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Handy info for Contempt lawsuits

By Steven | January 21, 2008

Today’s DomPost has some useful information for those advising the media on contempt of Court issues. The average length of time between committal and trial, in the District Court and the High Court, is just under a year. Add to that an average of six to nine months between arrest and committal, and you’ve got more than 18 months between arrest and your average trial. For big cases, it’s likely to be longer. Given that the Court of Appeal has said that in the normal course of things, potential jurors’ memories of particular publicity can be expected to fade in six to eight months, that means publicity around the time of an accused’s arrest will have to be seriously splashy and prejudicial before it will be taken to have created a real risk of affecting the fairness at trial.

Topics: Contempt of Court | 5 Comments »

5 Responses to “Handy info for Contempt lawsuits”

  1. At last, a lead story researched by the journalist, not from a political party press statement — but Herald a disgrace with property story « Poneke’s Weblog Says:
    January 23rd, 2008 at 6:48 am

    […] reporter’s footslogging, not lazily lifted from a press statement (as an aside, media law expert Stephen Price thinks delays before a trial are not necessarily bad, as jurors would be more likely to forget prejudicial articles about an accused published at the […]

  2. ross Says:
    January 23rd, 2008 at 10:33 am

    Steven,

    I’m not sure I agree with you.

    Let’s face it, Crown Law apparently believes that witness memories in the Bain case are sufficiently lucid after 14 years to prosecute David Bain again. So it is perhaps not surprising that Crown Law are prosecuting Fairfax over contempt of Court. Crown Law is at least being consistent.

    I don’t think the average juror is thick. If I were on a jury hearing that X was being accused of possessing a gun in Ruatoki, some 18 months or so after the media had published allegedly damning information about said X, I would assume that the moniker “terrorist” is likely to have been applied to X.

    Another point: the sizeable delay between arrest and trial is hardly a new phenomenon. But the issue of contempt seems to be fairly new. Fairfax, in my opinion, gambled that it could breach the law and not suffer any consequences (or it assumed that the benefits would outweigh the costs). Time will tell whether it was worth the gamble, but the issue of delays between arrest and trial is a red herring. Oh, and I think the publicity surrounding the alleged terrorists was “seriously splashy”.

    [Ross, I agree with pretty much all of that, but it doesn’t really undermine my point. The Ruatoki coverage is arguably an example of coverage that is particularly splashy and prejudicial – one of the rare instances when initial coverage will stick in jurors’ minds. (I made this point in an earlier post). Fairfax’s likely argument about delay before trial is solidly grounded in case law, so not really a mere “red herring”, though it will be a very interesting call for the courts. And contempt is not really a new issue: the current rules have been around for decades, though enforcement has been patchy.]

  3. ross Says:
    January 23rd, 2008 at 1:47 pm

    Steven,

    Contempt is a new issue in that Fairfax and other media don’t seem to make a habit of breaching suppression orders. However, if the Courts give Fairfax a slap on the wrist, maybe we could see more breaches?

    Fairfax’s argument about delay before trial is tenuous at best. The fact is that there are long delays in the criminal justice system and have been for quite some time. I am not aware that such delays have proved fatal to the prosecution, except in the odd case. Fairfax’s lawyers have to come up with a much better argument than “jurors have bad memories, m’lord”. Yes, some of us do have bad memories but we can also see when we are being taken for a ride.

  4. Steven Says:
    January 24th, 2008 at 9:36 am

    I could give you a long list of examples of Fairfax and everyone else breaching the laws of name suppression by publishing identifying details. I can’t say I can see this being a “slap on the wrist” case, though. The real problem is not breach of suppression orders. It’s the prejudice to the trials. I don’t understand your suggestion that the delay argument is “tenuous at best”. At the risk of sounding like a media lawyer – can you cite any contempt cases that support that? I can show you lots where the courts have treated the length of the interval between arrest and trial as a very important factor when assessing potential prejudice. The reality is that there are very few contempt prosecutions, despite lots of potentially prejudicial publications, because of the long-delay factor. TVNZ’s lawyer Willy Akel was even able to say at a seminar last year that it’s basically open slather for the media in the early days before and surrounding arrest. The clamps only come on as the trial looms. I think that’s overstating it a bit, and the Fairfax case may well prove to be an exception. And, as I’ve said before, Fairfax do have arguments other than juror memory fade.

  5. ross Says:
    January 25th, 2008 at 1:05 pm

    “Fairfax do have arguments other than juror memory fade.”

    Yes, I’m aware of that…I was being mischevious. However, whether Fairfax tells the Court that it was hoping to profit from publishing the terrorism files is another matter. I suspect it won’t reveal of all its motives.

    It was reported yesterday that in the last year, ten cases had been dismissed by the Courts due to excessive delays between arrest and trial. But given the hundreds (if not thousands) of cases tried each year, ten cases is pretty miniscule. In other words, Judges seem to be saying that despite the delays, trials should proceed. (That was why I said the delay argument was tenuous.) If Judges believe that witness memories can stand the test of time, then I think it’s reasonable to think that jurors’ memories can stand the same test.

    “I could give you a long list of examples of Fairfax and everyone else breaching the laws of name suppression by publishing identifying details.” I guess there are breaches and then there are breaches. In the Rickards-Shipton-Schollum trials, for example, there were breaches on blogs and elsewhere, but I think the media generally behaved themselves. (BTW, those handling out pamphlets with the suppressed info were charged.) I’d like to think that when the stakes are highest, the media will do the right thing. That’s what makes Fairfax’s recent behaviour all the more surprising.

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