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Solicitor-General to prosecute Fairfax for contempt

By Steven | December 21, 2007

The DomPost is reporting that the papers that ran the “terrorism files” story are to be prosecuted for contempt. The S-G has also set his sights on DomPost editor Tim Pankhurst, but not the editors of the Press or the Waikato Times.

The essence of the allegation is that the stories will interfere with the defendants’ right to a fair trial, by tainting them as terrorists in the minds of any juror. And ask yourself this: if you were a juror on a gun charge relating to someone from Ruatoki who tries to run a “lawful possession” defence, what would be going through your mind? You’ll be thinking “the bugger’s one of those terrorists”. It doesn’t help that none of the accused were named in the story. In some ways, that just makes it worse. I gather that most of the really inflammatory remarks that were published were made by only three or four of the accused. But all the others are now tarred with them. Sure, the trials will be held in Auckland, but Stuff put the story on the web, and it had a very wide readership.

There’s an added ground (or perhaps just a factor that makes the alleged contempt worse): it’s a crime for the media (or the rest of us, actually) to disclose material obtained via an interception warrant. It seems clear that the story contained such material.

The story doesn’t mention that some of the published material may have been suppressed by a District Court judge in some of the cases. I don’t know whether that forms part of S-G’s case.

It strikes me as a strong case. But it’s not open and shut. The issue is whether the coverage created a “real risk” of prejudice to the administration of justice, especially including someone’s right to a fair trial. The DomPost will argue that the trials are likely to be a long way off, and the Court of Appeal has said that potential jurors are likely to forget publicity after six to eight months. (The court also said potential jurors are likely to remember the publicity for longer if it’s particularly striking or sensational…). The DomPost will also argue that it had already been announced that the defendants wouldn’t be facing terrorism charges, only arms charges. Because Arms Act charges are largely a “tick the box” matter (did they have a gun? did they have a licence? etc), there’s not much room for prejudice to affect a jury. Justice Potter in the Mossad spy case accepted this sort of reasoning in relation to passport fraud. (Still, some experts I’ve discussed this with doubt this conclusion, believing that a hostile jury can always find ways to hold that sort of knowledge against the defendant). The DomPost will also say it minimised the harm by not naming individual defendants, so jurors couldn’t have anyone particular in mind in connection with any particular statement.¬†And they’ll no doubt call in aid the NZ Bill of Rights Act, though that didn’t work too well in the Court of Appeal case I mentioned above.

Interesting times ahead.

Topics: Contempt of Court, Journalism and criminal law | 2 Comments »

2 Responses to “Solicitor-General to prosecute Fairfax for contempt”

  1. Graeme Edgeler Says:
    December 21st, 2007 at 8:53 am

    Any word on whether the SG also not oppose applications for stays on any of the charges?

    If that happened, I imagine the DomPost would lose a fair amount of public sympathy, and it also might make people (not just media) think about what they publish in the future.

  2. Creative Meats » Blog Archive » Fairfax to be Prosecuted Says:
    March 31st, 2008 at 12:39 pm

    […] Well as of last December it looks like the SG has decided to issue contempt proceedings. There is also good article about the proceedings here. […]

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