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Sick of Court preciousness – time to tame sub judice

  • April 3rd, 2012

I'm sick of hearing that thngs are "sub judice". People too often refuse to answer questions because something has gone to court.

I think it  is just a way to parry critical scrutiny, for courts and judges as well as the parties using the excuse. Those using it have the smug feeling of playing a joker. Given the inexcusable delays in courts it can mean  there is ill-informed or warped public discussion of issues until long past the time when the discussion might be useful. People  whose main punishment should be universal disgrace may escape exposure until years later when it is all old news.

 I think the lawyers for the Lombard defendants should have been free to do much more publicly for their clients. All kinds of uncorrected false allegations ran unchallenged. Public reputations were lost. Meanwhile the courts wasted our $millions crying over the spilt milk of another property investment doomed from the moment the GFC ended the land development boom. 

There was no dishonesty, no lack of diligence, no intent to deceive. Yet only the court knew that until the very end. The defendants  were left helpless in public, seemingly gagged and bound in the stocks of media and blog commentary. It seems that no one felt free to fight accusations that the defendants were crooks and fools until the verdict. 

What possible purpose is served by rules or even conventions that leave them without help from their lawyers in public and without being free to say anything directly to correct the nonsense filling the media vacuum?.

 I had little time for Sir Douglas as a politician. But I can't stand unfairness and hypocrisy. And I know company and securities law. So when the media told me they could not get others involved to respond I agreed to speak . I did not know that the Hon Bill Jeffries was prepared to speak to TV 1 after the sentencing. He did well, and  Jehan Casinader and TV 1 deserve great credit for letting him put his side without snide editing and trick shots to fit the villain persona that had been created for him.

But how sad that he had to wait till years after he was charged. Perhaps the lawyers were gagged by some absurd rule.  Why on earth would ‘sub judice’ require silence on matters before a court sitting without an impressionable jury? Are the judges afraid they will be adversely influenced by what is said outside court? Or is ‘sub judice’ just a way to minimise critical scrutiny.

If court processes are doing their job, given the time they take, how could the careful nature of court presentations not outweigh (and inform and correct) any misleading aspect of the necessarily abbreviated material in the media?

It is time the judges had a good hard look at this preciousness. The issues are similar to those around name suppression and other derogations from the principles of open justice (being done and being seen to be done). When the blogosphere can speculate freely, and the fact of arrest or prosecution is likely to be known to all close associates, what fairness or other purpose is served by making sure the public generally cannot learn the facts from those who know them best – the parties and their lawyers.

Two simple rights are being trampled by the Courts – the right  of free speech (which is our right to know) and the right of everyone to defend themselves. .


  • philob
  • April 6th, 2012
  • 12:27 pm

Good to hear this from a lawyer. Ever since it started, quite suddenly, "sub judice" has been a con. Not even strictly legal. But it is a guide as to who has been up to no good – those invoking it. I would not have it even for jury trials.

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