Report No. 200
After refusing to follow the law in USA and Canada, the New Zealand Court of Appeal stated in Gisborne Herald Ltd. v. Solicitor General: 1995 (3) NZLR 563 (CA):
"We are not presently persuaded that the alternative measure suggested by Lamer CJ in Dagenaisial into the public domain. Resort to any of those measures has not been common in New Zealand should be treated as an adequate protection in this country against the intrusion of potentially prejudicial mater. Change of venue application are infrequent and usually follow sensationalized localised publicity of a particular crime. Venue changes are inconvenient for witnesses and many of those others directly involved. They are expensive. Further, we have always taken the view that there is a particular interest in trying cases in the community where the alleged crime occurred.
Next, challenges for cause are rare. And for the reasons indicated in the contemporaneous judgment of this court in R v. Sanders 1995 (3) NZLR 545, crossexamination of prospective jurors about their views and beliefs is generally undesirable. Sequestration of jurors for the duration of trials has not been a practice in New Zealand. Clearly it would add to the pressure on jurors and affect their ordinary lives. Adjournment of trials as a means of reducing potential prejudices occasioned by pretrial publicity runs up against the right to be lived without undue delay."
The Court of Appeal stated:
"So far as possible, both values should be accommodated. But, in some cases, publications for which free expression rights are claimed may affect the right to a fair trial. In those cases, the impact of any intrusion, its proportionality to any benefits achieved under free expression values and any measures reasonably available to prevent or minimise the risks occasioned by the intrusion and so simultaneously ensuring protection of both free expression and fair trial rights, should all be assessed."
It is, however, commented (see http:www.crownlaw.govt.nz/ uploads/contempt. pdf) that there appears to be slight shift in the Court of Appeal in Gisborne in respect of balancing both rights. In the court below which heard the case against Gisborne New Herald and other papers in Solicitor General v. Wellington Newspapers Ltd., 1995 (1) NZLR 45, stated (at p.48):
"In the event of conflict between the concept of freedom of speech and the requirements of a fair trial, all other things being equal, the latter should prevail."
and in that case it was also said:
"In pretrial publicity situations, the loss of freedom involved is not absolute. It is merely a delay. The loss is an immediacy; that is precious to any journalist, but is as nothing compared to the need for fair trial."
In the appeal, in Gisborne Herald Ltd. v. Solicitor General, there appears to have been a shift that both rights be balanced. The Court of Appeal also stated in Gisborne:
"The common law of contempt is based on public policy. It requires the balancing of public interest factors. Freedom of the press as a vehicle for comment on public issues is basic to any democratic system. The assurance of a fair trial by an impartial court is essential for the preservation of an effective system of justice. Both values have been affirmed by the Bill of Rights. The public interest in the functioning of the courts invokes both these values.
It calls for free expression of information and opinions as to the performance of these public responsibilities. It also calls for determination of disputes by courts which are free from bias and which make their decisions safely on the evidence judiciously brought before them. Full recognition of both these indispensable elements can present difficult problems for the courts to resolve. The issue is how best those values can be accommodated under the New Zealand Bill of Rights Act, 1990."
Finally, the Court of Appeal stated -
"The present rule is that where on the conventional analysis, freedom of expression and fair trial cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media express so as to guarantee a fair trial." In other words, while the trial Judge said fair trial rights override media rights, the Court of Appeal said both must be balanced and the Court may impose a temporary ban.
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