Prosecuting Fairfax

December 21st, 2007

Has the Solicitor General a secret interest in not convicting any “terrorists”?

My last post on this topic urged the Government lawyers to fight, only when the defendants raise it, the argument that the Fairfax pre-trial publicity prevents a fair trial. Now he must presumably argue their case. How will his lawyers argue to the contrary when the Arms Act charges are heard.

Can he later argue that the publicity is not prejudicial when his prosecution of Fairfax presumably depends on that view? Or has he got other ways of alleging ‘contempt’?

Before anyone raises my own inconsistency, I resiled in the 2 December post from my earlier acceptance of the inevitability of prosecution, on considering the bigger picture.

PS Kiwiblog now has a good comment string on this topic

Filed under Criminal Justice, Free Speech

Comments

I had understood that contempt was particularly within the realm of the Solicitor-General, rather than the Attorney-General, and I agree that this places the prosecution in any Arms Act case in a difficult position in seeking to resist an application for a stay of prosecution, but I can see one argument for it.

Acknowledging your arguments that pre-trial publicity doesn’t necessarily impact on the right to a fair trial (in exceptional cases like this I think we could poll potential jurors, which I believe has been done in the UK), if the Courts or the S-G want people to take contempt and suppression seriously, perhaps the only way is to use a case as an example.

If all these people get stays because the DomPost shot it’s mouth off, sympathy for the DomPost may well evaporate. Rather than alerting the public to matters of public interest, they’ll have seen that people who may have committed serious Arms Act offences walked free. The press, and the public in Shipton/Schollum-type cases, will notice the shot across the bow and be a lot more circumspect in the future.

That circumspection in the future is my concern Graeme.

Free speech should prevail, until there is proof that fair trials can not proceed after such publicity. I do not think anyone can say that the US is not protective of rights to fair trials, yet they routinely proceed after massive publicity.

As a student I attended some of the hearings in the Daniel Ellsberg (Pentagon Papers) trial in LA. I was struck by the irrelevance to the court of the public perceptions created by the selective publication of Ellsberg’s case (on the one hand) and of the Government’s case on the other.

We should simply tell our judges to harden up, and recognise that they will have to subordinate to free speech and open courts any preferences for secrecy, and just work around it (for example by extra warnings to the jury).

The snobs in our system may think US openness unseemly, but it has the additional function of creating a much more legally ‘literate’ public media.

Finally, just think about the climate of paranoia we’d have now, on both sides, if the people had not been able to see, from the papers published, why the Police acted.

In my opinion the Solicitor General is doing us all a disservice.

I can definitely see that.

For me the entire concept of contempt needs a re-think in light of the greater emphasis we now place (or should place) on freedom of expression.

Scandalising the Court (part of Nick Smith’s ‘conviction’) should have no place in modern jurisprudence (and nor should the analogue in Contempt of Parliament – of which Matt Robson was essentially found guilty in relation to Peter Dunne).

Other countries – notably the US – have substantially freer pre-trial publication. If it means we have to have limited voir dire to select juries in high profile cases then so be it.

I think in the case of the 16 accused, their charges are reverse onus charges due to that stipulated in the arms act. This means as you will well know that any tarring of their character from allegations of terrorism will in fact interfere with their ability to defend their case – reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove the charges against them.

This means that what Fairfax has done will have severely reduced any chance of the accused to a fair trial and is certainly grounds for a stay. Which is the reason for the suppression of sub-judice evidence in such cases in the first place.