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A rod for their own backs

By Steven | April 7, 2011

In the past week or so, both Fran O’Sullivan and Brian Rudman have assailed the courts for removing the Urewera 18’s right to a jury trial. Both are troubled that the reasoning behind the decisions (from the High Court, and then the Court of Appeal) is suppressed. Both say it’s difficult to see how the issues can be so complex as to warrant removing such a fundamental protection.

I’m inclined to wait to see the judgments before slagging them off. I note that the trials are slated for 3 months, and that this is much more than the 6-week threshold at which the Law Commission said it’s quite an imposition to expect jurors to sit. I wonder whether there may indeed be some complexity in directing a jury to about which parts of the 3 months’ worth of evidence applies to which defendant(s). And the decisions may contain reference to evidence or arguments that jury would not be able to see, which may justify suppressing them, on the grounds that if there’s a further appeal, the Supreme Court may yet order a jury trial.

Still, I think these columns, both by thoughtful journalists, serve the judges right. I find it difficult to believe that the whole of the judgments needed to be suppressed. Surely much of the reasoning could create no prejudice in the minds of a future juror. And these are publicly significant decisions. Where’s the justification for suppressing the whole lot? How can this be compliant with the Bill of Rights?

Well, in the High Court anyway, no one asked. The judge simply suppressed the whole judgment, including the outcome. When the Crown suggested this went too far, the judge called a conference. Then she simply deferred to a defence request that the result of the decision was all that could be un-suppressed.

Two things here. Note that it’s the defendants who are asking for this suppression. And note that we shouldn’t be quick to criticise a judge in a high-profile and complicated case who errs on the side of caution to protect what the defendants regard as their interests.

Still. There’s also the public interest to consider. The media is being suppressed from conveying this information to the public. The public loses – right when it matters most – the ability to understand and debate the reasons for this landmark ruling. The judges are supposed to protect those interests too. Especially where the defendants did not seem to be required to come up with any particular justification for the suppression – at least, none that was recorded in the judge’s minute, and there wasn’t so much as a mention of the Bill of Rights and its requirement of a demonstrable justification for such suppressions.

I don’t know whether there was much argument on the point in the Court of Appeal. But judges lose the right to complain about unfair treatment when they deny us the right to properly evaluate their decisions for no good reason.

Topics: General | 49 Comments »

49 Responses to “A rod for their own backs”

  1. metanarratives Says:
    April 7th, 2011 at 8:29 pm

    I have read the High Court judgment by Winkelmann J. I have also read the Court of Appeal’s judgment.

    Noted on the top of the High Court judgment is the following:

    THIS JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHUR ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

    The suppression direction on the Court of Appeal judgment is as follows:

    NOTE: PUBLICATION SUBJECT TO HIGH COURT SUPPRESSION ORDERS

    In regards to the High Court, what’s the ambit of “commentary” or “description”? Of course there must be some publication – gossiping with friends in a cafe or on the village green is not enough. However is “commentary” and “description” a subset of “publish”? If publish is so broad does one have to have seen or read the actual judgment to provide “commentary” or “description”? What is the O’Sullivan article and the one by Rudman? And your little bit –

    I’m inclined to wait to see the judgments before slagging them off. I note that the trials are slated for 3 months, and that this is much more than the 6-week threshold at which the Law Commission said it’s quite an imposition to expect jurors to sit. I wonder whether there may indeed be some complexity in directing a jury to about which parts of the 3 months’ worth of evidence applies to which defendant(s). And the decisions may contain reference to evidence or arguments that jury would not be able to see, which may justify suppressing them, on the grounds that if there’s a further appeal, the Supreme Court may yet order a jury trial

    Would that be captured? This is a time when being slick pays off generally.

    I doubt one does actually have to read the judgment – very few people who comment on court judgments, for example, in the press or on blogs actually bother to read the decision. Sure, legal commentators are more likely to have actually the read the judgment – except when one states at the outset they haven’t. However generally they probably are most likely gain access through a law report/digest – by a means deemed not to constitute publication. But Lexis Nexis and Brookers, by the note, aren’t they a database – and maybe even a publicly accessible database – rather than a law report or digest?

    There is a New Zealand case on how to interpret terms in suppression orders, case name eludes me currently. However the amount of material out there currently about the High Court and now the Court of Appeal judgment – whether it is deemed “commentary” or a “description” – probably exceeds what would have been produced if the judgment had not been subject to suppression orders.

    An interesting read on the complications of legal reporting/publishing and for some interesting suppression notes placed at the top of judgments see the NZLII submission to the Justice and Electoral Committee on the Criminal Procedure (Reform and Modernisation) Bill –
    http://www.parliament.nz/NR/rdonlyres/4985C562-8C4B-45C2-A0B8-26FD224CA096/188960/49SCJE_EVI_00DBHOH_BILL10451_1_A177621_NZLIINewZea.pdf

  2. IdiotSavant Says:
    April 8th, 2011 at 12:22 am

    have also read the Court of Appeal’s judgment.

    Any chance of a copy?

  3. Steven Says:
    April 8th, 2011 at 10:55 am

    Metanarratives: I have little doubt that it means commentary that discusses the content of the decision.
    In general suppression orders are to be interpreted restrictively since they impair an important right.

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