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Fairfax contempt case: some impressions

By Steven | September 19, 2008

I caught some parts of the evidence, but not the submissions, so I’m a bit limited in what I can add to my original thoughts here.

But that’s also the case with the media coverage generally. While the press bench was full to overflowing, the journalists might just as well have been reporting on a rugby game by looking through a camera focused on a 10 square metre area of the field. The primary evidence was contained in affidavits, which weren’t read out. The witnesses were referring to four bundles of documents, which the press couldn’t see. The cross-examination did little more than snipe around the edges of those affidavits. It was difficult to get a handle on what was really going on, even for those reporters with a solid grasp of the intricacies of the law and procedure of contempt of court.

The tremendous Wendy Murdoch from the DomPost applied for access to the affidavits, which was granted, so we may see more details emerging in future.

And as usual, the evidence was given in painstakingly short and slow bursts punctuated by long pauses so that the court stenographer could get it all down. (Is there some reason we can’t simply record the proceedings and have someone type them up in the next room? This would allow witnesses to talk at a natural pace, and cases could be completed in half the time. The transcript could be prepared almost as quickly, and the recording could be rewound when necessary to check on exact words). As it was, Randerson J had to keep telling people to pause or slow down. Shorter questions would help, he added a bit testily. Later on he rather undermined his point by asking a question so long and quick that the stenographer couldn’t get that down either.

What did we learn? Not that much. When pressed, Fairfax’s Paul Thompson admitted that he “may not” have made the same decision to publish if he’d known the full details of the suppression orders and the provision in the Crimes Act banning disclosure of intercepted communications.

DomPost editor Tim Pankhurst admitted he knew “broadly” about that Crimes Act provision.

The elephant in the room was the legal advice they received. In fact, that elephant was not in the room, since they chose not to reveal it and so could not rely on it in court. But that elephant’s shadow was there. What did that advice say about the Crimes Act? How much was known about the suppression orders? (I know from my own experience how hard it can be to find out what exactly has been suppressed, and there were numerous disparate bail hearings. I doubt the full set of orders was available for many months.) Was Fairfax advised that they should hold off till they got more information about what was suppressed?

In the end, Thompson and Pankhurst’s evidence seems to be that they knew there was a range of suppression orders, that they didn’t know the precise content of all of them, but on the basis of what they did know, they believed it was safe to publish. It’s not clear whether they were diligent enough in hunting out those suppression orders.

In an editorial, the DomPost claimed they believed it was legal to publish. But at a journalism conference, Pankhurst had admitted that the lawyers had said there were risks (though he didn’t say what the nature of the risks was. Suppression orders? Crimes Act? Prejudice to the trial?)

Embarrassingly for Fairfax, it emerged at trial that some of the allegedly prejudicial material (I think only the editorial that accompanied the front page story) was still available on some part of a Fairfax website.

Ooops.

It also seemed that the Solicitor-General was still in the process of tracking down all the suppression orders. W. T. F?

At the heart of the case is the question of whether the coverage will have tainted the minds of potential jurors. On that question, we had dueling experts. And what experts! One was Duke University’s Neil Vidmar, probably the world’s foremost expert on jurors and prejudice. The other was our own Dr Warrent Young, undoubtedly New Zealand’s leading expert, and 2IC at the Law Commission. They’re cobbers from way back, so it was all very amicable, and they had very sensibly submitted a joint memorandum setting out their areas of agreement and disagreement, as well as their own affidavits.

I haven’t seen any of those documents either. Sigh. Memo to courts: stop whinging about uninformed coverage unless you’re prepared to make it easier for journos to access the raw material of court proceedings. Why not have the lot electronically available to journalists on the spot (unless there’s some reason to exclude any)? Attach a copy of the suppression order at the top.

Anyway, Vidmar gave evidence by video-link and seemed articulate and authoritative. He’s a strong believer in jury trials, but he says research suggests that jurors are affected by this sort of material, and it influences the way they do their job, particularly when issues are finely balanced. Warnings to the jury don’t necessarily work.

Young was in the court and seemed articulate and authoritative. I think he also believes in the jury system, and he draws on his NZ research into juries as well as the general literature. He says that the risk of this particular material influencing them was “real” but “very small”, mostly because the process of deliberation between jury members ameliorates the effect of prejudice.

It will be interesting to see what the judges make of that. It is, at any event, heartening to see these decisions based on evidence rather than the traditional method of resolving this issue: judges consulting their gut feelings.

I’ll write more when I’ve seen the submissions and the affidavits.

Topics: Contempt of Court | 46 Comments »

46 Responses to “Fairfax contempt case: some impressions”

  1. ross francis Says:
    September 22nd, 2008 at 8:44 pm

    I’m bemused by David Collins’ claim that the decsion by Fairfax to publish the so-called terrorism files was unacceptable.

    In 2006, I requested some affidavits from Mr Collins, QC, pertaining to the Peter Ellis case. After some deliberating, Crown Law sent me the documents. Later, the Deputy Solicitor-General, Cheryl Gwen, demanded that I return them because, apparently, they shouldn’t have been released without leave of a judge. More importantly and embarrasingly for Crown Law, one of the affidavits mentioned the names of many of the child complainants, names that were suppressed by the trial judge.

    Cheryl Gwyn, however, threatened me with contempt if the documents were published. Alas, they had already been on the internet when she made her threat and they remain there to this day. To the best of my knowledge, this has not caused any harm to the administration of justice.

    Out of interest, who would prosecute Crown Law for contempt if a case was established?

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