Editorial: Trial judges can counter prejudicial information

Courts can afford to relax on name suppression in the digital age. Photo / Supplied

COMMENT:

When a case captures as much public attention as the murder of Grace Millane has done, it becomes virtually impossible for courts to suppress information about the accused person. Virtually but not entirely.

Responsible mass media do their best to abide by the law while publishing as much information as they can. They are punished for this, potentially losing listeners, viewers and readers who are drawn to websites that can ignore the suppression order with impunity.

Thus a law designed for the purpose of fairness to an accused person, creates an unfairness to those who respect it. But worse, it provides a commercial advantage to those who publish rumour, scuttlebutt and subjective judgments of the accused without the checks and verifications that professional newsgathering involves. The cause of public knowledge, as well as justice, is not be well served.

The best policy in this situation, as in most, is to err on the side of openness. It is heartening that when the person accused of Grace Millane's murder appeared in an Auckland court on Monday, Judge Evangelos Thomas did not agree to the request for name suppression. But the lawyers for the accused had only to state an intention to appeal to a higher court for the accused's identity to be suppressed for 20 working days.

The courts need to cut short that interval in cases of high public interest. A High Court judge should have heard that appeal the same day. The courts need to find this degree of agility if they are to keep pace with the digital age.

Considering the impossibility of suppressing all information about an accused person in a case that has caught international attention, it is surely unlikely this suppression order will be upheld even if it remains in force for four weeks.

In fact, some of the material already circulating on social media will probably be used by lawyers for the accused to try to prevent a trial. They should not succeed. Judges who hear these pre-trial applications should have more confidence in their ability to help a jury put prejudicial knowledge to one side when they weigh up the evidence presented to them.

Any news reporter covering a trial can attest that the admissible evidence is usually much more insightful, nuanced and engaging than any public discussion of the case beforehand.

They would also attest that judges are very good on the whole at explaining to juries why they should put any prior impressions out of their minds and concentrate on the evidence they have seen and heard and the issues of proof of the commission of that particular crime.

Not all jurisdictions try to suppress pre-trial information as strictly as New Zealand does and standards of justice do not appear to lower in those countries. In fact it can be argued that verdicts might be more accurate if juries were sometimes given facts that may be prejudicial. It is often disturbing when a person is acquitted with a record of convictions fro similar offences that was kept from the jury.

Suppression is becoming increasingly difficult and the law should relax it.