New Zealand Law Students Journal
Last Updated: 14 January 2013
In 1998, one of New Zealand’s worst serial rapists Malcolm Rewa was
found guilty of several counts of rape. After his conviction
sentencing, both his defence counsel appeared on Holmes and said they
believed he was innocent on some counts.1 This was a clear example
of inappropriate counsel comment to the media. The comments on national
television caused public outcry.2 The New Zealand Bar Association
censured the barristers involved.3 Nine years on, the growing
interest of the media in criminal trials4 and the subsequent
temptations and pressures on counsel in such trials to speak to the media has
led to an increased number of incidents
of inappropriate counsel comment.5
Despite this, the current situation is that there is no clear guidance for
counsel in New Zealand as to when it is appropriate to
comment and what it is
acceptable to comment on.
The purpose of this paper is to discuss the issues that should be
considered with a view to proposing guidelines for counsel
∗ Candidate for BA/LLB(Hons), University of Auckland. The author would like to
acknowledge the assistance of Simon Mount of Meredith Connell and Associate
Professor Rosemary Tobin, Faculty of Law, University of Auckland.
1 Susan Wood, Interview with Barry Hart and Paul Dacre (TVNZ Holmes Programme, Auckland, 1 June 1998).
2 One Network News Item, TVNZ, 2 June 1998.
3 See discussion below at C5.
4 Professor Judy McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal Lawyers” Paper presented to New Zealand Law Society Seminar: ‘Dealing with the Media’, New Zealand, November 1999, 21.
5 For example: “I can stop Field trial – Lawyer” The New Zealand Herald (Auckland, New
Zealand, Friday 25 May, 2007).
<http://www.nzherald.co.nz/topic/story.cfm?c _id=1 & objectid=10441737> last accessed at 29 July 2008.
“Lawyer who lost case will decide on Bain Retrial” The New Zealand Herald (Auckland, New Zealand, Saturday 12 May 2007).
<http://www.nzherald.co.nz/topic/story.cfm?c _id=124 & objectid=10439317> last accessed 29 July 2008
Marcus Lush, Interview with Peter Williams QC (RadioLIVE, 23 August
New Zealand. It is a very relevant issue due to the place the media holds in
society, and the fact that its dominance will surely
only increase in the
future.6 Hopefully such discussion could lead to guidelines which
would prevent the situation in New Zealand becoming like that in America,
some criminal trials have turned into a media circus.7
Although there are certainly issues concerning counsel comment in respect of civil trials8, the focus of this paper will be on counsel comment in respect of criminal trials. Generally, it is criminal trials which the media are most interested in because of the public fascination with crime news.9
Therefore, it is counsel involved in criminal trials who experience the most
pressure from the media, or the most temptation, to comment
on the trial they
are involved in.10
The first part of this paper will explore the special nature of counsel
comment in respect of criminal trials and issues that arise
from this. The first
two issues considered are the conflict between the right to a fair trial and
freedom of expression and
the effect of counsel comment on different
stages of the trial process. Next, issues arising in respect of counsel comment
practitioner’s duties are discussed, followed by a discussion of
issues particular to the prosecution and the defence in a
The lack of guidelines in New Zealand contrasts with the situation in each of
the jurisdictions to which the New Zealand legal system
is most closely aligned.
Thus the second part of the paper is dedicated to examination of guidelines in
Australia, the United
Kingdom, the United States and
6 Scott L Rouse “The Rising Problem of Abusive Attorneys and Trial Publicity” (1997)
21 J. Legal Prof. 267, 267.
7 Denese Bates QC “Interviews with the Media: Lawyers’ Legal and Ethical Duties” Paper presented to New Zealand Law Society Seminar: ‘Dealing with the Media’, New Zealand, November 1999, 1.
8 John Burrows and Ursula Cheer Media Law in New Zealand 5th ed, (Oxford University Press, Melbourne, 2005) 415. See also: Christian Cormier “The Media and Solicitors: To Talk or Not To Talk”  The Singapore Law Gazette 25, 28. This article discusses the issue of counsel comment in terms of civil litigation. It suggests that guidelines for counsel comment in respect of criminal trials could also apply to civil proceedings. It is
possible that if guidelines for criminal proceedings were developed in New Zealand, they could also apply to civil litigation.
9 McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal
Lawyers”, above n 4, 21.
10 Ibid 26.
Canada. This is followed by an analysis of certain aspects of these
guidelines, with a view to how they could inform potential guidelines
The third part of this paper outlines a proposal for New Zealand. The
traditional position of counsel’s interaction with the
media is outlined,
and the current position in New Zealand is set out. This is followed by an
argument for the importance of
guidelines for New Zealand and a
potential outline for guidelines. Finally, practical issues which arise in
respect of guidelines
in New Zealand are discussed.
The paper will then conclude that there is clearly a need for and an
opportunity for guidelines for counsel comment to be developed
in New Zealand.
These must be developed bearing in mind the importance of fundamental rights,
the implication of different stages
of the trial process and the respective
duties of the defence and prosecution counsel. The analysis of the overseas
inform the substance and structure of the guidelines, which
would have three elements.
A. The special nature of counsel comment
For the purposes of this paper, the term ‘counsel comment’ refers
to information disclosed to various forms of media by
counsel and covers press
releases and written materials as well as interviews.
The issue of counsel comment is important because what is said by trial
lawyers has a unique capacity to create prejudice.11 Traditionally,
the legal profession has been viewed with respect and held in high regard in the
community. Because of this, the public
generally accepts comments made by
counsel because they are seen to be coming from a source of reliable
Due to their close proximity to the trial, the media also regard counsel as a
reliable source of information.13 This means that the media
aggressively pursue them for their point of view, particularly outside the
11American Bar Association Standards for Criminal Justice : Fair Trial and Free Press, 3rd
ed, August 1991, ABA Criminal Justice Standards Committee, 6.
12 Roscoe C. Howard, Jr “The Media, Attorneys and Fair Criminal Trials” (1995) 4 Kan
JL & Pub Pol’y 61, 67.
13 Hodgson v Imperial Tobacco Ltd  EWCA Civ 224;  1 W.L.R 1056, 2
All E.R. 673.
which often generates the most sensational coverage.14 There are both beneficial and harmful consequences of this special nature. For example, a benefit could be that what counsel say could enhance the general public’s understanding of the legal system.15 However, if a lawyer were to use publicity to promote his or her own side of a case in a manipulative fashion, the special nature of counsel comment could become harmful.16
Either way, the weight put on counsel comment by the public and the media
means it is essential that counsel are aware of when it
is appropriate to
comment and what should be said.
1. Media interest in criminal trials
Although counsel comment can arise in both civil and criminal trials, it is
generally criminal trials that attract the most media
attention and therefore it
is usually in the context of criminal trials that counsel make statements to the
media.17 Criminal trials are covered extensively and eagerly by the
media because they often involve sensational topics such as sex and
murder.18 The public demand for such news is high, so it is
commercially viable for the media to report on criminal trials.19
The media will report newsworthy trials regardless of whether
practitioners make statements or agree to interviews. Given this, there
advantages in providing accurate information and assisting with
2. The right to a fair trial and the right to freedom of expression
In a democratic society, the right to a fair trial and the right of the press
to have freedom of expression are both fundamentally
important. These two rights
intersect in the context of criminal trials.21 The role of the media
14 Paul Murray Electronic Media Coverage of Courts and the Role of Counsel-A Survey of the Possible
Impacts (LLB (Hons) Dissertation, The University of Auckland, 2003) 39.
15 Richard Stack “The Uneasy Alliance of Attorney and Reporter, or when Perry Mason Meets Lois Lane: Working with the Media: Challenges and Opportunities” (2003) 27 The Champion 22, 23.
16 Ibid 23.
17 Judy McGregor Crime News as Prime News in New Zealand’s Metropolitan Press, Legal
Research Foundation, 1994, 1.
18 McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal
Lawyers”, above n 4, 21.
19 McGregor, Crime News as Prime News, above n 17, 2.
20 Howard, Jr, above n 12, 65.
21 Kiriana Harlow Contempt of Court in New Zealand: Criminal Trial Publicity: How Far Can the
Media Go? (LLB (Hons) Dissertation, The University of Auckland,
criminal trials is a very important one. It acts as a watchdog for the
public, guarding against a miscarriage of justice by exposing
processes in the criminal justice system to public scrutiny. Therefore, courts
are often unwilling to place
direct limitations on the freedom exercised
by the news media as this would endanger the principle of ‘open
justice’.22 However, the media can potentially also interfere
with the fair administration of justice.23
The right to a fair trial is guaranteed by s25(a) of the Bill of Rights Act
1990. It is a fundamentally important right.24 The Court of Appeal in
Gisborne Herald Co Ltd v Solicitor General  3 NZLR 563
emphasised the importance of this right because it is not only for the private
benefit of the accused, but is essential for public
confidence in the integrity
of the justice system.25 In the criminal justice system, the right to
a fair trial has been jealously guarded by the courts.26 It has been
observed that the right to a fair trial is as near to an absolute
right as any which can be envisaged.27
The right to freedom of expression is codified in the New Zealand Bill of
Rights Act 1990.28 It is relevant to the discussion for two reasons.
First, although freedom of the press is not expressly mentioned in section 14,
is an important aspect of the right of freedom of expression.29
The right of the press to report on judicial proceedings is fundamental to
the rights of those involved in proceedings as well as
to the rights of the
22 Sheppard v Maxwell  USSC 109; 384 US 333 (1966) 349.
23 Simon Mount, “The Interface Between the Media and the Law”,  NZ Law Rev
24 Paul Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Melbourne,
25 Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563, 569.
26 Burns v R & Ors [12 December 2001] CA, 308-00 .
27 Ibid , R v Lord Chancellor, ex parte Witham  EWHC Admin 237;  2 All ER 779, 787. More recently observed in R (on the application of Bewry) v Norwich City Council.  EWHC Admin 657, CO/3986/00, 23. But see Don Mathias “The Accused’s Right to a Fair Trial: Absolute or Limitable?”  NZ Law Rev 217, 218. Whether or not this actually is an absolute
right is debatable. Mathias argues that there are many examples of dicta which support the proposition that the right to a fair trial may be limited and can be balanced against competing rights and values. However, he expresses the view that this does not mean that an accused may have to accept something less than fairness.
28 New Zealand Bill of Rights Act 1990 s14.
29 The Court of Appeal acknowledged this in Auckland Area
Health Board v Television NZ Ltd v Attorney General  2 NZLR 641
which has an interest in maintaining the integrity of the judicial system.30
Second, it is relevant in respect of counsel’s right to exercise freedom of
expression as a citizen.
In respect of counsel comment, the fair trial and freedom of expression
rights can conflict. The issue is which right is to prevail.
exercise’ is required, as there is significant public interest in
the affirmation of each.31 In terms of the right to a fair trial,
the assurance of this right is essential for the preservation of an effective
Similarly, freedom of expression and freedom of the press as a
means for comment on public issues are invaluable to our democratic
Although this balancing exercise is difficult, there are several authorities
that support the conclusion that the right to a fair
trial is paramount.33
In Gisborne Herald Co Ltd v Solictor-General the Court of Appeal
said that when balancing the values of the right to a fair trial and free press,
both values should be accommodated
as far as is possible.34 However,
they confirmed that the rule in New Zealand is that “where on the
conventional analysis freedom of expression and fair
trial rights cannot both be
fully assured, it is appropriate in our free and democratic society to
temporarily curtail freedom of
media expression so as to guarantee a fair
Although overall the right to a fair trial is dominant in terms of counsel
comment, these rights carry different weight at different
stages of the trial
process.36 At the post trial stage, the right to freedom of
expression arguably carries more weight.37 However, for the majority
of the trial process the right to a fair trial is the most important
This conclusion, that the right to a fair trial is paramount,
seems reasonable when counsel comment to the media is at
issue. Although the
weight attributed to each of the rights may differ from situation
30 Rishworth et al, above n 24, 336.
31 Burns v R & Ors [12 December 2001] CA, 308-00 .
32 Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563, 571.
33 ibid 569; R v Liddell  1 NZLR 538, 547.
34 Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563, 571.
35 Ibid 575.
36 See above at A2
37 John McGrath QC “Contempt and the Media: Constitutional Safeguard or State
Censorship?”  NZ Law Rev 371, 384.
situation,38 it is difficult to imagine a situation where it
would be more important for the press to be able to report something that a
disclosed than for the fairness of a trial to be protected.
(a) Counsel comment and freedom of expression
The issue of counsel comment obviously arises from interactions between
counsel and the press in respect of what is reported about
criminal trials. The
reason that guidelines are being considered to limit what counsel may say to the
media as opposed to limiting
what the media can report is that freedom of
expression will be least infringed in this way.39
Contrary to the position in America,40 in New Zealand it is
unlikely that placing limits on what practitioners can say to the media in their
capacity as counsel would be
seen as infringing their freedom of expression as
citizens. It is probably correct to assume that when acting in their capacity as
counsel, lawyers are willing to accept reasonable limits on what they are able
to say and do in the interests of justice. However,
to ensure that limits are
reasonable, it is arguable that guidelines should not act as a prior restraint
or categorically restrict
any speech, and should not be a bar to a practitioner
challenging a restriction on speech in a post-statement contempt
3. Stages of the trial process
The potential impact of counsel comment on a criminal trial may depend on
when the comment is made.42 When counsel make comments to the media
at a certain point of a trial, this creates an expectation in the media that in
involving different counsel, they will have access to the same type
of information.43 This could put pressure on members of the
profession to disclose inappropriate material to the media at inappropriate
it has become the norm. This is a very real
38 Harlow, above n 21, 12.
39 There are other limits on counsel when acting in their professional capacity. Therefore it is not unreasonable. See discussion of duties at 1.4.
40American Bar Association Standards for Criminal Justice, above n 11, 5.
41 Ibid 4.
42 See Director of Public Prosecutions Western Australia ‘Statement of Prosecution Policy and
Guidelines 2005’ Appendix 6: Media Policy 7(f).
<http://www.dpp.wa.gov.au/content/statement_prosecution_policy2005> last accessed at 29 July 2008.
43 Interview with Simon Mount (Auckland, 11 August
possibility without guidelines, as in New Zealand. Consideration of issues
arising in respect of counsel comment at each stage of
the trial process is
important as it may have bearing on the structure and substance of guidelines
for New Zealand.44
For the purposes of this paper, the pre-trial period encompasses the
period before bail applications, between bail applications
hearings and between deposition hearings and the trial itself. During the trial
refers to the duration of the trial
itself. Post trial includes the period
between the conclusion of a trial and before sentencing, and after sentencing
before an appeal,
as well as after the decision of any appellate court.
The starting point is that when a case is awaiting trial, no one involved in
the trial, or in the media, should say anything that
could prejudice the trial
or the administration of justice as the matter is sub judice. This limits
what counsel disclose prior to trial. Breach of this rule could amount to
contempt of court.45
Publicity prior to trial is protected by the law of contempt because of the
special nature of this stage of the trial process. It
is at this point that
interests are most focussed.46 The right of the accused to a fair
trial interest is at its most vulnerable,47 as potential jury
members may form their own opinions based on what they see or read in the
press.48 If it is
44 Guidelines in Western Australia recognise this. See: Statement of Prosecution Policy and Guidelines
2005, above n 42, 7(f).
45 However, not all pre-trial publicity will amount to contempt. The test for this in New
Zealand is set out in Gisborne Herald Co Limited v Solicitor General  3 NZLR 563, 567.
46 Interview with Simon Mount (Auckland, 11 August 2007).
47 See Nigel Lowe and Brenda Sufrin The Law of Contempt, 3rd ed, (Reed Elsevier Ltd, United Kingdom, 1996) 127. This is considered to be a particularly vulnerable stage because the lack of legal knowledge that juries have is thought to make them particularly susceptible to prejudice.
48 Bates “Interviews with the Media: Lawyers’ Legal and Ethical Duties”, above n 7, 11. But see Michael Chesterman “Criminal Trial Juries and Media Reporting” (2005) 85
Reform 23, 25. However there is currently debate about the extent to
which juries are actually affected by this. A research project carried
the University of New South Wales and the Justice Research Centre explored the
likely impact of media publicity in 41 jury
trials of criminal cases. The
research team concluded that jury verdicts were less influenced by media
publicity than is often feared.
correct that jurors are influenced by pre-trial publicity, given the special
nature of counsel comment it is likely that statements
made by counsel connected
to the trial would be especially harmful. Consequently it is vital that counsel
do not disclose anything
which could create a prejudicial atmosphere prior to
The interest in the fair administration of justice at this time is greater
than at other stages.49 The interests of the media are also
intensified. As the trial is not yet underway, journalists do not have
access to things
presented in court, such as witness evidence. This
means they have limited information, and may accordingly be more
in their approach to seeking information about the trial at this stage.50
Although the pre-trial stage is protected by the law of contempt, there is
still a need for guidelines for counsel, as it is arguable
that the law is not
an effective control on the media, the police or the
Certain types of statements by counsel are particularly unsafe prior to a
trial. These include statements about the character of the
accused, and any
information about an admission of guilt.52 This type of statement is
in a different category to innocuous information such as the accused’s
name and age.53 This was recognised in Hodgson v Imperial Tobacco
Ltd, when Lord Woolf M.R. emphasised that lawyers ought not to become
engaged in commenting on proceedings, instead they should only communicate
facts.54 Guidelines for New Zealand should reflect this.
(b) During trial
It would be very unusual practice for counsel to openly make comments
49 New Zealand Law Commission Reforming Criminal Pre-Trial Processes, Preliminary Paper 55
(2004) para 17. <http://www.lawcom.govt.nz> last accessed 29 July 2008.
50 For example, they may pursue the accused for an interview or put pressure on counsel to make a statement or try to provoke a reaction from counsel about something disclosed by opposing counsel.
51 The Lord Chancellor’s Advisory Committee on Legal Education and Conduct, 1997. In
Arlidge, Eady and Smith on Contempt, 3rd ed, (Sweet & Maxwell Ltd, London, 2005), 56.
52 Statements of this nature are prohibited in the United States by 34.2 a), b) of the National Prosecution Standards, 2nd ed, published by the National District Attorneys Association.
53 Statements of this nature are deemed appropriate in the Unites States by 34.1 a) of the National Prosecution Standards, 2nd ed, published by the National District Attorneys Association.
54 Hodgson v Imperial Tobacco Ltd  1 W.L.R.1056, All
to the media in respect of a trial they are involved in while it is before
the court.55 At this stage it is more likely that counsel will try to
influence the way that a trial is reported by ‘leaking’ information
to the media.56 In a survey of trial lawyers at least one Auckland
practitioner admitted to having a person in their team whose job was to
information to the media.57 This practice is
unethical and, if the ‘leak’ is of a prejudicial nature, could
affect the fairness of a trial.
Guidelines for New Zealand should prohibit this practice. Further, guidelines should allow for appropriate and open interaction with the media so that there is no temptation to do this. This stage of the trial is important as there is a serious risk of miscarriage of justice. This could occur by the media reporting the trial in a manner which has been heavily influenced by counsel and is prejudicial to one side. If a juror saw it on the news at home it could unfairly influence them. This could result in a retrial, costing the taxpayer a lot of money and inconveniencing all those involved.58
(c) Post trial
The importance of what counsel say after trial should not be underestimated.
Because the law of contempt is relaxed post trial, counsel
may be less wary
about comments they make to the media and any consequences of these.59
Emotions are often high at this stage of the trial, which could lead to
counsel making inappropriate statements.60
Although there is little danger of prejudicing a fair trial at this stage of
the process there are other interests to be protected,
such as confidence in the
justice system. Between a verdict and before sentencing there is a very real
risk of undermining the jury
system. An example of this was when Barry Hart and
Paul Dacre appeared on Holmes after their client Malcolm Rewa
55 It would conflict with the practitioners duty to the court. Rule 8.01 Rules of Professional
Conduct for Barristers and Solicitors, 7th ed, Published by the New Zealand Law Society.
56 The nature of such a ‘leak’ could be something like when a particularly interesting witness will give their testimony.
57 Murray, above n 14, 84.
58 Chris Darlow Submissions of the New Zealand Law Society on the Criminal Procedure Bill
(2004) para 43(c).
59 Lowe and Sufrin, above n 47, 161.
60 Simon Moore, “Media in the Courtroom and Televised Trials” Paper presented to New
Zealand Law Society Seminar: ‘Dealing with the Media, New Zealand’, November 1999,
was convicted of several counts of rape in a jury trial.61 The
lawyers stated that their client was not guilty of those rapes. Such comment has
huge potential to undermine public confidence
in the jury system.
Between sentencing and an appeal the risk of prejudice to proceedings is
minimal. There is no jury and there should be no risk of
judges being influenced
by any statements made by counsel to the media.62 However, a
successful appeal may result in a retrial, so comments made by counsel at this
stage still have potential to prejudice
the fairness of a retrial.63
As soon as a retrial is ordered, the situation becomes highly sensitive
again, as the process re-enters the pre-trial stage.64
It is generally accepted that a matter will continue to be sub judice
until it is clear that no appeal will follow.65At the conclusion
of proceedings the freedom to comment on and criticise judgements is of great
importance. The only risk that inappropriate
counsel comment poses at this stage
is if it creates prejudices or interferes with an unrelated trial that is
Another instance where counsel may be tempted to comment at the
conclusion of proceedings is when a trial has resulted in the
acquittal of their
client. Any counsel comment at this stage should have regard to the balance
between the importance of freedom
to comment on concluded proceedings and the
risk of undermining public confidence in the justice system. After the recent
of Chris Kahui, his counsel released several statements to the media.
An example of a statement that was appropriate given the importance
of expression was when Lorraine Smith said that she would lodge a
complaint with the Independent Police Complaints
Authority about the way
police handled the murder inquiry.67 An example of a
statement that was arguably
61 Susan Wood, Interview with Barry Hart and Paul Dacre (TVNZ Holmes Programme, Auckland, 1 June 1998).
62 Lowe and Sufrin, above n 47, 165.
63 Nicholas Till, “Interviews with the Media – Practitioners’ Duty to the Court” (1998) LawTalk, 31, 31.
64 Lowe and Sufrin, above n 47, 163.
65 Jennifer Tunna, “Contempt of Court: Divulging the Confidences of the Jury Room”  CanterLawRw 3; (2003) 9 Canterbury L Rev 79, 91.
66 Lowe and Sufrin, above n 47, 168.
67 “Kahui defence to lodge complaint” Otago Daily
Times (Otago, New Zealand, Saturday May 24 2008)
<http://www.odt.co.nz/7011/kahui-defence-to lodge-complaint-over- police-actions>
last accessed 29 July 2008.
inappropriate was when Michele Wilkinson-Smith revealed to the media that
there was a doctor with specialist knowledge of brain injuries
on the Kahui
jury.68These examples show that although counsel may comment at their
own discretion post-trial, perhaps some objective guidance in the form
guidelines would be desirable.
4. Practitioner’s duties
Incidents of counsel comment often arise when counsel use the media to
promote their client’s interests.69 While this may be
admirable in respect of the duty of zeal70 that lawyers owe to their
clients, it can also be inappropriate in respect of the other duties which
practitioners have.71 It is necessary to consider the duties which
counsel should be mindful of, and their relative weight as these duties are
the only guidance that counsel have in terms of counsel
Rule 8.01 of the Rules of Professional Conduct sets out the key duties of all
New Zealand practitioners and their relative weight:72
In the interests of the administration of justice, the overriding duty of a
practitioner acting in litigation is to the court or the
Subject to this, the practitioner has a duty to act in the best interests of the
This makes it clear that the primary consideration for any litigator must be
their duty to the court. The commentary to this rule
suggests that the main
reason for this is so that practitioners behave respectfully in a way which does
not bring the court into
disrepute.73 Consideration of this duty to
the court has direct relevance to the issue of counsel comment
68 “Brain Specialist on Kahui jury” Sunday Star Times (Auckland, New Zealand, Sunday
May 25 2008) <http://www.stuff.co.nz/print/4559394a6442.html .> last accessed at 29
69 “I can stop Field trial – Lawyer” The New Zealand Herald (Auckland, New Zealand, Friday May 25, 2007).
<http://www.nzherald.co.nz/topic/story.cfm?c _id=1 & objectid=10441737> last accessed at 29 July 2008.
70 Duncan Webb Ethics, Professional Responsibility and the Lawyer, 2nd ed, LexisNexis NZ Limited, Wellington, 2006, 35.
71 For example, the overriding duty to the Court. Rule 8.01 Rules of Professional Conduct for
Barristers and Solicitors, above n 56.
72 Rule 8.01 Rules of Professional Conduct for Barristers and Solicitors
73 Commentary to Rule 8.01 Rules of Professional Conduct For Barristers and Solicitors, above n
56, paras 2, 8.
because statements to the media are explicitly mentioned in the
A practitioner should not make any statement to the news media relating to
proceedings, which have not been concluded, which may have
the effect or may be
seen to have the effect of interfering with a fair trial.
In the United Kingdom, there are signs that the courts are now prepared to
recognise that commenting to the media when acting on behalf
of a client is a
legitimate extension of the lawyer’s traditional role.75 It
remains to be seen whether New Zealand courts will do the same. In the meantime,
a more traditional approach is favoured in New
Zealand, reflected in the strong
wording of Rule 4.05. This Rule talks about the practitioner’s duty to
their client in terms
of comment to the media. It states: 76
A practitioner may not, without the specific consent of a client, give
any interview or make any public statement relating
to the client or the affairs
of the client, whether or not their client is involved in a matter of public
The commentary to this rule states that it is the practitioner, not the media
who should obtain the consent. The consent must be a
fully informed one.
5. The prosecution perspective
In addition to the duties on all litigators as stated previously, there are
further duties on the Crown. Fundamentally, there is a
duty to prosecute
criminal cases dispassionately and with scrupulous fairness.77
Clearly, media publicity could prejudice the fairness of a
trial78, thus the prosecution also have a duty to avoid any conduct
that may amount to contempt of court.79 Although it may seem that
these duties could be
74 Ibid para 7.
75 Regan v Taylor  EWCA Civ 68;  E.M.L.R. 549. Discussed in Arlidge, Eady and Smith on Contempt,
above n 52, 56.
76 Rule 4.05 Rules of Professional Conduct for Barristers and Solicitors, above n 56.
77 Rule 9.01 Rules of Professional Conduct For Barristers and Solicitors, above n 56.
78 Christine Gordon, “The Prosecutor and the Media: Balancing Free Speech and Freedom of the Press” Paper presented to New Zealand Law Society Criminal Law Symposium, Auckland, New Zealand, November 2006.
79 Commentary to Rule 8.01 Rules of Professional Conduct For Barristers and Solicitors, above n
56, para 8.
satisfied by avoiding publicity, prosecutors also have a duty to act
consistently with the principle of open justice.80 The importance of
this principle was expressed in New Zealand in Broadcasting Corporation of
New Zealand v Attorney General  1 NZLR 120 where Woodhouse P quoted
the classic articulation of the principle from the House of Lords in Scott v
Scott  AC 417, 477 (HL).81
Because prosecutors perform a public function, it is arguable that they have a duty to uphold the principle of open justice on two bases. First, as part of the criminal justice system, they share the duty that attaches to the system as a whole.82 Second, on the basis that the prosecution has a responsibility to ensure the public has reasonable access to information about their work, as their work can involve quasi-judicial functions.83
Although there is no such duty codified in the Rules of Professional
Conduct or created at common law, the principle of open justice is surely a
genuine interest which should be taken into account by
the prosecution when
responding to media requests for comment.84
A pertinent question in respect of prosecutor’s interaction with the
media is whether or not they should respond to inaccurate
disseminated in the press by the defence. When this occurred during the Pitcairn
Island sex trials, the prosecution was
able to correct inaccurate information at
a later date after the trial.85 This does not seem to be entirely
satisfactory. If the inaccurate information published by the defence
during the trial prejudiced
the fairness of the trial, it seems odd that the
prosecution is only able to correct this information at the conclusion of the
The American National Prosecution Standards stipulate that nothing in the
guidelines should be deemed to preclude the prosecutor
from making reasonable
and fair response to comments of defence counsel or others.86 This
gives the prosecutor wide discretion.
80 Gordon, above n 78, 2.
81 In Scott v Scott, Lord Shaw quoted Jeremy Bentham and said: “...Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”
82 Joseph Jaconelli Open Justice: A Critique of the Public Trial, (Oxford University Press, New
York, 2002 ) 63.
83 Gordon, above n 78, 3. An example of this is the decision to accept a guilty plea to a lesser charge and thus determine the appropriate level of culpability for a crime.
84 Gordon, above n 78, 4.
85 Ibid 21.
86 National Prosecution Standards, above n 53, para
There is another argument in favour of prosecutors being able to make
statements to the media. This is that the prosecutor has an
affirmative duty to
maintain and improve the criminal justice system. In order to fulfil this duty
it may be necessary for the prosecutor
to be allowed to criticise aspects of the
justice system that warrant improvement. This is subject to the discretion of
prosecutor.87 This could be an issue to be considered
in respect of guidelines in New Zealand.
6. The defence perspective
Counsel for the defence do not face the same restraints that prosecuting
counsel do88as they do not have special duties beyond the general
duties to the court and their client in respect of media interaction.89
This lack of control is one of the reasons why defence lawyers are subject
to pressure from the media to comment, and feel greater
temptation themselves to
disclose information to the press.90 Without guidelines, it is very
difficult for defence counsel to interact with the media in a consistent manner.
At present, inconsistencies
arise amongst defence lawyers who adopt vastly
different approaches to the media. Some go so far as to ‘leak’
to the press. In contrast, others attempt to avoid the media entirely,
believing that their client’s interests are better served
There are also ethical issues which arise for defence counsel, particularly
in respect of dealings with the media. The potential for
media exposure to
enhance a practitioners’ public profile is obvious.92 The name
recognition gained as a result of making comments in the press in a high profile
trial often attracts new clients.93 Thus there is potential for
comments to be made in the interests of self-promotion. This is problematic, as
any comment made to the
media by a defence lawyer should be in the best
interests of their client.94
87 Ibid 4.
88 John Sprack Emmins on Criminal Procedure 9th ed, Oxford University Press, New York,
89 See Rule 8.01 Rules of Professional Conduct For Barristers and Solicitors, above n 56.
90 Howard Jr, above n 12, 62.
91 Murray, above n 14, 84.
92 Ibid 88.
93 Howard Jr, above n 12, 64.
94 Webb, above n 71, 35.
Another reason why the defence often use the media more blatantly than the
prosecution is that defence counsel sometimes feel there
is a power disparity
between the prosecution and themselves.95 The perception that the
prosecution has more resources may make the defence turn to the media as a
valuable resource, especially as
they know that prosecutors are often more
limited in their ability to do this.
Granting interviews to the press and making statements is also popular among
defence lawyers due to their reluctance to respond to
the media by saying
‘no comment’. There is a general perception amongst defence
counsel that saying ‘no
comment’ to the media often implies that
their client is guilty, and that they have something to
Comments by Elias CJ in a recent New Zealand case could further encourage
defence lawyers to speak to the media about their client.
Solicitor-General v W&H Specialist Publications,97 the
Chief Justice said that expressions of innocence by those accused of crime and
by people close to them a lawyer will not usually
constitute contempt. It is
likely that an accused’s lawyer will be considered a person close to them.
This could result in
defence lawyers speaking more freely about clients
as the deterrent effect of the law of contempt is removed.
For the reasons discussed, defence counsel may face more temptation to use
the media to generate publicity in criminal trials. Coupled
with the fewer
restraining factors on the defence as opposed to the prosecution,98
this makes comment by the defence potentially more dangerous and
prejudicial than comment from the prosecution.
An important question when considering the shape of future guidelines for
counsel comment in New Zealand, is whether there
should be separate
guidelines for the prosecution and the defence given that their roles are so
different? This question was considered
by the American Bar Association when
compiling the Standards for Criminal Justice, Fair Trial and Free Press.99
A double standard for attorneys was rejected for several
95 Gerard E Lynch “Our Administrative System of Criminal Justice” (1998) 66 Fordham
L Rev 2117, 1231.
96 Till, above n 64, 32.
97  N.Z.A.R. 118 at 23.
98 See discussion at A5.
99 American Bar Association Standards for Criminal Justice, above
n 11, 7.
reasons. The standard applies equally to all lawyers. A separate standard for
the defence and prosecution was rejected on policy grounds
because there is a
presumption in the adversarial system that rules apply equally to both sides.
Also, it was feared that giving
one side a preferred position with respect to
out of court statements would encourage that side to exploit the advantage, thus
the notion of a fair trial. Finally, there was no apparent way
to enforce a dual standard and make it work.100 In light of
this, it is clear that any guidelines in New Zealand should apply equally to all
B. The overseas experience
The current position in New Zealand contrasts with the position of the
jurisdictions which New Zealand is most closely connected to;
United Kingdom, the United States and Canada. This strengthens the case for
guidelines in New Zealand. Aspects of
the overseas guidelines themselves may
provide a guide for the form of future guidelines for New Zealand.
Within Australia, each state and territory has its own media guidelines for
prosecutors. For the purposes of this paper, the discussion
will be limited to
the guidelines of New South Wales and Western Australia.
The starting point for the New South Wales guidelines for prosecutors is that contact with the media should not be avoided because the public have a right to know what is happening in the criminal justice process.102
However, this seems to be discretionary as the guidelines later state that
there is no obligation to provide information to the media.
This is then
qualified by the statement that: “prosecutors need to be aware of the
limits of their professional obligations
and should be aware of the way in which
their comments could be reported.” The guidelines
100 Ibid 7.
101 Mount, “In Search of the Soundbite”  NZLawyer, Issue 61. 20, 21.
102 Director of Public Prosecutions New South Wales ‘Prosecution Guidelines 2007’ 57.
accessed 29 July 2008.
acknowledge the importance of Bar Rule 59 of the Barristers’
Rules, which all barristers and solicitors are bound by.103 Under
this rule, which applies to both prosecution and defence counsel, a barrister
may answer unsolicited questions from journalists
concerning proceedings in
which there is no possibility of a jury ever hearing the case or any re-trial.
However, the barrister must
limit the answers to information such as the
identity of the parties, the nature of the issues and the judgement given
reasons for the judgment.104 Furthermore, the answers must
be concise and accurate and should not express the barrister’s own
The body of the guidelines are set out by the Director of Public Prosecutions
and apply only to prosecutors. Prosecutors are allowed
to disclose to the media
information already given in open court, statements, documents and copies of
some exhibits. Prosecutors
are not permitted to discuss the probable result
of a trial, the likelihood of appellate proceeding being brought and the
correctness of any judgment of the court. The guidelines state that discretion
should be used in relation to sensitive material
such as medical reports and pre
sentence reports. The guidelines also provide that the public release of
information must be consistent.
The guidelines set out by the Director of Public Prosecutions for Western
Australia state that the public’s interest in information
must be balanced
against the need to maintain the integrity of the criminal process, and the
tenets of fairness and justice.106 The guidelines state that
prosecutors may use their discretion as to the information they supply.
Prosecutors should not express opinions,
and should not reveal anything more
than the facts and what was disclosed in open court. Interestingly, the
guidelines state that
the type and nature of the information that can be
disclosed will depend upon the stage and nature of the proceedings. The
then set out what is appropriate to say at each
103 New South Wales Barristers’ Rules 2003. Rule 59: “A barrister must not publish, or take steps toward the publication of, any material concerning current proceedings in which the barrister is appearing or has appeared.” The rule then sets out some exceptions.
104 Ibid 59(b)(1)
105 Ibid 59(b)(3)
106 Statement of Prosecution Policy and Guidelines 2005, above n
42, para 1.
In contrast to the guidelines of the Australian states, the Crown Prosecution
Service in the United Kingdom employs a centralised
model. It has a national
press office which provides a centralised 24-hour 365-day a year service. There
are also area communication
managers and area press officers. Individual
prosecutors are generally shielded from direct contact with the
2. The United States of America
Although many states have their own media guidelines for attorneys,108
for the purposes of this paper, it is the ethical rules published by the
American Bar Association and the National Guidelines for
Prosecutors which will
be focussed on because these cover the whole of the United States.
The American Bar Association publishes guidelines in the form of ethical
rules called the ‘Model Rules of Professional Conduct.’109
These arose out of the case Sheppard v Maxwell in which the Supreme
Court noted the pervasiveness of the media and the prevalence of prejudicial
news comment on pending trials.110 They cover both the prosecution
and the defence. Rule 3.6 deals specifically with trial publicity,
and the practitioners’
role in this. It states that a lawyer should not
make extrajudicial statements which will be disseminated by means of public
if the lawyer knows or reasonably should know that it will have a
substantial likelihood of prejudicing a criminal proceeding.111 It
then elaborates on matters which a lawyer may comment on, including the claim
involved, the identity of the person, and any information
contained in a public
In addition to these there are also national guidelines for prosecutors.
Under these, lawyers are permitted to comment on matters
such as the name, age,
residence and occupation of the accused, the substance of the charge and the
circumstances surrounding the
arrest.113 The guidelines
107 Gordon, above n 78, 6.
108 For example; Texas and California.
109 American Bar Association, Model Rules of Professional Conduct (1995).
110 Sheppard v Maxwell  USSC 109; 384 US 333, 362.
111 Model Rules of Professional Conduct, above n 109, Rule 3.6.
112 Ibid (b)1, 2.
113 National Prosecution Standards, above n 53, 34.1
then identify information that should only be released if it is necessary to
do so to fulfil the prosecutors obligations to protect
the rights of the accused
and the right of the public to know about criminal trials.114 This
information includes statements about the character of the accused, the
credibility of witnesses and information about arguments
that will be used at
trial.115 There are similar guidelines in
3. Analysis of the overseas experience
Consideration of the guidelines from other jurisdictions informs the
consideration of guidelines for counsel comment in New Zealand.
United States and Canada have all developed guidelines in addition to the
ethical rules of the profession. The guidelines
have worked successfully
alongside the rules. This suggests that guidelines could also be developed in
New Zealand to be complementary
to the Rules of Professional
Furthermore, the content of the overseas guidelines provides a guide to what
may be appropriately included in New Zealand guidelines.
For example, the
Western Australia prosecution guidelines acknowledge that counsel comment can
have different effects at different
stages of the trial process, and provides
specific guidelines on what it is appropriate to say at each stage of the trial
118 It may be desirable to include this level of
specificity in New Zealand guidelines.
There is another issue which arises from analysis of overseas guidelines
which should be considered in order to ensure the most appropriate
are formulated in New Zealand. That is, several of the
114 Ibid 33.1.
115 Ibid 34.2 (a),(d),(f).
116 Dubin Committee: Protocol Regarding Public Statements in Criminal Proceedings.
<www.paneljusticeandmedia.jus.gov.on.ca/> last accessed 29 July 2008. These cover both prosecution and defence counsel, and are very similar to the American guidelines. Lawyers should not make comments as to: b)i the character of the accused; b)ii the existence of a confession and b)v opinions on the merits of the case. Matters which lawyers may discuss include: c)i the nature of the charge; c)iii the name, age and residence of the accused and c)v the time and place of the arrest.
117 Particularly Rule 4.05 and 8.01 of the Rules of Professional Conduct For Barristers and
Solicitors, above n 56.
118 Statement of Prosecution Policy and Guidelines 2005, above n
42, para 8. This outlines what may be commented on before a trial or
12 sets out what may be commented on in the event of a guilty plea.
guidelines set out firm rules but then make these seemingly redundant by
saying that they are subject to the discretion of the individual
In respect of guidelines for New Zealand, an issue may arise as to how
much discretion an individual lawyer should be afforded, given
requirement for consistency of comments made by the prosecution has also been a
feature of overseas guidelines.120 An answer may be that the New
Zealand guidelines could constitute the outer limits of what it is appropriate
for counsel to comment
on, and that within these boundaries, practitioners can
exercise discretion as to what they say.
In referring to the overseas experience, it should also be noted that the
Western Australian Bar Association has recently reverted
to the traditional
position in respect of barristers speaking to the media.121 The
Association has ruled against barristers discussing with the media
‘any matter in respect of which the barrister
has provided, is
providing, or expects in the future to provide professional services.’ The
rationale is that the barrister
is not the client’s mouthpiece, and that
when a barrister is dispassionate it is clear they are not representing their
views.122 In my view it would not be desirable for New
Zealand to follow this backward step. Australian media were quick to condemn
as a muzzle on free speech. It is almost certain that the
reaction would be the same here.123 Furthermore, there should be no
need for a complete ban on counsel comment if guidelines are formulated to
ensure that counsel comment
does not become a problem.
The unique position taken by the Crown Prosecution Service in the
United Kingdom124 is interesting to consider in respect of possible
guidelines for New Zealand. However, it would probably be impossible to
such a practice in New Zealand as to ensure consistency it
119 ‘Director of Public Prosecutions New South Wales ‘Prosecution Guidelines 2007’, above n 102, 59. In relation to sensitive matters which are not covered by guidelines prosecutors should exercise discretion.
120 The Crown Prosecution Service (UK), Media Liaison Guidance for Area Communications
Managers and Area Press and PublicityOfficers, 5.
121 Note this only applies to barristers, solicitors are still able to comment, provided the guidelines are followed.
122 Justice P W Young , “Speaking to the Media” (2006) 80 ALJ 211.
123 The idea of a blanket prohibition on counsel comment would be unpopular with both counsel and the media. It would be very difficult to justify.
124 That is, operating a central press office so that prosecutors
do not have to deal directly with the media.
would have to include both the defence and prosecution and would have to be
nationwide which would make it very costly and inefficient.
A particularly useful model is Rule 3.6 of the Model Rules of Professional Conduct drafted by the American Bar Association. The very purpose of this rule was to strike a balance between the right to a fair trial and freedom of expression,125 which has been identified in this paper as a pertinent issue which arises when considering guidelines for New Zealand. Further, Rule 3.6 contains a subsection which gives lawyers a
‘right of reply’ where a public statement would be necessary to mitigate
adverse publicity.126 This ‘right of reply’ situation has also been identified as a potential issue elsewhere in this paper.127 Because of these issues, the efficacy of this rule in practice is of interest when considering whether New Zealand guidelines should take a similar shape. Both positive and negative views on this have been expressed in America. A positive view is that Rule 3.6 is well-adapted to stopping unnecessary pre-trial publicity.128
Further, it has been upheld by an American court, which affirms its
value.129 However, it has also been criticised for having little
practical effect on members of the bar because it has not been vigorously
C. A proposal for New Zealand
1. The traditional position
Traditionally, it was not common for counsel to use the media to make
extrajudicial comment in New Zealand.131 This can be attributed to a
more traditional and reserved approach by practitioners to their role. This role
involved keeping the
press out of the judicial process132 and
125 Rouse, above n 6, 274.
126 Rule 3.6 (c) reads: ‘A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyers client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity’.
127 See discussion at A5.
128 Rouse, above n 6, 274.
129 Gentile v State Bar of Nevada  USSC 119; 501 US 1030 (1991).
130 Rouse, above n 6, 275.
131 Mount, “The Interface Between the Media and the Law”, above n 23, 419.
132 Howard, Jr, above n 12, 65.
succinctly summed up by a lawyer who said: “We make our arguments in
the courtroom, not on the courthouse steps.”133 In addition to
this, the media generally confined themselves to traditional boundaries of court
reporting meaning they were not overly
aggressive in the area of court
reporting. 134 Court proceedings were generally not as open to the
media; for example there was no in-court camera coverage.135
Relationships between counsel and press were more aloof and there were
generally more lifetime court reporters that understood court
protocol and were
respectful towards reservations around publicity.136 Furthermore,
counsel comment was regulated by a provision in the Code of Ethics which
prohibited comment on a client’s
affairs without the consent of both the
client and the President of the District Law Society.137 These
factors meant that counsel comment did not often occur.
2. The current position
The current situation in New Zealand is vastly different from the position
that formerly prevailed. Over the past two decades, the
media landscape in New
Zealand has changed dramatically. This has been influenced by several factors.
The rise of global media conglomerates
has influenced the news media in New
Zealand. As a result of deregulation the number of television and radio channels
resulting in competition to attract viewers to news programs.
138 Several media commentators argue139 that these
factors have altered the culture of journalism in New Zealand to such an extent
that there is an increased emphasis on
entertainment and sensationalism in the
news as opposed to information and the discussion of
In addition to this changed media landscape, the legal landscape changed
significantly in 1990 with the enactment of the Bill of Rights
133 Brendan Sullivan Jr, quoted in Mount, “The Interface Between the Media and the
Law”, above n 23, 419.
134 Ibid 414.
135 Ibid 417.
136 McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal
Lawyers”, above n 4, 28.
137 R E Harrison, “The Mass Media and the Criminal Process: A Public Service or a
Public Circus?”  New Zealand Law Journal 271, 276.
138 Mount, “The Interface Between the Media and the Law”, above n 23, 414.
139 McGregor, Crime News as Prime News, above n 17, 3.
140 Ibid 3.
had a large impact on the media in New Zealand. Section 14 has allowed the
media to be more assertive in pressing claims
to freedom of expression
and freedom of the press, as the courts are required to act consistently with
this statutory right.141 Although freedom of the press is not
specifically mentioned in section 14, it is obviously an important aspect of the
right to freedom
of expression, and has been upheld as such by the
Courts.142 The result has been that the media have been able to
publish with more freedom than ever before.143
Reporting of criminal trials in particular has changed significantly with the
introduction of in-court camera coverage in 1995.144 The media take
more liberties than ever before when reporting crime.145 Although
journalists are able to cover trials more extensively within the courtroom with
the introduction of televised court proceedings,
this has not dampened their
appetite for out of court coverage where the most sensational material is often
The above factors have all contributed to the changed media landscape in New
Zealand in which practitioners are increasingly pursued
by the media or feel
able to approach the media themselves to give interviews or make
3. The importance of guidelines for New Zealand
Although practitioners in general are increasingly exposed to the media,
there are vast differences in attitudes toward the
141 Mount, “The Interface Between the Media and the Law”, above n 23, 416.
142 Rishworth et al, above n 24, 334.
143 Mount, “The Interface Between the Media and the Law”, above n 23, 417.
144 Moore, above n 61, 35.
145 For example, coverage of David Bain being granted bail in May 2007. The extensive reporting, and in particular the rather biased nature of it, was careless given that a retrial was being considered. See also McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal Lawyers”, above n 4, 27: Another example is the conduct of the media during the trial of Scott Watson for double murder. The press hassled the Watson family as they came and went from the courtroom. This treatment resulted in an altercation between the accused’s father and a cameraman. This incident was then shown on the front page of the Dominion Post.
146 An example of this was the media scrum outside the Auckland High Court in March
2007 when Clint Rickards was found not guilty of historic sex charges. Both he and his lawyer made controversial statements to the press which were widely reported.
147 Bates, above n , 7.
profession. For example, there are some lawyers who would prefer to ignore
the media altogether and have an uneasy, distrusting relationship
In contrast, there are lawyers who are comfortable with the media and who
have embraced the opportunity to interact with and use the
media to advance
their client’s interest and their litigation
Guidelines would also be beneficial for the media. If the media were assured
of getting information from counsel involved in
a trial it is possible
they may become less aggressive, which could minimise the risk of prejudicing a
In this climate of intense interaction between journalists and practitioners
and for the reasons stated above, there is clearly a
need for guidelines for
counsel comment in New Zealand.151
4. Proposal for guidelines
It is apparent from analysis of the overseas experience that guidelines in
New Zealand should, ideally, be clear and detailed. If
they are too narrow, they
could be of limited use and may be criticised as a blanket prohibition on
counsel comment.152 If they are too vague, there is a danger that
they will be exploited, or not be enforceable.153 Striking the right
balance will not be an easy exercise. But that should not deter an attempt to
provide appropriate guidelines.154
It is proposed that guidelines for New Zealand155 could take the
148 McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal
Lawyers”, above n 4, 28.
149 Rouse, above n 6, 267.
150 Interview with Simon Mount (Auckland, 11 August 2007).
151 There is, of course, an argument in the alternative. See Till, above n 64, 32. Till suggests it should be up to the individual practitioner to exercise professional judgment as to when such comments are appropriate.
152 Ibid 32
153 Rouse, above n 6, 274.
154 Mount, “The Interface Between the Media and the Law”, above n 23, 436.
155Gordon, above n 78, 2. In trials where there are statutory
restrictions on publication (for example, in sexual cases) these guidelines
obviously not have the same application.
format and consist of general principles, specific directions, and a
practical procedural element.156
General principles would cover situations where practitioners are unsure as
to whether it is appropriate for them to comment on a
matter or not. These
principles would ideally be linked with Rules 8.01 and 4.05 of the Rules of
Professional conduct.157 This would require practitioners to consider
their duty to the court and to their client before disclosing
the press. It would be desirable if, drawing on the
American rules, the principles were drafted to acknowledge the issue
balancing the right to a fair trial and freedom of the press.158
Media requests for counsel comment on policy issues surrounding a trial
are an example of the situation in which these general principles
In conjunction with general principles, specific directions as
to information which counsel can and can not disclose
to the media would be
required. Greater certainty would be achieved if these directions were to follow
the format of the Western
Australian guidelines and specify what can be
disclosed at each stage of the trial process.159 Within the
constraints of this paper, it is not possible to set out specific directions as
completely as they would be in formal guidelines.
However, it is possible to
give examples of the type of guidelines that might be included. These are
informed by overseas guidelines,
160 and could resemble the
Prior to and during a criminal trial, counsel may comment on the
156 Interview with Simon Mount (Auckland, 11 August 2007).
157 For example, Rule 8.01, 4.05 Rules of Professional Conduct for Barristers and Solicitors, above n 56.
158 Model Rules of Professional Conduct, above n 109, Rule 3.6.
159 Statement of Prosecution Policy and Guidelines 2005, above n 42.
160 I have borrowed heavily from the US National Prosecution Standards, above n 53, and the
Director of Public Prosecutions New South Wales ‘Prosecution Guidelines 2005’ above n
161 These have been chosen as examples of specific directions
because they appear in both the US and NSW guidelines, thus are quite important
and a good starting point for consideration of what may be included in New
ii) The charge faced by the accused and any plea that has been entered. iii) The nature of orders made by the court in open court.
iv) In addition, counsel may provide copies of the transcript of
evidence and summary of facts given in open court to the press,
subject to any
orders for suppression.
At this stage of the trial process, counsel should not comment on the
i) The character or reputation of the accused.
ii) The contents of any admission or statement attributable to the accused.
iii) Information about tactics or strategies to be used
At the post trial stage, and after sentencing, counsel may comment on the
likelihood of an appeal, but should refrain from expressing
their opinion on the
correctness of a jury verdict.
In addition to general principles and specific directions, guidelines would be of more use if they contained a procedural element. This procedural element would be useful, as there is the potential for counsel who feel unconfident about dealing with the media to be caught off guard and say something inappropriate. Modelled on the United Kingdom Prosecution Service Guidelines, a procedural element to New Zealand guidelines could consist of a checklist for counsel to consult when they are required to deal with the media. These could include clarifying issues such as what publication the interviewer is representing and what topic they are seeking information on in advance in order to give careful considered answers.162
This procedural element would obviously not be enforced, as it is purely
intended to help counsel, and could be supplemented by things such as media
5. Practical considerations for New Zealand guidelines
Guidelines for counsel comment in New Zealand will require
consideration of several practical issues. The first is
guidelines to have credibility, they must have authority and come from
162 This is similar to the advice given in the Crown Prosecution Service (UK) Guidelines, above n 120, 9 and in McGregor “Combating, Coaxing and Coping with the Media: A Guide for Criminal Lawyers”, above n 4, 32.
163 Moore, above n 61, 36.
respected source. The New Zealand Law Society would be best placed to provide
them,164perhaps in consultation with the Criminal Bar
Association and the Solicitor General.165 Alternatively, there could
be an amendment to the Rules of Professional Conduct to provide for the
The second is enforcement and penalties for serious breaches. Although
guidelines do not necessarily need to be enforceable to be
to promote consistency and ethical conduct among members of the profession
there would ideally be some means of enforcing them for
There are several possible options for penalising serious breaches. Where
lawyers have made statements which amount to contempt of
court, proceedings may
be commenced against them on that basis. However there are presently no reported
cases of this happening which
may suggest that this would not be the most
appropriate option.169 Another possible penalty is censure by the
New Zealand Bar Association. This was the penalty imposed on Barry Hart and Paul
after their appearance on Holmes.
Finally, a practical issue for consideration is the next step to make
guidelines for counsel comment a reality in New Zealand. A consultation
is probably the best way to ensure that guidelines will be well considered and
thus acceptable to members of the profession
and the media. It is suggested that
the Solicitor-General, the Criminal Bar Association, New Zealand Law Society and
and public relations professionals be included in the
This paper has sought to argue the need for New Zealand guidelines for
counsel comment. Examples of counsel comment in the
164 Till, above n 64, 32.
165 Mount, “In Search of the Soundbite” above n 101, 21.
166 Till, above n 64, 32.
167 Interview with Simon Mount (Auckland, 11 August 2007).
168 Rouse, above n 6, 275. For example, a breach that could harm client interests.
169 Bates, above n 7, 18.
170 Mount, “In Search of the Soundbite” above n 101,
increasing yet there is currently uncertainty and inconsistency amongst the
legal profession in dealing with the media.
The first section of this paper focuses on the special nature of counsel
comment in respect of criminal trials and the issues that
arise in this context
which could influence consideration of New Zealand guidelines. In a democratic
society it is necessary to consider
the relative weights to be given to the
right to a fair trial and the right to freedom of expression, particularly of
Both are fundamental rights, however the right to a fair trial
must be the most jealously protected where counsel comment
The balancing exercise may be affected by the different stages of the trial
process. At different stages the weight
afforded to these rights may vary.
Although each stage of the trial raises different issues in respect of comment,
it is at the pre-trial
stage that inappropriate counsel comment is
particularly dangerous. New Zealand guidelines should recognise and reflect
The Rules of Professional Conduct detailing practitioners’ ethical
duties provide the only present limit on counsel comment.
However because they
were not drafted specifically to address the issue of counsel comment,
there is still a need for specific
guidelines. Counsel for the prosecution and
defence occupy different roles in the adversarial system which raises different
about their respective comments. Although there are different issues
affecting each of them, guidelines should apply equally to both,
promote consistency within the profession as a whole.
The lack of guidelines for counsel comment in New Zealand contrasts with the
position in all of the jurisdictions to which our legal
system is closest. There
are guidelines which cover the issue in Australia, the United Kingdom, the
United States and Canada. Analysis
of aspects of the overseas experience with
guidelines informs consideration of New Zealand guidelines. Although most of
overseas guidelines are drafted for the prosecution, New Zealand guidelines
would cover both sides.
The media climate in New Zealand has changed considerably over the last few
decades. The attitude of most counsel towards their interaction
with the media
has also changed. The position has been reached that sooner rather than later, a
trial will be put at risk by inappropriate
counsel comment. There is clearly a
need for, and an opportunity for guidelines
for counsel comment to be developed. These must be developed bearing in mind the importance of fundamental rights, the implications of different stages of the trial process and the respective duties of defence and prosecution counsel. The analysis of the overseas experience should inform the substance and structure of the guidelines. It is proposed that the guidelines consist of general principles, specific directions and a procedural element. To make the development of guidelines a reality the next step would be a consultative process, with a view to the development of guidelines for counsel in respect of counsel comment in New Zealand.