Reforming publication contempt
Current law and application
What constitutes publication contempt?
4.8We are primarily dealing, in this chapter, with the form of contempt involving publications that risk prejudicing or interfering with the right to a fair trial. We therefore generally use the term “publication contempt” in the chapter to refer to that form of contempt.
4.9At present, the established legal test New Zealand judges are to apply in determining whether a publication amounts to a contempt is whether “there [is] a real risk, as distinct from a remote possibility, [that the publication interferes] with the … [right to] a fair trial”. Real risk has been defined as a risk that is “more than speculative. It must be likely that the administration of justice could be prejudiced.” (Note, not “would” be prejudiced.) The standard of proof is the criminal standard of beyond reasonable doubt.
4.10Critically, this assessment is not dependent on whether the more than remote risk associated with a publication actually materialises. New Zealand courts have been clear that a publication can be contemptuous even though a fair trial eventuated:
[T]here is no inconsistency in upholding a conviction in the criminal trial, alongside a finding of contempt in respect of the publication in question. This is because the trial Court, or an appellate Court considering the issue on appeal after conviction, is concerned with whether there has been actual prejudice, its extent, and whether there has been a miscarriage of justice, or a real risk one has occurred. A finding of contempt would be possible … even had the trial resulted in an acquittal, or if on appeal the Court had reached the opposite conclusion.
4.11The current test also does not require proof of an intention to interfere with the administration of justice. A Full Court of the High Court in Solicitor-General v Radio New Zealand held that:
[T]he mens rea element is satisfied by proof that the defendant knowingly carried out the act or was responsible for the conduct in question. Proof of an intention to interfere with the due administration of justice may assist the conclusion that the publication had the required tendency, and its presence or absence would be relevant to penalty; but the absence of such an intention will not necessarily lead to a conclusion that no contempt has been committed.
4.12There are good reasons for the conceptual separation of cause and effect and for liability to not turn on whether there was an intention. First, there is no way of establishing empirically whether a jury’s deliberations were in fact improperly influenced by exposure to prejudicial pretrial publicity. A precautionary approach is therefore deemed to be justified. Second, this form of contempt is considered to be a prophylactic jurisdiction concerned with protecting the administration of justice by preventing a risk to the trial from eventuating. It regulates “the tendency of” conduct to cause harm. The threshold at common law is therefore relatively low. The conduct that is prohibited is that which creates a “real risk” to the administration of justice, so whether there was any intention to interfere with the administration of justice or whether any harm to the trial actually eventuated is not particularly relevant, given the preventative function of the contempt.
4.13Conceptually, the distinction between “could cause” and “actually caused” may be clear. However, divorcing the “real risk” of prejudice from “actual” prejudice has proved to be problematic when applying the law.
Application of the test – assessing “real risk”Top
4.14While the current test is simple to state – Is there a real risk as opposed to a remote possibility that the publication interferes with the right to a fair trial? – it is not possible to formulate from the common law any bright-line rule as to what will constitute contempt in any given context. Whether, in the particular instance, a publication meets the threshold for contempt is highly circumstantial.
4.15A review of the case law in this area identifies what judges have considered relevant when assessing whether or not a publication amounts to contempt. However, none of the factors discussed below, on their own, are determinative as to whether a publication is in contempt. Rather, the courts have held that it is a combination of factors relating to a specific publication that determines whether it interferes with the right to a fair trial. As the High Court has concisely put it, “what counts is the overall impact”.
Previous convictions or concurrent charges
4.16Publication of a defendant’s prior convictions or concurrent charges before their case is heard is as close to a bright-line rule as it is possible to get in publication contempt. Traditionally, the common law has excluded evidence of previous convictions (with some exceptions) as unduly prejudicial and therefore contrary to a fair trial. There are exceptions to this general principle, and the Evidence Act 2006 provides specific guidance to the courts when determining whether or not to allow the Crown to introduce evidence of prior convictions in the instant trial. Such evidence, now called “propensity evidence”, is governed by sections 40–43 of the Evidence Act. Propensity evidence is defined as evidence:
[T]hat tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.
4.17In the context of contempt, the position would seem to be that, once they have become aware of an accused person’s criminal record (where it is similar to the current charges), there is more than a remote risk that members of the public who might serve on a jury would struggle to disregard this information if called to serve. In what is still regarded as one of New Zealand’s leading contempt cases, Gisborne Herald Co Ltd v Solicitor-General (Gisborne Herald), the Court of Appeal said:
[T]o publish the criminal record of an accused or comment on the previous bad character of an accused before trial is a prime example of interference with the due administration of justice and, subject to considerations such as time and place, almost invariably is regarded as a serious contempt.
4.18It is easy to see that there is a real risk of interference with a fair trial if potential jurors are exposed to information that a court has or is likely to rule inadmissible.
Context and impact
4.19Judges considering contempt cases are often attempting to assess the risk that a particular publication may have some lingering impact on jurors at a time in the future when they are empanelled to decide the case. Hence, judges must consider both the tone and content of the publication and also the broader context in which it is published. Sensational aspects of facts may make the publication more enduring. The High Court in Solicitor-General v TV3 Network Services Ltd held that both incorrect and sensational reporting can result in contempt. While errors of fact can generally be corrected by a subsequent judicial direction, sensationalism will be more difficult to eradicate.
4.20The courts have also distinguished between the impact serious news reportage and “soft” content may have. For example, in one contempt case, the High Court categorised the Woman’s Weekly magazine as “light entertainment or escapism”. The potentially contemptuous article related to a former police officer who had previously been convicted of assault and sexual violation but was subsequently granted a retrial on appeal. The Court dismissed the risk the article presented to fair trial rights by saying it “was a transparently shallow piece in a magazine which carries many items of gossip. It is likely to have been seen in that light.”
4.21The medium of publication is also relevant. In Solicitor-General v Smith, the Court said that “television is widely acknowledged to have a more powerful reach than does radio, or the print media”, due to television’s “ability to depict people and places in a way that can manipulate the emotions of viewers”.
4.22However, even sensational and sustained reporting on high-profile cases has not always been held to be contempt. The most significant example of this was the publication of intercepted communications relating to the Rūātoki raids in Solicitor-General v Fairfax New Zealand Ltd (Fairfax). The raids generated a substantial amount of publicity and public interest due to the use of roadblocks and the prospect of New Zealand’s first prosecutions under the Terrorism Suppression Act 2002. Notwithstanding this, the Court concluded, albeit somewhat reluctantly, that it:
[H]as not been proved beyond reasonable doubt that, as a matter of practical reality, the actions of the respondents in publishing the Fairfax articles caused a real risk of interference with the administration of justice by compromising the fair trial rights of the accused.
This was despite finding that the respondents knew that the intercepted communications that were published were inadmissible at the trials of the accused and also knew there were suppression orders in place so could not have had any reasonable doubt that it was unlawful to publish that material. The Court considered that the breaches of suppression orders and unlawful conduct by the respondents should have resulted in the respondents’ prosecution. The Court also explicitly sounded a warning in respect of contempt, saying:
Nothing in this judgment should be treated as a licence to publish inadmissible material in relation to criminal proceedings. Nor should we be taken as suggesting that publications of this kind, in other circumstances, may not amount to a contempt of court.
4.23At the other end of the spectrum, the fact that an alleged offence and any media coverage may not have been particularly memorable may create greater leeway, as noted by McGechan J in Solicitor-General v Wellington Newspapers Ltd (Wellington Newspapers):
It could be that in relatively minor cases, of no particular public interest, and with prospective trial dates for existing and latest offences still well into the future, the risk of eventual jury recollection is acceptably low. Minor crime, of no particular public concern, readily fades in the memory.
4.24The courts are also concerned where publications canvass issues that are likely to be disputed in court including, for example, questions of identity. Publications of photographs of suspects or the accused may create a risk where identity is in issue. Similarly, witness statements published in the media can be problematic if they traverse matters that may prove either critical or inadmissible in court.
Timing of publication in relation to trial
4.25In many cases, the timing of a publication has been regarded as the most significant factor in determining whether the publication is contemptuous. In Gisborne Herald, the Court of Appeal said that, while “the exact lapse of time is not the touchstone”, a trial that is six to eight months distant will make it difficult to justify the conclusion “that the influence of the article would have survived the passage of time”. The Court upheld a finding of contempt on a trial that was to occur in Gisborne about seven months from the date of publication.
4.26Solicitor-General v TV3 Network Services Ltd involved a programme detailing Mr Wickliffe’s escape from a maximum security prison. It gave the impression that he was a highly dangerous criminal. It was aired during the first week of his trial for murder. The High Court said that:
It is one thing for a juror to have some recollection of reading or hearing about an accused’s previous criminal conduct … But it is quite another to have all kinds of prejudicial information packaged and thrown in the jurors’ faces in the middle of a trial.
4.27Although there have been cases where doubt has been expressed as to the curative nature of time, the general tenor of the case law is very much to emphasise that time causes memory to fade and is a significant factor in determining whether the prejudicial effect of the offending publication will dissipate to an acceptable level by the time the trial is due to begin.
Locality of publication
4.28In the past, the physical radius of distribution has been considered relevant in assessing whether there is a risk to a fair trial. In the Gisborne Herald case, articles published in The Gisborne Herald paper, which included information about a defendant’s previous convictions and other charges, were held not to be in contempt in relation to a trial the accused faced in Napier because that paper did not circulate in the Hawke’s Bay. It was considered “highly unlikely” that prospective jurors would have read it. However, the Court found that the article was nevertheless in contempt because there was a real risk of it interfering with a fair trial on different charges in Gisborne. The Court considered that location may also be relevant because a crime or publication is more likely to be remembered in smaller communities:
[W]hat passes relatively unnoticed amongst the plethora of grim incidents in a metropolitan centre may have a more enduring impact in a smaller community where an accused may, because of close networks, become a victim of prejudice.
The Court considered that Gisborne was a “small, loyal community” and this was relevant to the finding of contempt.
4.29It is unclear the extent to which location continues to be relevant in the Internet era. The Court of Appeal made the comment in R v Smail (a change of venue case and not a contempt case) that:
The Internet has no geographical bias; online information is the same whether sourced from Christchurch or Wellington or Tokyo. A change in venue can do nothing to obviate the risk to the appellant posed by information on the Internet.
Likewise, the High Court, in another change of venue case, Mahutoto v R, noted that a change of venue is unlikely to be an appropriate remedy where prejudicial publicity is nationwide.
Reach of publication
4.30As well as the physical distribution of the publication, the courts may also consider its likely audience and reach – all factors that may be relevant to the possible impact on a potential juror. There are a number of considerations that can be grouped together as the “reach of a publication”. The court must try to assess the degree of risk that potential jurors could have seen or read the publication at issue and are likely to remember it. Courts have referred to the following factors:
- The likely audience of the publication. In Solicitor-General v Broadcasting Corporation of New Zealand, the High Court found it relevant that the statements at issue were made during a talkback radio show at 11pm, meaning the chances of a person who heard the broadcast actually sitting on the jury “were very small indeed”.
- Whether the comments are repeated in subsequent publications.
- The length or prominence of the offending part of the publication. In Solicitor-General v TV3 Network Services, it was relevant that the scenes and script that were objected to formed a minor proportion of the broadcast item as a whole. In the injunction case of Mwai v Television New Zealand Ltd, the Court noted that the interview that was objected to formed only two minutes and 41 seconds of the programme and was “not a significant broadcast time”.
Prejudice must be to a specific trial
4.31To come within this category of publication contempt, the more than remote risk of interference must be in respect of a specific trial. It is not necessary to name the defendant if it is immediately apparent who a publication relates to.
Do the publications add to prejudice arising from other publications?
4.32In Gisborne Herald, the Court of Appeal noted that the particular newspaper article came after radio, television and other newspaper reporting and could therefore be said to have added little to what was already in the public domain. However, “adding to, reviving or reinforcing prejudices and preconceptions originating from other sources all bear on the risk to a fair trial”.
4.33This approach was applied in the Woman’s Weekly case in which the High Court stated:
Where there has already been extensive pretrial publicity, which may in itself have created a risk of prejudice, a further publication may nevertheless create further risk by reviving the prejudice or otherwise reinforcing it … It is not a defence that others have published the same material without contempt proceedings being brought against them.
However, the Court acknowledged that “prior publication is part of the context in which assessment of whether a real risk exists falls to be made”.
4.34The existence of prior publicity was relevant to the High Court’s assessment in Fairfax that “[a]ny additional prejudice arising from the publication of the intercepted communications would not add materially to any potential prejudice from other sources”.
4.35There is, of course, an issue where several publications independently do not create a real risk of prejudice to a fair trial but may create that risk cumulatively. It seems counter-intuitive that it should be more difficult to prove contempt simply because a case has generated such widespread publicity that it is difficult for a court to be satisfied beyond a reasonable doubt that a particular publication added to the risk of prejudice. Arguably, this seems precisely where the contempt remedy could be most useful, as pervasive publicity creates the greatest risk to a fair trial.
Injunctions to restraint a contemptTop
4.36Although there is a high threshold for prior restraint, the courts have the power to grant an injunction to prevent publication of contemptuous material that poses a risk to a fair trial. The legal basis for making such an injunction is the courts’ inherent power to prevent a contempt of court. The Court of Appeal in Television New Zealand Ltd v Solicitor-General stated that:
In our opinion the law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not lightly to be interfered with and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial.
4.37While injunctions have occasionally been granted, the courts have repeatedly cautioned that prior restraint on freedom of expression will only be appropriate in the clearest of cases. For example, Robertson J stated in Beckett v TV3 Network Services that “[a]ny prior restraint of free expression must pass a high threshold”. As the Court of Appeal said in Bouwer v Allied Press Ltd:
[P]rior restraint on publishing material which may constitute contempt is usually more intrusive on freedom of speech than the subsequent punishment of offending publications. That is because the Court is almost invariably unaware of the precise content of what the media wishes to publish. The injunction may cover material which in hindsight was legitimate.
4.38The test for granting an injunction is consequently much higher than the real risk test for contempt following publication. The courts have held that, in order to justify interference with the freedom of the media, it must be shown there is “a real likelihood of a publication of material that will seriously prejudice the fairness of the trial”.
4.39In Chapter 1, we set out the often quoted statement of Lord Diplock from Attorney-General v Times Newspapers, listing the three requirements for the due administration of justice. As explained in Chapter 1, conduct that breaches one or more of these three requirements or undermines public confidence that they will be observed is contempt of court. Lord Diplock went on to say that:
“[T]rial by newspaper”, i.e., public discussion or comment on the merits of a dispute which has been submitted to a court of law or on the alleged facts of the dispute before they have been found by the court upon the evidence adduced before it, is calculated to prejudice the third requirement: that parties to litigation should be able to rely upon there being no usurpation by any other person of the function of that court to decide their dispute according to law.
4.40Importantly, however, Lord Diplock then said that:
[I]t is only where a case is to be heard by a tribunal which may be regarded as incapable of being influenced by public criticism … or discussion of the merits or the facts … that conduct of this kind does not also offend against the second requirement for the due administration of justice.
That second requirement is, of course, the right to a fair trial free from bias and based on the evidence presented in court.
4.41This means that, in the context of a criminal trial before a jury, a publication that may be contemptuous may mix an element of “prejudging” guilt with the risk of prejudice to a fair trial. In Wellington Newspapers, Eichelbaum CJ commented on this notion of trial by media in the criminal context, stating that:
If Joe Public is accused of an offence of which he believes he is innocent he will not wish to be tried in the media. When charges are laid in Court the public must be assured the issues will be decided in the Courts and nowhere else.
However, as the rest of the decision in that case indicates, the Court was still essentially concerned with and applied the test of whether the publication “as a matter of practical reality” posed a real risk to the trial rather than a hypothetical one. The focus was on preserving the rights of the ordinary citizen to a fair trial before a jury free of bias and preconception, and any element of prejudging was only relevant to the extent it put this at risk.
4.42We think that the current position is probably that deference to freedom of expression, particularly post the Bill of Rights Act, means that the freedom of the press and other media is not lightly interfered with. Suggestions from some older cases, like Attorney-General v Times Newspapers, that prejudgment and comment on cases that are before the courts or the disclosure of material that forms part of a pending court case prior to trial are unlikely to in itself constitute contempt now. We suggest that, for a publication to be contemptuous, it must do more than simply prejudge; it must risk the creation of some harm to the particular case or to the administration of justice or to people’s confidence in it.