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Misjudged

By Steven | December 18, 2008

Two of our top judges recently denied a Fairfax journalist permission to speak to jurors about the strengths and weaknesses of the jury system, even though the journalist promised not to identify the jurors or the defendants or discuss the particulars of the cases.

The judges cited Solicitor-General v Radio NZ, and said the request “lacks the appropriate degree of control” and, despite the journalist’s promises, “there is the very real risk of injury to the administration of justice contemplated and expressed in Radio New Zealand.”

Bollocks.

This makes me furious. I think the judges have vastly overstated the risk, misinterpreted the Radio NZ case, and effectively heavied the papers into censoring what seem to be important criticisms of the jury system. It’s particularly galling to see Justice Randerson getting all precious about extremely tenuous risks to the administration of justice when he’s just sniffed at a genuine and serious risk in the Fairfax case.

Here’s the background. The journalist, Nikki Macdonald, had very responsibly written to the Chief District Court Judge and the Chief High Court Judge with her request. She clearly indicated that the feature would only involve interviews with a handful people she knew, and would not go into the specifics of the cases. The story would examine questions such as how hard it was for jurors to process large amounts of information during a trial, what sorts of people made up the jury, how the deliberation process proceeded, and what the experience taught them about the effectiveness of the jury system.

Fairfax did publish a feature on the jury system in last weekend’s “Your Weekend” magazine, inserted into the DomPost, Press and Waikato Times. It was a careful, thoughtful and balanced look at the operation of the jury system. (Fascinating statistic: in last year’s District Court cases, juries took a harder line than judges, convicting in 59% of cases compared with 48% in judge-alone trials).

But after receiving the thumbs down from the judges, the magazine left out comments from jurors, some of whom had raised, it said, “significant concerns about the process”.

As I mentioned, the judges relied on the Radio NZ case. But that case involved a much different situation. Radio NZ specifically approached jurors in the Tamihere case and asked them whether they had doubts about their verdict following the discovery of fresh evidence. RNZ seems to have unlawfully got hold of a copy of the jury list. It broadcast a juror’s comments. They were about his new doubts on outcome of a specific case. They were rebroadcast after a warning from the Solicitor-General.

Our judges found that this behaviour was a contempt, for three reasons:

1. It undermines the finality of jury verdicts in particular cases.

2. The possibility of publicity afterwards might prevent jurors from being free and frank during their deliberations.

3. The jurors can reasonably expect privacy after doing juror duty.

We might pause for a moment and reflect on the fact that interviews with jurors are routine in the United States and their jury system doesn’t seem to be under great threat. But let’s accept that, as a general rule, the administration of justice might be threatened by journalists hounding jurors for comments about their deliberations and verdict after they’d done their duty.

Still. How would those three factors above apply to the DomPost’s request?

1. The magazine wasn’t trying to revisit the accuracy of any verdicts. It didn’t want to name cases or jurors. It was interested in the process, not particular outcomes. The finality of any verdicts was not under threat.

2. No jurors were to be identified. Anyone reading the article could not have harboured any fears that anything they might say during deliberations if called up for jury duty might be used to embarrass them by being publicly attributed to them.

3. The jurors concerned were known to the journalist. They weren’t being contacted out of the blue. In any event, it’s quite clear that some jurors like to talk about their experiences and would be happy to veto their privacy rights. Some have concerns about the process that they think ought to be aired.

Here are some extracts from the Radio NZ case that make it even clearer how disingenuous it was for the judges to suggest that it’s of pivotal relevance to the request:

…it was not suggested that every approach to a juror after the conclusion of a case is a contempt. Here the allegation is linked with attempting to elicit comment about the verdicts, and jurors’ views on the discovery of new evidence.

In the present case the revelations lacked any counterbalancing virtue or merit… the reactions of jurors did not raise any legitimate matter of public concern…

… the objective of the law of contempt is not to sheild the judiciary or the judicial system from criticism.

[The decision did not breach the NZ Bill of Rights Act because] it is a result which is no more than is appropriate and necessary to uphold the administration of justice and to limit the freedom of expression as little as possible…

The result of the letters from the Chief Judges limits speech to a much greater extent than the RNZ case. What’s more, there seems to be much more legitimate public concern in Macdonald’s interviews with jurors. Judges are increasingly recognising that some sorts of speech is particularly important and there needs to be very good reason indeed before restricting it. Genuine, thoughtful and well-informed criticism of the jury system surely comes high up in this hierarchy. Against that, the faint possibility that such criticism might harm our confidence in the justice system seems a paltry concern. I think that by suggesting the magazine would be in contempt for publishing the sorts of juror interviews it was contemplating, the judges themselves breached the NZ Bill of Rights Act.

Let me give an example – a true one – and in the process, flout the principle embodied in the judges’ letter. For them, what I’m about to write apparently creates a real risk to the administration of justice. It may be a contempt of court. I say: prosecute me.

On a holiday recently, I struck up a conversation with a guy who had been a juror in the past year. He said he was astonished to find that some of the other jurors could barely speak English.

I’m guessing this was the sort of thing that the jurors told Nikki Macdonald.

I find this juror’s comment extraordinary. Don’t we check these things? This is how the justice system biffs people in the slammer. It’s outrageous if some of those we trust to decide on defendants’ fates cannot properly understand what’s going on. This is a serious criticism. It goes to the heart of the justice system. It’s very important speech.

The effect of the judges’ letter, and their misleading invocation of the RNZ case, is that this speech was, in this instance, squelched.

They should have thought harder before writing it. Instead, they should have said:

We can’t give formal approval for your feature, because we don’t know what exactly it’s going to contain. However, we can’t tell you not to write it either. If you look at the RNZ case, you’ll see the sorts of interviews with jurors that have been found to create risks to the administration of justice. The sorts of interviews you are proposing may not rise to that threshold. We recommend that you take legal advice before publishing.

If you squint hard at the letter from the judges and overlook the paragraph about the Radio NZ case, it might be possible to read their letter this way. But it would be a very brave media organisation that went ahead with the interviews after receiving the refusal the way it was written.

It wasn’t all that brave of me to note my conversation with the juror above. Just last year, the NZ Herald published an interview with an un-named juror raising the same concerns. She said one juror did not appear to understand English. Others didn’t participate in deliberations at all. One said the accused was not guilty before listening to any evidence. She said she and two other jurors had approached the judge who had acknowledged their concerns. There was no application to hold the Herald in contempt.

Luckily, the NZ Herald didn’t ask permission from the judges first.

Topics: Contempt of Court | 2 Comments »

2 Responses to “Misjudged”

  1. ross Says:
    December 19th, 2008 at 10:43 am

    It sounds like you agree with Vince Siemer that some of our top judges occasionally get it wrong. The worrying thing is, if they can get it wrong over a simple matter such as the one you’ve referred to, maybe they can and do get it wrong when it comes to more complicated matters.

    In this case, I am not sure why Ms Macdonald didn’t write the article with the jurors’ comments and then ask Randerson and Co for their comments. In other words, the article could have been written with or without their help.

  2. Rob Hosking Says:
    December 19th, 2008 at 5:44 pm

    Ross raises a useful point, not so much about the law as about journalism.

    One of the first things I learned as a young journalist is you NEVER ask permission to talk to someone or go somewhere – especially if you think someone might say no.

    You just do it. Worry about the blowback later.

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