Exhaustive Notes on Contempt of Court: Sub Judice and Prejudicial Publication

Course Logistics and Schedule Updates

• Clarification on Cancelled Lectures:     * The previous announcement regarding cancelled classes for next week was incorrect.     * Classes are cancelled for the week after next, specifically on November 11th and November 15th.     * Replacing these cancelled lectures will be videos available on v-stream.
• Marking Progress:     * The lecturer was delayed due to providing urgent advice but anticipates having assessments returned early next week.

Introduction to Contempt of Court

• Conceptual Framework:     * Contempt of court occupies a unique legal space as it creates something akin to a crime (penalties include imprisonment) yet has historically been rooted in common law.     * Until recently, it was the only remaining common law crime in New Zealand; all other crimes are created by statute.     * Most, but not all, of these rules have now been integrated into the Contempt of Court Act 2019 (though the transcript refers to the year 1919 accidentally, the context implies the modern statutory overhaul).
• Statute vs. Common Law:     * The Act was intended to provide clarity and definition regarding criminal liability.     * However, the statutory tests are essentially identical to the old common law tests, making them somewhat "vague" or "waffly."     * Guidance: Old common law cases (specifically the John Gillies/Gisborne Herald series of cases) remain authoritative and provide the primary guidance for interpreting the Act.
• Core Rationale:     * The fundamental goal is to ensure the administration of justice is impartial (free of bias) and effective.     * It prevents internal workings from being undermined by external actors causing the system to fail.     * General Test: Actions that "seriously prejudice the administration of justice."

Principal Types of Contempt

• Civil Contempt:     * Occurs when an individual breaches a specific court order.     * This can happen within either criminal or civil proceedings.
• Criminal Contempt:     * This is an umbrella concept for actions that interfere with the administration of justice generally, rather than just disobeying an order.     * Contempt in the Face of the Court: Disruptive behavior within the courtroom (e.g., throwing objects at a judge, yelling, or undressing to disrupt the process).     * Scandalizing the Court: Bringing the system of justice into disrepute.         * This often involves alleging a judge is corrupt, biased, or incompetent.         * The court's conceit is that they are not defending the individual judge's ego, but the public’s trust and confidence in the judiciary.         * This power is used sparingly, usually only in extreme cases where allegations are blatantly false.     * Interviewing Jurors:         * It is an offense in New Zealand to interview jurors about their deliberations.         * Reasoning: To protect juror privacy, to ensure frank and honest discussion in the jury room without fear of future media portrayal, and to maintain the finality of the verdict.         * Exceptions: Jurors can be interviewed about their general experience, provided deliberations (who said what) are not disclosed.     * Sub Judice Contempt (Publication Prejudicing a Trial):         * Literally means "before the court."         * Focuses on external publications that might influence the outcome of a case currently being decided.

Sub Judice Contempt: The Legal Framework

• The Jury Focus:     * Under the modern statute, this category primarily concerns jury trials.     * The "Superpowered Judge" Exception: The law assumes judges are trained, disciplined, and "tough" enough to ignore extraneous media information and focus solely on admissible evidence. Ordinary mortals (jurors) are not assumed to have this same level of discipline.
• Legal Standards for Breach:     * Burden of Proof: The Crown must prove contempt beyond reasonable doubt.     * The Real Risk Test: There must be a real risk—not a fanciful or imaginary one—that the publication could prejudice the right to a fair trial.     * Tendency vs. Actual Effect: The court looks at the tendency of the publication at the time it was issued. It does not require proof that the trial's outcome was actually altered or that a juror’s mind was definitively changed.     * Reasonable Observer: The effect is measured against the "ordinary reasonable reader, listener, or viewer."
• The High Threshold: Courts do not impose punishment lightly; cases typically only arise once every ten years.

Prejudicial Information: What Jurors Should Not Know

• If a defendant is charged with a crime, certain information is considered highly toxic to a fair trial if released prematurely:     * Similar Previous Convictions: Information that the defendant has committed the same crime before (leads to the logic: "She did it once, she must have done it again").     * Serious Offenses/Bad Character: Particularly violent crimes or offenses against children (leads to the logic: "This is a bad person; I don't mind sending them to jail even if I have some doubt").     * Dishonesty Offenses: Fraud or perjury convictions that undermine the defendant's credibility if they give evidence.     * Bail Status: Disclosure that the defendant was already on bail for other similar charges at the time of the alleged offense.     * Gossip/Emotive Contexts: Photos of victims (e.g., a newborn baby of a victimized officer) that bypass evidence to appeal to raw emotion.

Case Study: The John Gillies/Gisborne Herald Litigation (1994)

• Timeline of Events:     * Friday, July 15: In Gisborne, John Gillies (a member of the Mongrel Mob, noted for facial tattoos) assaults police officer Nigel "Jimmy" Hendrix with a screwdriver, stabbing him in the neck.     * Context: Hendrix’s wife had just given birth; media featured photos of the baby/mother at the hospital.     * Monday, July 18: Gillies was scheduled for a different assault trial in Napier.     * The Media Coverage: Over the weekend (July 16–17), media in Gisborne and Napier published stories detailing Gillies' mugshot, his extensive criminal history of violence, and the fact that he was out on bail for five other assault charges despite police opposition.
• The Legal Action:     * The Solicitor-General brought contempt proceedings against four outlets: The Dominion (national/regional), Radio New Zealand (national), Hawke’s Bay Today (regional), and The Gisborne Herald (local).
• Key Findings of the High Court (Judges Eichelbaum and McGechan):     * The goal is preserving an impartial and effective system of justice, not protecting judicial dignity.     * Location Risk: The High Court found a risk that the local Gisborne Herald might reach Napier, potentially prejudicing the trial starting there on Monday.     * Duration Risk: They found the coverage so emotive it could potentially prejudice the Gisborne trial scheduled seven months later.     * Police Involvement: The police had provided the prejudicial information to the media. While this was a mitigating factor for sentencing, it did not excuse the media from liability.
• Court of Appeal Decision (Cook, Richardson, Casey, Hardy Boys, and Mackay):     * Napier Trial: Overturned the finding against the Gisborne Herald regarding the Napier trial. They ruled it was too unlikely that a small local Gisborne paper's physical circulation would reach Napier in a way that created a "real risk."     * Gisborne Trial: Upheld the contempt finding. Despite the trial being seven months away, the coverage was so splashy, emotive, and relevant to the local community that jurors would likely remember it.

Determining "Real Risk": Factors of Memorability

• The "6 to 8 Month Rule": In 1994, the general rule of thumb was that prejudice dissipates after 6–8 months. If a trial is further away than that, contempt is harder to prove unless the coverage is exceptional.
• Memorability Factors:     * Prominence: Front-page placement, large headlines, and long story length.     * Repetition: Was the story run once, or multiple times over several days?     * Nature of the Community: Small communities (like Gisborne) have a higher risk because stories generate "law and order anxiety" and gossip.     * Emotive Content: Use of photographs, tragic backstories (the Hendrix baby), and "heat vs. light" (information that evokes anger rather than providing factual insight).     * Accessibility (The Internet Era): In modern times, the "location" argument is weaker because everything is online. The focus shifts to whether a person's name is in the story, making it easily findable via Google.

Freedom of Expression vs. Fair Trial

• The Bilateral Conflict: Media defendants often cite the Bill of Rights Act (Freedom of Expression).
• The Judicial Stance: While freedom of expression is valued, it is temporarily curtailed to guarantee a fair trial. The reasoning is that the media "could have waited" to publish the prejudicial details until after the trial.
• No Public Interest Defense: Generally, there is no defense for publishing prejudicial material just because it is "in the public interest."     * Potential Exception: If there is an unintended, incidental byproduct of a general, ongoing discussion of a public issue (e.g., a general debate on bail laws), it might not be contempt. However, once the risk becomes "real," this defense usually fails.

Penalties and Remedies

• Fines in the Gillies Case (1994):     * Hawke’s Bay Tribune: $20,000$.     * Wellington Newspapers Ltd (The Dominion): $15,000$.     * Gisborne Herald: $7,500$.
• Comparison to US System: Unlike the US, New Zealand does not typically use sequestration (putting jurors in hotels), voir dire (intensive jury questioning), or venue changes as primary fixes for media prejudice. The burden remains on the media to self-censor reaching the "real risk" threshold.

Questions & Discussion

• The Israeli Parole Study:     * A student noted a study showing that judges' decisions were significantly influenced by hunger; parole approval rates were much higher after lunch than before lunch.     * Lecturer's Point: This highlights that even "superpowered" judges are human, yet the law of contempt still treats them as immune to media influence compared to juries.
• Social Science Evidence:     * Academic studies (mock juries) often suggest that media prejudice is overstated or that general discussions (e.g., about the horror of child abuse) are more prejudicial than specific trial mentions.     * Judicial Response: Judges (like Chief Justice Eichelbaum) often dismiss social science in favor of their own "orthodox view" and "gut feeling" based on years of courtroom experience.
• The "Urinal Wall" Anecdote:     * A man named Mr. Vanderkap was jailed for scandalizing the court after describing Judge Penlington as: "The prick of Judge Penlington pisses upon the urinal wall of society."

Statutory Specifics: Contempt of Court Act

• Commencement of Liability: The period for sub judice contempt begins when a person is arrested or charged, not before.
• Conclusion of Liability: Ends upon the delivery of a verdict, a guilty plea, or the dropping of charges.
• Applicability: Only applies to serious offenses punishable by 2 years or more of imprisonment (the threshold for a jury trial).
• Section 199A Criminal Procedure Act: Automatically criminalizes the publication of previous convictions once charges are brought.