KEY POINTS:
Kidnap-accused Kay Skelton and her lawyer should have been consulted before the Family Court decided to release the case history of a custody dispute over 6-year-old Hamilton boy Jayden Headley.
By releasing previous Family Court findings on January 24, the principle Family Court Judge, Peter Boshier, may have inadvertently opened an avenue for Dick Headley and Kay Skelton to walk free from the kidnapping charges they face.
That is because past judgments contain criticisms, from the bench, of the pair's character relating to their reliability and credibility as witnesses.
This could compromise their right to a fair trial in the future.
Just days after the return of Jayden - who had spent 158 days in forced hiding at the hands of his grandfather Dick Headley - Judge Boshier allowed details of the custody battle between the boy's mother and father to go public.
A High Court finding released yesterday afternoon found that past Family Court rulings could be published for public consumption "in appropriate cases".
However, Justice Paul Heath ruled that Principle Family Court Judge Peter Boshier made an error in law when he released findings that detailed the background of Skelton versus Jones. Judge Boshier failed to consult counsel for all parties involved, including Barry Hart, lawyer for Skelton, and Tracey Gunn, lawyer for Jayden Headley.
There was a "clear obligation" to do so, Justice Heath said.
The fact some of the past judgments contained "strong language" from Family Court judges about the credibility and reliability of Kay Skelton and Dick Headley cast doubts over their opportunity to fair trials in the future.
"Placement in to the public domain of adverse credibility findings made by a judicial officer about a person likely to face trial on a charge arising out of events that were related to the Family Court proceeding was, at the very least, likely to raise fair trial concerns that could not be addressed without giving interested parties an opportunity to be heard," the judgment said.
On the January 24 release of the custody dispute's history, Judge Boshier had justified his decision by outlining six factors. He reasoned that because the boy had been returned after the kidnapping ordeal, no harm was likely to occur to him if the judgments were released in full.
Further, the judge reasoned that it was in Jayden's interests that an accurate and transparent record of the proceedings be available for public consumption.
Justice Heath said he "could not so readily conclude" that either was the case. He did agree, however, that Ms Skelton and other members of her family were continuing to present only their side of the dispute to the media, and that public confidence in the Family Court was a relevant factor.
Justice Heath took exception to the Family Court's assessment that rights of a fair trial would not be compromised by the release of the custody dispute's history.
Submissions should have been called for in the interests of natural justice.
"A lengthy hearing was not required. The issues were relatively narrow. There was no urgency that required an order being made without notice."
Justice Heath said if Skelton and Headley were committed to trial on a kidnapping charge, it would be open to them to seek a stay of the prosecution on the grounds that a fair trial was impossible, having regard to prior publicity.
Skelton's lawyer Barry Hart has argued since January 26 that a fair trial was impossible for his client due to the Family Court documents being made public.
However, New Zealand Law Society criminal law committee convenor, Jonathan Krebbs, disagrees..
In January he told National Radio that judges could direct jurors not to take material they heard outside the court into account.
Common sense suggested that information jurors had heard before in the media would "fade into the background" when overtaken by live evidence heard in court.
"History has shown and research has shown, I believe, that juries do pay attention and heed those cautions," Mr Krebbs said.
