Saturday, April 08, 2006

Gossip fuels trial by the masses

The Dominion Post
Gossip fuels trial by the masses
08 April 2006

The trial was over in the courtroom but in the streets, via e-mail and on the Internet, it was just warming up.

Information kept from the jury at the Louise Nicholas case spread quickly throughout New Zealand after the not guilty verdicts were delivered in the High Court at Auckland last week.
Assistant Police Commissioner Clint Rickards and former policemen Bob Schollum and Brad Shipton were acquitted on all 20 sex charges.

At the end of the trial, Justice Tony Randerson ordered that widespread suppression orders made at the start would continue. Internet bulletin boards and chatrooms may need to be monitored, he said.

He was correct, but it was old-fashioned tactics that grabbed attention. On Monday, a group of women handed out 1600 leaflets breaching the suppression orders to commuters at Wellington railway station. Spokeswoman Grace Millar said the orders had meant important prosecution evidence was not presented in court.

The leaflets were modified after the group was approached by police. Others were later handed out at the University of Auckland and in Christchurch's Cathedral Square.

And if the leaflets were not enough, mass e-mails dramatically sped up the flow of the offending information. The text of the leaflet was copied into an e-mail and circulated. At least one other bulk e-mail has done the rounds.

Ms Millar says she does not know who was responsible for either e-mail. "Certainly people have done things with the leaflet that we wrote that we didn't anticipate."

Meanwhile, people have been discussing the orders through Internet news groups, blogs, message boards and chatrooms. The Nicholas case has again highlighted that the bigger the trial the better the chance that secret details will emerge.

Last July, the country was abuzz at news that television stars were embroiled in a "white collar" drug bust in Auckland. By the time the media was allowed to identify the key players – former All Black Marc Ellis and league star Brent Todd – it seemed the entire country already knew, courtesy of e-mails.

Within days of charges being laid, the gossip had even hit the stock market – shares in Ellis' Charlie's juice company fell 33 per cent.

Why do the courts suppress some information?

Name suppression is automatic for some people, such as the victims of sex crimes (unless the court permits publication) and those accused of incest. Judges can suppress other names and details to avoid a trial being prejudiced.

University of Canterbury media law expert Professor John Burrows says that though suppression orders could sometimes be made "very quickly" when people first appeared in the district court, those made in the High Court were likely to be carefully considered and made with good reason.

"People who don't know the reason take a real risk if they try and breach the order."
Police national e-crime manager Maarten Kleintjes says suppression orders are made to ensure people receive fair trials or to protect witnesses.

"The court doesn't put these suppression orders in place for a joke. They are there for a serious reason and people should respect that."

Media organisations have the right to appeal against suppression orders and are sometimes successful.

What are the dangers in breaching a suppression order?

People who breach a suppression order can face a $1000 fine for each offence. They cannot be arrested but can be summoned before the court.

Professor Burrows says it has been suggested that if a breach was deliberate, "it could be a lot higher than that. That's never been tested in New Zealand".

Offenders can also face contempt of court charges, which can carry a fine or a jail term. Police are gathering evidence about this week's suppression breaches, both by electronic and leaflet methods. Complaints have also been received by the office of Solicitor-General Terence Arnold, QC, which decides whether to take action on contempt of court in association with the judiciary.
Canterbury University senior law lecturer Ursula Cheer, a colleague of Professor Burrows, says the pamphlets circulated by the women are also potentially defamatory. "To suggest that somebody is guilty of an offence when they have been found not to be could fall into that category."

Professor Burrows says prosecutions for breaching suppressions are pretty rare in New Zealand. "The main reason for that is the media are usually pretty responsible about it."
He was not aware of any prosecutions resulting from breaches on the Internet, though there had been successful defamation cases.

A Crown Law spokeswoman says warnings for contempt are more common than prosecutions. Media organisations are sometimes warned about pre-trial publicity being potentially prejudicial to a court case.

"This is a bit more unusual because these people have been passing out pamphlets."

Who polices the Internet?

It appears no one in New Zealand is dedicated to monitoring it. But government agencies, including Crown Law, say offending material will come to their attention through media monitoring and word-of-mouth.

Mr Kleintjes says police do not monitor the Internet to search for name suppression breaches, or other offending material. "It is conceivable in future that there is a branch of police that walks the beat in cyberspace, if you like. As far as I know, there's nothing in place like that at the moment."

Cyber police are among options being considered in an Economic Development Ministry discussion paper.

Mr Kleintjes says police investigate if they come across offending electronic material or if someone complains, as with other types of offending. The e-crime unit collected data and carried out forensic investigations when asked. "We could be asked to track down where an e-mail came from – that would be within our line of work."

The unit has so far not worked on any suppression cases, though it has traced the origins of abusive and threatening e-mails, he says.

So to whom was Justice Randerson directing his comments when he said the Internet might have to be monitored for suppression breaches?

Judiciary communications adviser Neil Billington says the comments would have been directed at the Crown prosecutors. "It's not the responsibility of the courts, the judge or the Justice Ministry to actively monitor this." Judges would generally act on "contempt in the face of the court" if it arose during a trial.

During the Nicholas case, two members of the public were held in contempt by Justice Randerson – a woman who spoke to a juror and a man who breached a court order.
Mr Billington says that in other instances, a wider investigation by police or advice from the solicitor-general could be required.

In many cases, website moderators and owners monitor material because they could be culpable for anything that breaches the law. One, David Farrar, posted a warning on his kiwiblog website to other users about contempt of court in the case.

Everyone else is breaching the orders, so surely I won't get in trouble?
No one seems sure what will happen next but it seems best not to test that theory. "Would you feel safe driving through a red light because hundreds of other people do that?" Mr Kleintjes said.

Professor Burrows says posting information on the Internet is a form of publication and people who posted suppressed information were liable "like anyone else".

Sharing juicy information with a friend via e-mail was more dangerous than verbal gossip because an e-mail left a trail of evidence.

"I think anyone who sends an e-mail now knows it may get to more than the person it was sent to."

Mr Farrar, who is also the vice-president of Internet society InternetNZ, says much information posted on the Internet is "fairly easy" to trace.

He wasn't confident that authorities would turn a blind eye to the breaches. "I think if the authorities don't take any action, it's going to send out a pretty bad signal."
So are suppression orders now pointless?

"I think there's almost no point in cases involving famous people," Mr Farrar says. "Perhaps for a week or so if you need to hold things up."

High Court judge Justice John Wild said last year that it was "stupid" and "futile" to try to keep information suppressed once it was on the Internet.

He made the comments while outlining his reasons for lifting a suppression order on the "Butcher Report" on the Berryman bridge collapse. Lawyer Rob Moodie had posted the report on the Internet to support his clients, retired farmers Keith and Margaret Berryman.

Law Commission deputy president Warren Young said this week it was "much too simplistic" to say that suppression orders were redundant just because the Internet had increased the number of breaches. "It is very difficult to control through the Internet . . . but that does not mean that they have no effect at all."

Professor Burrows says the issue has to be considered in the context of the number of orders made in the courts. "There's a whole lot of suppressions. The problem mainly arises if there's a celebrity or a really infamous case." If authorities were able to track an offender down, "it's certainly not pointless".

And despite all the fuss, many people did not care enough to go looking for the information. "I don't think most people can be bothered. Most aren't particularly interested."


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