No place for shortcuts in fair trial

As New Zealand continues to grapple with the shock and horror of the appalling Christchurch terror attack, the media and criminal justice system are turning their minds to the question of the trial that must now follow.

The trial will create some unprecedented challenges. While the accused will appear before the court again early in April, probably by video link, the substantive trial itself will not be until next year at the earliest.

This will be due to the large number of potential charges (there are likely to be at least 50 counts of murder, countless charges of attempted murder and possibly charges under the Arms Act 1983 and the Terrorism Suppression Act 2002) and the huge forensic task of collecting, analysing and presenting evidence from the scenes of the crimes.

Potentially, there could be hundreds of witnesses.

This means that, unless the accused pleads guilty, the trial will be long and complicated. This may surprise some, bearing in mind that the evidence appears to be overwhelming.

But there can be no short cuts here. All of the evidence needs to be presented in court, and justice demands that the accused should face charges for all of the people killed and injured, rather than some representative charges.

Nor is it desirable to try to hold multiple trials. This would stretch the process out for years, and would be even more distressing for victims and their families.

Beyond the logistical challenges lies the question of how the trial should be reported.

The trial will attract intense interest from the media, locally and beyond. It already seems apparent that the accused intends to use this as an opportunity to promote his appalling view of the world and its problems. He has reportedly dismissed his first lawyer and intends to represent himself.

In the 2011 case of a Norwegian white supremacist terrorist who committed a similar mass murder, the defendant opened his defence by giving a Nazi-style salute to the court. This was broadcast live by some media and appeared on the front page of newspapers around the world.

The court prohibited any further live broadcasts of the trial after that, and also prohibited the media from recording some of the evidence.

So how should the court approach this case, and how should the media report the trial? It is tempting to suggest that desperate times demand desperate measures, and that Parliament should pass some sort of emergency legislation specifically for this case to circumvent the trial and prevent the accused from using it as a soapbox from which to spread hate and division.

This has to be resisted. Parliament could no doubt pass such a law, and few would hurry to defend the rights of an alleged terrorist accused of 50 murders. But it would also run roughshod over New Zealand’s commitment to the rule of law.

This does not mean there should be unlimited media coverage. The media have a right to be present in court and to report proceedings at the trial, subject to any suppression order made by the court under the Criminal Procedure Act 2011.

However, there is no automatic right to film or broadcast proceedings in court. Any media organisation that wishes to do so must apply for permission under the In-Court Media Coverage Guidelines 2016, and the final decision as to whether to allow filming to take place lies with the judge conducting the trial.

The judge has broad discretion under the guidelines to limit filming or prohibit it altogether.

Even where permission to film is granted, there are a series of conditions attached which, among other things, prohibit live broadcast of court proceedings.

If, as currently seems likely, the accused is determined to turn the trial into a circus, it may well be appropriate for the court to limit what can be reported and which pictures or video footage of the trial can be published.

In considering this, the court will need to make a careful assessment of the implications in terms of freedom of expression, guaranteed under section 14 of the New Zealand Bill of Rights Act. These rights include the right of the media to report what is happening in a case of extraordinary public interest, as well as the rights of all of us as members of the public to receive that information.

The courts have repeatedly emphasised the role of the media in these cases as the ‘‘eyes and ears’’ of the community.

A blanket prohibition on all reporting would be difficult to justify.

Balancing these interests against the interests of the victims and their families, the need to prevent the accused from abusing the trial process for political or ideological or hate speech purposes, and the importance of ensuring a fair trial will not be easy. We can trust the judges to get this right.

Mai Chen and Nicholas Russell are partners at law firm Chen Palmer.

Justice demands that the accused should face charges for all of the people killed and injured, rather than some representative charges.