“The truth, the whole truth, and nothing but the truth… Yeah right”. Sadly not only lying witnesses are to blame for this Tui ad. Arrogant judges prevent juries from hearing the whole truth. They suppress evidence to whack the police for disrespecting judges’ views of how suspects should be treated. Whether the rules mollycoddle the accused is for another day.

An Auckland court withheld from the jury a videotape said to show Noel Rogers confessing to killing Katherine Sheffield. He was acquitted last week.

What if this means guilty men go free, the public ask? Don’t judges realise that it is not the police who are punished, but their victims who are deprived of justice? What about the rest of us, if justice is not done?

“Whatever” seems to be the court answer. And now their tangled web is growing. As usual repression begets repression.

TVNZ wants to show us the video so we can judge for ourselves what was excluded from our so-called “open courts”. Rogers objects. In round one this week the court supports him, worried that Rogers’ privacy would be breached, and considering the Police conduct to be”improper”.

This is “hero judging”. TVNZ should remind the appeal judges of a simple truth. Acquittal just means not proven beyond reasonable doubt. It does not force the rest of us to accept the accused’s innocence. A victim can win a private lawsuit based on exactly the same evidence as failed in the criminal acquittal case, reassessed on the civil “balance of probabilities” standard. Nicole Simpson’s family succeeded against O J Simpson on that basis.

Acquittal merely means that the State’s powers of punishment cannot be used against the person acquitted. Victims and relatives and employers and news agencies must remain free to make up their own minds, and free speech helps ensure we have the information on which to exercise our freedom of thought.

An acquitted person can use defamation law for protection from baseless accusations.

Thankfully TVNZ has the resolve and the resources to fight on in this case.

If TVNZ does not succeed in round two the courts will be going far beyond their current hubris. Not content with ‘punishing’ the police, (and all the rest of us if Rogers was in fact the killer), judges will be sacrificing free speech to deny us the information to judge the judges’ use of their suppression powers.

No wonder non-lawyers despise court processes as a game captured by self-absorbed insiders. The system’s highest value should be ascertaining the truth, to determine guilt or innocence. Judges force outsiders caught up in their game to swear allegiance to the transcendent value of the whole truth, then make a mockery of that oath. Plainly they regard police adherence to process rules as more important than the truth.

Sure, judges can argue that limiting police questioning discourages improper pressure which could extract untrue evidence. They would claim that this upholds the third limb of the witness oath to tell “nothing but the truth”. So would routine prosecutions for perjury, and much more directly, but how often do the courts pursue perjury?

“Better that 10 guilty go free than one innocent be convicted” is another glib response to complaints about wrongful acquittals. But only if that trade-off is unavoidable. How much effort have the courts made to ensure instead that there are routine penalties for the police actually responsible for improper procedure. As far as I am aware, none.

I suspect the judges do not call for that solution because they would lose control. Someone would have to negotiate such rules, and persuade Parliament to authorise them. Under the current system the judiciary preserve a unilateral power to impose their preferences for police practice, without being forced to justify them in open debate, weighed against other objectives of the criminal justice system

But now the news media and the people have a once in a generation chance to express their view of the balance the judges have been striking. The Evidence Bill is before the Justice and Electoral Select Committee. Clause 26 purports to govern Judges’ power to exclude improperly obtained evidence. It is wordy waffle. It simply confirms that judges can make things up in this area as they go along. It does nothing to prevent judges extending their current exclusion power into a de facto permanent suppression order, by ruling that excluded evidence is thereafter secret.

Every year news media have to spend a fortune on lawyers, challenging the suppression inclinations of Judges and other justice system insiders. I hope that at least some media leaders are willing to spend a fraction of that amount before the select committee. They can remind MPs, with examples, that judges cannot be trusted to protect free speech when it comes to disclosure that might discredit their pet process games with the truth. Submissions closed on 12 August 2005, but the new committee might accept substantive late submissions.

News media could help themselves more from today, reasserting our private and individual freedoms with a bit more scepticism of accuseds’ claims to have been “cleared” by acquittal or even by police decision not to prosecute. A robust “Yeah right” might be the first line of protection of freedom of speech and thought from the discretions of judges and other insiders of the justice system.