A week-long case starring the leader of the opposition has come to an end with a mixed bag of a verdict from the jury. Observing from the Wellington High Court, Asher Emanuel was left wondering why it was happening at all
This afternoon just before 5pm 12 jurors – three women and nine men – assembled in courtroom three at the High Court in Wellington to deliver their verdict in the defamation trial of Andrew James Little, defendant.
The room is miserable always but was particularly so today. White walls with some pinewood panelling (for grandeur), a big metal casting of the New Zealand crest above the judge’s bench (for authority) and carpet patterned like a peacock’s plume (for interest). There is a little wooden box fixed to the wall, perfectly sized to fit the dozen copies of the New International Version on which the jurors took their oaths the previous Monday.
The registrar stood to read the jury the questions. The jury’s Mr Foreperson stood to respond. With each question he put reading glasses on to check his notes and took them off to answer. One juror conspicuously leaned his head against the wall and rubbed his eyes throughout.
The reading glasses did not prevent some confusion. With two plaintiffs, six causes of action and a number of statements under each cause of action it got a bit complicated. The lawyers stood up, one after the other to raise concerns, and the questions were repeated.
Little was absent but Lani Hagaman, the second plaintiff and wife of the first plaintiff Earl Hagaman, sat to the front of the public gallery on the side of the room closest to the jury. The jury rejected all her claims.
Earl Hagaman had a more mixed reception. The jury couldn’t reach an answer one way or another on four of his six claims, and rejected the other two. They found Little had defamed him once, but couldn’t decide whether or not Little had a defence.
The path to this result was so complicated that the press required further explanation from the lawyers. “The outcome is elusive,” the Judge had explained before she retired for the day. In short, there will be no damages today but there is potential for a future trial on the undecided claims.
The Friday morning prior, Little had sat on the opposite side from Lani Hagaman, away from the jury and in the row furthest to the back with two aides and a frown that said both that he couldn’t believe this was happening to him but that he took it very seriously. He listened while the judge told the jury that whether he could afford it was not legally relevant to its decision whether to award the $2.3 million damages the plaintiffs sought. How, six months out from the election in which he will put his fate in the hands of several million New Zealanders, did Little’s fate end up instead in the hands of these 12?
On Niue, an island under the government of New Zealand until 1974, there is one hotel. In 2014 it was in poor repair and no longer making money. The Niuean government was considering what could be done. Back in New Zealand where there are many hotels it was election time.
Two days before polling Earl Hagaman, concerned about the spectre of Kim Dotcom, donated $100,000 to the National Party. Not long after his donation, the organisation he founded, Scenic Hotel Group, won a contract to manage Niue’s hotel in a process overseen by New Zealand’s Ministry of Foreign Affairs and Trade. And not long after that, the New Zealand government made a grant of $7.5 million to refurbish the hotel now known as the Scenic Matavai.
Over a year later, Radio New Zealand reported the closeness in time of the donation and the awarding of the contract. Earl had used his money to have an outsized influence on politics and in turn politics was about to have an outsized influence on him. Little, by this time leader of the opposition, had a few things to say. The situation “stinks” he said, and pointed to the Key government’s track record with sending sheep to Saudi Arabia and getting totally rinsed by SkyCity in negotiations over a convention centre. Little called for transparency and requested the Auditor-General to investigate the donation and contract.
Was that the wrong thing to do? The story might have sunk without his comments. And without his request the Auditor-General might never have essentially cleared the process of corruption.
Anyway, the Hagamans were displeased. “No one should be verbally attacked and denigrated because they believe in democracy and the right to make their own unsolicited political choice on who they want to give a donation to,” Earl told the National Business Review. Soon after Little’s comments and before the Auditor-General had investigated, they issued an ultimatum to Little — apologise within a week or face defamation proceedings. Little didn’t and papers were served.
In the months following, apology terms were discussed and Little made settlement offers of up to $100,000 (requiring a mortgage, he said). These came to nothing, as did his public apology a few weeks ago. Depending on the source it was too late, too little, not in the right terms, lacking genuineness, or published to the media when it should’ve gone to the Hagamans first.
So that is how Little found himself sat in court last Friday, face in one hand, hearing the judge tell the jury not to be swayed by “political considerations.” Certainly this was not political.
There had been a dramatic cast of witnesses in the week-long trial — the leader of the opposition, the president of the National Party, the wife of the old and dying property man. But their role in a defamation trial is basically confined to speaking to the harm suffered, or trying to raise a defence. The main contest was not about what the witnesses said, but what Little’s comments back in 2016 meant, and that was a job for the lawyers.
The Hagamans case was, essentially, that Little said or implied that Earl corruptly obtained the contract. Little argued his words did not mean there was corruption; only that there were grounds to suspect corruption and reason to have an investigation. So on the Thursday afternoon the lawyers for hours scoured interview transcripts and press clippings, arguing the semantic difference between allegation of fact and raising a suspicion. On three of Earl’s claims, the jury couldn’t reach agreement, even by majority, as to whether the statements meant what the plaintiffs said they meant.
Throughout the trial both sides hinted or at times plainly stated the other side was politically motivated. But wasn’t this Little’s job, as an opposition politician, to be critical of the government and its supporters?
Actually, that’s sort of what the Judge ruled, allowing Little to raise a defence which hadn’t been applied before in a similar situation in New Zealand or, as far as I am aware, in countries with comparable defamation law. Little couldn’t be liable for defamation when speaking as leader of the opposition on a matter of public interest and on which questions were being put to him. (With the condition that he could be liable if he took improper advantage of the occasion or was mainly motivated by ill-will towards the Hagamans, both of these being questions for the jury.) In the arcane language of defamation law, he was speaking on “an occasion of qualified privilege”. On the one set of statements which the jury did decide was defamatory, they couldn’t agree whether or not Little had been motivated by ill-will, or took improper advantage of the occasion.
A jury can take as long as it wants to deliberate. After a time, if there is deadlock, it can decide by majority (11:1 in criminal trials or 9:3 in civil ones) as happened in this case. The jury began on Friday morning and, after about 13 hours of Bell tea and bikkies in the jury room, concluded they wouldn’t be reaching agreement on all the issues.
While they were deliberating, no one outside the jury room knew what was going on within and there was plenty of down-time, waiting on their word. On the Friday afternoon, several hours into the wait, Little had left though his aides remained to pace the corridor on his behalf. Richard Fowler QC, the Hagamans’ lawyer, came over to the press bench which was unusually full of parliamentary press gallery journalists, most of whom don’t often cover courts and seemed relieved by the enforced slowness of jury-watching.
He and the Herald journalist Claire Trevett — both of whose key professional skill is a very specialised form of questioning towards truth; Fowler of witnesses in the strictures of examination procedure, Trevett of politicians in the chaos of press standups — discussed the question of questioning. Does she, as he certainly does, get time to carefully read things in preparation or is it on the hoof? It’s “faster twitch” now more than ever, Trevett said, but sometimes they get embargoed documents.
Certainly Little had twitched quickly, issuing the first press release just 24 hours after the donation story broke and touring breakfast shows in the days following.
In the downtime I was left to wonder why this thing was happening at all. Because the government’s Pacific aid programme occasionally involves awarding large contracts to private companies? Because in New Zealand a person can donate $100,000 to a political party? Both of those and also because the same person who can make that kind of donation can afford a defamation trial. Fowler said to the jury “we are all equal before the law … it does not matter that you might be very wealthy … it does not matter that you may be the future prime minister.”
But does it really not matter that you might be very wealthy? Really?
Everything about this case was expensive, even the paper. Eight or so folders full of documents at a few cents a page adds up: a set of folders for each side, one for the judge, 12 for the jurors and you’re getting a bit of a bill going already. But that’s nothing when you consider the filing fees, $15,000 worth in this case, and of course the lawyers. By trial, the Hagamans’ costs totalled $215,000.
Assuming it does cost that much, what is defamation law good for? If it’s about truth, it’s a pretty anaemic version of truth. Remember this trial was fought mainly over the difference between allegations of fact, and the raising of suspicions. The accuracy of what Little said wasn’t the issue. And nor were other questions, which arguably in a wider sense are more important, such as: why did Earl Hagaman give that money to the National Party in the first place?
This wasn’t simply about truth, but property. Defamation law sees reputation as a kind of property. That’s not just my take: Fowler, criticising Little for speaking out, reasoned to the jury that if you saw someone steal a television you’d call the police, not the press. In view of how much the Hagamans spent, it’s plain that, as usual, it takes property to defend property.
And more, English law (and this is English law — Little’s lawyer referred to the English defamation textbook as the “bible”, at least until the local legislation in 1992) recognises only select kinds of property. The common law imposed by Westminster during early colonisation is hostile to collective or shared property — it thinks in terms of the individual legal subject. So while the Hagamans can sue for their individual reputations, Māori could not, for instance, sue Hobson’s Pledge in defence of collective reputation. These are the priorities of the law.
And even then, is it really about reputation? In 2016 the Hagamans sought only the recovery of their costs and an apology. But, by the time the jury was sworn in, the Hagamans were after $2.3 million. Fowler said that was just “technically” the number and a big number was chosen to record the seriousness of the occasion. In a sad way it records the opposite when you take a look at the register of pecuniary interests and see that Little owns not much, at least by comparison with most MPs: a family home in Wellington (jointly owned), a KiwiSaver and a superannuation account.
This is only the latest unseemly defamation parade of which New Zealand has had a few. Do you remember when Jordan Williams sued Colin Craig for defamation, won, and was awarded $1.27 million in damages? Evidence included Craig reading out his bad sexts and Williams reading out Craig’s bad poetry. Williams (who showed up to the Little verdict, spectator this time) is the director of an organisation founded on the idea that waste of public funds is immoral, and surely it is, but are these private wastes any more defensible? Are these really reputations worth protecting with bonfires of money?
In litigation, two sides tell two stories from which a judge or jury tries to piece together the truth. So Lani Hagaman told the jury she did not intend to bankrupt Little; that this was not about humiliating him. It wasn’t even about the money because they would give the award to charity. It was, she said, about dignity for Earl before he dies.
Earl did not get his dignity, if that’s what you could call it. And Little has escaped financial ruin, at least for today.
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