October 15th Solidarity - Remember the state terror raids

Wellington, 18 September 2008

Closing arguments from the Crown and the respondents in the Fairfax contempt trial were heard in the Wellington High Court today. The judges have retired to consider their decision which they will deliver in writing.

The Solicitor-General (SG) closed his case against both Fairfax newspapers and the editor of the Dominion Post Tim Pankhurst by addressing all of the respondents’ defences.

The Solicitor-General noted that the intercepted communications in the ‘Terror Files’ article published in the Dominion Post and on the Stuff.co.nz website was 1. inadmissible 2. highly memorable 3. was in breach of section 312(k) of the Crimes Act and 4. breached High Court and District Court orders with the combined effect of interfering with the administration of justice and prejudicing the right to a fair trial.

In discussing the inadmissibility of the intercepted communications in pending Arms Act charges, the Solicitor-General said that Pankhurst had considered the inadmissibility of this evidence as a reason to publish. Because the communications could not be used in any court proceeding, Pankhurst reasoned, it would not influence the outcome of the trial. The Solicitor-General said that the contempt was aggravated because the intercepted communications were not admissible as well as being highly prejudicial (as admissible evidence might also be).

He described the publication as a ‘different order of magnitude’ to studies of media bias presented by the defence expert witness. Noting that the publication had the effect of confirming in the minds of people that the accused would use firearms, commit serious and violent offences, the articles made concrete threats which had been vague. Moreover, the front page story combined with Pankhurst’s editorial on the day made clear that the threat the accused posed was credible. On the other hand, the SG disclosed that he had prepared a document analyzing the intercepted communications which created a very different picture, and which ultimate lead him to reject the police application to bring terrorism charges.

The publication was described as ‘highly memorable’ and expert defence witness Jim Tully was forced to agree on the stand with the Solicitor-General who noted that the article “added direct concrete evidence to threats to John Key, infrastructure and the Waihopai spybase.”

The ‘memorability’ of the articles in the Dominion Post and Stuff was compounded by the nature of the internet. The SG argued that once published content is out of the control of the original publisher as it can be easily copied and pasted elsewhere. It is accessible 24-hours a day, everyday; thus the passage of time before trial and a change of venue were less likely to mitigate the effects of the articles. Moreover, the Stuff article, including links to the actual affidavit, continue to be available. The SG noted that as far as the mitigating effect of the passage of time, ‘the clock started ticking yesterday’. Thus the defence’s argument that publication in November of last year was unlikely to be within the period thought to be the window for recollection by potential jurors in a trial was refuted.

The articles were made more ‘memorable’ by the fact that the reporting of the intercepted communications became news in and of itself, generating continued interest and accessing of the articles long after the first date of publication.

The Solicitor-General called ‘ludicrious’ the defence’s argument that because the affidavit had already been disclosed (it was emailed to them, and posted on the internet), they could use it. The SG said they had breached section 312(k) of the Crimes Act which deals with intercepted communications. Both the Managing editor, Paul Thomson and Pankhurst admitting being aware of the provisions of the act prior to publication. Their counsel continued to maintain this argument in his closing.

The SG noted that the now 20 people accused of Arms Act offences had been successfully characterised as terrorists, and did not accept the defence’s argument that much of the material had already been published. He clarified that 9 of the 13 statements had not been published in any way, of the remaining 4, one of these had been substantially added to in order to include the more sensation parts. Of those that had been published previously, they had subsequently become subject to a further High Court suppression order. The SG further stated that the article was unbalanced, at least in part because only the most sensational bits of the intercepted communications had been used. He stressed that this was not a reason for the publication of further intercepted communications, but rather that this was an aggravating factor.

Of the 13 intercepted communications, it was agreed that 5 had never been used in either bail hearings or in the Police’s composite statement of facts, but had come straight from the affidavit.

The respondents tried to suggest that they did not comply with existing suppression orders because they didn’t know what was or wasn’t suppressed. Yet, on the stand, Pankhurst admitted that he made no enquiries of the Crown, courts or police prior to publication and that he was aware that TV3 and the Herald on Sunday had had access to leaked material that they did not publish as a result of suppression orders and warnings from the Crown.

The SG said that the prejudice extended so far that he expected applications for a stay of the proceedings based on pre-trial publicity from all of the accused in the Arms Act trial. He noted that any application would ‘have to be seriously be considered by the Courts and the Crown’ and that there was ‘no guarantee that the outcome will be favourable to the Crown’. He suggested that if committed to trial, the case might have to be subject to very heavy suppression orders. Pre-trial publicity may also be an avenue of appeal should any of those on Arms Act charges be convicted.

In his written submission to the courts, the SG argued that the Dominion Post and Fairfax were seeking to set a precedent to create a new exception for contempt. He noted that there was no ‘public interest’ exception in contempt proceedings, and that contrary to Pankhurst’s assertion that he had a ‘duty to publish’ the SG said he had a ‘duty to act lawfully’. Pankhurst’s comments at a media conference that he was in ‘show business’ and his front page was the ‘box office’ demonstrated that his real reason for publication was not public interest but newspaper sales.