Internet can prejudice jurors - judge

By Martin Johnston

Restrictions on reporting preliminary court hearings may need to be tightened because internet coverage could contaminate juries, a judge says.

Judge Roy Wade, of the Manukau District Court, says fellow judges have told him of "at least two instances" in the past 12 months of internet material being found in jury rooms.

In February last year, Judge Roderick Joyce, QC, reprimanded a jury for jeopardising a trial by doing its own legal research on the internet rather than relying on his directions.

Judge Wade's comments were in response to the application by news outlets to record, film and report the depositions hearing, to start on Monday, of Christopher Sonny Kahui. He is charged with murdering his twin baby boys last year.

In his preliminary decision granting conditional approval, Judge Wade noted the wide media coverage of the Kahui case.

He said Kahui's lawyers had indicated that the admissibility of some prosecution evidence would be challenged if the case went to trial.

He said the conventional wisdom was that although potential jurors might have read or seen media reports of a depositions hearing, they would have forgotten any details by the time of the trial, so no harm was done if they had read of material ultimately ruled inadmissible.

But that had changed with the internet's instant power to search through numerous news archives.

"Were there to be unrestricted media reporting, then all the reported details are likely to be permanently available to the public at large, including the jurors who may be asked to try Mr Kahui, assuming he is committed for trial.

"Warnings by the trial judge to the jury not to search the internet whilst a trial is in progress would only serve to heighten the risk that one or more jurors may do so.

"I am also aware that in other jurisdictions, the right to report preliminary hearings has been abolished or restricted in the interests of the accused having a fair trial."

It was still impossible "to determine what evidence, if any, can be published without risk of jeopardising the right to a fair trial".

He would direct that any evidence likely to be challenged be highlighted in advance and would notify the prosecution, to avoid its being mentioned in the Crown's opening address.

Judge Wade offered to review his position at the end of the hearing, "to see what further information, if any, can fairly be released into the public domain".

Media lawyer Phil Ahern said although the internet had created a new risk, it did not warrant anything other than directing juries to ignore non-court material. "I think we are always concerned about more and more restraints being put on reporting of what goes on inside the courts."

But Criminal Bar Association president Graeme Newell agreed with Judge Wade's internet-risk concerns.

"I do believe people will need to seek suppression orders more commonly, particularly where there's high media interest."

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