Steven Price on the “Terror Raids”

I spent last night thinking and reading about the “terror raids” of last October. First I attended a public meeting on the subject organised by the October 15 Solidarity crew, with Media Law Journal blogger Steven Price speaking on the contempt of court case surrounding the raids.
It was interesting stuff, and Steven (as ever, I’m advised) was a great and interesting speaker. The case he talked about, currently before the courts, concerns the publication of excerpts from a leaked affidavit by the Domionion Post and other related outlets.
It alleges that the editor of the Dominion Post (Tim Pankhurst) and colleagues prejudiced the right to a fair trial of the October 15 defendants. Price thinks the case is likely to succeed, and he outlined several reasons why:

• The newspaper article was highly sensational and ran at a time of high public interest
• The article cherry-picked the most sensational parts of the affidavit and did not represent its overall contents well.
• The affidavit was itself a cherry pick of evidence by the police, who meant to use it to convince a Judge to allow search warrants; so the article was a cherry-pick of a cherry-pick.
• The newspaper’s decision not to identify who was speaking in published quotations had the effect of encouraging the public to attribute the inflammatory statements to all the defendants, even if these views were not shared
• The affidavit was suppressed and would never make it to trial, so the evidence presented would never be encountered by jurors and could not be addressed and contested in a trial context

Steven thought last night that the likely outcome was a guilty verdict that would see Pankhurst & co. fined for their act of publication. That would be an outcome I wholeheartedly support. In this I part ways from the sage commenter on NZ affairs Russell Brown, who recently said “If Pankhurst and his employer are not successful in their defence, it would worry me if the court were to apply a very harsh penalty.” I personally think a very harsh penalty is entirely in order. It isn’t, to my mind, the fact of publication that makes Pankhurst et al. so deserving of punishment – it’s the manner of that publication. It would have been entirely possible to run the leaked affidavit in a less sensational and prejudicial way, tempering the most dramatic material with contextual information and generally trying to avoid the leap to conclusion. It would still have been a leak, it would still have been a suppression breach, and it would still have been a bad decision in my opinion, but there I think Russell’s point about the public’s “right to know” stands up. If that “right to know” is being fed highly biased and prejudicial material that is in turn sensationalised, then that is a distant bridge too far, and Pankhurst and the others involved should bear the consequences.
Steven continued, however, with something I hadn’t seen coming but that is obvious in hindsight: should the contempt case be found against the DomPost (as he thinks is likely to happen), he believes the Judges hearing the “terror raids” cases will be hard pressed to deny a request for a stay of prosecution. In other words, the DomPost’s eagerness to show that the arrestees were worthy of being arrested may directly result in them getting off the charges.
There was much more to the evening’s discussion, including a memorable aside about whether the Prime Minister’s words about “napalm blasts” meant she herself was in contempt… In any case, I read all the material I could track down on the case that evening, and to my mind the best account still comes from Nicky Hager (no surprises there). The two relevant quotes in this post are all the refresher you need.
Anyway. This story is developing, as they say.