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Illegal exclusion of media?
By Steven | February 29, 2008
Yesterday, Justice Panckhurst closed the court to the media in a preliminary hearing on the Bain case. He is reported as saying that discussions were sensitive and could have implications for a fair trial. But these are not grounds for excluding the media. Check out section 138 of the Criminal Justice Act:
138 Power to clear court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a) An order forbidding publication of any report or account of the whole or any part of —
(i) The evidence adduced; or
(ii) The submissions made:
(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—
(a) May be made for a limited period or permanently; and
(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and
(c) If it is made permanently, may be reviewed by the court at any time.
(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
Upshot: even if the court is closed, the media is allowed to stay, unless national defence or security is at stake. Here, it’s not. The proper course is to make suppression orders, not exclude the media. Note that under subsection (5) any inherent power the court might have in the background is extinguished. Still, I understand that some judges do go into chambers and exclude the media for preliminary hearings in criminal cases. As far as I know, the question of whether judges retain some residual power to do this, perhaps on the grounds that a chambers hearing is not a “sitting” of court, has not been tested. I’m inclined to think that such a power would be inconsistent with section 138, which seems very widely drafted.
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