Report No. 200
(c) New Zealand: Case law accepts date of arrest as starting point.
Under the New Zealand Bill of Rights, 1990, section 25(a) protects the right to a fair and public hearing by an independent tribunal and section25(c) the right to be presumed innocent until proved guilty according to law. Section 24(e) protects the right of an accused charged with an offence to a trial before a jury when the penalty for the offence may be imprisonment for more than three months.
Section 138(2) of the New Zealand Criminal Justice Act, 1985 empowers the courts to make orders precluding the press from reporting on criminal proceedings when it is considered that the interests of justice, public morality, the reputation of the victim of a sexual offence or extortion, or the security of New Zealand require such order to be passed.
There are several cases which refer to date of arrest as the starting point to consider the question of prejudice by publicaions. It is stated that it is incidental to the right to trial by jury that "a person accused of a crime is entitled to have the cases presented to such a jury with their minds open and unprejudiced and untrammelled by anything which any newspaper, for the benefit of its readers, takes upon itself to publish before any part of the case has been heard" (Attorney General v. Tonks: 1934 NZLR 141 (149) (FC). In that case it was held that publication of photographs before trial of person who is arrested will be prejudicial if identification was likely to be an issue, and would amount to contempt. Blair J. observed:
"If a photograph of an accused person is broadcast in a newspaper immediately he is arrested, then such of the witnesses who have not then seen him, may quite unconsciously be led into the belief that the accused as photographed is the person they saw. The fact that a witness claiming to identify the accused person, has seen a photograph of him before identifying him, gives the defence an excuse for questioning the soundness of the witness's identification."
Tonks decided in New Zealand in 1934 was recently followed by the Australian Court in Attorney General (NSW) v. Time Inc. Magazine Co. Ltd. (unrep.CA 40331/94 dated 15 th September 1994) in a case arising from the publication of the photo of one Ivan Milat, the accused in the backpacker serial murders' case. The weekly magazine 'Who' had published Milat's photo on its front page following his arrest. Referring to the danger such actions created, Gleeson CJ observed:
"One of the particular problems about identification evidence is the difficulty that exists where a person, before performing an act of identification of an accused, has been shown a photograph of the accused. If for example, prior to identifying an accused person in a police line-up, a witness had been shown by a police officer a photograph of the accused, then it would be strongly argued that the identification in the line-up was useless, or at least of very limited value. It would be argued that, because of what is sometimes described as the displacement effect, there was a high risk that at the time of the line-up, the witness was performing an act of recognition, not of a person who had been seen by the witness on some previous occasion, but of the person in the photograph."
In New Zealand, publicity given to confessions allegedly made to the police can create serious prejudice to a suspect or accused. The confession may later be ruled inadmissible, in which case, recollection by a juror of a report of a confession could be highly prejudicial. Reports of the psychiatric history of an accused tending to show a person as dangerous could similarly affect the trial.
In Solicitor General v. Wellington Newspapers Ltd.: 1995(1) NZ LR 45, Gisborne Herald and two other newspaper publishers had been convicted of contempt for reporting the previous convictions of John Giles at the time of his arrest in Gisborne on charges of attempted murder of a police constable.
In Solicitor General v. Television New Zealand: 1989(1) NZ LR page 1 (CA), the Court of Appeal rejected the defence that the court could not grant an injunction to prevent prejudice to imminent court proceedings. It observed:
"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 (Cooke J)
On facts, no action was taken as the publication did not contain details. In Attorney General v. Sports Newspapers Ltd.: 1992 (1) NZLR 503, the NZ Divisional Court held that criminal proceedings must be pending or imminent. In Television New Zealand case, instead of basing the judgment on whether the criminal proceedings were imminent, the court laid down the test of 'real likelihood of a publication of material that will seriously prejudice the fairness of the trial'.
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