The Courts vs Freedom of Speech - 3

I have heard the rumours - the watercooler scuttlebutt has seen to that. As a result, I know that I am now going to be skating around the edges of some very thin ice.

What is apparent (though the sisterhood blogsites seem to be the only ones carrying the "news" openly) is that the suppression orders in the Nicholson trial -

- were imposed by the Judge in the normal course of events to ensure that those accused received a fair trial.
- the suppressed evidence was never presented to the jury.
- that on several occasions during the trial, defence counsel were very close to demanding that a mistrial be declared and that the suppressed evidence was at the heart of the concern.

In the previous posts on the subject, this was one aspect to the suppression of evidence and names by the Courts that I had forgotten, and which was first brought to mind by an interview on radio news on Wednesday morning.

We see it frequently on the Courtroom battle soaps - the lawyer jumps to his feet and demands that the Judge "rule out" evidence; the DA trying to introduce evidence that is essential to the prosecution, but knowing that the rules of evidence are going to make it difficult or prevent it happening.

In NZ, the Courts might hear evidence, or the prosecution may wish to present evidence (and not being a lawyer I do not know the niceties of the process) which could be considered "prejudicial to a fair trial". The Judge might then rule that the evidence be suppressed because it does create that prejudice against the accused.

The op-eds in my Sunday paper, both Rosemary Mcleod and Findlay Macdonald give the principles a fair old workover.
Findlay Macdolald -

JUDGES WIELD a lot of power, and the courts over which they preside are not institutions to be be trifled with. But it's amazing how easily the whole system is undermined by one of our most trivial yet potent instincts - gossip.



The trial of the three men accused of raping and assaulting Louise Nicholas, which ended in their acquittal on all counts, was also the latest bad seed to sprout a national grapevine of chattering conjecture. From my observations, by the middle of the week following the verdicts the nation's phones, mobiles and email systems were at full throttle spreading supposedly privileged information to do with the case.

It happens whenever a blanket suppression (or even just name suppression) order is imposed by the courts in a case marked out from the ordinary by the nature of the alleged crime or the backgrounds of the accused. Or both, in the case of the Nicholas trial.

Rosemary Mcleod -

There's an argument to be made that the whole story and its context should be told in dealing with a crime, and that withholding some parts of it creates a bias as objectionable as a prejudiced jury might be.

Our system is not universal. In America, the whys and wherefores of a case, the lives of the protagonists, their very brand of underwear is up for grabs in news coverage, and court cases are treated like sports fixtures, with running commentaries by media experts on everyone's performance and the odds for and against conviction. Is the outcome any more or less reliable?

That approach admits that secrecy is almost impossible to achieve, and that the public has a right to know what's happening, when it's happening. Our system can make justice seem remote and unjust, and there are times when people - like the women at the railway station - lose faith in its good sense.

Secrecy, we tend to think, is what you want when you've got something unpleasant to hide.

and Findlay Macdonald again -

You have to wonder, then, where contempt of court begins and ends. Suppression orders obviously prevent the mass media publishing and broadcasting that which the courts deem prejudicial to a fair trial, either at the time or in the future. But the net effect of pubs, bars, the workplace and cyberspace buzzing with that same information is surely as damaging to the interests of blind justice.

Are we more concerned, then, with the appearance of judicial propriety than its maintenance? Possibly, but it's an appearance worth keeping up if it means we're all equal before the law.

Now, I want to add to that the following -

For whose benefit do we have criminal trials, the rules and traditions that surround them, the strictures upon the process, the sequestration of juries, all the trappings of Justice?

Is it for the accused?

That is one right answer.

Is it for all of us?

That is another right answer too, simply because we do not know when we might find ourselves in the position of the accused.

And that too is why Macdonald's conclusion is so right.

UPDATE...
To be quite clear - this was posted Monday 10 April after some 4 days gestation. First draft was completed Saturday morning - hence the byline date.