Wednesday, November 14, 2007

The damage done

So, it looks like it's third time lucky for the police. Having dumped their case to Campbell Live and the Herald, only to have them withhold the really juicy stuff for fear of being charged with contempt, they've finally got what they wanted from Fairfax, who have smeared it across their front page and all across the web. A summary of the case, timelines, wiretap excerpts, exactly what the police leaking it were hoping for, all sourced from the affidavit backing the search warrants for the original raids.

The Dominion-Post claims to be acting in the public interest in doing this. I don't think so. As the Ombudsmen have often pointed out in OIA cases, "interest by the public" does not necessarily equate to a public interest in release. While many of us have a prurient interest in knowing exactly what motivated the police case, there is an overwhelming public interest in upholding the rule of law and the right to a fair trial for the accused. And that interest has been fatally damaged by the police and media's actions.

I have already said that I am against trial by media, and this clearly demonstrates why. If this material had been revealed in court, the defence could have properly tested it and cross-examined the witnesses. That right has now been denied to them, as they cannot respond for fear of prejudicing their case on the remaining charges. The effect will be to establish "facts" in the public mind (and thus of potential jurors) which have not been properly tested - "facts" which are highly contentious and could have a significant bearing in a case which is ultimately about the purpose for which firearms were being used.

It’s all the worse when you consider that in an effort to avoid prosecution, the Dominion-Post has anonymised the evidence. While on the one hand this seems to avoid some of the worst features of trial by media, the net effect is to lose any distinction between the accused, and tar them all with the same brush. According to Campbell Live, the number of people recorded making dangerous and violent statements was five - but now all seventeen defendants get to be smeared with the extremist views of Jamie Lockett.

That of course was the aim of the police in leaking this - to show that they were justified by smearing the accused. This is grossly improper for any police officer, and speaks of an utter contempt for the judicial process and rule of law. And in the face of such gross malfeasance by the police and the media and the damage it has done, the court now has only one option: to declare a mistrial.