Comprehensive Study Notes: Contempt of Court Principles and the Gisborne Herald Precedents
Administrative Updates and Course Schedule Adjustments
Correction to Class Cancellation Dates: Initial information regarding the cancellation of classes for the upcoming week was incorrect. * Lectures will proceed as scheduled next week. * Lectures will be canceled the following week, specifically on the dates of the and the . * Replacement videos will be uploaded to V-Stream to cover the material for these canceled sessions.
Marking Status: The instructor faced urgent advising duties recently, leading to a slight delay in the return of marked assignments. The goal is to have them completed and returned by early next week.
Introduction to the Concept of Contempt of Court
Unique Legal Standing: Contempt of court occupies a distinct position in the legal landscape. It creates a liability akin to a criminal offense, including the possibility of incarceration, yet it originated from the Common Law.
Common Law vs. Statute: * Traditionally, all crimes in New Zealand are created by statute, with contempt of court serving as the sole remaining common law crime. * Contempt of Court Act : This act was passed to provide greater clarity and definition to criminal liability in this area. There is academic debate regarding whether the statute significantly clarifies the common law, as the tests contained within the act are essentially the same as those developed through common law precedents.
Applicability of Precedents: Common law cases decided prior to the Contempt of Court Act remain authoritative and provide critical guidance for interpreting the statutory tests. Students are encouraged to cite these cases as if they were authority under the Act.
Fundamental Rationale: The core purpose is to ensure the administration of justice is: * Impartial: Free from external bias. * Effective: Ensuring the internal workings of the court are not undermined by outside interference.
The Overriding Test: The general threshold for contempt is behavior that "seriously prejudices the administration of justice."
Principal Categories of Contempt
Civil Contempt: * This involves the breach of a specific court order. * A civil contempt can occur within the context of either a criminal or a civil proceeding. * While significant for those subject to court orders, it is not the primary focus of this specific lecture series.
Criminal Contempt: * This is an umbrella concept covering various ways of interfering with the administration of justice.
Contempt in the Face of the Court: * Describes disruptive behavior occurring directly within the courtroom environment. * Examples: Throwing objects at a judge, physical attacks, screaming to disrupt proceedings, or public nudity. * The court possesses statutory power to deal with these disruptions immediately.
Scandalizing the Court: * Involves bringing the justice system into disrepute, often by alleging that a judge is corrupt, biased, or incompetent. * Rationale: The court's intent is not to defend the individual judge's ego, but to protect the public's trust and confidence in the judicial system. If the public views judges as biased or "in the pay of rich people," they may cease to bring their disputes to court, undermining the rule of law. * Judicial Restraint: This power is used sparingly, typically only in extreme cases where allegations are demonstrably false.
Interviewing Jurors: * In New Zealand, it is an offense for the media or any individual to interview jurors about their deliberations. * Reasons for the Rule: 1. Privacy and Protection: To prevent jurors from feeling pressured or fearing later scrutiny of their contributions. 2. Frankness of Discussion: To ensure jurors can speak freely and honestly in the jury room without fear of appearing "stupid" or "flaky" in public. 3. Finality of Verdict: To prevent verdicts from being challenged by subsequent media interviews where a juror might claim they only voted a certain way because they "needed to go to the toilet" or had a family event (e.g., a wedding) to attend.
Sub Judice Contempt: Publication Prejudicing a Trial
Term Origins: "Sub judice" is a Latin term meaning "before the court." It dictates that when an issue is before the court, it is the court's prerogative to decide it without external influence.
Focus on Jury Trials: * The law primarily concerns juries. Juries are viewed as susceptible to extraneous information. * Judges vs. Ordinary Mortals: The law assumes judges are "big enough and ugly enough" to ignore external pressure due to their special training and "superpower lawyer powers." They are disciplined in focusing strictly on admissible evidence. * Critiques of Judicial Immunity: Several studies, such as the Israeli study on parole judges, suggest that even judges are influenced by extraneous factors like hunger (e.g., parole approval rates were significantly higher after lunch than just before lunch).
The Basic Rules for Sub Judice Contempt: * Standard of Proof: The Crown must prove the contempt beyond reasonable doubt. * The Test: There must be a "real risk" (not fanciful or imaginary) that the publication could prejudice the right to a fair trial. * Tendency at Time of Publication: The court examines the publication's tendency to prejudice at the moment it was released. Even if a trial never occurs (e.g., because the defendant later pleads guilty), a publication can still be contemptuous if it had the tendency to prejudice at the time of release. * Ordinary Reasonable Reader: The effect is judged based on the whole publication from the perspective of an ordinary reader/listener/viewer. * High Threshold: Contempt is not imposed lightly. Proving a real risk requires a solid chain of reasoning showing jurors were likely to see the material and that it would likely affect their view of the defendant.
Case Study: The John Gillies Contempt Proceedings
The Timeline of Events: * The Incident: In the early hours of a Friday in Gisborne, John Gillies assaulted police officer Nigel "Jimmy" Hendrix with a screwdriver, stabbing him in the neck. * Emotional Context: Hendrix's wife was pregnant and delivered a baby in the hospital shortly after the stabbing. * The Legal Situation: Gillies was arrested and held in Gisborne, with a trial pending in approximately months. However, he was also scheduled for an unrelated assault trial in Napier the very next Monday, with several other assault charges pending in the following weeks.
The Media Coverage: Over the weekend of July and , media outlets in Napier and Gisborne published extensive coverage: * Photographs: Images of the mother and her newborn baby alongside stories of the "brutal assault." * Defendant Profile: A mugshot of John Gillies showing Mongrel Mob tattoos. * Bail Status: Reports that Gillies was out on bail for five other assault charges, including two against police and one against a prison officer. * Police Statements: Quotes from police expressing surprise and opposition to the fact that Gillies had been granted bail. * Criminal History: References to previous convictions for assault.
The Prejudice: This coverage was highly damaging because it invited the jury to reason that Gillies is a "bad person" who is "prone to violence," thereby lowering the threshold for "reasonable doubt."
Analytical Framework from the Gisborne Herald Cases
The "Chain" of Cases: 1. The High Court Case: Solicitor-General v Radio New Zealand Ltd and Others (the original trial before two judges). 2. The Penalty Decision: Establishing fines for the outlets. 3. The Court of Appeal Case: Gisborne Herald Co Ltd v Solicitor-General (-judge bench including President Cooke, Justice Richardson, Casey, Hardy Boys, and Mackay).
The Two-Step Analysis: 1. Nature of the Material: Is the information published of a type that would likely prejudice a juror's thinking? (e.g., previous convictions, bail status). 2. Extent of Spread: How likely is it that the prejudicial material reached the actual jury pool?
The Higher Threshold for Specific Information: * Previous Offenses: Particularly those of a similar nature to the current charge. * Dishonesty Offenses: These damages the defendant's credibility if they choose to give evidence. * Emotional Weight: Material that "sheds more heat than light" (i.e., causes outrage without being relevant to the specific incident being tried).
Key Findings in the Gisborne Herald Rulings
Chief Justice Eichelbaum's Rationale: The goal is to maintain the right to a trial before a jury free from "bias and preconception," basing decisions only on facts proved in evidence.
Free Speech vs. Fair Trial: * The media argued under the Bill of Rights Act for freedom of expression. * The court responded that the media could have waited to publish the details until after the trial or discussed bail laws in general terms rather than specific details of this case. * When rights clash, the right to a fair trial typically takes precedence as the restriction on speech is viewed as temporary.
The "Ghost Defense": Incidental Byproduct: * There is a limited potential defense if the prejudice is an unintended, incidental byproduct of an ongoing, wider discussion on a matter of public interest. * However, if the risk to the trial becomes "real," this defense generally fails.
Location and Risk: * High Court View: Suggested that the Gisborne Herald's coverage (even if primarily local) could reach Napier, creating a real risk for the trial starting there the following Monday. * Court of Appeal View: Overturned this, stating that the chance of the small local paper affecting the Napier jury pool was too unlikely to constitute a "real risk." It was "possible, but too unlikely."
Timing and the "Six to Eight Months" Rule: * Lapse of time allows prejudice to dissipate. Generally, if a trial is more than to months away, prejudice is unlikely to persist. * The Exception: For the John Gillies Gisborne trial ( months away), the court held the prejudice would persist because the case involved a small, loyal community, a high-profile victim, and emotive factors (the baby) that made the story highly memorable.
Summary of Prejudicial Material and Media Defenses
Most Dangerous Information to Publish: 1. Criminal Records: Especially for similar crimes or dishonesty. 2. Confessions: Even if they are later challenged as inadmissible. 3. Bad Character/Gang Affiliations. 4. Identification (Photos): If identity is the central issue of the trial (danger of contaminating witness memory). 5. Prejudging Guilt or Innocence.
Arguments That Generally Fail: * "The police gave us the information" (the police may also be in contempt). * "Everyone else was publishing it" (repeating prejudice is still contempt). * "We used a judicial warning to tell jurors to ignore it" (judges are skeptical of the effectiveness of these warnings).
Remedies Used in Other Jurisdictions (USA/Canada) but Rejected in New Zealand: * Adjournment: Delaying the trial until prejudice fades (viewed as unfair to defendants). * Change of Venue: Moving the trial (expensive and inconvenient). * Sequestration: Housing jurors in hotels (expensive). * Voir Dire: Interviewing potential jurors to filter for bias.
Statutory Evolution (Contempt of Court Act ): * Replaces common law with a statutory offense (Section ). * Timing applies from the moment of arrest/charge until the delivery of the verdict. * Applies to offenses punishable by years or more in prison. * The test remains the "real risk" of prejudicing a fair trial.