Millane murder trial tests new contempt law

The murder trial of the as-yet unnamed 27-year-old man accused of killing British tourist Grace Millane is the first real test of our new Contempt of Court Act, passed into law on 26 August.

Millane

James Anson-Holland and Edward Willis

When Justice Simon Moore, in the first day of the trial last week, warned jurors to ignore previous media reports about the accused and not to do their own online “research” about the case, he was doing so with newly-minted legislation to back him up.

Along with more certainty and definition, the new Act comes with fines of up to $5,000 for jurors caught researching information relevant to the trial without the judge’s permission.

And there are penalties for the media as well: disclosing or even soliciting information from the jury about its verdict or how it was reached comes with the risk of a $10,000 fine ($40,000 for a company) or three months’ jail.

As Justice Moore put it when briefing the jury, it’s all about protecting the accused’s fair trial rights.

When he introduced the bill into Parliament for its third reading on 20 August this year, Justice Minister Andrew Little said: “It makes rules to make sure there are strictures of the court around applying evidence – making sure, for example, that juries don’t conduct their own independent investigations and that they rely solely on the evidence that is put before the court and properly examine it there – and to make sure those participating in court do not cause a disruption and, of course, the other part is making sure those who might otherwise seek to undermine public confidence in our judiciary and in our court system are not allowed to do so.”

Putting fair trial rights at risk comes with a high price tag for the media and anyone else who offends. The penalty is up to six months’ jail or a $25,000 fine ($100,000 for a company) though there a defence if you didn’t know, or couldn’t have known, the person had been arrested and/or was facing a jury trial.

More certainty
The brainchild of former Attorney-General Chris Finlayson QC, the new Act removes the uncertainty around the common law where contempt was often viewed as “whatever the judge says it is”.

Unusually, it was the only area of common law where the courts could impose a criminal penalty and breaches could result in imprisonment.

The rules were enshrined in a collection of common law and statutory provisions covering offences in the face of the court and outside the court, says James Anson-Holland, a solicitor at Wynn Williams.

The problem was outlined by the Law Commission in its 2014 issues paper Contempt in Modern New Zealand.

The rule of law requires that the country’s laws should be ascertainable by its citizens, particularly if a breach could result in a significant fine or prison sentence. “The law as it stands is neither clear, nor accessible to the public,” the commission said.

In the digital age, the increasingly antiquated bundle of laws struggled to cope with modern problems in trials like the Millane case, where details of the accused, and information gleaned from his friends and associates and from social media, was published on the internet, both in New Zealand and overseas, although his name was suppressed at his first court appearance.

“Modern technology has provided new ways to commit contempt of court and new challenges to the law of contempt,” the commission noted.

So far, the new law is relatively unknown to lawyers and the public. But it has broad scope and applies across both the criminal and civil law, says Anson-Holland.

The new Act covers:

  • publication contempt, making it an offence to publish certain criminal trial information;
  • disruptive behaviour in the courtroom, including wilfully disrupting the proceedings and disobeying any order or direction of the court;
  • juror contempt, including researching cases on the internet and intentionally disclosing jury deliberations;
  • enforcing court orders; and
  • publishing false statements about judges or courts.

The new Act has abolished some of the offences under common law, but replaces them with similar statutory offences as well as creating new defences and setting out penalties.

Dr Edward Willis, from the University of Auckland, says that common law by its nature is not as accessible as a codified statement of the law in statutory form. “This change puts the law of contempt largely in one accessible place.”

“Secondly,” says Willis, “The internet age, in particular, means that information can spread quickly in a way that might prejudice a trial.

“A similar issue is that media outlets often race to be first to a story [by] posting it online, but it can be unclear whether it is lawful to give all the information because the rules aren’t clear,” he says.

“This updating and refining the law to reflect the reality of the information age is also an important driver of the reform.”

The pros of the new Act, says Anson-Holland, are accessibility, understandability and workability.

“The overriding comment is it is useful so people start to understand that the law of contempt is there and to be aware that there are repercussions for certain actions.”

Freedom of expression
Contempt of court and freedom of expression have never been comfortable bed mates. The Act doesn’t solve this age-old issue.

It does, however, try to balance freedom of expression with the need to have a fair, unbiased trial, says Willis.

Section 14 of the NZ Bill of Rights Act 1990 affirms that everyone has the right to freedom of expression. But the Law Commission says this must be balanced with the importance of protecting the administration of justice and the rule of the law.

Willis adds: “Fair trial rights and freedom of expression rights are both fundamental, and there is no obvious right answer in terms of which should dominate in any set of circumstances.

“Indeed, different jurisdictions around the world have found the appropriate balance sits in slightly different places, and this is to be expected because of the nature of the issues involved.”

Willis says inevitably there will be some restriction on the freedom of expression under New Zealand law as a result of the legislation.

“The intention is that these restrictions are practical and go only as far as needed to preserve the integrity of the courtroom process. Whether that is in fact the case is something we will learn only over time.”

The biggest concern or fish hook with the new legislation, says Willis, is the way it codifies the common law offence of scandalising the court.

“Broadly, the provisions make it an offence to undermine public confidence in the judiciary – for example, by criticising judges for their rulings in a public forum. The offence has directly or effectively been abolished in almost all of the major western law jurisdictions New Zealand compares itself to.”

Willis, along with AUT senior lecturer Leonid Sirota, argues the offence should be repealed because of:

  • the way it interfered with freedom of expression and freedom of conscience;
  • its potential to reverse the presumption of innocence;
  • and the broad prosecutorial discretion involved, making the law in this area very uncertain.

The select committee largely endorsed this suggestion but Parliament overruled the committee on this point.

Another potential issue, says Anson-Holland, is anything not specified in the five offences proscribed by the Act comes under the old common law provisions. “There is still that element of ambiguity.”

Anson-Holland says it is interesting that the Act doesn’t cover civil trials in the same way as criminal proceedings, though contempt as an offence extends across both jurisdictions.

He says although the Act concerns itself with the publication of certain criminal trial information, it doesn’t have a corresponding section for “publication contempt” in civil trials.

“Under the Act it would simply revert to the common law provisions. It seems strange to me that publication contempt for civil trials is not codified and so, perhaps, this is one of the shortcomings of the Act. This seems to diminish the accessibility of its purpose.”

It will, however, benefit lawyers looking to enforce civil court orders.

“If you have a civil order, there can be instances where there is nothing stopping an individual or entity from refusing to abide by that order if they think they have been aggrieved in some way. Where do you go from there? Well, the last bastion of opposition to such conduct is contempt.”

Anson-Holland cites the series of decisions leading to the Supreme Court’s 2010 judgment in Siemer v Solicitor-General where litigant Vincent Ross Siemer was imprisoned for up to three months (or until he complied with the order, whichever came first) for deliberate and ongoing breaches of an interim injunction issued by the High Court in 2005.

The Supreme Court held, by a 3-2 majority decision, that an indefinite sentence of imprisonment until compliance, also known as a “keys in the pocket” sentence, was inappropriate.

In Horton v Burke the judge found a mother was in contempt of court for enrolling her daughter in a new school, contrary to an order by the court. She was fined $400 plus court costs of $130.

In another case, fines of $13,000 were imposed on Stephen Bhana and Jasu Mati Bhana for contempt of court after they failed to hand over company records in relation to the liquidation of their property investment company, Ranolf Company Limited.

Judge, jury and executioner
Under the old law, judges were judge, jury and executioner when it came to contempt of court – in short, a fiefdom in the courtroom. Over the years this absolute power has been restricted.

Nonetheless, the Law Commission said many aspects of society have changed since the contempt powers were first developed and exercised. “The summary jurisdiction places wide powers of investigation and punishment in the hands of judges who use it.”

Even with the new Act, the judge is still largely the decider of contempt, says Anson-Holland.

But the new Act provides that a person cited and detained for disruptive behaviour relating to a court proceeding must have the matter reviewed before the court rises at the end of the day.

The presiding judge must consider whether there are “exceptional circumstances” that warrant another judge hearing the matter. “It is quite unclear what these ‘exceptional circumstances’ may be,” says Anson-Holland.

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