Report No. 200

New Zealand: freedom of expression and liberty have to be balanced in such a way that there is no prejudice to the suspect or accused:

We next come to the case in Gisborne Herald Ltd. v. Solicitor General: 1995(3) NZLR 563 (CA). Now, the New Zealand Bill of Rights, 1990 referred to in Article 14 to Freedom of expression: "Everyone has the right to freedom of expression, includes the freedom to seek, receive and impact information and opinion of any kind or any form."

Article 8 refers to right to life not to be deprived of life except on such grounds as are established by law and are consistent with the principle of fundamental justice; Article 25(a) which deals with minimum standards of criminal procedure refer in clause (a) to the right to a fair and public hearing by an independent and impartial court; clause (c) to be presumed innocent until proved guilty according to law. Article 5 speaks of 'justified limitations' and says that the rights and freedom in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Court of Appeal in the above case of Gisborne Herald refused to follow the law in USA which was based on the principle of 'clear and present danger' to the administration of justice (Bridges v. California: (1941) 314 US 252. It refers to the law in Canada in Dagenais v. Canadian Broadcasting Corp.: 1994 (3) SCR 835 that a publication ban should only be ordered if 'necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk' and if the court is of the opinion that 'the salutary effects of the publication ban outweigh the deleterious effect to the freedom of those affected by the ban'.

The Canadian Supreme Court relied on the Canadian Charter Article 2(b) which deals with freedom of expression, Article 11 with fair trial, 11(d) which deals with presumption of innocence till proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Article 1 of that Charter permits limitation on Rights and Freedoms only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.