Israelis' lawyers turned fire on Herald in bid to stop trial

By EUGENE BINGHAM and PHILIP ENGLISH

Eli Cara and Uriel Zoshe Kelman fought to the end to avoid a highly publicised and embarrassing trial.

They launched a strenuous, complex legal attack to uncover how the Weekend Herald broke the story.

The men's lawyers, Grant Illingworth, QC, for Kelman and Stuart Grieve, QC, for Cara, seeking to have the passport fraud charges against the men thrown out, subpoenaed the three reporters who wrote the scoop published on April 17.

The three were not required after Justice Judith Potter ruled they could be excused. Instead Mr Illingworth called the editor-in-chief of the Herald, Gavin Ellis, in an attempt to find out the source of the story which stated that senior Government figures believed the men to be Israeli secret service agents.

Confirmation that the Government was behind the spy accusation would have been crucial to the men's defence.

One ground to have the charges thrown out was that, because of the story, the men would be unable to get a fair trial - that the pretrial publicity was prejudicial and deliberately instigated by the Government in violation of their rights under the New Zealand Bill of Rights Act.

But in spite of a lengthy examination Mr Ellis would not reveal the source.

It was clear in his mind that he would not reveal the source even if it meant being found in contempt of court with the risk of imprisonment - until he agreed to answer.

But he too was excused from giving evidence which would involve the supply of information in breach of confidence.

Justice Potter concluded the intervention of the court was not needed to require the Herald to disclose its source.

"That information is not relevant or essential to ensuring a fair trial for the accused but could place at risk press freedom," she said in a ruling suppressed until yesterday.

In the case, heard in May and June in the High Court at Auckland, Mr Illingworth and Mr Grieve had a mantra and that was the allegation that the media interest in their case was deliberately instigated by the Government.

Everyone present in the courtroom became familiar with the first paragraph of the Weekend Herald's April 17 scoop: "Two men believed by senior Government figures to be Israeli secret service agents have been arrested in Auckland trying to obtain a false New Zealand passport."

Bruce Gray, a lawyer for APN, publishers of the Herald, sought to have the subpoenas against the three reporters set aside or, at least, have the judge rule that they would not have to provide a name.

Mr Illingworth said the Herald had forfeited its right to claim confidentiality because it had become involved in wrong-doing of the Government.

Justice Potter said courts had long recognised that journalists' sources might need to be protected in the interests of freedom of expression and she excused the reporters from giving evidence.

But with Mr Ellis in the witness stand, Mr Illingworth began a long bout of verbal chess to extract the information he desired.

Under questioning Mr Ellis said he could not name any other Herald staff who might have been aware of the source without potentially breaching confidence.

"I believe that when an undertaking of confidence is given by a newspaper it is not given lightly."

Mr Illingworth then changed tack. If he couldn't get a name, an admission of Government involvement would do.

"Can you confirm that the information about these accused being Israeli secret service agents came from a senior Government figure or figures?" Mr Illingworth asked.

Replied Mr Ellis: "My honest belief is that senior Government officials believe that to be the case."

The lawyer's tone grew more aggressive as Mr Ellis' replies became more cautious, eventually finding his line in the sand with: "No, I will not answer that question."

An agitated Mr Illingworth asked Justice Potter to order Mr Ellis to answer.

The lawyers suggested the judge could clear the court and ask the witness their questions herself to decide whether or not they risked identifying the source.

But Justice Potter was not swayed and simply repeated that Mr Ellis was not required to answer anything that might reveal a source.

Mr Illingworth was forced to give up the chase.

In reasons for her decision released yesterday, Justice Potter said the right of the accused to a fair trial had to be balanced against the need to protect journalistic sources in the interests of press freedom.

"I am not persuaded that the disclosure the defence seek will in fact add the strength to their bow that they claim."

Media law specialist Professor John Burrows from the University of Canterbury Law School said courts had the discretion to allow witnesses to remain silent after weighing up all the factors of a case

The issue had come up in Britain and in quite a number of cases journalists had been ordered to disclose their sources and had faced massive fines for not complying. "The issue has very seldom arisen in New Zealand for some reason."

Lincoln Gould, honorary secretary of the Commonwealth Press Union's media freedom committee, said the ruling was a significant legal landmark.

For the first time the common principle of journalists' protection of sources had an anchor in case law.

"Until now New Zealand law offered scant, if any, protection for journalistic sources and [journalists] have always faced the possibility of contempt of court proceedings if they refuse to name a source."

Justice Potter's ruling did not provide "blanket protection", Mr Gould said, "but the ruling goes a long way to show courts will respect confidence."

* This is a corrected version of a story orginally published on 20/07/04. The original story reported that Mr Grant Illingworth, QC, questioned editor-in-chief of the Herald, Gavin Ellis' integrity in court. Mr Illingworth did not question the integrity Mr Ellis. The reference related to a statement by fellow defence counsel Mr Stuart Grieve, QC, who put to Ellis: "You have in effect, and I'm not intending to criticise, asked this court to rely on your honesty and integrity as a basis for saying this confidence should be protected." The Herald apologises for the error.