There is some hope in the Coroners Amendment Bill. It does appear to be designed to speed up decisions on requests, recognising the urgency that requests for permission to publish particulars will have. But even the two days it took this time to get a first response is far too slow for a case like this. That it can take five weeks until a Coroner is satisfied that it is appropriate to grant permission to publish the fact that someone has been shot by police, when that information was released by a senior Police Officer at a press conference, is laughable.

    Or it would be, if it hadn’t cost me $600 to get that far.

    It is not too late for Parliament to fix this law. Realising that the law they’re re-enacting can ban the broadcast of police media conferences is a good place to start, and they can follow it up by limiting the law to New Zealand deaths at the very least. David Seymour, I’m looking at you.

    And, in all its glory, the most expensive tweet I hope to ever send:

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