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Staying power?

By Steven | October 29, 2008

I’ve said that the failure of the Fairfax contempt prosecution is a blow for the arms charge defendants’ chances of getting a stay of prosecution due to prejudicial publicity. If the case had succeeded, it would have been difficult for the presecutors and the courts to proceed with prosecutions. After all, two High Court judges would have found that the coverage had created a real risk of prejudice to the fairness of those trials. Unless they could come up with some very convincing way of managing that risk, the trails surely could not have proceeded.

Of course, that didn’t happen. But the way the judges decided the case, I think, still leaves open a fairly good argument that those trials should be stayed. Why? Because the judges finding revolved around their conclusion that:

Any potential prejudice to the accused would largely flow from that material to which the Soliticitor-General does not take separate objection. Any additional prejudice arising from the publication of the intercepted communications would not add materially to any potential prejudice from other sources.

In other words, the prejudice caused by the earlier coverage, the statements of the Commissioner of Police and the Prime Minister, and even the statement of the Soliticitor-General, had done the damage. The Fairfax article added to it only marginally.

Incidentally, this rather flies in the face of a statement from the Chief Justice in the Women’s Weekly case from 2002:

It is not a defence that others have published the same material without contempt proceedings being taken against them.

Similar arguments were also dismissed in the Gisborne Herald case in 1994.

But the point here is that the judges in the Fairfax case plainly think there’s a good deal more prejudice around than they had to worry about to decide the case against Fairfax. If Fairfax was close to the line (and I think it’s a fair reading of the case to suggest that the judges thought it was), then what happens once you throw in the prejudicial material from other sources?

You’ve still got a reasonable argument that a fair trial is impossible, that’s what. But it’s always going to be an argument that judges will be very reluctant to accept…

Topics: Contempt of Court | 3 Comments »

3 Responses to “Staying power?”

  1. Graeme Edgeler Says:
    October 30th, 2008 at 9:48 pm

    …The Fairfax article added to it only marginally.

    Incidentally, this rather flies in the face of a statement from the Chief Justice in the Women’s Weekly case from 2002…

    A sensible extension of the right to free speech? If what you’ve done hasn’t made and won’t make a fair trial less likely, where is the demonstrable justification for restricting it?

  2. Steven Says:
    October 31st, 2008 at 9:44 am

    Good point.

    The courts usually say (see the Eichelbaum CJ in the Wellington Newspapers case) that the repetition of of materia that’s already out there “revives or reinforces the prejudice”. Neil Vidmar’s expert evidence stressed that.

    In addition, contempt isn’t so much a situation of demonstrable justification as a clash of rights with fair trial – with the courts saying any real risk created is unacceptable.

    But neither of those points quite answers your question…

    I might add – though again it doesn’t address your concern – that there was a very solid argument that the new stuff in the Fairfax coverage did add materially to the prejudice.

  3. aelvidge Says:
    October 31st, 2008 at 2:12 pm

    I recall reading somewhere that a few of the defendants had unsuccessfully applied for stays prior to the contempt hearing.


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