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Venning, Katherine --- "Counsel Comment" [2008] NZLawStuJl 8; (2008) 1 NZLSJ 513

Last Updated: 14 January 2013

COUNSEL COMMENT

KATHERINE VENNING^∗

Introduction

In 1998, one of New Zealand’s worst serial rapists Malcolm Rewa was found guilty of several counts of rape. After his conviction and before 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 comment in

^∗ _{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 2007).

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, where 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 involving practitioner’s duties are discussed, followed by a discussion of issues particular to the prosecution and the defence in a criminal trial.

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 5^th ed, (Oxford University Press, Melbourne, 2005) 415. See also: Christian Cormier “The Media and Solicitors: To Talk or Not To Talk” [2004] 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 for New Zealand.

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 experience should 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 information.¹²

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 courtroom

¹¹American Bar Association Standards for Criminal Justice : Fair Trial and Free Press, 3^rd

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 [1998] EWCA Civ 224; [1998] 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 are advantages in providing accurate information and assisting with interpretation.²⁰

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 in

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, 2006).

criminal trials is a very important one. It acts as a watchdog for the public, guarding against a miscarriage of justice by exposing participants and 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 [1995] 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, it 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 public,

²² Sheppard v Maxwell [1966] USSC 109; 384 US 333 (1966) 349.

²³ Simon Mount, “The Interface Between the Media and the Law”, [2006] NZ Law Rev

413, 422.

²⁴ Paul Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Melbourne,

2003) 664.

²⁵ Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, 569.

²⁶ Burns v R & Ors [12 December 2001] CA, 308-00 [10].

²⁷ Ibid [10], R v Lord Chancellor, ex parte Witham [1997] EWHC Admin 237; [1997] 2 All ER 779, 787. More recently observed in R (on the application of Bewry) v Norwich City Council. [2001] EWHC Admin 657, CO/3986/00, 23. But see Don Mathias “The Accused’s Right to a Fair Trial: Absolute or Limitable?” [2005] 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 [1995] 2 NZLR 641 (CA).

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. A ‘balancing 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 justice system. Similarly, freedom of expression and freedom of the press as a means for comment on public issues are invaluable to our democratic system.³²

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 trial.”³⁵

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 right.

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 to

³⁰ Rishworth et al, above n 24, 336.

³¹ Burns v R & Ors [12 December 2001] CA, 308-00 [8].

³² Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, 571.

³³ ibid 569; R v Liddell [1995] 1 NZLR 538, 547.

³⁴ Gisborne Herald Co Ltd v Solicitor-General [1995] 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?” [1998] 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 practitioner 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 proceeding.⁴¹

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 other cases, 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 times because 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 2007).

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 and deposition 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.

(a) Pre-trial

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 [1995] 3 NZLR 563, 567.

⁴⁶ Interview with Simon Mount (Auckland, 11 August 2007).

⁴⁷ See Nigel Lowe and Brenda Sufrin The Law of Contempt, 3^rd 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 out by 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 trial.

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 aggressive 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 defence.⁵¹

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, 3^rd 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, 2^nd 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, 2^nd ed, published by the National District Attorneys Association.

⁵⁴ Hodgson v Imperial Tobacco Ltd [1998] 1 W.L.R.1056, All E.R. 673.

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 ‘leak’ 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, 7^th 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,

41.

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 pending.⁶⁶

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 acquittal of Chris Kahui, his counsel released several statements to the media. An example of a statement that was appropriate given the importance of freedom 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” [2003] 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 of 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 currently the only guidance that counsel have in terms of counsel comment.

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 tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.

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

July 2008.

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, 2^nd 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 commentary:⁷⁴

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 knowledge.

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 [2000] EWCA Civ 68; [2000] 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 [1982] 1 NZLR 120 where Woodhouse P quoted the classic articulation of the principle from the House of Lords in Scott v Scott [1913] 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 information 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 trial. 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 34.3.

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 each 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’ materials to the press. In contrast, others attempt to avoid the media entirely, believing that their client’s interests are better served without it.⁹¹

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 9^th ed, Oxford University Press, New York,

2002, 280.

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 hide.⁹⁶

Comments by Elias CJ in a recent New Zealand case could further encourage defence lawyers to speak to the media about their client. In 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 [2003] 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 endangering 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 practitioners.¹⁰¹

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; Australia, the 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.

1. Australia

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 then

¹⁰⁰ Ibid 7.

¹⁰¹ Mount, “In Search of the Soundbite” [2007] NZLawyer, Issue 61. 20, 21.

¹⁰² Director of Public Prosecutions New South Wales ‘Prosecution Guidelines 2007’ 57.

<www.odpp.nsw.gov.au/Guidelines/Guidelines.html>last 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 including reasons for the judgment.¹⁰⁴ Furthermore, the answers must be concise and accurate and should not express the barrister’s own opinions.¹⁰⁵

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 guidelines then set out what is appropriate to say at each stage.

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 media.¹⁰⁷

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 communication 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 record.¹¹²

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 [1966] 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 (a),(b),(e).

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 Canada.¹¹⁶

3. Analysis of the overseas experience

Consideration of the guidelines from other jurisdictions informs the consideration of guidelines for counsel comment in New Zealand. Australia, The 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 Conduct.¹¹⁷

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 process. 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 guidelines 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 plea. Para 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 lawyer.¹¹⁹ In respect of guidelines for New Zealand, an issue may arise as to how much discretion an individual lawyer should be afforded, given that the 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 personal views.¹²² In my view it would not be desirable for New Zealand to follow this backward step. Australian media were quick to condemn this resolution 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 implement 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 enforced.¹³⁰

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 was

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 [1991] 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 has increased, 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 issues.¹⁴⁰

In addition to this changed media landscape, the legal landscape changed significantly in 1990 with the enactment of the Bill of Rights Act. This has

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?” [1992] 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 generated.¹⁴⁶

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 comments.¹⁴⁷

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 media among 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 with the press.¹⁴⁸

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 strategy.¹⁴⁹

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 fair trial.¹⁵⁰

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 following

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 will 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 information to the press. It would be desirable if, drawing on the American rules, the principles were drafted to acknowledge the issue of 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 could be used.

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 following:¹⁶¹

Prior to and during a criminal trial, counsel may comment on the following matters:

1. The identity of the accused (unless suppressed), their age, occupation and residence.

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

102.

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 Zealand guidelines.

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 following matters:

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 trial.

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 awareness courses.¹⁶³

5. Practical considerations for New Zealand guidelines

Guidelines for counsel comment in New Zealand will require consideration of several practical issues. The first is implementation. For guidelines to have credibility, they must have authority and come from a

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 issue.¹⁶⁶

The second is enforcement and penalties for serious breaches. Although guidelines do not necessarily need to be enforceable to be useful,¹⁶⁷ to promote consistency and ethical conduct among members of the profession there would ideally be some means of enforcing them for serious breaches.¹⁶⁸

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 Dacre 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 process 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 Bar Association and public relations professionals be included in the consultative process.¹⁷⁰

Conclusion

This paper has sought to argue the need for New Zealand guidelines for counsel comment. Examples of counsel comment in the media are

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, 21.

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 the press. Both are fundamental rights, however the right to a fair trial must be the most jealously protected where counsel comment is concerned. 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 this.

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 issues about their respective comments. Although there are different issues affecting each of them, guidelines should apply equally to both, and would 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 the 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.