Philip Morgan: Laws designed to bring fairness to sex trials

Publicity surrounding high-profile cases involving sexual allegations has raised questions about the powers the court has to ensure a fair trial; fair to the complainant, the accused and thus fair for the community.

Without commenting on any particular case it may be helpful to examine just how the criminal justice system works to ensure fairness, particularly over allegations of sexual offending.

An accused is presumed innocent until proven guilty and guilt must be proven to the standard of beyond any reasonable doubt.

To ensure a fair trial, the jury hears only the relevant evidence. Evidence that is not relevant is excluded because it cannot help the jury in determining the issues.

During the trial and throughout the criminal justice process measures are there to protect complainants in sexual cases.

As a general rule they need not give oral evidence at the preliminary hearing. During the trial there are tight restrictions on who may be present when a complainant gives evidence and the public are excluded.

The court has powers to allow complainants to give evidence from behind screens and, particularly in the case of younger complainants, use closed-circuit television.

Special provisions in the Evidence Act prohibit complainants being questioned about their sexual experience with persons other than the accused, or about their general reputation in sexual matters.

In all cases, jurors are instructed by the trial judge that they must reach their decision solely on the basis of the evidence they have heard in the courtroom. They are asked to put out of their minds entirely speculation, prejudice, rumour or other material they have come on from sources outside.

All these measures are designed to ensure fairness to the complainant, the accused and, therefore, the community, which has just as great an interest in a trial that is fair.

Open justice is a guiding principle in our legal system. As a general rule, court proceedings are open to the public and the outcome is a matter of public record.

Even where identifying particulars of an accused or a witness are suppressed, or evidence is suppressed, the jury hears that material as do the news media and public in the courtroom. The limitation is only on publishing the material.

Names, identifying particulars and evidence are suppressed only where there is good reason and then to the least extent necessary and generally for a limited period of time.

In many cases where suppression orders are made they will inevitably lapse so the public will get to hear the information through the news media. It is merely delayed.

Evidence may be suppressed where publication would be unfair and prejudicial to the right of an accused to a fair trial, where it could jeopardise other pending matters, infringe the legitimate privacy interests of complainants and witnesses, or otherwise undermine the proper administration of justice.

In cases involving serious sexual allegations, the name and identifying particulars of the complainant are automatically suppressed by law.

The details of the criminal acts alleged may also be suppressed by the judge to protect the complainant's interests.

Complainants are free to waive their entitlement to name suppression if they wish and not to seek suppression of the details of the alleged criminal acts.

In short, the law of New Zealand says the name or identifying particulars of a complainant in a sexual case are not to be published without the express permission of the judge. In practice, a complainant's identity is never disclosed unless the complainant waives the right.

In the case of the accused, suppression of name is often only temporary and only then for good reason. Permanent name suppression is likely to occur only if publication might identify a complainant.

Breaches of suppression may be considered contempt of court. Matters which the court has concluded are not relevant or should be suppressed which are then published in the media and on the internet, can seriously undermine the fairness of the trial process.

It undermines the right of an accused to a fair trial, the legitimate privacy interests of complainants and witnesses and the community's interest in ensuring a fair trial.

The law of contempt exists to maintain public confidence in the administration of justice, including upholding fair standards. Individuals or entities may be held in contempt of court for words or actions which obstruct, interfere with or undermine the justice system or the authority of the courts.

Contempt may commonly occur in two broad situations. The first is contempt "in the face of the court", which occurs within the court or its immediate environs. The second is where it is committed outside this sphere.

Contempts committed "in the face of the court" can take a variety of forms and include attempts to interfere with witnesses, jurors or judges by pressure, dissuasion, duress, intimidation, bribes or deliberate breach of court orders or the directions of a judge.

Whether words or actions which occur outside the court or its immediate environs amount to a contempt of court will depend on the circumstances.

In situations involving publication or dissemination of information relating to the judicial process, a court considering the issue of contempt must balance the public interest in freedom of speech, as recognised in the New Zealand Bill of Rights Act, against the real risk of prejudice to proceedings, as well as the benefits of protecting the administration of justice.

In cases of contempt beyond the courthouse, it is not the role of the judge, the court or the Ministry of Justice to investigate or police allegations of contempt.

Information tending to suggest actions in contempt of court may be referred to the Solicitor General, who has the power to initiate court proceedings. If satisfied a contempt has occurred, the court has powers which include a fine or imprisonment.

* Philip Morgan, QC, is a Hamilton lawyer who for the past six years has been a member of the NZ Law Society's Criminal Law Committee, the last four as convenor.