No more comments during trials
The HOS reports:
The Solicitor General’s office is investigating whether internet bloggers and social networking sites have breached contempt of court laws in the Sophie Elliott trial. …
Solicitor General spokeswoman Jan Fulstow said on Thursday the office was considering what action to take over a Facebook group called “Clayton Weatherston is a Murderer. He committed murder, not manslaughter” as well as comments on David Farrar’s Kiwiblog.
I commented to the HOS:
Kiwiblog creator David Farrar said he was generally “careful to avoid commenting on trials while under way”.
He gave the Bain trial as an example of him saving commentary until after the jury retired.
“In the Weatherston trial, the basic facts are not in dispute,” he said.
“Hence, there is no dispute about innocence – only whether or not he is found guilty of murder or manslaughter – a decision for the jury guided by the Judge. I understand jurors are usually specifically warned to not read information on the internet about the case.
“As I have done in other cases, if I am asked to delete comments that may be prejudicial, I will generally do so.
I think it is fair to say though that my anger at the fact the victim seems to being blamed for the murder, may have led me to not being as cautious as I should have been.
I am unsure as to what are the limits of acceptable discussion on criminal issues. Should you just not comment during the trial, any time after depositions, or any time after arrest?
If someone is found guilty I presume you can then comment, but what if they then lodge an appeal?
Anyway as I don’t wish to end up in judicial trouble, my interim policy is now going to be to now have any discussions on criminal issues except in a general law reform sense. In a way it is a pity because we actually have several defence lawyers comment here and I find their contributions welcome.
As I said I am genuinely unsure where the line should be drawn, and would welcome any advice on this. In the Veitch case we saw details published in Sunday newspapers for weeks on end, and that did not appear to be an issue.
Maybe there is no hard and fast boundary as to when you can or can not comment online, or as to what you can say, but perhaps a useful initiative would be the creation of a plain English guide for bloggers etc on what they can and can not comment on in terms of criminal justice issues. This could go on either Crown Law or Ministry of Justice website. I know I would find such a document bloody useful, and I suspect so would many others. Unlike commercial media we don’t have lawyers on call.
July 12th, 2009 at 9:31 am
…Again.
You only get one “Get out jail free card” in New Zealand after all.
July 12th, 2009 at 9:35 am
David, as someone who has not served my civic duty on a Jury for some years, my advice might be a bit out of date, but as I recall we were told not read anything in the papers or other news media about any case we served on, or discuss the case with anybody.
That put the onus on the juries, not anybody else.
I’ve also thought you’ve taken a very careful and cautious approach on kiwiblog for both the elections and trials.
July 12th, 2009 at 9:42 am
I think the general rule is probably: if you are posting/publishing stuff that makes the law or judicial system look like an arse, you’ve stepped over the line. However, if you are posting/publishing stuff that merely feeds the voyeuristic desires of a public obsessed with low-rent celebrities and managing to make a bit of coin out of it in the process, viva la journalism!
July 12th, 2009 at 9:49 am
Probably you should take down the posts and comments about Weatherstone ASAP. But this area needs clarification. It would be useful that where public comment is getting borderline the SG should issue something like a “D” notice.
July 12th, 2009 at 9:53 am
You have to wonder what the position would be if a blog was based overseas with an anonymous editor. What if this was in some Latin American country with no extradition of legal treaties with NZ? Would it then be practical to try to force Telecom to censor blog access?
If so would we have a China type setting, with a mass revolt of NZ hackers against the legal honchos?
July 12th, 2009 at 9:53 am
I don’t understand why freedom of expression is suspended during criminal trials. Especially in a trial where the facts are so clear.
July 12th, 2009 at 10:09 am
But Chris, we don’t know the facts. And most of us don’t know the law well. We may think this one is clear, but we only have media reports of ongoing witnesses accounts.
July 12th, 2009 at 10:12 am
Rrrrrrrrright
So the precious judiciary can disallow evidence that would result in a conviction, can pass ridiculously lenient sentences, expect the jury to come to a fair conclusion when they are not allowed to hear ALL the evidence yet we the public are not allowed to comment on a trial that is still in progress.
Just who do these pompous wankers think they are?
We the public, the jurors and often the accused are simply pawns to be used and abused by our legal “profession”, these wankers have no interest in justice, they have no interest in public safety and no interest in reflecting the mood and desires of the people who they sit in judgement of.
First, kill all the lawyers.
July 12th, 2009 at 10:13 am
I am sure there is not any rule against commenting on a case under appeal or while someone found guilty is awaiting sentence. If that was not the case Charles Chauvel could be in trouble. It is presumed that judges will not be influenced by the media.
July 12th, 2009 at 10:15 am
No comment.
July 12th, 2009 at 10:15 am
More socialist clap trap. More attempt to stiffle freedom of expression.
Maybe, just maybe some of these shit heads who find themselves in the hot seat in court would refrain from their behavoir if their tiny stupid minds knew that they were going to be vilified by the community. They are in the same situation as any politician or any other stupid or well known person.
and don’t forget who pays all the costs for these people to be in court. Yep us the taxpayers. the bloggers, the workers yep, us ordinary law abiding KIWI’s.
As others have learned about suppression of the information and blogs they will just shift to another juristiction and the debate will continue. If the powers that be still think its an issue they can sue for defamation or any one of countless hundreds of laws we all break every day. Time we cleaned out a great pile of useless outdated statutes and socialist women.
July 12th, 2009 at 10:25 am
bb – “First, kill all the lawyers.”
It could be prudent to know where the line is with that group.
July 12th, 2009 at 10:50 am
“No more comments on trials”
Yeah, otherwise you might end up with judicial travesties, as opposed to perfect examples of objective justice like the Bain case.
July 12th, 2009 at 10:55 am
As others have said, this is a problem with juries, not with blogs or other media.
If we put an end to trial by jury, that might solve the problem of the judiciary not trusting juries with outside sources of information.
That said, the US seems to have a functioning justice system without the need for censorship, so I don’t see why we can’t have that here.
July 12th, 2009 at 11:14 am
“the US seems to have a functioning justice system without the need for censorship”
I am not an expert on the US system but I believe they do have some restrictions on commenting as opposed to reporting.
Have you a source?
July 12th, 2009 at 11:18 am
Clayton Weatherston’s defence counsel may welcome unlimited comment that is critical of the defendant and his actions. After all, it provides a potential opportunity on appeal to claim that any adverse jury verdict was unfairly prejudiced by the publicity. To me that is the strongest reason to avoid public comment between charges being laid in court and a verdict being reached.
But I’m intrigued that the Solicitor General’s office appears to be concentrating solely on comments relating to the Weatherston trial in which the defence of provocation is being run. While a verdict has yet to be reached in that case, I have heard a great deal of comment over the last week or so about prospective legislation to eliminate that very defence. Is that merely a coincidence? Perhaps comment on Charles Chauvel’s private member’s Bill falls into the same category as that on Weatherston’s trial?
And what about the mass publication on TV news of selective testimony from the Weatherston trial? Does that have the capacity to mould public opinion in one direction or another, thereby potentially influencing jury members?
July 12th, 2009 at 11:22 am
To me the fact you can’t comment or talk about a case on a blog or social networking site is dumb. It’s just like talking to people in everyday life about things, everyone has an opinion on the Weatherston trail, its impossible to stop. Its a bit like the state saying the sky is purple, and then making it illegal to look up, its not practical at all.
I for one would welcome anyone trying to prosecute me for my views. I think it would be plain stupid of them to do so, and a waste of the courts time
July 12th, 2009 at 11:24 am
This horse bolted a long time ago. Never coming back.
July 12th, 2009 at 11:52 am
SUPPRESSION is the guiding principle of all aspects of the New Zealand Court system, but taking it to this length clearly demonstrates that the Solicitor General’s Office is overstaffed and should be subject to redundancies in line with other State Agencies.
CHUCK:..Fox News frequently has former Prosecutors, former Judges, and other experts commenting on noteworthy cases in progress, some almost amounting to roleplay. Great TV it is too.
July 12th, 2009 at 11:56 am
Usual load of horse shit, the anointed ones are peeved that the common riff raff might actually call out or challenge some of their rather dubious decisions. One good example as stated here was the Bain trial. Seems to me the justice system in this country is pretty well stacked for a particular outcome, one the state would desire. We have trail by jury, which is suppose to be by our peers but it seems our peers are not really trusted to sort the dross from the gold.
July 12th, 2009 at 12:50 pm
Sounds like the bureaucrats in the SG’s office don’t have enough to do.
July 12th, 2009 at 12:53 pm
I think the rule is you can’t comment on a particular case but can comment on the law in general. So comments on Charles Chauvel’s bill in a general sense are okay. Any lawyers out there who can clarify this? If we are commenting on undisputed facts, this would appear to be okay.
I have served on a jury and the onus was on jury members to steer clear of media comments while the case was in progress.
I’d like to know if the meaning of trial process extends to sentencing or stops once the trial itself is over and a verdict is reached.
The S-G is being a bit prissy me thinks. Mustn’t have much work to do.
July 12th, 2009 at 1:15 pm
this is so frustrating. While it makes sense to limit comment – the defendant is able to ‘comment’ to his heart’s content and the media report it ALL – like it is fact, truth and reason. Bring on the law reform that removes provocation as a defense. Then courts would not have to sit and listen to this sort of poisonous rubbish.
July 12th, 2009 at 1:39 pm
“I am unsure as to what are the limits of acceptable discussion on criminal issues. Should you just not comment during the trial, any time after depositions, or any time after arrest?”
its pathetic – how about the MSM selective reporting of evidence? The Bain case was a good example where any word Michael Reed muttered was widely reported – with a certain spin to lead the public in a direction.
If they don’t want people to comment – don’t show the trials
July 12th, 2009 at 2:25 pm
In some ways, DPF, the Solicitor General’s concerns are a compliment. It shows that your blog is taken seriously as a medium for (potentially) influencing viewpoints on this topic. And it is something bloggers are going to have to get used to, as blogs become more and more integrated into the media landscape (i.e. become more and more co-dependent on newspapers/TV/radio – you rely on “mainstream” journalism for much of your content, “mainstream” journalists get leads/story ideas from your posts). As John Key says in the context of copyright, the idea that the internet is a wild-west where ordinary laws don’t apply just isn’t going to fly. So if you want to be an information source that shapes people’s opinions and thoughts, then you’ll have to come to grips with things like contempt of court. A good general guide is Steven Price’s “Media Minefield” ( http://www.medialawjournal.co.nz/?page_id=16 ) … a more comprehensive (and legal-practitioner focused) is John Burrows & Ursula Cheers “Media Law in New Zealand” (5th ed, OUP, 2005). I will warn you, however, that there are not always “bright line” rules in this area – they tend to be balancing tests such as whether a “reasonable person” would believe the publication raises “a real risk” of influencing a jury. So yes …just not posting on trials as they are happening (or, alternatively, only reporting publicly available facts/what has happened in the trial process without the comments function on) is probably your safest bet.
That said, that I did wonder at the time if you weren’t walking close to the line when posting on the Weatherston trial … especially by leaving the post open to comments. Problem is that you are deemed responsible not just for what you think about the case, but also whatever the sewer throws up as well. The point is that a defendant is entitled to a verdict from the jury that is solely based on the evidence presented at trial, as discussed and deliberated on by the jury alone. And the danger with having a public chorus of judgment on the issue is that, no matter what instructions given to the jury about consulting media/internet reports, they may ignore these and go searching for what others think on the issue. And then you may get verdicts that reflect societal blood-lust, rather than considered reflection of evidence. Which is mob-rule, not criminal justice. So yes … freedom of speech is limited (for a period) in the name of another important social institution – a fair and unbiased system of ruling on guilt or not-guilt (which doesn’t mean innocence).
After a verdict is given, then most criticism of the case/its outcome is fine – the judges on an appeal court are presumed to have more self-control than a jury does! But note, if you overstep in your criticism and “scandalise the court”, then you may be back in the area of contempt!
July 12th, 2009 at 3:34 pm
Whew, I’m glad the situation is clear now. If I’m a juror on a trial of interest, standing in a supermarket queue and the folk behind me start discussing the case, I must block my ears and loudly sing the National Anthem or la la la if I forget the words. Very sensible. Wish I’d thought of it.
July 12th, 2009 at 7:39 pm
Very pragmatic decision. I presume being on the wrong side of Crown Law would be like wrestling with a pig in mud.
July 12th, 2009 at 8:01 pm
peterwn, more like sitting on the road in front of a steam roller.
July 12th, 2009 at 9:48 pm
216 =6×6×6. 666 = number of the beast. Maybe he is a devil worshipper and planned that. Or not.
July 13th, 2009 at 6:26 am
Juror lost $3000 in wages on Bain trial
By MARTIN VAN BEYNEN – The Press
Last updated 05:00 13/07/2009
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A woman who lost $3000 in wages while serving on the jury at the 13-week Bain murder retrial says jurors urgently need income protection.
Jurors get $310 in the hand for the first week of a trial and $400 for each subsequent week. Jurors can apply for hardship money, but have to show an inability to pay normal bills.
Another juror in the Bain retrial received a $1100-a-week top-up when he was able to meet the hardship threshold.
“In the case of a long trial, I don’t believe financial hardship should be the only factor for a top-up payment. I managed to pay my bills, but the loss of that $3000 still had a significant effect on us,” the juror who lost money said.
Her employer had organised for a replacement while she was away on jury service and was not prepared to top up her jury money.
“I don’t blame him.
“He didn’t see why he should subsidise the Bain trial by paying my wages as well. I agree. But I don’t think I should have to subsidise the trial either.”
Disparities in pay around the jury table had soon become apparent, the juror said.
“While some continued to earn their regular salaries, with employers topping up their court pay, others actually came out ahead financially. Either they were retired or collected their full pay, plus the jury fee.”
The juror said she would not have worried if the retrial had run only a week or two, but the losses she incurred over 13 weeks were “surely beyond the call of duty”.
The possibility of losing wages was not listed on the jury summons as a reason for excuse from jury service, she said.
“Some broke even, some made a profit, and some were out of pocket. How can that be just and fair?”
Justice Minister Simon Power said yesterday he wanted to ensure that juries continued to broadly reflect New Zealand society as a whole.
“I have asked officials to provide advice on whether any improvements can be made to the current system to ensure this continues to be the case.”
In a comprehensive review of the jury system in 2001, the Law Commission found low fees were one of the impediments to getting a better range of people on juries.
Putting the costs on employers would be a significant burden, especially for small businesses during long trials, it said.
July 13th, 2009 at 8:47 am
This is why I ignored several inivatations to join Clayton Weatherston is a murderer.
In my opinion he is, but that doesn’t make it a fact until the verdict is in.
Having said that I’d be at the front of the queue to throw the switch.
July 13th, 2009 at 11:17 am
When I did court reporting, the rule was simple: you reported what was said in court, and nothing out of the evidence. Now, in doing that a few things had to be borne in mind … e.g., as a reporter you cannot hope to get every word of evidence into your paper or news broadcast. So you had to hope that you reported enough that accurately reflected the evidence given.
More important: in no way could you comment on the conduct of the trial, or on the evidence given, or make any comment whatsoever. You reported the facts. You could neither say implicitly or explicitly if you thought the accused/defendant was guilty or innocent.
David: I confess to being alarmed when I saw your thread last week, and the number of people commenting on the Weatherston tgrial as they did.
Whatever we might think of our legal system, it is the one we have, and we like to think it is designed to ensure that anyone caught up in it gets a fair suck of the sav. It partly retains its integrity by our respecting it.
If it doesn’t work properly — and it’s a human-made institution, so it isn’t perfect — then we have means to change it. We have a Parliament for that.
I don’t think we help it when we out here decide to do the job of the courts. If we do, then we’re heading for a form of mob justice. It is not about suppressing free speech and comment. It’s about protecting the court, and the persons standing in the dock before it.
July 13th, 2009 at 6:26 pm
The courts treat the public as moronic serfs whether as jurors or as critics of the conduct and quality of the justice system.
Jurors should be free to say whatever they like after the trial is over, they should be paid properly just as the judges and lawyers are, and they should be free to ask whatever questions they like and hear whatever evidence they want to.
And the public should be free and absolutely encouraged to give the courts hell – that is the only way they will ever be improved.
All that said, people should not comment on guilt or innocence during a trial nor advance anything as evidence other than what has peen presented in court.
July 13th, 2009 at 8:32 pm
David, I don’t know if you were listening to National radio this arvo, but the show is a lot worse when you’re not a guest.
They had Martin “bomber” Bradbury thinking that you should have been proscuted for your blog, so it could be made an example of regarding all this.
I quite often enjoy listening to intelligent reasoned debate on that show, but I really want to throw up when I hear that sniviling left wing dip shit is a guest. He adds nothing to the debate and I am pretty close to complaining about him to nataional radio but don’t fancy they’ll do anything as they seem to love left wing apologists.
Anyway enough of my ranting, I doubt I’m the first to say anything to you about it.
July 13th, 2009 at 10:43 pm
DPF – “perhaps a useful initiative would be the creation of a plain English guide for bloggers etc on what they can and can not comment on in terms of criminal justice issues.”
It’s a sad day when we even have to consider something like that, it sounds like the minutes of a meeting from the PRC Communist Party annual conference when they allowed Google into the country for the first time. I understand your dilemma though.
Unless the jury is sequestered for the duration of the trial there is not a chance they will not hear some viewpoints on the trial at hand. What a crock of elitist bollocks from the SG and the legal profession who agree with it.
In disputed cases it has merit though even then it will not stop people from discussing it at work, bbq or when out socially. The blogosphere is just an extension of these areas. There was nothing said about this case that could remotely effect the outcome, it is a pretty rare type. If enough of us ignore the fools amongst our politicians, judiciary and so called “leaders” there is fuck all they can do about it. Bring it on.
July 13th, 2009 at 11:40 pm
what nonsense , if they dont want people to have an opinion then stop broadcasting from the court, the networks are in their hanging on all the details especially the accuseds own defense, titilation like 1950s tabloid murder trials in the UK and True Crime magazine ,
July 14th, 2009 at 5:05 am
Will somebody remind me again who pays the wages of the SG officers, Courts, and CPS?
They should respect the hand that feeds them. And I mean respect. If they want to be clear about having no leakage at all, then it should all be held in Camra.
Secrecy and Justice, and enathema to the basic tenent of law.
“Justice should not only be done, but should also be seen to be done”
They are grabbing at straws here, blaming the blogosphere. What utter crap.
And this from the offices that chose to ignore all the evidence about the Dark, and malignant evidence of misdeeds by Winston Peters, and complicit with Labour Hierarchy.
Think that the SG offices should be professional and just STFU. Your opinion is not welcome here in freedomland.