KEY POINTS:
The media's right to free speech and the right of an accused person to a fair trial can be upheld simultaneously in the case of Fairfax Media's publication of police surveillance transcripts, a barrister said today.
"There is not a conflict in which one has to yield to the other," Hugh Rennie QC told the High Court in Wellington today.
Solicitor-General David Collins QC has asked the court to find Fairfax New Zealand Ltd and Dominion Post editor Tim Pankhurst in contempt of court for publishing articles about the series of so-called terrorism raids in the eastern Bay of Plenty last October.
"The respondents' publications represent the most serious challenge to the public policy underpinning the law of contempt that New Zealand has ever seen," Dr Collins said in his closing speech.
The articles were deliberately inflammatory, unsettling, provocative, and memorable, and Fairfax published them as widely as possible in daily newspapers and on its Stuff website, he said.
This interfered with the administration of justice, by potentially prejudicing trials yet to be held of people arrested in the raids.
But Mr Rennie said the Crown's assertion was "extravagant, unjustified in the evidence, and untrue".
He extensively addressed elements of mitigation in his closing arguments, saying Fairfax had not set out to influence a jury, and had no intent to affect a future trial.
If the alleged breaches of suppression orders, or of a section of the Crimes Act which constrains disclosure of intercepted communications had occurred, neither would provide a basis for a finding of contempt.
The Crown has said that five of 13 extracts from intercepted communications had never been previously disclosed in bail hearings. A key element of the Fairfax defence has been that much of its material was only "repetition" of surveillance transcripts previously disclosed by the Crown, either in an affidavit seeking search warrants or in material supplied to bail hearings.
"This is not a case where prejudicial information has been intentionally published for the private purposes or advantage of the publisher," Mr Rennie said.
Rather, the publisher saw a duty to publish information to allay public fears and concerns in the wake of the raids over police actions.
"It would have been easy to sit back, take the easy road, and leave the material unpublished," he said.
"They knew when they published it might come to this (contempt case), although they believed that it should not and hoped that it would not."
Mr Rennie argued the Solicitor-General had not proven a "real risk" that publication would interfere with the administration of justice, or that Fairfax caused any risk of prejudice.
But he acknowledged today that a key argument made by Fairfax - that any trials of people under the Arms Act might not take place until two years after the articles were published last November 14 - was undermined by the fact that some material disclosed in them was still visible on the internet yesterday.
Mr Rennie said the Crown failed to prove beyond reasonable doubt that Fairfax and Pankhurst caused the risk of prejudicing subsequent trials.
In the attack on the conduct and honesty of Fairfax and its editor, the Crown had looked past its own contributions to what had occurred by making the initial disclosure of the intercepted material in court documents.
If Justices Tony Randerson and Warwick Gendall were persuaded Fairfax and Pankhurst were in contempt, "that would not mean that the Crown's description of our principal newspaper company and many of our leading editors would be right," Mr Rennie said.
The judges reserved their decision.
- NZPA
