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A direction from a trial
judge warning jurors to ignore pre-trial publicity would be a "powerful
tool" in ensuring that they focused on the evidence before them rather
than anything else they may have seen or read, a key court ruling has found. Justice Judith Potter
was asked to rule on whether media coverage in the Israeli passport case
interfered with the accused men's right to a fair trial. She found this was
not the case. The issue of whether
pre-trial publicity could affect a trial was raised this week when a
policeman and two former officers were charged with historical offences
involving Rotorua woman Louise Nicholas. Paul Mabey, QC, a
lawyer for one of the accused, Bob Schollum, said an application to prevent
the trial could be anticipated, partly on the basis of what he believed was
the extensive and damaging publicity so far. The issue also arose in
the case of Eli Cara and Uriel Kelman, the two men believed by the Government
to be Israeli agents. In July, the pair pleaded guilty to a charge relating
to an attempt to illegally obtain a New Zealand passport and were sentenced
to six months prison. But in an application
initially suppressed, the defence argued in May that the volume, extent and
nature of the media coverage prejudiced their rights. While acknowledging
that no case in New Zealand had been put off because of pre-trial publicity,
the defence contended that in the circumstances the pair should no longer
have to answer the charges. Lawyers Grant
Illingworth, QC, and Stuart Grieve, QC, said the sheer extent of publicity,
including unprecedented international interest, made the case unique. Other unique aspects
included the nature of the reporting because it included "highly
prejudicial content which is not part of the Crown case". They took
particular exception to the fact that when the Weekend Herald broke the
story, it linked the men to the Israeli spy agency, Mossad, a theme continued
in more than 60 stories and 120 television or radio broadcasts which
followed. The Crown said the
publicity was "significant", but it could not be categorised as
greater than in other criminal cases and was not "truly extreme". Crown lawyer Kieran
Raftery also pointed out that while Kelman and Cara were concerned about the
connection with Mossad, that was not part of the case against them. In any event, said Mr
Raftery, "do references to Mossad carry more sinister connotations than
references to say, the Mongrel Mob?" Justice Potter agreed
that the Mossad connection was not relevant, and the publicity had not impacted
on the defence's ability to contest the allegations against them. She referred to Law
Commission research which found that the impact of pre-trial publicity on
juries was minimal. "In the
circumstances of this case, I agree with the Crown that an appropriate
direction by the trial judge at the commencement of the trial ... would be a
powerful tool," she said. With such directions
from the judge, a jury would be capable of deciding guilt or innocence on the
basis of the evidence alone. While the coverage had
been intense, this would always be the case with newsworthy stories. "It is important
in assessing the impact of media reporting to focus on the message that the
consumer will receive, and not to be diverted by a line by line or word by
word analysis of what was said," said Justice Potter. |
