Sub judice rule exists for protection, but comment has its place

Apparently i won't be going to prison after all.

A reader asked me whether my last column, about how a jury might debate any assault charge against broadcaster Tony Veitch, would breach the sub judice rule.

This rule (pronounced sub jew-de-say) is a rule which limits the ability to comment on any matter before a court.

The legal principles developed over the years are very complex.

Sub judice is a Latin phrase coming from Roman law, which had a very heavy influence on the development of our Western legal system.

We like to say Roman is for law; Italian is for food.

The difference became clear when an Italian law student completed an exam question "Define bigamist" with the rather optimistic answer - "A large fog over Italy".

When is a matter "before the court"? For many years, this started when proceedings were filed in a criminal or civil court. That point has been shifted back very slightly through some judicial comments, although not directly in decided cases, to a point where "an arrest is expected hourly" or "when it must surely have been obvious to everyone that he was about to be arrested".

So that's why I am not going to jail - he has not been charged.

What comment is sub judice and what is not? On the one hand, the law demands that legal cases must be left solely to the courts, free of any comment by outsiders.

But, on the other hand, this rule does not sit comfortably with our fundamental freedom of expression laws, enshrined in the New Zealand Bill of Rights Act 1990.

Some wag once wrote that the sub judice rule was "a method of restricting comment on a matter of public interest until it is too late".

I think it was the same wag who defined slander as "a kind of character assassination which is forbidden among the general public but much enjoyed by judges when giving judgements".

Our courts have long recognised that some comment is acceptable.

The fundamental rule is that material must not be published which creates a real risk of prejudice to a fair trial. The courts have made it clear that there must be a real risk as distinct from a remote possibility of interference with a fair trial. Where the boundaries lie is the difficult question.

Are juries, and to a much lesser extent, judges, really likely to be influenced by media comment of a restrained kind? One obvious restriction is that previous convictions of an accused, or prejudicial bad character evidence of a civil litigant, must not be published because such evidence will likely not be admissible in the subsequent court case.

But is the reporting and comment we see so often in relation to the United States' courts, or those seeking retrials within the appellate structure, so bad? It is interesting to know that Law Commissions in both New Zealand and Australia have published research material indicating that media publicity has little influence on jurors.

So what are some of the specific cases?In the thalidomide cases in the 1970s in the UK, comment in a newspaper article about the defendant company being negligent was held to be sub judice.

In a 1949 case, an editor of a newspaper was imprisoned for publishing comment about a person charged with murder which stated that he was a "vampire who drank his victim's blood".

Terrific stuff, but even I would say that's a little over the top.

A case where the media described an accused person as a "murderer and thief" brought swift condemnation by the court, and another comment about an accused "that there is little doubt about his guilt" was similarly treated with a severe punishment.

In 1939, a Mr Towns was convicted for indecently assaulting a young girl.

Prior to his sentencing, a newspaper printed the comment: "The revolting nature of Town's offence against this helpless innocent demands he should meet with the utmost rigour of the law when he comes to the sentence".

How such a comment can really be said to have the possibility of seriously influencing a High Court judge escapes me.

In an Australian case, a senior influential politician declared that a judge who was charged with an offence was innocent of the charges laid against him and that he would be acquitted at trial.

He was found guilty of contempt for this sub judice comment and fined heavily.

Carrying out an independent inquiry prior to trial and publishing facts and comments from that inquiry is clearly sub judice.

Publishing a confession statement prior to trial is sub judice on the grounds that such an alleged confession statement might be ruled inadmissible at trial.

Fair enough.

This happened in the famous Dr Crippen trial in 1910.

I accept that there must not be trial by media, but the complete shut down or blackout of public information is not healthy.

The real question to be asked is whether a comment, even a detailed comment, creates a real risk of prejudice.

Any comment or reporting short of that risk is permissible and essential.

- Michael Guest is a former lawyer and District and Family Court Judge

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