Sunday, 6 July 2014


I am concerned over the "trial by media" of the diplomat Muhammad Rizalman bin Ismail sent home in a murky deal with MFAT over charges of burglary and assault with intent to rape resulting from behaviour that is alleged to have occurred in the Wellington suburb of Brooklyn in May this year. I think the way this case has been reported has created an environment that would enable the Malaysian Embassy to argue their diplomat could not receive a fair trial in NZ. Essentially the media have robbed the diplomat of his right to elect trial by jury. There is scant chance of any jury pool being untainted by prior knowledge and the spin regarding this case. The only person who hasn't heard that the man's neighbour thinks he was odd, or about any other matters regarding the case and his personality would had to have been in a coma. As for a judge alone trial,  research from Australia suggests that if you elect trial by judge alone you face an 87% chance of being convicted, whereas if you elect trial by jury you face a risk of conviction of under 50%. These figures don't apply to each case and are only averages. I just find that for all the media's puffery about bringing this man back to "face justice", they have created an environment where the Malaysian Government could argue that he would not receive a fair trial. 

There is clearly a presumption in favour of the open reporting and the public administration of justice, and any assessment of suppression must adopt that presumption as a starting point. The presumption is not a “fundamental principle” and is capable of being displaced. Priestley J states in GAP v Police at paragraph 40:

Although the Judge here has correctly articulated all the relevant factors, the risk of this trap manifests itself in para [3] of his judgment (supra) where he refers to the open justice factor, not once but twice, as a “fundamental principle”. The characteristic of fundamental principles is that they are immutable.  But as is  clear from the Court of Appeal authorities to which I have referred (supra), in some cases the presumption can indeed be displaced.  The principle of open justice is the starting point.  In the balancing exercise which must occur after the start it remains a potent factor.  But, if viewed as a presumption, it is an error to regard it as irrebuttable or so “fundamental” as to be impossible to displace.  Nor should courts use the presumption as a pretext to avoid weighing the vital constitutional interests and the individual circumstances of a case to ensure that a just result flows from the discretionary exercise.

In this particular case the presumption is displaced by the fundamental right to a fair trial provided for by section 25(a) of the New Zealand Bill of Rights Act 1990:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a)The right to a fair and public hearing by an independent and impartial court:

The right to a fair trial is capable of displacing the presumption of open justice. The Court of Appeal held in R v Burns (Travis) [2002] 1 NZLR 387, 404 at paragraph 10:

[10] In the sphere of the criminal justice system the right to a fair trial has been jealously guarded by the Courts. No right is more inviolate than the right to a fair trial. Not only is it the fundamental right of the individual but it permeates the very fabric of a free and democratic society. The notion that a person should be required to face a trial and endure the punishment which a conviction would bring, when the fairness of that trial cannot be assured, is repugnant. Indeed, it has been judicially observed that the right to a fair trial is as near an absolute right as any which can be envisaged. See R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 at p 787. It is for this good reason that the Courts at times insist that the right to a fair trial must prevail over the principles of free speech and open justice. As Cooke P in R v Liddell stated at p 547, in considering suppression orders "Departures from the principles [those of free speech and open justice] are necessary at times to avoid prejudice in pending trials."

At paragraph 11 the Court held:

[11] The comments in R v Liddell and the Gisborne Herald case clarify the nature of the balancing exercise to be undertaken when considering whether to grant or revoke a suppression order. The public's right to receive information, the principle of open justice, the type of information in question, its public importance and interest, its likely circulation, methods of diluting its effect on the minds of potential jurors, the presumption of innocence, and other issues are all to be balanced against its prejudicial effect. But once this exercise has been completed and it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from; not balanced against. There is no room in a civilised society to conclude that, "on balance", an accused should be compelled to face an unfair trial.
[Bold added]

 In Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, the Court of Appeal held at pg 575:

…But the absence of current empirical data to support a long-standing assumption embedded in public policy is not, in our view, adequate justification for shifting policy ground in favour of another approach which is also deficient in supporting policy data and analysis. The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

In New Zealand I am not aware at least in recent times of any Court having the courage to say that the media have gone too far in the way they have reported a case and stayed it. The current reasoning appears to be that a judicial direction to ignore any pre trial publicity can operate as a magic salve and jurors can remove any prejudice from their minds.

This however begs the question of how jurors treat such directions and whether the direction itself is informed by an accurate assessment of the statistical importance of the previous history itself. In the debate around loosening up New Zealand's laws regarding proof of relevant previous convictions (propensity) the New Zealand Law Commission appears to take comfort in the fact that juries will place great store in and follow judges’ directions when considering propensity evidence. In part this position is described by the Law Commission as being “almost an article of faith” and is informed in part by findings of New Zealand research contained in the study Jury Trials in New Zealand: A Survey of Jurors.

The Law Commission notes the need for caution with this research. In the 2008 paper Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character[1], the Commission notes in chapter 7:

7.34 As stated, there is a need for caution in applying this 1998 New Zealand research. the study itself notes a “potential limitation inherent in the methodology” employed:

(1) primary reliance on self reports by jurors, whose perceptions may not have
been accurate, and who may have been influenced by assumptions or
prejudices of which they were unaware;

(2) a possibility jurors deliberately underplayed the influence of factors such as
speculation or prejudice upon their behaviour because they were aware it
was contrary to judicial directions;

(3) the passage of time between trial and interview, with some interviews not completed until a week or two after trial;

(4) a possibility that jurors who agreed to be interviewed (54.3%) did so for reasons which may have biased their responses (they may have had a particular criticism or felt particularly positive);

(5) a possibility that knowledge the research was taking place may occasionally have influenced behaviour. the researchers were able to crosscheck to some degree on (1) and (2). The remainder are unknowns.

Against this study there is the work of the Australian Law Reform Commission and international research into the effectiveness of judicial directions to juries in regards to prior criminal history, which demonstrates that directions to disregard such evidence or to ‘ring-fence’ it for a limited purpose, are often ignored not complied with. 

The ALRC in their 2006 comprehensive overview of the research in this area reference the research of Wissler and Saks, which concludes on this topic:[2]
On the basis of the available data, we conclude that the presentation of the defendant's criminal record does not affect the defendant's credibility, but does increase the likelihood of conviction, and that the judge's limiting instructions do not appear to correct that error. People's decision processes do not employ the prior-conviction evidence in the way the law wishes them to use it. From a legal policy viewpoint, the risk of prejudice to the defense is greater than the unrealized potential benefit to the prosecution. A change of the rules to exclude evidence of prior convictions for defendants would protect defendants while not disabling the prosecutor. The defendant automatically has exceedingly low credibility for a jury, and the prosecution still has "other recognized means to challenge the credibility of a witness" (Margolis, 1972, p. 525).

This material indicates that even judicial officers can be affected by unconscious bias against an accused once they are aware of previous convictions, despite being aware of the cautions that attach to the admission of such evidence.
3.18 The prejudicial effect of evidence of previous misconduct has been confirmed in research conducted by the Law Commission of England and Wales involving magistrates and mock juries.[3] In relation to mock juries it was found, among other things, that information of a previous conviction for indecent assault on a child can be particularly prejudicial whatever the offence charged and will have a significant impact on the jurors’ perception of the defendant’s credibility as a witness.[4] In relation to magistrates, the study concluded that:
In general the results indicate that information about previous conviction is likely to affect magistrates’ decisions despite their awareness of the dangers and their efforts to avoid bias. These findings did not offer confidence that the rules on admitting previous convictions can be safely relaxed for magistrates anymore than for juries.[5]

The point being, that if actual research shows that jurors in fact do not pay heed, despite the dogmatism of our Courts to juror cognisance of judicial directions as an article of faith, then in reality how can an outsider looking in at New Zealand, have any faith in fair trial rights based upon a judicial direction remedy? 

This case is not the one to run the sexual conviction rate versus acquittals debate. What is annoying is the trial by media that has occurred. That may mean that no trial will ever occur. Responsible reporting would have meant the story could still have run, but with the focus on MFAT and the Minister without the need to publish matters germane to any prospective trial. I dislike mob rule and populism and how it appears to have been used to erode fair trial rights. 

[1] NZLC R103 Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character, 12 June 2008
[2] R Wissler and M Saks, ‘On the Inefficiency of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt’ (1985) 9 Law and Human Behaviour 37, 47

[3] Law Commission, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, [A 35]–[A 38].

[4] See Law Commission, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, CP 141 (1996) Appendix D, [D 63]

[5] Law Commission of England and Wales, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, 

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