A direction from a trial judge warning jurors to ignore pre-trial publicity would be a "powerful tool" in ensuring that they focused on the evidence before them rather than anything else they may have seen or read, a key court ruling has found.
Justice Judith Potter was asked to rule on whether media coverage in the Israeli passport case interfered with the accused men's right to a fair trial. She found this was not the case.
The issue of whether pre-trial publicity could affect a trial was raised this week when a policeman and two former officers were charged with historical offences involving Rotorua woman Louise Nicholas.
Paul Mabey, QC, a lawyer for one of the accused, Bob Schollum, said an application to prevent the trial could be anticipated, partly on the basis of what he believed was the extensive and damaging publicity so far.
The issue also arose in the case of Eli Cara and Uriel Kelman, the two men believed by the Government to be Israeli agents. In July, the pair pleaded guilty to a charge relating to an attempt to illegally obtain a New Zealand passport and were sentenced to six months prison.
But in an application initially suppressed, the defence argued in May that the volume, extent and nature of the media coverage prejudiced their rights.
While acknowledging that no case in New Zealand had been put off because of pre-trial publicity, the defence contended that in the circumstances the pair should no longer have to answer the charges.
Lawyers Grant Illingworth, QC, and Stuart Grieve, QC, said the sheer extent of publicity, including unprecedented international interest, made the case unique.
Other unique aspects included the nature of the reporting because it included "highly prejudicial content which is not part of the Crown case". They took particular exception to the fact that when the Weekend Herald broke the story, it linked the men to the Israeli spy agency, Mossad, a theme continued in more than 60 stories and 120 television or radio broadcasts which followed.
The Crown said the publicity was "significant", but it could not be categorised as greater than in other criminal cases and was not "truly extreme".
Crown lawyer Kieran Raftery also pointed out that while Kelman and Cara were concerned about the connection with Mossad, that was not part of the case against them.
In any event, said Mr Raftery, "do references to Mossad carry more sinister connotations than references to say, the Mongrel Mob?"
Justice Potter agreed that the Mossad connection was not relevant, and the publicity had not impacted on the defence's ability to contest the allegations against them.
She referred to Law Commission research which found that the impact of pre-trial publicity on juries was minimal.
"In the circumstances of this case, I agree with the Crown that an appropriate direction by the trial judge at the commencement of the trial ... would be a powerful tool," she said.
With such directions from the judge, a jury would be capable of deciding guilt or innocence on the basis of the evidence alone.
While the coverage had been intense, this would always be the case with newsworthy stories.
"It is important in assessing the impact of media reporting to focus on the message that the consumer will receive, and not to be diverted by a line by line or word by word analysis of what was said," said Justice Potter.