8.00pm UPDATE
$5000 fine for national mp
Nelson MP Nick Smith was fined $5000 in the High Court at Wellington today following his public statements on a Family Court case and approaches he made to one of the parties involved.
Smith, and media organisations TV3 and Radio New Zealand (RNZ), were found guilty of contempt of court following a five-day trial in February before Justices Wild and MacKenzie in the High Court at Wellington.
Today those same judges ruled that while Smith still believed he was right, "we think the point has largely been made by your having been found in contempt of court".
"We see no need to add to that action a substantial fine," Justice Wild said as he handed down the $5000 penalty.
TV3 did not escape so lightly, being fined $25,000, while RNZ was also fined $5000.
Justice Wild said it had been extensively reported that Smith was found in contempt for publishing Family Court details but that that was only part of it.
Smith had also phoned one party involved in the case with a view to putting pressure on that person.
"We felt that your intention was to pressure the caregiver of the child to give up the case and surrender the custody of the child to the parents," Justice Wild said.
As well, Smith had commented publicly on the Family Court with the intention of influencing their decision.
"Your subsequent conduct is devoid of any expression of regret. Indeed, quite the opposite," he said.
"To be unrepentant is your prerogative. We find it disappointing and, for someone of your standing, surprising."
But the judges accepted Smith was motivated by a desire to help his constituents, and his belief that he was righting what he regarded as bad law.
"All those are worthy aims. It is just that your means of achieving was misconceived," Justice Wild said.
"You do not help people by harming other people. You don't right one injustice by creating another, nor do you change the law by breaking the law."
The case has already cost Smith and his wife, Cindy, about $85,000 and today they expressed relief that it was over.
"I'm relieved to have this matter behind me," Smith said.
"Its hung over me like a black cloud over the last nine months."
The fine was a "hit in the pocket" but its size made it less likely he would appeal.
Smith said he had learned "some hard lessons" through the case but that the principles were so important he did not regret taking up the case.
"In hindsight I still question and wonder if there was another way," he said.
"The lesson, I think, all parliamentarians should learn from my experience is that if they have things to say that may upset ... the court, say it in Parliament."
The judges damned TV3's documentary on the case, which screened twice, as one-sided and intended to place pressure on the caregiver.
"If that were not TV3's intention, then we were in no doubt that it was the effect of the programme and powerfully so," Justice Wild said.
"We were also of the view that TV3 intended, by the programme, to influence the Family Court judge."
New Zealand courts would also do their utmost to protect the freedom of the media but the media must realise that with their power and privilege went responsibilities, Justice Wild said.
Solicitor-General Terence Arnold had asked that TV3 be fined at least $100,000 as the most culpable of the three defendants.
However, the judges said that because it was an unusual contempt case and must be tried as the first of its type, the fine must be put at a moderate level.
But they warned that such "relatively lenient" treatment would not be applied to future cases.
RNZ was held least culpable but must have known what Smith was likely to say when it agreed to a live interview.
"Even more regrettable is that the child's name was mentioned on National Radio by the mother when (nine to noon host) Linda Clark interviewed her," Justice Wild said.
"The naming of the child also demonstrates the risk of broadcasting live interviews of that sort."
The judges regarded RNZ's contempt as being "much less" than TV3's and less serious than Smith's. However, its fine was the same level as Smith's because he was a private individual while RNZ was a substantial, state-owned broadcasting organisation.
Mr Arnold had argued the case was the most serious contempt case in New Zealand history because of Smith's efforts to influence the judge and undermine public confidence in the court.
Making pre-sentencing submissions for the prosecution, Mr Arnold said TV3 believed they could ignore the law where they deemed the circumstances exceptional.
Their conduct was, therefore, at the high end on the scale of culpability.
TV3's 20/20 documentary on the Family Court case involving child custody was a serious intrusion into a child's privacy and, though his face was obscured, children at his school knew he was the child on television.
Mr Arnold said it was "cynical exploitation of the parties for commercial gain".
Smith's culpability was also at the upper end and he had abused his position as an MP, Mr Arnold said.
He had been unable to recognise that there could be any other view than his on the matter and set out on a campaign to get the result he desired.
The whole issue had been "trial by media at its worst".
RNZ's fine should show that their culpability was substantially less, Mr Arnold said.
However, it had displayed an "irresponsible and serious lapse of judgment" when interviewing Smith live -- knowing he was championing only one side of the story.
The Crown also asked for $60,000 costs to be divided among the defendants, saying the case had cost $110,000.
However, the judges did not award costs, and said they would give their reasons for that decision in writing.
Smith's counsel, John Upton, told the court that the case would have a precedent effect on all MPs for years to come and raised serious issues of freedom of speech for MPs.
Smith had never breached the convention that MPs do not criticise an individual judge, concentrating instead on the Family Court process, he said.
As well, he deserved credit for his efforts to get the matter back into the Family Court process, when the family was considering "going bush" with the boy.
TV3 counsel Clare Bradley said the Family Court case in question was "exceptional".
The station had obeyed the law to the best of its knowledge, had not contemplated it was committing contempt and did not believe it could influence a judge-only Family Court hearing.
RNZ counsel John Tizard said the circumstances of the Family Court case were unusual and that there would be people in the community who would consider the parents had suffered an injustice.
"These were legitimate issues for RNZ to air," he said.
RNZ's mistake had been in carrying out a live interview with Smith. However, it had not attacked the integrity of the court.
- NZPA
MP fined $5000 for contempt of court
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