The High Court says Fairfax and the DomPo did not act in contempt of court in publishing the “Terror Files” articles about the October Police raids last year, though the judges expressed surprise that Fairfax had not been charged with breaching suppression orders and publishing intercepted communications by the Police. But the judges do not believe the “Terror Files” article created a real risk of prejudice for the defendants right to a fair trial.
There is very little analysis available online yet – media commentator Jim Tucker says, despite being critical of how the material was handled in the article, that the case is a big victory for media freedom.
Media law expert Steven Price is surprised – he expected Fairfax to go down – and raises some concerns.
Firstly, he takes issue with the judges “speculative” decision that the jury will not be influenced by the article – he says there is social science research they could have examined, as well as the testimony of media law experts in the trial itself, which placed the risk of influence on the jury as “real”, though also “small” in the case of one expert (the Fairfax one).
As he points out, even a “small” risk of prejudice is one a defendant might not be too happy with.
Mr Price also has an issue with the judges assuming the defendants would be relying on the “it’s not me with that gun” defence – he believes this is not in fact the case, that the defendants are more likely to be arguing “we weren’t doing terrorism stuff, we were doing other things” – and that therefore an article called “Terror Files” is potentially more damaging to their cases.
Although neither Steven Price nor Jim Tucker discuss this in depth, DomPo editor Tim Pankhurst said on RadioNZ that:
[T]he judges said the time between publication and the accused people’s court appearances meant it was unlikely to unduly influence a jury or the right to a fair trial.
Now, logically of course this makes sense – the article was so long ago, who can remember the details? But the details are not the problem – if the defence is arguing the defendants were not doing anything wrong in the Ureweras, but jury members vaguely remember an article about terrorism – well, this is what the plentiful social science research Steven Price mentions is about.
Secondly, it seems to me that relying on the inefficiencies of our court system to safeguard right to fair trial in such a way is, quite honestly, ludricrous – why on earth does this all take so long? Length of time for prosecutions in cases of violence against women is one reason why women decide not to participate – there is just too long between when they have been bashed and when their partner will face legal consequences for them to withstand his pressure.
We should not be meekly accepting such delays – let alone building them into assisting a “fair trial” – they do nothing to ensure justice is done.
One curious scenario is avoided by the failure of the contempt charges. The Crown will not be forced to go from one court-room, where it argues the DomPo articles breached right to a fair trial, to another court-room, where it argues for charges to be brought against the same defendants.
Only comment from the defendants lawyers was at Radio NZ, where Michael Bott said:
In this case we had quite flagrant violations of court suppression orders that were given by the court to try and protect fair trial rights of people accused of quite serious charges.
Meanwhile, according to the October 15th Solidarity website, following the depositions hearings we will know next week whether the Arms Act charges are to go ahead against those arrested. The defence case to have the charges stayed is now much weaker though – unless, as Steven Price says, the Crown appeals (and wins the appeal) against the contempt decision.