Where does reporting of something which is before the courts cross the line and move from being interesting public information to become material which could interfere with a fair trial?

Two recent incidents in New Zealand have made many lawyers uneasy. They prompted a call from the New Zealand Law Society that perhaps it was time to look at the boundaries for appropriate reporting on matters in the justice system.

The first was a report on a survey commissioned by a large daily newspaper on a high profile individual who was awaiting sentence in New Zealand’s High Court. The poll asked 750 people whether they thought the individual should be convicted and what they thought the sentence should be.

The second was a television interview with the complainant in proceedings against a Malaysian diplomat who had been charged with burglary and assault with intent to rape after allegedly following the complainant home. The diplomat was initially charged but returned to Malaysia after diplomatic immunity was claimed.

The complainant had automatically been granted name suppression, but went to court to have it lifted. In the television interview she spoke of the way her case had been handled. She refused to speak about the diplomat involved. Her courage in speaking out is acknowledged as are the comments she made about rape and society. What is of concern is the intense publicity related to the case and possible court proceedings that followed the television interview.

My worry is that the boundaries – ill-defined at the best of times – are now being tested more and more in an increasingly rapid and competitive media environment. In New Zealand several large media groups and many smaller ones spend their time hunting for fresh angles and new insights. The drive to react or respond to news broken by competitors also means a focus on securing opinions and reaction, ahead of any measured analysis.

This all has a direct impact on our system of justice. New Zealand still has a presumption that when a matter gets to trial, judges and jurors are able to focus just on the evidence in front of them; not the whims of public opinion.

Public opinion is just that: individual opinions formed on what some of us might have heard. The information has not been tested by the courts - but it can be very prejudicial.

It is time to consider the impact which this untested material might have on our justice system.

It doesn’t matter if the television interview did not directly discuss the case. The complainant’s picture has been extensively used in the media and her comments reported widely, in New Zealand and overseas. If the matter comes to trial it is likely that those who are required to find whether the charges are proven will already have heard a lot about the parties.

Juries can be directed to ignore news coverage, but in reality once you have that information – which might be unfair and highly prejudicial – you know it and you can’t “unknow” it in spite of a direction from the Judge.

I am sure that New Zealand is not alone in experiencing the impact which intensive media coverage can have on the conduct of a trial. I am not sure how we can resolve the intertwined issues of the freedom of speech and the right to a fair trial. However, in our frantic 24/7 news-hungry world it is a conflict which is only likely to grow.