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Blow me down

By Steven | October 10, 2008

I confess, I thought Fairfax and Tim Pankhurst were goners. But they have survived the contempt application for their “Terrorism Files” story mostly unscathed.

I say “mostly” because the judges found that they should have been prosecuted for breaching suppression orders and the Crimes Act provision outlawing disclosure of intercepted communications. “We are at a loss to understand why these breaches were not prosecuted,” they said.

But make no mistake, big issue in this case was whether Fairfax’s coverage created a real risk of prejudice to the defendants’ cases. The judges said it didn’t. In short, they thought that it didn’t add much to existing prejudice created by statements by the Commissioner of Police and the Prime Minister and other commentators; that there’s been little prejudicial coverage since then and the usual suppression orders will ensure that continues; that the trial would be two years after the coverage; that the coverage won’t make much difference to jurors’ views on the actual legal issues in the Arms Act trials; and that juries are robust institutions capable of focusing on the evidence before them and putting aside anything they may have heard outside the trial.

Take a bow Fairfax’s legal team, headed up by Hugh Rennie QC and Robert Stewart.

You can see this case as a blow for freedom of expression or a failure to strike a blow for fair trials.

Without wanting to be churlish, there are a few aspects of the case that give me pause for concern. First, having discussed the expert evidence about jurors’ memories, the judges note that they are divided and both admit that any conclusion is “speculative” and conclude:

It falls to us to form our own assessment based on our experience as trial Judges given the lack of any truly helpful research which could assist in making assessments of this kind.

I find this infuriating. There is, in fact, a large body of helpful social science research, some of it specifically devoted to publicity about terrorists. I think they had a responsibility to mould the notoriously vague contempt laws so that it conformed much more closely to what we know will and will not affect juries. For them to fall back on their gut feelings (as judges have often done in the past) is outrageous. Their trial experience actually gives them no particular expertise about jurors’ memories, and they should stop pretending that it does. They could easily have reached the same conclusion they did by preferring the evidence of Dr Warren Young who gave evidence for Fairfax. 

Still, I’d point out that even Dr Young acknowledged that there was a “real risk” of prejudice, which is precisely the test to be applied by the court (though he thought the risk was “very small”). If I was a defendant, I wouldn’t want to tolerate anything identified by two of the world’s foremost experts as a “real risk” to the fairness of my trial, even if one of them though the risk was small.

Second, this finding troubles me:

[129] We do not consider that the accused are likely to be prejudiced by the publications in relation to their defences. Offences under s 45 Arms Act are offences of strict liability. Proof of an innocent purpose for the alleged possession of the weapons falls upon the accused. There is nothing before us to suggest there is any real risk that any defence available to the accused on that basis is likely to be compromised by the publication of the intercepted communications. Mr Burns referred to this possibility in his evidence but we are not persuaded in the light of the other evidence to be called by the Crown that an innocent purpose defence is likely to be compromised. The focus of any defence is likely to be on issues of identification.

I’m not sure how the judges could possibly reach this finding. They knew that few of the defendants are relying on identification. Almost all of them will be relying on a defence of innocent possession – that they were having harmless fun, or learning bushcraft, or engaging in recreational activities. That may or may not have much chance of success. But it strikes me as having almost no chance at all if any of the jurors have any sort of memory of Fairfax’s front page article.

The judges say that jurors probably won’t remember the details. But it’s not their memory of details that’s the problem.

Third, I’m not sure about the finding that Fairfax was guilty of breaching suppression orders. If information is learned from a separate source, different from that which was suppressed – and particuarly where another judge has specifically decided not to suppress it (though I’m not sure if that’s the case here) – then it doesn’t seem a clear breach to me.

Fourth, I rather think that the judges’ finding that the Fairfax story added little to the existing prejudice doesn’t give enough weight to the fact that much of the information had never been published anywhere else, that it was by that stage inadmissible by law, and that it gave a level of detail that was much more potent than what had come before.

Whatever the case, this result makes it much less likely that the defendants will be able to successfully apply to have their appeals stayed. There is, I suppose, a possibility that the Crown will appeal. [Update: I was wrong about that. The Crown has no right of appeal from this decision.]

Topics: Contempt of Court | 4 Comments »

4 Responses to “Blow me down”

  1. ross Says:
    October 14th, 2008 at 10:18 am

    So, Steven, if Joe Karam wanted to publicly advertise the contents of his books on the Bain case, we should take it that the judiciary wouldn’t have a problem with that?

  2. Steven Says:
    October 14th, 2008 at 10:57 am

    Fraid not, Ross. The difference is that the Bain trial is coming up quite soon, whereas the judges in the Fairfax case took into account that the trials look like they’ll be be two years after publication.

  3. ross Says:
    October 14th, 2008 at 12:15 pm

    Yes, Steven, but the Bain trial is still several months away. Further, the material in the books is already in the public domain. There is a lot of information about the case on the internet as well. It begs the question: how soon is too soon (regarding publication and an impending trial) and who decides?

  4. Steven Says:
    October 14th, 2008 at 12:18 pm

    The Court of Appeal suggested that, if prejudicial information is not too splashy or repeated, jurors are likely to forget it in six to eight months. It really doesn’t matter to the courts whether the material is already in the public domain. The rules prevent repeating it or drawing attention to it, especially as the trial looms. Ultimately, it would be for the courts to decide. I wouldn’t recommend that Karam run the risk.


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