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Langlands, Emma --- "Media Prejudice and Jury Challenge" [2010] NZLawStuJl 7; (2010) 2 New Zealand Law Studentsí Journal 239

Last Updated: 24 October 2012



MEDIA PREJUDICE AND JURY CHALLENGE

EMMA LANGLANDS*


Introduction

The right to a fair trial is given constitutional significance by its assertion in the New Zealand Bill of Rights Act.1 The ability of the court to act against prejudice serves as a safeguard for an accused’s right to a fair trial: where the rights to freedom of expression and to a fair trial cannot both be assured, the courts have held that it is appropriate in our free and democratic society to curtail the former in order to guarantee the latter.2

In the modern era, ensuring the impartiality of jurors has become an increasingly difficult task for the court system. In 1995, the Court of Appeal in Gisborne Herald Co Ltd v Solicitor-General (Gisborne Herald) considered the approach of the Canadian Supreme Court, noting that the consideration of measures to prevent or ameliorate the effect of pre-trial prejudice formed part of the test of contempt of court.3

Possible instruments included adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury.4 The New Zealand Court of Appeal remained unconvinced that such measures “should be treated as an adequate protection in this country against the intrusion of potentially prejudicial material into the public domain.”5

The rarity of the use of the challenge for cause in the New Zealand legal system is such that the tool has been described as largely

* Candidate for BCA, LLB(hons) Victoria University of Wellington. This article is a revised version of a research paper submitted in 2009 in partial completion of studies. The advice and support of my supervisor Professor Tony Smith, and of my friends and family is gratefully acknowledged.

1 New Zealand Bill of Rights Act 1990, s 25(a).

2 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) [Gisborne Herald].

3 Ibid.

4 Ibid.

5 Ibid, at 573.

obsolete.6 Subsequent changes in the judicial climate, including the modern interaction of the media and the criminal justice system, require a reconsideration of the way in which the challenge for cause might be employed to ensure the impartiality of the jury. This paper illustrates the ineffective operation of the traditional methods of addressing media prejudice, the advantages that may be gained in lessons from other jurisdictions, and the way in which a modern challenge for cause might operate in the New Zealand justice system.

A. Challenging a Juror in New Zealand

1. Existing Challenges

The New Zealand jury system provides several mechanisms for the challenge of a juror. The defence and the prosecution are able to challenge a juror on the basis that they are not qualified, are disqualified, or are ineligible from serving as a juror.7 The judge may also issue an order for a juror to stand by on application from one party with the consent of the other party; the juror must then return to the jury panel and will only be called again where there is an insufficient number to serve on the jury.8 Both parties are also permitted to challenge four jurors each without cause in what are known as peremptory challenges:9 these challenges are often used to challenge a juror whose impartiality is in doubt, but where such doubt is considered insufficient to justify challenging for cause.10

The challenge for cause may be exercised where the juror is not indifferent between the parties, or where the juror is unable to act


6 R v Greening [1957] NZLR 906 (CA). See also Law Commission Juries in Criminal Trials (NZLC PP32, 1998), referring to Stephen Dunstan, Judy Paulin and Kelly-Anne Atkinson Trial by Peers?: the composition of New Zealand juries (Department of Justice, Wellington, 1995) in which no challenges for cause were recorded.

7 Juries Act 1981, s 23.

8 Ibid, s 27. R v Taito [2005] NZCA 22; [2005] 2 NZLR 815 (CA) is authority for the practice that the size of the jury panel should be sufficiently large to allow for the exercise of all peremptory challenges, and the possibility that jurors may be stood by. It is therefore unlikely that a juror who is stood by will ultimately serve on that jury.

9 Ibid, s 24. The number of peremptory challenges has been as high as six per party: this was reduced to four by s 17 of the Juries Amendment Act 2008.

10 Law Commission Juries in Criminal Trials (NZLC R69, 2001) [Juries in Criminal Trials, R69].

effectively as a juror because of a disability.11 The trial judge will determine the matter in private, and in such manner and on such evidence as he thinks fit.12 To exercise a challenge for cause, the party must call out ‘challenge’ after the juror’s name is called and before that juror reaches his seat.13 This is generally thought to carry great risk: unless the party has information that is damaging to the potential juror, an unsuccessful challenge may leave the juror unwilling to cooperate with the challenging party.14

The challenge for cause is often passed over in favour of the peremptory challenge or the consensual procedure of standing jurors aside. The limited information available to counsel about potential jurors renders the challenge for cause largely ineffective as a tool to ensure that the trial is free from the influences of prejudicial publicity. The name, date of birth, occupation, and address of potential jurors are available to counsel, as well as limited information regarding their criminal history.15 This allows counsel to challenge a juror where the juror may have some connection to the accused, victim or witness, and addresses the problem of bias originating from a criminal background; however there is no mechanism to determine the effects of pre-trial publicity, or pre-determined attitudes of the jury.

2. Questioning to Establish Cause

Historically, New Zealand legislation provided for the use of voir dire in a challenge for cause. Section 421 of the Crimes Act 1908 outlined the procedure to be followed where a challenge for cause was made. The practice followed that of the English mini-jury, where the last two jurors sworn would try the challenged juror for indifference between the King and the accused.16 According to T A Gresson J in R v Greening,

11 Juries Act 1981, s 25.

12 Ibid, s 25(3).

13 Ibid, s 26. See also Juries in Criminal Trials, R69, above n 10.

14 Submission of Sir Graham Speight in Juries in Criminal Trials, R69, above n 10.

15 Gordon-Smith v R [2009] NZSC 20, [2009] 2 NZLR 725 confirmed the legality of jury

vetting in a limited form: namely the practice of obtaining non-disqualifying convictions of the jury panel on which to base peremptory challenges. The Supreme Court added the requirement that the prosecution must pass on the information to the defence where the previous conviction gives rise to a real risk that the juror might be prejudiced against the accused or in favour of the Crown.

16 Crimes Act 1908, s 421(6).

there was no reported case in New Zealand in which a challenge for cause had followed the procedure set out in the Act; in practice, the Crown would stand challenged jurors aside.17 The procedure was repealed by the Crimes Act 1961,18 and replaced by a more general provision stating that a challenge for cause shall be determined by the court on such evidence as the court thinks fit to receive.19 The current provision is similar, stating that the judge, rather than the court, shall determine every challenge for cause, in private, in such manner and on such evidence as he thinks fit.20

Questioning to establish cause was addressed in a New Zealand context in R v Sanders, where defence counsel applied unsuccessfully for an order permitting the examination of potential jurors for cause during the selection of the jury.21 Preceding the trial, there had been a substantial amount of negative publicity directed toward the accused’s motor cycle club, the Road Knights. Defence counsel argued that:22

... the emotionally charged atmosphere in Timaru in relation to the gangs was likely to cause some prospective juror’s minds to become “so clogged with prejudice” that they would be unable to try the case impartially.

The High Court considered the earlier New Zealand case of R v Greening, where T A Gresson J described the use of the challenge for cause and the procedural requirement of voir dire as “... an imperfect instrument to secure a fair trial”.23 The use of voir dire in the United States jury system was described as a waste of time, and the court was not aware of any reported case in New Zealand where voir dire had been exercised to determine a challenge for cause.24 The High Court concluded that in modern society, there can be no guarantee that jurors will have no knowledge or preconceptions about the particular case; however this does not require that jurors must be cross-examined

17 R v Greening, above n 6.

18 Crimes Act 1961, s 412(2).

19 Ibid, s 363, repealed by s 37(1) of the Juries Act 1981.

20 Juries Act 1981, s 25(3).

21 R v Sanders [1994] 2 NZLR 568 (HC).

22 Ibid, at 570. The phrase “so clogged with prejudice” originates from the judgment of

Lawton J in R v Kray (1969) 53 Cr App 412 at 415.

23 R v Greening, above n 6, at 914.

before serving on a jury.25 Where a real possibility of impartiality arises, in most cases the juror will either be discharged by the judge, or stood aside by the judge under ss 22 and 27 of the Juries Act 1981 respectively. The questioning of jurors in a challenge for cause was held to require “wholly exceptional” circumstances,26 following the English Court in R v Kray.27 The Court of Appeal agreed with the High Court, adding that such inquiries would be time consuming, inconclusive and intrusive, and that the quality of the jury gained after such a process would be questionable.28

B. The Modern Media

The methods by which news media operate have developed substantially since the worldwide adoption of the internet: the digital environment has been described as a “... new paradigm for the availability and dissemination of information”.29 The growth of news media websites has broadened the availability of news, and extended the length of time that information is available in an unprecedented manner.30 Traditional media providers such as TVNZ, Fairfax Media, and Radio NZ have converged online, with newspapers providing online editions of publications, and radio and television stations providing online streaming. Such information may be archived, and the database is usually made available to global search engines such as

‘Google’ and ‘Yahoo’. The ability of information to migrate from online media outlets to web-logs and forums for social commentary illustrates the danger that once information is published online, it is difficult to track down and remove. The explosive popularity of the web-log (blog) and the amateur nature of such media raise concerns as to the volume and quality of the information released in the public domain. These developments have not gone unnoticed by the courts, who remark that the internet is “... part and parcel of the lives of many New Zealanders today.”31

Auckland University Law and Information Technology lecturer Judge

25 R v Sanders, above n 21.

26 Ibid, 577.

27 R v Kray, above n 22.

28 R v Sanders [1995] 3 NZLR 545 (CA).

29 Police v PIK and Others YC Manukau CRI 2008 092-013287, 19 September 2008 at [49].

30 Police v PIK and Others [2008] DCR 853 (YC).

31 R v Cara (2004) 21 CRNZ 283 (HC), at [79].

DJ Harvey identifies the viral quality of the internet and the vast potential for the dissemination and preservation of information.32 He distinguishes between two different media: the traditional print or broadcast media, and digital media. Traditional media possesses the quality of immediacy: information is communicated at a point in time, and the level of comprehension will depend on the amount of time that the information is available.33 In contrast, digital media possesses a greater preservative and disseminatory power; once information has been published on media websites it can spread to blogs or be logged in an online archive.34

Ownership of media in New Zealand is concentrated, and tends to be in the hands of large overseas media and investment corporations. Fairfax New Zealand and APN News and Media between them dominate the print media, owning all national daily newspapers except one.35 The large number of radio stations in New Zealand also lack competition; approximately 85 per cent of radio audiences listen to MediaWorks and The Radio Network stations.36 The New Zealand Press Association is the largest news agency in New Zealand, providing news to Fairfax New Zealand, APN News and Media and other independent media, and editing international newsfeeds for New Zealand audiences. Due to these features of the New Zealand media, sources and stories are often shared, and repeated in publications or stations nationally: this accessibility is enhanced by the broad availability of news online, regardless of locality. The development of the media has implications for the traditional assumptions about the effect of the media in the justice system: judicial tools to remedy exposure, such as change of venue, may have a limited effect on increasingly nationalised New Zealand media audiences.



32 Police v PIK and Others, above n 30.

33 Ibid.

34 Ibid.

35 Bill Rosenburg “News Media Ownership in New Zealand” (2008) Campaign Against Foreign Control of Aotearoa <http://canterbury.cyberplace.org.nz> . Fairfax New Zealand own The Dominion Post, The Press, Waikato Times and six provincial dailies; APN News and Media own The New Zealand Herald and nine provincial dailies; The Otago Daily Times is owned independently.

C. The Media and the Justice System

A Law Commission report considered research carried out on juries in criminal trials, stating that “jurors are not generally affected by the current level of pre-trial or during-trial publicity.”37 Significantly, the Commission noted that should levels of publicity change, a greater impact and different result would be expected.38 In light of the development of modern news media, the impact of pre-trial publicity on potential jurors can no longer be dismissed as negligible, and judicial instruments used to address prejudice may no longer be effective. The following discussion identifies a selection of methods employed by the judiciary to address the effect of the media on the justice system, and attempts to demonstrate the inability of those methods to protect the accused’s right to a fair trial in modern society.

1. The Law of Contempt

In the pre-trial period, the law of contempt acts as a deterrent to those considering the publication of prejudicial material, and its precedent acts as a guideline to those hovering on the edge of illegality. To establish contempt, it is necessary for the Solicitor General to show “... whether as a matter of practical reality there is a real risk, as opposed to a remote possibility, of interference with a fair trial.”39 Following the High Court decision of Solicitor-General v Fairfax New Zealand Ltd (Fairfax), it seems that editors, and those with editorial responsibilities, are more willing to test the boundaries especially when taking into account financial motivations.40

37 Juries in Criminal Trials, R69, above n 10, at 180, discussing the findings in W Young, N Cameron and Y Tinsley Jury Trials in New Zealand: A Survey of Jurors (1999) [Jury Trials in New Zealand].

38 Ibid. The Commission looked to the results of United States jury research, noting that

while the degree of pre-trial publicity in the United States was greater than that of New Zealand due to the First Amendment to the United States Constitution, it could be assumed that a higher level of pre-trial publicity would have a greater effect on jurors.

39 Solicitor General v Wellington Newspapers Limited [1995] 1 NZLR 45 (HC), at 56. See also

Solicitor General v W & H Specialist Publications Limited [2003] 3 NZLR 12 (HC) and R v

Rickards HC Auckland CRI-2005-063-1122, 28 November 2005.

40 See Solicitor-General v Fairfax New Zealand Ltd [2008] BCL 1007 (HC) [Solicitor-General v Fairfax] where the Court noted several comments made by Tim Pankhurst, then editor of the Dominion Post, detailing the financial rewards that the newspaper had reaped as a result of the publication. See also David Morrison and Michael Svennevig The Public Interest, the Media and Privacy (British Broadcasting Corporation, Manchester, 2002) who suggest that the media are motivated by their pecuniary interests, and not solely by public

The Fairfax case explored the modern application of the law of contempt, following the publication of newspaper articles detailing police surveillance on suspected terrorist activity in the Urewera ranges.41 The unsuccessful prosecution raised questions as to the effectiveness of the law of contempt to guard the right to a fair trial: despite the fact that the Solicitor-General described the articles as “... the most serious challenge to the public policy underpinning the law of contempt that New Zealand has ever seen”,42 the court was not convinced that the publication added materially to the existing body of prejudice in the public domain.43 The cumulative effect of the media is effectively ignored by the law as contempt must be assessed for each publication individually:44 this weakness is amplified when considering the competitive nature of modern media. A similar concern was expressed by Lord Justice Phillips, who noted that the English offence of contempt of court: 45

... raises the almost insoluble problem of the incremental effect of publications, no single one of which can be said to create a substantial risk of serious prejudice but which, when taken together, certainly do so.

The internet and its transformation of communication and media in modern society also pose problems for the effective operation of the law of contempt. The popularity of blogs in modern society has been attributed to the influence of the internet on the lives of New Zealanders, as well as the growing trend for professional journalists to maintain blogs.46 Prominent blogger David Farrar pointed to the difficulties that interactive blogs can present: public discussion boards

interest in the matter.

41 Solicitor-General v Fairfax, above n 40.

42 David Collins QC, Solicitor-General “Closing Submission in Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV 2008-485-000705, 10 October 2008” (undated) at [178].

43 Solicitor-General v Fairfax, above n 40.

44 ATH Smith “The Future of Contempt in a Bill of Rights Age” (2008) 38 HKLJ 593.

45 Nicholas Phillips, Baron Phillips of Worth Matravers “Challenge for Cause” (1996) 26

VUWLR 479, at 483. See also David Corker and Michael Levi “Pre-trial Publicity and its Treatment in the English Courts” [1996] Crim LR 622 where the risk of prejudice was said to arise in reality from the cumulative effect of publicity decisions over time, and not typically from single articles.

46 Philip Mathews “Bloggers left and right” The Press (New Zealand, 15 February 2008)

<www.stuff.co.nz>.

on online forums are rarely monitored, and the pre-approval of comments on popular forums is often administratively unworkable.47

The authors of comments are also relatively anonymous, and difficult to identify.

During the 2009 trial of Clayton Weatherston, attention was called to the number of internet blogs and social forums that had discussed the trial.48 Two websites were investigated by the Solicitor-General’s office for contempt of court: a Facebook group page entitled ‘Clayton Weatherston is a Murderer. He committed murder, not manslaughter’, and Farrar’s Kiwiblog, where comments were posted about Weatherston by Farrar.49 Similar Facebook pages were created during the retrial of David Bain in 2009, and suppressed information was posted online during the historic police rape trials in 2007.50 Although occurring in the trial period, such activity is similarly common in the pre-trial period, as individuals increasingly turn to the blogosphere for information, networking, and public debate.51 Wellington lawyer Peter Dengate Thrush is reported as commenting that “the problem is we are dealing with legal concepts that have taken us hundreds of years to refine, but they were developed in a world where the internet didn't exist.”52

2. The Law of Suppression

The right to freedom of expression is upheld by s 14 of the New Zealand Bill of Rights Act 1990, and is subject to limitation as prescribed by s 5 of the same Act. The media’s right to freedom of expression and that of individuals in a public forum has increasingly become a cause for concern for the courts. Information introduced into the public domain in the pre-trial and trial periods have always drawn

47 Rebecca Milne “Trial commentators under scrutiny” The New Zealand Herald (New

Zealand, 12 July 2009) <www.nzherald.co.nz>.

48 Ibid.

49 Emma Page “Trials under threat from online chatter” Sunday Star Times (New Zealand,

9 August 2009) <www.stuff.co.nz>. The investigation concluded that there had been no

breach of contempt of court laws: email from David Farrar to the author regarding the

Solicitor-General’s investigation (25 July 2010).

50 Ibid.

51 Bill Ralston “Public opinion on Key turns rabid” The New Zealand Herald (New Zealand,

7 October 2007) <www.nzherald.co.nz>.

52 Page, above n 49.

attention, as the potential exists to improperly influence those who play a part in the administration of justice. In New Zealand, the conventional approach is to restrain freedom of expression only to the extent that it results in a real risk to the right of a fair trial.53 Other jurisdictions have focused on an unfettered right to freedom of expression, directing fair trial concerns at the jury system, and minimising their exposure to such influence.54

The law of suppression operates as a preventative tool, designed to allow the courts to wield some control over information entering the public domain. Where it is in the interests of justice that information be suppressed, the court is able to limit the public’s right to freedom of expression. The Court of Appeal in R v B stressed that in deciding whether to grant a suppression order, consideration must be given to whether and how a fair trial can be defended, and the orders awarded must reflect the facts of the particular case.55 The courts have accepted the media’s right to publish news contemporaneously with its newsworthiness; however this ability to publish when desired may be curtailed where the public interest of a fair trial demands.56

In considering whether to grant a suppression order, the court must operate on the assumption that the media will ensure that reporting is fair and accurate, and that a balanced account is given to the public.57

The reliance on the integrity and responsibility of news media is supported by professional regulation of the industry by such organisations as the Press Council for newspapers and print publications and the Broadcasting Standards Authority for broadcasters.58 Despite having comparable powers of communication and dissemination to traditional media, many bloggers and internet

53 Solicitor-General v Fairfax, above n 40.

54 The United States Supreme Court in Sheppard v Maxwell [1966] USSC 109; 384 US 333 (1966) stated that it

was unwilling to place any direct limitations on the freedom traditionally exercised by the news media, instead focusing on methods including sequestration of the jury, voir dire, protective orders, change of venue, and strong judicial direction to jurors.

55 R v B [2008] NZCA 130, [2009] 1 NZLR 293.

56 R v Burns (Travis) [2002] 1 NZLR 387 (CA).

57 Curtis v Police [2008] DCR 259 (HC).

58 “Statement of Principles” New Zealand Press Council <www.presscouncil.org.nz>; s 4 of the Broadcasting Act 1989 outlines the responsibility of broadcasters for programme standards. The standards encompass concepts including accuracy, privacy, the maintenance of law and order and balance.

users do not consider themselves bound by these same rules.59 As noted in the English Court of Appeal in R v Karakaya, the internet is not a neutral source of information:60

The internet has many benefits, and we do not mean to diminish its value. Of course, not every site is always right. Some sites seek to persuade. The contents of some are inconsistent with the assertions made in another.

The courts have acknowledged that there are limitations on their ability to control information, and stressed that for the law of suppression to operate effectively there must be public support for their decisions.61

The development of news media outside the application of professional standards, and incidents of online breaches of suppression orders,62 have resulted in public concern about the effectiveness of such orders.63 A breach of a suppression order can result in a fine up to

$10,000 or potential prosecution for contempt of court;64 however most breaches are only subject to a maximum fine of $1,000.65 This lack of an effective deterrent for breach of a suppression order was identified by the High Court in Fairfax, who urged Parliament to consider substantially increasing the penalties.66 The Law Commission has since recommended an increase in the penalties for breaches of suppression orders.67

Jurisdictional difficulties arise when suppressed information is breached

59 Page, above n 49.

60 R v Karakaya [2005] EWCA Crim 346, at [26].

61 R v B, above n 55.

62 See for example New Zealand Press Association “Lawyer says All Black's name will

have to go from website” The New Zealand Herald (New Zealand, 4 March 2005)

<www.nzherald.co.nz>. The permanent name suppression order was breached on a

United Kingdom website as individuals speculated and accurately posted the name of the

All Black.

63 Peter Jenkins “Name Suppression” The Sensible Sentencing Trust

<www.safenet.org.nz>.

64 A person that breaches an order made under s 138(2)(c) of the Criminal Justice Act

1985 may be dealt held in contempt of court. A person that breaches s 438 of the

Children, Young Persons, and their Families Act 1989 is liable on summary conviction to a maximum fine of $2000 for an individual, and $10,000 for a body corporate.

65 A person that breaches an order made under s 138(2)(a) or (b), or s 140 of the

Criminal Justice Act 1985 is liable on summary conviction to a maximum fine of $1000.

66 Solicitor-General v Fairfax, above n 40 at [138].

67 Law Commission Suppressing Names and Evidence (NZLC R109, 2009).

on foreign websites.68 The fact that the information on the foreign website must first be downloaded in New Zealand raises the argument that publication – and therefore actus reus – has occurred in New Zealand, however this has not yet been successful in a New Zealand court.69

In Police v PIK and others Judge DJ Harvey granted an internet specific suppression order, allowing publication to a newspaper or by way of contemporary radio or television broadcast, but prohibiting publication on a website or internet server.70 The order was given out of concern that at a later stage, availability of information stored online might prejudice the right to a fair trial. The Judge considered that by prohibiting the publication of such material online, the spread, and availability of the information is “seriously inhibited”.71 The legitimacy and effectiveness of the order was widely questioned,72 and it was withdrawn in a later judgment.73 Although publication of information on the internet is prohibited by general suppression orders on an everyday basis, no further internet specific suppression orders have been granted since Police v PIK and others.74






68 See NZ Herald Staff “Suppressed names appear in online forum” The New Zealand

Herald (New Zealand, 26 August 2008)

<www.nzherald.co.nz>.

69 Police v PIK and Others YC Manukau CRI 2008-092-013286, 3 September 2008. The Judge considered the impact of the Australian case Dow Jones v Gutnick [2002] HCA 56 involving an action for defamation brought by a Victorian businessman against Dow Jones & Co Inc for statements made on their online magazine and subsequently accessed by individuals in Victoria. The High Court of Australia in that case held that downloading the article from the internet constituted ‘publication’ in the place in which it was downloaded.

70 Police v PIK and Others, above n 30. The order was made under s 438 of the Children,

Young Persons and their Families Act 1989, which operates on a presumption of suppression.

71 Police v PIK and Others, above n 69, at [54].

72 “Suppressed names appear in online forum”, above n 68.

73 Police v PIK and Others, above n 29.

74 In Suppressing Names and Evidence, above n 67, the Law Commission upheld the

legitimacy of an internet specific suppression order, but stated that they could not envisage an appropriate situation for such an order.

3. Judicial Direction

One of the primary tools used to address the influence of pre-trial media is the judicial direction given to the jury. The High Court decision in R v Rickards summarised the presumed effect on the jury:75

It is not to be assumed that jurors ignore judicial directions to put to one side matters they may have heard outside the Court. Again, experience shows that jurors are responsive to judicial directions of that kind and tend to be more robust than defence counsel often assume. A strong judicial direction to the jury will be given in respect of pre-trial publicity.

The strength of judicial belief in the effect of direction can be illustrated by reference to the abandoned trial of Eric Smail for murder. Smail had previously pleaded guilty to the charge, and was allowed to appeal under unusual circumstances.76 The jury was not to be told of the prior court proceedings, however the history of the proceedings, and Smail’s guilty plea were available freely online.77 The jury was partially empanelled: due to a lack of potential jurors, they were dismissed for the night without having had judicial direction. A concern was raised by defence counsel that any member of the jury, being acquainted with the names of the parties involved, might access information about the case online and view the accused’s argument for manslaughter with some scepticism. The court dismissed the jury, holding that the fact that they had knowledge of the case before any direction could be given created “... an unacceptable and avoidable risk to fair trial process”, and that the judicial direction would be of “heightened importance” to the jury eventually empanelled.78

Foreign jury research has drawn attention to occasions where judicial direction to disregard prejudicial material has not had an effect, or where juror assertions of impartiality have proved incorrect.79 This

75 R v Rickards, above n 39, at [97].

76 R v Smail [2009] NZCA 143.

77 See for example Jarrod Booker “Caregiver who killed Paralympian escapes life term”

The New Zealand Herald (New Zealand, 13 May 2006) <www.nzherald.co.nz>.

78 R v Smail, above n 76, at [40]-[41].

79 Christina A Studebaker and Steven D Penrod “Pretrial Publicity: The Media, the Law, and Common Sense” (1997) 3 Psych Pub Pol and L 428. The article detailed a study by Kramer, Kerr and Carroll (1990) that concluded that pretrial publicity instructions did not reduce the bias effect of exposure to pretrial publicity.

raises serious questions as to the effectiveness of judicial direction as a tool to mitigate prejudice in the jury system. Difficulties arise when the case involves substantial prejudicial material: where other methods have failed to prevent such material from entering the public domain, a possibility exists that a specific direction not to ‘google’ the material might unintentionally encourage jurors to seek that information outside the courtroom.80

The decision of the English Court of Appeal in R v Thakrar involved an appeal against a conviction entered despite the judge’s knowledge that a member of the jury had accessed online information concerning a previous conviction of the accused.81 The court found that there was a real possibility that members of the jury had not followed the judge’s direction. Commentary on R v Thakrar suggested that the case might be an indication that explicit reference to the internet should be made in every situation.82 Currently, the recommended direction from the United Kingdom Judicial Studies Board warns the jury not to attempt to obtain information elsewhere, for example the internet.83 In New Zealand, a Law Commission report indicates that only 18 per cent of the judiciary specifically include the internet in their direction to the jury; the low figure was attributed to the belief that pointing to the internet as a source of such information might unintentionally awaken jurors to the possibility of doing so.84 The High Court in R v Harder acknowledged this risk, concluding that “it is probably preferable in such cases to alert the jury to the fact the case has previously attracted publicity and stressing that it is therefore even more important that jurors comply with the standard directions.”85

Research carried out by the Law Commission found that in trials where there had been pre-trial publicity, only two jurors from a pool of 312 jurors acknowledged that the publicity had impacted on their thinking.86 The study went on to state that because jurors are generally

80 R v B, above n 55.

81 R v Thakrar [2008] EWCA Crim 2359.

82 N Taylor R v Thakrar [2009] Crim LR 357-8.

83 United Kingdom Judicial Studies Board Crown Court Bench Book Specimen Directions (2008)

part 55A.

84 Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and

Bad Character (NZLC R103, 2008). See also R v B, above n 55.

85 R v Harder HC Auckland CRI-2003-404-000291, 5 February 2004 at [44].

86 Law Commission Juries in Criminal Trials (NZLC PP37, 1999) Volume 2 summarised

aware of the dangers of bias, and the importance of coming to a decision based solely on evidence heard in the courtroom, jurors who have been affected by pre-trial publicity are often reluctant to admit to such bias, or may be unaware of any biases or preconceptions arising from the publicity, or believe that they have put them aside. In one trial, evidence was found that pre-trial publicity may have influenced the collective deliberations of the jury: all of the jury had knowledge of the case and of the accused and his history, and had referred to this extensively in their deliberation.

This research has been cited in New Zealand and abroad as authority for the proposition that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal.87 It is dangerous to treat such research as conclusive evidence that no further action is necessary to address the effect of publicity in the jury system.88 The type of publicity surveyed in the study may differ substantially from publicity in a specific case,89 and furthermore, the Law Commission acknowledges that should levels of media publicity increase, the assumption is that there would be a greater effect on the jury.90

D. The Challenge for Cause Abroad

1. The United States

The United States voir dire is perhaps the most well known illustration of examination of jurors in jury selection, and involves the examination of all prospective jurors to establish their qualifications and fitness to serve on a jury, and to ensure the selection of fair and impartial jury.91

There is no presumption of juror partiality – all members of the jury

pool are presumed to be suspect. The questioning of a potential juror will usually centre on the exploration of that juror’s private attitudes

the findings Jury Trials in New Zealand , above n 37.

87 See R v Burns (Travis) (No. 2) [2002] 1 NZLR 410 (CA); HM Advocate v Montgomery [2003]

1 AC 641; R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659.

88 Smith, above n 44.

89 R v Burns (Travis), above n 56.

90 Juries in Criminal Trials, R69, above n 10.

91 Les A McCrimmon “Challenging a Potential Juror for Cause: Resuscitation or

Requiem?” (2000) U NSWLR 127.

and practices, and may include inquiries about the juror’s religious beliefs, education, drinking habits, occupation, hobbies, prior experience with lawyers, and knowledge of the trial.92 This meticulous scrutiny of potential jurors has meant that in some cases, the process of jury selection may take as much time as the trial itself.93

Whether the voir dire is conducted by the trial judge or by counsel depends on the particular court; however many federal and state courts limit voir dire to the direction of the judge in the interests of reducing time devoted to jury selection.94 The process is often used to indoctrinate, or sway jurors as to the merits of a particular case: it has been noted that if voir dire is conducted well, “... by the time you reach opening statement, you will be preaching to the converted.”95

The nature of the questions has also raised serious concerns as to whether the process is an unwarranted intrusion into the privacy of the potential juror, and used to identify those are open to persuasion, rather than to identify potential bias.96 Because of a preference for those who have no knowledge of publicised affairs, the jury system is often criticised for targeting potential jurors in a manner that is not representative of society as a whole. This criticism is in no way a modern development: Mark Twain noted in 1872 that “the jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.”97 Although arguably more prevalent in the United States due to the constitutionally protected right of freedom of expression, similar concerns exist in other jurisdictions. 98

92 See Albert W Alschuler “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts” (1989) 56 U Chi L Rev 153; McCrimmon, above n 91.

93 Alschuler, above n 92. A famous example of lengthy jury selection is the Connecticut

jury in the New Haven Black Panther trial of Bobby Seale in 1970 that was selected after four months of questioning, during which 1,000 potential jurors were examined.

94 See V Hale Starr and Mark McCormick Jury Selection: An Attorney’s Guide to Jury Law and

Methods (Little, Brown and Company, 1985) 39, cited in Alschuler, above n 92.

95 Susan E Jones “Voir Dire and Jury Selection” (1986) 22 Trial 60, at 66, cited in

Alschuler, above n 92.

96 Alschuler, above n 92.

97 Mark Twain Roughing It (1872) Chapter XLVIII.

98 (20 November 1979) 974 GBPD HC 210. In abolishing the right of peremptory challenge, Alfred Dubs MP noted the publicised example of an Etonian professor who was the subject of a peremptory challenge, and his grievance with his exclusion from such an important public role.


2. The United Kingdom

In 1988, the United Kingdom Parliament passed the Criminal Justice Act into legislation, abolishing the right of peremptory challenge.99 It was considered that the peremptory challenge had engineered imbalance due to the assistance that the prosecution were given by the police in vetting the jury; detracted from the premise of random selection; impacted on the civil liberties of jurors and gave the procedure a veil of secrecy going against the presumption of open justice.100 The operation of majority verdicts was considered to be a sufficient safeguard against any idiosyncratic individual who may become a member of the jury.101

Lord Justice Phillips has since raised a concern that the inability of defence counsel to remove a juror who, from his look, or the manner in which the oath is taken, is considered “totally unsuitable to be entrusted with the responsibility for determining a verdict” poses a problem for the system.102 In the absence of evidence meeting the requirement of a challenge for cause, the ability of either party to stand by such a juror with the consent of the other party is the only remaining tool;103 this is often time-consuming and embarrassing.104

The extraordinary stay of prosecution of Geoff Knights in the United Kingdom is illustrative of the increasingly apparent conclusion that the current mechanisms in the criminal justice system are no longer able to conquer the risk posed by media publicity to an accused’s right to a fair trial.105

99 Criminal Justice Act 1988 (UK), s 118(1).

100 Alfred Dubs MP, above n 98.

101 Ibid.

102 Nicholas Phillips, above n 45, at 483.

103 Shortly after the Criminal Justice Act 1988 (UK) was passed, the Attorney General

issued Practice Note [1988] 3 All ER 1086 limiting the right of the prosecution to exercise the right to stand a juror by.

104 Nicholas Phillips, above n 45.

105 Attorney General v MGN Ltd and others [1997] 1 All ER 456. The contempt of court

proceedings concerned the unlawful, misleading and scandalous reporting by MGM in relation to a charge of wounding with intent against Geoff Knights. The publicity later led to a stay of proceedings, the only known incidence in reported case law. See also (26

October 1995) 264 GBPD HC 797-807, where the Attorney-General said that at least

five trials in the last three years had been halted as the trial judge had decided that media coverage would make a fair trial impossible.


The abolition of the peremptory challenge, along with strict limitations on the prosecution’s right to stand jurors by, have given a new significance to the challenge for cause in the English courts. The grounds of challenge include, among others, presumed or actual bias.106

The challenger must show “a foundation of fact creating a prima facie case before a juror can be cross-examined.”107 Where there has been significant pre-trial publicity, it seems that the challenger must show that publication has “positively caused a particular juror to be unable to try the case impartially.”108 This requirement generally precludes the cross-examination of jurors to establish cause; however in rare cases knowledge of the case gained through the media may found a challenge for cause.109

In the United Kingdom, questioning to establish cause has been allowed only in a select number of cases. In R v Kray, Lawton J required prospective jurors to complete a questionnaire, prepared with the help of counsel.110 He considered the completed questionnaire with counsel, examining jurors to explore the possibility of prejudice as suggested by the questionnaire. There had been significant coverage of an earlier trial, and publication of discreditable background information about the defendants and inadmissible evidence. The court held that reporting of a previous trial where the verdict was adverse to the defendant would not usually provide an argument for potential bias; conversely, where those publications had deliberately published discreditable allegations knowing that there was to be a later trial, there was a presumption that potential jurors might find it difficult to remain impartial. Regret was expressed at the necessity of such action, and the practice was described as “... foreign to the spirit of the administration of justice in this country.”111 It was stressed that the circumstances demanding such an action were “wholly exceptional” and that the case should not be taken gifting “... a licence for counsel to examine and cross-examine


106 Juries Act 1974 (UK), s 21(5). This was confirmed in R v Mason [1981] QB 881.

107 R v Chandler [1964] EWCA Crim 1; [1964] 2 QB 322 at 338.

108 Richard Buxton QC “Challenging and Discharging Jurors – 1” [1990] Crim LR 225, at

232.

109 Ibid.

110 R v Kray, above n 22.

111 Ibid, at 416.

prospective jurors as to what they believe or do not believe.”112

In R v Maxwell, the jury was empanelled over a period of several days, during which they were presented with a questionnaire in order to identify those jurors who might be prejudiced as a result of the media coverage.113 Lord Justice Phillips expressed reluctance at the use of questionnaires, expressing concern that the precedent might lead to practice similar to that in the United States; however it seemed “... a lesser evil than staying proceedings on the ground that there can be no fair trial.”114 It may be that in New Zealand, where the effectiveness of alternatives measures – such as change of venue – may be limited, the challenge for cause could be put to use where an application for a stay of proceedings is under consideration. Indeed, surprise was expressed that the approach in R v Maxwell was not adopted by McGechan J in Gisborne Herald, where an application to question the jury as to whether they had read a prejudicial article from a local newspaper in a neighbouring jurisdiction was declined.115 The Court of Appeal in Gisborne Herald reiterated the undesirability of examination of jurors for cause as expressed in R v Sanders,116 and highlighted the lack of empirical data as to the impact of media publicity on jury behaviour in a New Zealand context.117

3. Australia

The mechanisms for challenging a juror differ among Australian states. Generally, a challenge for cause is exercised on the basis of limited information, and subsequently has little practical relevance.118 Both

112 Ibid.

113 R v Maxwell (25 May 1995) unreported (CCC) Phillips J. The trial was that of brothers Kevin and Ian Maxwell, and Larry Trachtenberg, acquitted of fraud charges following a United Kingdom Serious Fraud Office investigation into their father Robert Maxwell’s corporations. The defendants received significant adverse publicity, enhanced by the fact that the alleged fraud involved the plundering of employee pension funds.

114 Nicholas Phillips, above n 45, at 484.

115 Gisborne Herald, above n 2. The case was discussed in Corker and Levi, above n 45.

116 R v Sanders, above n 28.

117 Gisborne Herald, above n 2. The case preceded Jury Trials in New Zealand, above n 37.

118 Philip R Weems “A Comparison of Jury Selection Procedures for Criminal Trials in

New South Wales and California” [1984] SydLawRw 5; (1984) 10 Syd LR 330. Information might include the juror’s name, appearance and occupation. Jury vetting in respect of information provided by the police is prohibited in New South Wales by s 67A of the Jury Act 1977 (NSW), and was subsequently held to be unlawful in Victoria under s 21(3) of the Juries Act 1967

parties have an unlimited right to challenge for cause in all states;119 however such challenges are relatively rare.120 The High Court of Australia ruled in Murphy v R that for a challenge for cause to be exercised it is necessary to establish a prima facie foundation of fact to anticipate the probability of prejudice in an individual juror: once founded, that juror may be questioned under oath by the judge.121 If disqualification or bias has been found on the balance of probabilities, the juror will be removed from the panel. Where the challenge for cause is based on alleged partiality, Murphy v R confirmed that a prima facie foundation of fact is necessary to justify a challenge for cause:122

There may be cases where a reading by the trial judge of offending material, where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused, will be enough to justify acceding to an application to question potential jurors. But they are exceptional cases.

The High Court of Australia went on to state that the fact that one prospective juror had volunteered to the court that she felt unable to fulfil her duty impartially due to publicity was not sufficient to establish a sound basis to anticipate the probability of prejudice on the part of an individual juror.123 Mention was made to the inappropriateness of permitting a “fishing expedition with each prospective juror,” referring to the voir dires of the United States.124

4. Canada

The challenge for cause in Canadian jurisdictions is governed by the

Criminal Code: a prosecutor or accused is entitled to any number of

(Vic) in R v Katsuno (1997) 99 A Crim R 350, at 358.

119 Jury Act 1977 (NSW), s 41; Juries Act 2000 (Vic), ss 34, 37, 40; Juries Act 1927 (SA), s

67; Jury Act 1995 (Qld), s 43(1); Juries Act 1957 (WA), s 38(1); Juries Act 1899 (Tas), s

52; Juries Act 1967 (ACT), s 34(2)(c); Juries Act 1962 (NT), ss 42, 46.

120 New South Wales Law Reform Commission The Jury in a Criminal Trial (NSWLRC R48, Sydney, 1986), cited in McCrimmon, above n 91. The study recorded only one challenge for cause based on partiality, where a juror who was known to a witness was successfully challenged.

121 Murphy v R [1989] HCA 28.

122 Ibid, at [24].

123 Ibid.

124 Murdoch, Murphy, Murphy and Murphy v R (1987) 37 A Crim R 118, at 126.

challenges on the ground that a juror is not indifferent between the Queen and the accused.125 Procedure departs from Australian and English authorities in that a prima facie foundation of fact is not necessary to establish grounds for a challenge for cause: to meet the burden, there must merely be an “air of reality” to the application.126

This has been described as the lowest burden of proof in the law of evidence:127 the question is not whether there is a probability of partiality, but whether there is a realistic potential for the existence of partiality.128 The Supreme Court of Canada has stated that the burden generally requires satisfying the court that a widespread bias exists in the community, and that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.129

Interestingly, one the grounds for a challenge have been established, the challenge can be used, in appropriate circumstance, to questions each prospective juror.130 The challenge for cause is determined by a mini-jury of the last two sworn jurors, or two prospective jurors if no jurors have been sworn.131 The decision of the two jurors is final, and there is no right of appeal.132

The Ontario Court of Appeal in R v Hubbert were adamant that development of the procedure should not resemble the United States challenge for cause,133 and subsequent case law makes it clear that the courts will not allow the challenge for cause to be used as a “fishing expedition.”134 The scope, content and number of questions is managed by the judge, who is guided by common law direction as to discretion: the process cannot be used to determine the character of the juror; to try to achieve a favourable jury; to deliberately discover information on which to base a peremptory challenge; to indoctrinate the jury as to the merits of the challenger’s case; or to cause the jury to

125 Criminal Code RSC 1985 c C-46, s 638.

126 R v Sherratt [1991] 1 SCR 509, at 535.

127 David M Paciocco, David M Tanovich and Steven Skurka Jury Selection in Criminal

Trials: Skills, Science, and the Law (Irwin Law, 1997), cited in McCrimmon, above n 91.

128 R v Sherratt, above n 126; see also R v Find 2001 SCC 32, [2001] 1 SCR 863.

129 R v Find, above n 128.

130 McCrimmon, above n 91.

131 R v Sherratt, above n 126.

132 Ibid.

133 R v Hubbert (1975) 29 CCC (2d) 279.

134 R v Sherratt, above n 126, at 528.

over or under represent a certain class of society.135 L’Heureux-Dubé J in R v Sherratt justified the use of voir dire in determining the challenge for cause as such:136

If the challenge process is used in a principled fashion, according to its underlying rationales, possible inconvenience to potential jurors or the possibility of slightly lengthening trials is not too great a price for society to pay in ensuring that accused persons in this country have, and appear to have, a fair trial before an impartial tribunal, in this case, the jury.

E. Development of the Challenge for Cause

1. The Value of the Challenge for Cause

Where publicity threatens the impartiality of a potential juror, it may be unlikely that upon questioning, all jurors will be able to recognise personal prejudice, or if so, will admit to it. There is an inherent difficulty in that questioning to establish cause relies upon the open and honest participation of the potential juror. In the High Court of Australia, Mason CJ and Toohey J noted in Murphy v R that “... the more prejudiced or bigoted the jurors, the less can they be expected to confess forthrightly and candidly their state of mind in open court.”137

Conversely, empirical research carried out by Vidmar and Melnitzer during a criminal trial in Toronto concluded that when challenged under oath, some jurors will honestly reveal their prejudices, and that the mini-jury is reasonably able to identify these jurors.138 It is not possible to determine the objective effect of the challenge for cause, however “... one thing is certain – if potential jurors are not questioned, lack of impartiality cannot be exposed.”139

Much of the opposition to expanding the use of the challenge for cause can be attributed to a strong objection to the lengthy voir dires seen in the Unites States justice system. The New Zealand judiciary has expressed its reluctance to allow jury trial procedures similar to those allowed in the United States, reiterating in Gisborne Herald that “cross-

135 McCrimmon, above n 91.

136 R v Sherratt, above n 126, at 528.

137 Murphy v R, above n 121, at [23].

138 Neil Vidmar and Julis Melnitzer “Juror Prejudice: An Empirical Study of a Challenge

for Cause” (1984) 22 Osgoode Hall LJ 487.

139 McCrimmon, above n 91, at 143.

examination of prospective jurors about their views and beliefs is generally undesirable.”140 The Court of Appeal in R v Sanders spoke of the “... intrusive and quite possibly fruitless cross-examination of potential jurors” in Canada, suggesting that perhaps the United States had been a negative influence on that criminal justice system.141 It is perhaps appropriate to note that similar criticisms of the United States procedure have been made by the Canadian courts.142

Voir dire in the United States is quite rightly viewed as an example of the dangers of excessive use of the procedure. However, the illustration has been used to argue that “any expansion in challenges for cause will have serious consequences for the administration of jury service.”143 As McCrimmon argues, the problems associated with the United States jury selection underline a fault with the specific process used, and not an inherent deficiency in the use of voir dire in jury selection.144 The challenge for cause offers the potential for the disqualification of some prejudiced jurors, allows the jury to be exposed to the intolerability of permitting bias to influence their verdict and reaffirms the accused’s perception of justice and fairness.145

2. A Prospective Outline of the Challenge for Cause

In circumstances where there has been significant publicity of a case, it is possible that potential jurors might have formed preconceptions, whether consciously or not, about the defendant’s guilt, character, or history. This is especially relevant in the pre-trial period, where the defendant does not have the same opportunity as the prosecution to present a version of events to the public, to respond to disputed facts or to present a defence to the charge.

In New Zealand, wholly exceptional circumstances are required before a judge may exercise judicial discretion of allowing jurors to be examined before taking their seat.146 Preceding the retrial of David

140 Gisborne Herald, above n 2, at 575.

141 R v Sanders, above n 28, at 553.

142 See R v Find, above n 128 and R v Hubbert, above n 133.

143 Mark Findlay Jury Management in New South Wales (Australian Institute of Judicial

Administration, Melbourne, 1994) 176 (emphasis added), cited in McCrimmon, above n

91, at 137.

144 McCrimmon, above n 91.

145 Ibid.

146 R v Sanders, above n 28.

Bain, Professor Scott Optican raised the possibility of the cross- examination of jurors to allow for a more rigorous selection of jurors.147 He argued that due to the extensive publicity the case had received, the circumstances would qualify as ‘wholly exceptional’. Indeed, if any case was to meet this requirement, this would have been a serious contender. The fact that the ‘wholly exceptional’ requirement is yet to be satisfied in New Zealand suggests that the current burden is virtually impossible to meet, and that as yet, the full potential of the challenge for cause has not been harnessed by New Zealand courts.

The basis for an application to challenge for cause due to pre-trial publicity should focus on the existence of such publicity and the impact that it may have on a potential juror, rather than the connection between a particular juror and the publicity. This requirement would ensure that once the foundation is established, the challenger would be able to examine all potential jurors. Further, the application could be made without requiring extensive investigation into the private affairs of individual jurors – such investigation would go beyond the limited practice of jury vetting approved by Parliament and the Supreme Court.148

The burden to satisfy in an application to challenge for cause should be drawn from the Canadian jurisdiction; in essence requiring some foundation of fact establishing a realistic potential for the existence of partiality. This would involve satisfying the court that a widespread bias exists in the community, and that some jurors may be incapable of setting aside that bias, despite trial safeguards, to deliver an impartial decision.149 These two elements of the inquiry are concerned with the existence of a material bias, and the potential effect of that bias on the trial process respectively.

Although this standard of proof has been described as inadequate, the experience of the Canadian courts is testament to the court’s resolve to limit the challenge for cause to appropriate cases. In R v Find, the Canadian Supreme Court demonstrated the difficulty in satisfying the

147 Deidre Mussen “Call for Bain juror bias-testing” Sunday Star Times (New Zealand, 3

March 2009)

<www.stuff.co.nz>.

148 See Gordon-Smith v R, above n 15, for a discussion of the practice of jury vetting.

149 R v Find, above n 128.

first element in holding that there was no widespread bias in Canadian society against an accused in a sexual assault case.150 The Court dismissed argument based on the prevalence of strong views and emotions, widespread victimisation, and accepted stereotypical beliefs, holding that strong emotions are common to the trials of many serious offences, and that universal abhorrence of sexual crimes did not establish widespread bias.151 If such a bias is accepted by the courts, the applicant must still show the potential for impartiality. Impartiality does not equate to neutrality: it is expected that the experience of a juror will inform their decisions, and the diversity that is present on a jury is intended to be representative of the community at large.152 The fact that a potential juror may harbour prejudicial opinions is not sufficient; it must be shown that they are incapable of setting aside those prejudices in their role as juror.153

Once the burden of proof was satisfied, the potential jurors could be questioned by the judge, as in Australia, or using the mini-jury model as in Canada. A similar questionnaire to that used by Lord Justice Philips in R v Maxwell may be appropriate where the questions posed are of a personal nature, or would reveal personal information of the type that a juror would be reluctant to admit to in oral questioning. The following is an illustration of how the challenge for cause might be used in New Zealand.

3. The Challenge for Cause in the Bain Trial

The violent killing of five members of the Bain family on the morning of 20 June 1994 in their family home in Dunedin, and the subsequent trial of David Bain for their murders, caught the attention of the New Zealand public in a way that no case has done since that of Arthur Allan Thomas. The case was a classic ‘whodunit’ investigation, appropriately summed up by Williamson J in the 1995 trial: “Who did it? David Bain? Robin Bain?”154 After a three week trial in the Dunedin High Court, David Bain was convicted of the murders, and sentenced to a mandatory life term.

150 Ibid.

151 Ibid.

152 Ibid.

153 Ibid.

154 David Cullen Bain v R (2007) UKPC 33, at [8].

A variety of appeals followed in ensuing years against the background of a media campaign proclaiming Bain’s innocence, culminating in the successful 2007 appeal to the Privy Council. The court held that there had been a substantial miscarriage of justice, quashing Bain’s convictions, and ordering a retrial.155 A retrial was subsequently ordered by the Solicitor-General later in 2007,156 and commenced in the Christchurch High Court in 2009. The jury in the retrial returned a verdict of not guilty on all five murder charges on 5 June 2009, after less than six hours of deliberation. In allowing the retrial of David Bain, Solicitor-General Dr David Collins QC stated that “... it is not appropriate for there to be further public debate about the evidence or any other public comment that is calculated or likely to influence a future jury.”157 He acknowledged the intense media interest in the retrial, warning that “guilt or innocence of an accused person is not decided by the media or public opinion polls. Those who attempt to usurp or otherwise influence the trial process risk facing a charge of contempt of Court.”158

Following the Privy Council appeal quashing Bain’s convictions,159 media reporting focused on Bain’s release from prison after 13 years of imprisonment: media commentator Bill Ralston has described the coverage as a media circus, stating that “the initial media hysteria over his release seems like a collective failure in editorial judgment.”160 There was a spotlight on Bain’s apparent vindication, and his new life as a

‘freed’ man. The fact that the Privy Council judgment had made no

comment on Bain’s innocence or guilt was largely overlooked and much attention was paid to the faults made in the prosecution of Bain. Ralston went on to conclude that:161

As a result of that Karam campaign, the sensational nature of the crime and the first trial with all the subsequent hearings, I doubt if

155 Ibid.

156 David Collins QC, Solicitor-General “Decision of the Solicitor-General in Relation to

the Retrial of David Cullen Bain” (press release, 21 June 2007).

157 Ibid, at [7].

158 Ibid, at [8].

159 David Cullen Bain v R, above n 154.

160 Bill Ralston “Media circuses and a chance for justice” The New Zealand Herald (New

Zealand, 8 June 2009)

<www.nzherald.co.nz>.

161 Ibid.

there was a person in the country who didn't have an opinion on his guilt or innocence.

It is likely that the burden of proof requirement would have been met in the Bain retrial, namely a realistic potential for partial juror behaviour. Evidence of the significant media publicity of the case over the past decade, the immense public interest and debate as to the identity of the Bain family murderer, the focus on either David or his father as the killer, the manner in which the case has been tried by the media – influenced by Bain campaigner and former All Black Joe Karam – and the effect of the inadmissible evidence released after the first trial would arguably satisfy the requirement of a widespread community bias: indeed it is said that the trial has captured the New Zealand public’s interest like no other trial in history.162 Satisfaction of the second element is more difficult, but could be argued as a matter of reasonable inference as to how such bias might affect a jury’s decision- making process.

Once the application was allowed, the potential jurors would then undergo a limited voir dire, the extent and type of questioning under the strict control of the presiding judge. The questions asked might resemble the following:163 have you heard about the case in the media? Have you discussed the case with anyone? Have you formed an opinion as to the guilt or the innocence of the accused? Do you believe that you can set aside any preconceived partiality or bias in order to decide the case? It may be that, having had their attention drawn to the issue, respect for judicial processes would have led several jurors to reveal impartiality would otherwise have remained unknown.

Conclusion

In 1999, Victoria University Professor Dr Warren Young, along with Senior Lecturer Neil Cameron, and Susan Potter of the Law Commission commented that vague, uncertain contempt laws, an increasingly market-driven media, and the lacking impact of judicial direction have all contributed to an increasing risk of prejudice for

162 Stuff.co.nz “David Bain Not Guilty” (2009) Stuff

<www.stuff.co.nz>.

163 See A Cooper “The ABCs of Challenge for Cause in Jury Trials: To Challenge or Not to Challenge and What to Ask if You Get It” (1994) 37 Crim LQ 62, at 66.

defendants in New Zealand, with little opportunity to detect this prejudice, let alone to combat it.164 More than a decade later, the state of affairs has arguably worsened. The failure of the application to question jurors for cause by the Court of Appeal in R v Sanders cannot be allowed to act as a blockade against all future applications:165 the level of publicity in that case was contained to a local level, and incomparable to the extensive national publicity that many criminal cases receive today.

The Canadian procedure is testament to fact that an expansion of the challenge for cause will not result in the extensive and generally undesirable voir dires of the United States. It is not proposed that questioning to establish cause will act as a panacea to the difficulties facing the justice system, indeed the challenge has been described as “rough and primitive instrument.”166 The same instrument was later compared to a fishing net with a number of holes: “yet, even with these holes, the net appears adequate to snare at least many of the persons who are not indifferent between the Queen and the accused.”167 The challenge for cause possesses the potential to identify partiality, and the ability to act against it, while preserving the right to freedom of expression enjoyed by New Zealand media. Questioning to establish cause should be available in practice and not merely in ‘wholly exceptional’ theoretical circumstances.














164 Neil Cameron, Susan Potter and Warren Young “The New Zealand Jury” (1999) 62(2) L&CP 103.

165 R v Sanders, above n 28.

166 Vidmar and Melnitzer, above n 138, at 511.

167 Ibid, at 511.


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