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Two of our top judges recently denied a Fairfax journalist permission to speak to jurors about the strengths and weaknesses of the jury system, even though the journalist promised not to identify the jurors or the defendants or discuss the particulars of the cases.

The judges cited Solicitor-General v Radio NZ, and said the request “lacks the appropriate degree of control” and, despite the journalist’s promises, “there is the very real risk of injury to the administration of justice contemplated and expressed in Radio New Zealand.”

Bollocks.

This makes me furious. I think the judges have vastly overstated the risk, misinterpreted the Radio NZ case, and effectively heavied the papers into censoring what seem to be important criticisms of the jury system. It’s particularly galling to see Justice Randerson getting all precious about extremely tenuous risks to the administration of justice when he’s just sniffed at a genuine and serious risk in the Fairfax case.

Here’s the background. The journalist, Nikki Macdonald, had very responsibly written to the Chief District Court Judge and the Chief High Court Judge with her request. She clearly indicated that the feature would only involve interviews with a handful people she knew, and would not go into the specifics of the cases. The story would examine questions such as how hard it was for jurors to process large amounts of information during a trial, what sorts of people made up the jury, how the deliberation process proceeded, and what the experience taught them about the effectiveness of the jury system.

Fairfax did publish a feature on the jury system in last weekend’s “Your Weekend” magazine, inserted into the DomPost, Press and Waikato Times. It was a careful, thoughtful and balanced look at the operation of the jury system. (Fascinating statistic: in last year’s District Court cases, juries took a harder line than judges, convicting in 59% of cases compared with 48% in judge-alone trials).

But after receiving the thumbs down from the judges, the magazine left out comments from jurors, some of whom had raised, it said, “significant concerns about the process”.

As I mentioned, the judges relied on the Radio NZ case. But that case involved a much different situation. Radio NZ specifically approached jurors in the Tamihere case and asked them whether they had doubts about their verdict following the discovery of fresh evidence. RNZ seems to have unlawfully got hold of a copy of the jury list. It broadcast a juror’s comments. They were about his new doubts on outcome of a specific case. They were rebroadcast after a warning from the Solicitor-General.

Our judges found that this behaviour was a contempt, for three reasons:

1. It undermines the finality of jury verdicts in particular cases.

2. The possibility of publicity afterwards might prevent jurors from being free and frank during their deliberations.

3. The jurors can reasonably expect privacy after doing juror duty.

We might pause for a moment and reflect on the fact that interviews with jurors are routine in the United States and their jury system doesn’t seem to be under great threat. But let’s accept that, as a general rule, the administration of justice might be threatened by journalists hounding jurors for comments about their deliberations and verdict after they’d done their duty.

Still. How would those three factors above apply to the DomPost’s request?

1. The magazine wasn’t trying to revisit the accuracy of any verdicts. It didn’t want to name cases or jurors. It was interested in the process, not particular outcomes. The finality of any verdicts was not under threat.

2. No jurors were to be identified. Anyone reading the article could not have harboured any fears that anything they might say during deliberations if called up for jury duty might be used to embarrass them by being publicly attributed to them.

3. The jurors concerned were known to the journalist. They weren’t being contacted out of the blue. In any event, it’s quite clear that some jurors like to talk about their experiences and would be happy to veto their privacy rights. Some have concerns about the process that they think ought to be aired.

Here are some extracts from the Radio NZ case that make it even clearer how disingenuous it was for the judges to suggest that it’s of pivotal relevance to the request:

…it was not suggested that every approach to a juror after the conclusion of a case is a contempt. Here the allegation is linked with attempting to elicit comment about the verdicts, and jurors’ views on the discovery of new evidence.

In the present case the revelations lacked any counterbalancing virtue or merit… the reactions of jurors did not raise any legitimate matter of public concern…

… the objective of the law of contempt is not to sheild the judiciary or the judicial system from criticism.

[The decision did not breach the NZ Bill of Rights Act because] it is a result which is no more than is appropriate and necessary to uphold the administration of justice and to limit the freedom of expression as little as possible…

The result of the letters from the Chief Judges limits speech to a much greater extent than the RNZ case. What’s more, there seems to be much more legitimate public concern in Macdonald’s interviews with jurors. Judges are increasingly recognising that some sorts of speech is particularly important and there needs to be very good reason indeed before restricting it. Genuine, thoughtful and well-informed criticism of the jury system surely comes high up in this hierarchy. Against that, the faint possibility that such criticism might harm our confidence in the justice system seems a paltry concern. I think that by suggesting the magazine would be in contempt for publishing the sorts of juror interviews it was contemplating, the judges themselves breached the NZ Bill of Rights Act.

Let me give an example - a true one - and in the process, flout the principle embodied in the judges’ letter. For them, what I’m about to write apparently creates a real risk to the administration of justice. It may be a contempt of court. I say: prosecute me.

On a holiday recently, I struck up a conversation with a guy who had been a juror in the past year. He said he was astonished to find that some of the other jurors could barely speak English.

I’m guessing this was the sort of thing that the jurors told Nikki Macdonald.

I find this juror’s comment extraordinary. Don’t we check these things? This is how the justice system biffs people in the slammer. It’s outrageous if some of those we trust to decide on defendants’ fates cannot properly understand what’s going on. This is a serious criticism. It goes to the heart of the justice system. It’s very important speech.

The effect of the judges’ letter, and their misleading invocation of the RNZ case, is that this speech was, in this instance, squelched.

They should have thought harder before writing it. Instead, they should have said:

We can’t give formal approval for your feature, because we don’t know what exactly it’s going to contain. However, we can’t tell you not to write it either. If you look at the RNZ case, you’ll see the sorts of interviews with jurors that have been found to create risks to the administration of justice. The sorts of interviews you are proposing may not rise to that threshold. We recommend that you take legal advice before publishing.

If you squint hard at the letter from the judges and overlook the paragraph about the Radio NZ case, it might be possible to read their letter this way. But it would be a very brave media organisation that went ahead with the interviews after receiving the refusal the way it was written.

It wasn’t all that brave of me to note my conversation with the juror above. Just last year, the NZ Herald published an interview with an un-named juror raising the same concerns. She said one juror did not appear to understand English. Others didn’t participate in deliberations at all. One said the accused was not guilty before listening to any evidence. She said she and two other jurors had approached the judge who had acknowledged their concerns. There was no application to hold the Herald in contempt.

Luckily, the NZ Herald didn’t ask permission from the judges first.

Justice Tugendhart has thrown out Elton John’s defamation case against the Guardian for publishing a spoof diary entry. The judge said it was “obviously a form of teasing” and no reasonable reader would take defamatory meanings from it.

Chalk one up on the free speech side of the complete mess that is the sector of defamation law dealing with humour and satire.

Here’s some free advice to any busker accused of falling foul of Auckland City Council’s extraordinary new policy on street theatre requiring buskers to have a sufficient repertoire of songs to last out their performance (maximum playing time: one hour) without repetition:

1. thank the authorised officer kindly,

2. apologise for the breach of the new code of conduct, and

3. launch into a performance of that perennial crowd favourite, A thousand and ten green bottles.

Those dastardly Court of Appeal judges, O’Regan and Arnold JJ, having brazenly refused to recuse themselves from Siemer’s case, cunningly affected to hide their biases by asking questions of counsel that rather suggested some sympathy with Siemer’s right-to-jury argument…

The real news flash from the hearing was that the Crown explicitly conceded that contempt defendants in criminal contempt cases must be entitled to a trial by jury. That would have included, for example, Tim Pankhurst in the Fairfax trial (though in the end, he didn’t seek a jury).

However, the law of contempt has traditionally distinguished between such criminal contempt cases and civil contempt cases - for example, when the courts are exercising powers purely to enforce a court order. In those cases, the defendant may be in danger of going to jail, but jail isn’t used to punish, but to enforce compliance, runs the argument. The expectation is that the person only goes to jail until they comply with the order, which they could choose to do at any point - so they effectively have the “prison keys in their own pocket”. The Crown says that judges need to be able to deal with such cases quickly and without the rigmarole of a jury. An example is the Kaye Skelton case, where she was jailed until she agreed to provide information about the location of young Jayden Headley, who’d gone missing amid a custody battle.

One problem for the Crown: the court in Siemer’s case ignored the indefinite detention penalty sought by the Crown and instead told Siemer he had two weeks to comply with the order, or he’d be off to jail for six months. He didn’t comply. So now this does look like a punishment. And he can’t foreshorten it by caving in and being released. No keys-in-the-pocket there.

And that relates to the other big problem for the Crown (and the judges). The distinction between “purely coercive” contempt cases and “punitive” ones doesn’t really stand up. They all have an element of punishment. And even keys-in-the-pocket jail still looks like jail - at least in the sense that a person charged with an “offence” is entitled to a jury trial under the Bill of Rights Act. How exactly is the court to draw a principled line between those contempts that engage a right to a jury trial and those that don’t?

Vince Siemer is presenting his case, by videolink from Auckland, to the Court of Appeal. He has told the judges that he has “considerable respect for the institution” of the courts. This submission is somewhat compromised, it’s fair to say, by the fact that he is dressed up as Alice in Wonderland, complete with blue frock, white apron and curly wig.

His first move was to try to get two of the judges to recuse themselves for bias.

Way to win the judges over, Vince.

The key issue, you might recall, is about his right to a jury trial before being jailed for contempt. He hasn’t got to that yet, though he has canvassed the North Korean constitution and quoted Humpty Dumpty. At the moment, Vince is revisiting his argument that he triumphed in a cross-examination in a much earlier Court of Appeal hearing, and the judges then inexplicably didn’t refer to this crucial evidence in ruling against him, and have then gone to great lengths to prevent a transcript emerging, and when they were finally forced to release it, doctored it.

I’m not getting the feeling that the judges are especially responsive to his arguments. For myself, I’m looking forward to the submissions of the amicus, Rodney Harrison QC.

The sprawling trawling case is off to the Supreme Court. It’s pretty much for defamation train-spotters only - the appeal concerns pre-trial skirmishes about points of pleading (listed below). But these issues matter quite a lot, as they set the boundaries for the arguments and evidence that can be advanced in an attemtpt to establish the defences of truth and honest opinion.

There’s one particularly fascinating question in play (and it relatees to many of the issues listed below). When someone makes an allegation that there are “reasonable grounds to suspect that X has done Y horrible thing” - is it going to be enough to show that reliable-person-Z said that X had done Y horrible thing? On the one hand, shouldn’t a news outlet be able to rely on reliable-person-Z (who might have been a judge making findings in a court decision, or an inquiry making findings after an investigation) in publishing that allegation, and in showing it to be true? The news outlet isn’t, after all, saying that X actually did Y horrible thing.

On the other hand, one of the most basic principles of defamation law is that if you repeat someone else’s smear, you’re liable for proving the truth of it - you can’t defend yourself simply by saying that Z thought it was true. The Court of Appeal has gone with this view. The media will be pitching in behind the other one. It’s as important a media law case as has yet hit the Supreme Court, I think.

Issues accepted for hearing by the Supreme Court:

(1) That s 38 of the Defamation Act 1992 applies to a stand-alone defence of truth.

(2) That in pleading “circumstances” in support of a truth defence pursuant to s 38(b), a defendant may not rely on the fact that third parties made statements.

(3) That the “repetition” and “conduct” rules apply to pleadings of truth to “tier 2” imputations.

(4) That the “repetition rule” applies not only at an evidential stage but at the pleading stage of a proceeding.

(5) That there is no exception to the “repetition rule” for reliance on judicial decisions in support of a pleading of truth to a “tier 2” imputation.

(6) That the position is not affected by the changes to the treatment of hearsay evidence brought about by the Evidence Act 2006.

(7) Regarding matters which the appellant may not plead as part of its truth defence.

(8) That a defendant may not plead in support of an honest opinion defence the fact that third parties made statements.

(9) That the repetition and conduct pleading rules adopted in the United Kingdom jurisdiction, apply without modification, to a truth defence to “tier 2” meanings which impute only that there are reasonable grounds to suspect the plaintiffs rather than that the plaintiffs are guilty.

(10) That accordingly a defendant may not seek to prove the truth of “tier 2” imputation by reference to the opinions or assertions of others.

(11) That the phrase “facts and circumstances” in s 38 of the Defamation Act 1992 does not mean that the third party assertions or opinions may be pleaded since they are not capable in law of establishing a defence of truth by virtue of the repetition and conduct rules.

(12) That judicial decisions and opinions do not fall outside the repetition and conduct rules, are not primary facts for the purposes of the law of defamation, and may not be relied on as evidence of facts in issue by virtue of s 50 of the Evidence Act 2006.

(13) That third party assertions, opinions and judicial decisions may not be relied on as publication of facts on which a defence of honest opinion is based.

And here’s a political ad complaint I think the Advertising Standards Complaint Board got right. Again, it’s against ACT. This time, it’s against ACT’s claim that:

“Safe” New Zealand is now almost three times more violent than the US

As usual, the ASCB invited ACT to substantiate its claim. It seems from the decision that ACT, despite being given two opportunities, could not. The party merely talked generally about how it depends on how you compare statistics. It seems that ACT didn’t supply any actual source for its claim.

Pause here. How staggering that ACT was happy to garner votes with this claim, but not prepared to substantiate it  - even to a body whose self-regulatory nature ACT would presumably applaud.

So a majority of the ACSB upheld the complaint. Should we be troubled that the ASCB is upholding a complaint against political speech when it doesn’t actually know that the claim was false, and has taken no steps itself to find out? A bit, I think. I’m inclined to think this is yet another example of the ASCB applying its usual processes to a political complaint without thinking hard about whether different ones might be needed. But of course, the ASCB isn’t resourced to undertake its own investigations, and had very little time here.  Also, the advertiser is surely in the best place to substantiate the claim. Ultimately, I think the ASCB’s majority got this one right.

But again, despite deciding the case before the election, voters weren’t told about the misleading advertising until after they’d voted.

I think the Advertising Standards Complaints Board has screwed up again, this time upholding a complaint about ACT’s political advertising. Norightturn made this point first.

The ads claimed that ACT was the only party opposed to the Emissions Trading Scheme. The Family Party complained that this was incorrect: it was opposed to the ETS, too.

A majority of the ASCB ruled that this was an exaggerated and misleading claim and was presented as fact. Again, the reasoning is very sketchy, and contains no discussion of the Bill of Rights Act (though the BORA is mentioned in the boilerplate section). I don’t think  this uphold can possibly be demonstrably justified. The Family Party got 8176 votes. It never had a hope of getting into Parliament. ACT’s claim was plainly made in that context. The ASA needs to recognise that a degree of exaggeration and simplification needs to be tolerated in political discourse. It should be asking itself whether the claim was in the ballpark, and whether voters would be significantly misled. It’s hard to see that they would be here.

I note that the decision is dated 6 November - before the election, but was released on the 18th of November - well after it. That’s a fat lot of good. No sense in having an expedited submissions and deliberation process if you’re not going to get the decision out in time. The point of the fast-track process is to inform voters of the errant ads. It seems the ASCB knew what it was going to decide and why before the election - but didn’t tell the voters that.

The Supreme Court has refused leave to Vincent Siemer over a range of complaints he had with procedural rulings in the defamation case brought against him by Michael Stiassny.

As part of the decision, the court ruled that Stiassny’s reference to Court of Appeal judge Grant Hammond as “our old mate” was not evidence of bias on the part of Hammond J. (Siemer and his wife were present and remember it as “good mate”). The Supreme Court heard from Hammond J, who said he did not know Mr Stiassny and had never had any dealings with him except in through court proceedings. Stiassny’s evidence was that the remark was meant ironically, since Hammond J had consistently ruled against him in Dymocks v Bilgola.

No doubt Vincent Siemer will now add Blanchard, Tipping and McGrath JJ to the list of plotters against him.

Siemer has consistently made absurd and scandalous claims about almost every judge who has ever ruled against him.

But that’s not to say that all the rulings against him have been correct, or all the treatment of him has been entirely fair. There are some aspects of his various cases that I find disturbing, starting with the ruling denying him a jury trial before he was jailed for contempt. The appeal against that ruling is set down in the Court of Appeal for next month.

A British Parliamentary committee is to conduct an inquiry into British press standards, and will be asking whether the self-regulatory system needs toughening up.

 It has been sparked by the media’s coverage (resulting in several successful defamation claims for their false accusations) of the disappearance of three-year-old Madeleine McCann in Portugal last year.