Skip to Content »

The DomPost, contempt of court, and open justice

  • September 30th, 2008

 Jack Straw’s push for open justice reminds me that we are waiting for the court to rule on the Solicitor General’s prosecution of the DomPost editor Tim Pankhurst for letting us all know why the Police conducted the Tuhoe terrorist raids..

The judgement is expected shortly before or just after the election date of 8 November.

If he is convicted Tim Pankhurst will be a martyr because he did us all a public service by countering the nonsense from the radicals, and the law will despised.

 If the judgement comes before the election the debacle will remind the public of Labour’s blinding incompetence as legislators. Having your Solicitor General advise dropping the first charges under your fancy new terrorism law was a serious own goal.

The case could also become the platform for a legislative re-dedication to open courts and to the public being able to see justice done.

Sir Geoffrey Palmer’s Law Commission privacy project may eventually get into this territory. He thinks the courts have gone beyond the bounds of reasonableness in suppressing papers and details of proceedings.

Most cases must still be conducted with public access to the court room, but that grudging remnant of open justice is negated by refusing access to court files of papers. Often cases are not comprehensible without them. And if you are not in court, the "open" case effectively is secret.
I’d not be surprised if Labour uses the benefit of Sir Geoffrey’s unpublished thinking to help Goff make some belated promise to restore openness to our courts.

It is timely to curb court preciousness about information. The Court of Appeal has tried to send that message in several recent judgments (see Rogers for example), but clearly the judiciary is divided. Mallon J supported openness in Green. Fogarty J  went in the other direction in Sila.

Kiwiblog covered Judge David Harvey’s ban on internet coverage.
Courts should get over themselves. Rules against pre-trial publicity mutilate incident reporting. It is only justified if prior knowledge creates irreparable bias in a jury, or in a judge. There seems to be little evidence to support that fear.
Courts should have confidence in the slow deliberation of their processes. The careful sifting and examining of evidence is very different from any other experience most jurors have. It seems likely to overcome pre-conceptions that jury members might draw from pre-trial publicity. That must be a research-testable issue.
A bigger issue may be the information juries derive from their own internet excavations.
Judges try to make juries into empty black boxes into which the only the insiders (judge and lawyers for the prosecution and the defence) carefully pour filtered data.
That is miles from where our jury system began. Juries were originally chosen because of their background knowledge, as peers and neighbours who were equipped to apply their own informed assessment of the parties and the circumstances in deciding who to believe.
So lets accept that the internet has fatally undermined the reliability of suppression orders. Judges should stop trying to preserve jury ignorance of anything but what they’re drip fed by the prosecution and the defence. 
Accept that there is no practical way to ensure the jury contains only jurors who are empty vessels. Admit that they are unlikely to submit to orders not to do any research themselves. Of course they’ll go to the web when puzzled. They will have been doing it since infancy.
Perhaps it is time for routine early enquiry (‘polling’) of the jury (and judges) for the relevant websites and news sources they can remember accessing. Then counsel can have a look at them too, to see whether those other sources have material that needs clarification or specific rebuttal.

I know judges who would welcome instructions and authority to treat juries with more respect. Instead of always excluding juries while the judge and counsel argue over what is admissable, they’d like them to hear some of the arguments over what evidence should be excluded.


Should we hope for a spectacular sentence for Mr Pankhurst so that Parliament can’t ignore his martyrdom? His consolation can be the inside story on how it feels to be the ‘victim’ who spurs a needed reform.


  • Maria Billini
  • January 19th, 2009
  • 5:19 pm

contempt of family court:

what happens when somebody contempt of family court in nz?

My ex husband made a contempt on one condition of court order.

He will get penalty?

Thank you,

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>