Justice Minister Andrew Little, who is in charge of a bill which amends the country’s contempt of court laws, should have a reasonable grasp of the implications for the justice system when news media ignore suppression orders. He should also have a reasonable grasp of how challenging it is to make a suppression order stick – in the internet era – when anything published or broadcast overseas can quickly be recirculated in this country.
But he gave it a go, yesterday, and chided British media for revealing suppressed details from the Grace Millane murder case.
If they want justice for Ms Millane and her family, they should refrain from publishing information, he urged.
After the appearance in court of a man charged with the murder, several people took the law into their own hands. They named him on social media and shared his Facebook profile.
The British media also named him, publishing details and his photo – it featured on the front page of one newspaper.
Point of Order heard the Minister’s warning in a Radio New Zealand news item. He said over-riding the suppression order might be harmful to the interests of the murdered woman’s family by giving defence counsel grounds for a mistrial.
But Radio New Zealand didn’t seem too anxious to ensure against prejudicing the accused man’s prospects of getting a fair trial. It broadcast an item in which a former flatmate told the listening public what she thought of him.
The New Zealand Herald published material from Ms Millane’s Facebook pages including a comment posted by the man accused of her murder and another comment from somebody expressing a critical opinion of him.
There was a time when news media would hesitate before publishing anything related to a crime once charges had been laid, because the matter then became sub judice.
The term sub judice literally means “under judicial consideration” and the sub judice rule is part of the law relating to contempt of court. It governs what public statements can be made about ongoing legal proceedings before the courts
We asked the Minister for comment on this and asked if he was cautioning local media too.
His press secretary replied:
To answer your question, yes. Minister Little reminded the New Zealand Parliament-based media of their legal responsibilities with regards to court coverage.
This tells us the Minister sounded his caution through the Press Gallery.
Radio New Zealand and the New Zealand Herald both have reporters in the gallery. Their reports in defiance of the sub judice rule suggests either –
- The Press Gallery received the warning but did not bother passing it on to their editors; or
- They did they pass it on to the editors who ignored the advice; or
- The warning wasn’t clear enough.
A quick dip into newspaper files to be found on the internet dug up this report in the Sunday Star-Times almost 10 years ago, when blogs were discussing Dunedin murder victim Sophie Elliott and the fellow who was her alleged killer at the time.
Unlike the United States, the newspaper pointed out, New Zealanders do not enjoy freedom of speech and cannot publicly discuss any evidence or aspect of a case that may deny an accused person the right to a fair trial.
The Sunday Star-Times had discovered at least one internet blog on which posters were openly discussing their knowledge of both accused and victim, and events surrounding the death.
Rosemary Tobin, an associate professor at the Auckland University Faculty of Law, said many people were not aware of contempt laws, but that was no excuse.
“Bloggers should be aware and, if they’re responsible, once they’ve been notified they should [remove the postings].”
Another Auckland University law expert, associate professor Scott Optican, told the Sunday Star-Times the rules were behind the times.
“It’s contempt of court to editorialise about criminal cases in a public forum.”
The internet had seen a rise in “citizen journalists” and there should be a rethink of contempt and sub-judice laws, he said.
“The internet poses an absolute and insurmountable challenge. It’s very difficult to control the flow and dissemination of information.”
And New Zealand laws couldn’t prevent people blogging about criminal cases here on websites overseas, Optican said.
Michael Guest, a former lawyer and District and Family Court Judge, wrote in the Otago Daily Times in August 2008:
The real question to be asked is whether a comment, even a detailed comment, creates a real risk of prejudice.
Any comment or reporting short of that risk is permissible and essential.
Little is the Minister responsible for steering the Administration of Justice (Reform of Contempt of Court) Bill into law. It is now being examined by a select committee,
The Bill includes a provision which prescribes how a court should determine whether a publication creates the real risk of prejudice to the right to a fair trial.
In determining whether, for the purpose of section 14(2)(b), a publication creates a real risk of prejudice to an arrested person’s right to a fair trial, the court must consider the following:
(a) the likely effect of the publication as a whole;
(b) the persons or groups of persons to whom the publication is likely to be made available;
(c) the medium in which the publication is presented and its potential accessibility and durability;
(d) the character of the publication, including the language and tone used in it;
(e) any other relevant circumstances relating to the likely effect of the publication.
The bill further says the court may treat the inclusion in a publication of certain information “as creating a real risk of prejudicing the arrested person’s right to a fair trial”.
This includes information indicating that the arrested person is of bad character, including previous misconduct, criminal or gang affiliations, or criticism of the arrested person’s personality or previous charges or acquittals: