One of the troubling aspects of the so-called "terror" arrests - and criticism of them - that have dominated the news over the past fortnight is the quiet acceptance of closed courtrooms in one centre. In Rotorua, as various defendants appeared before District Court judge James Rota, members of the public and the media were first removed from the court and the next day forcibly blocked by police outside the room from entering. This policy continued until as late as last Thursday and has done nothing to reassure the public that the justice system is dealing appropriately with this most remarkable of cases. In other centres, name suppressions and the like eventuated, but the courts were not closed.
It is to be expected that this newspaper and other media should complain when our representatives are denied access to the operations of the courts. For better or worse, journalists are the eyes and ears of the public at court. That responsibility has long been accepted by our court system. Judges far more senior than Judge Rota have opined repeatedly on the profound value of open justice, on the presumption that what occurs before the courts ought to be aired before the public whenever possible. Too often, however, the first hint of intense media (public) scrutiny of a case will, of its own "sensational" nature, or through the persuasions of the police or crown lawyers, see lower court judges or magistrates act counter to that principle.
These Rotorua hearings considered bail for three individuals, including Tame Iti, who faced firearms charges.
They were not and may never be hearings involving terrorism. Often, bail hearings are held "in chambers", with the news media allowed to remain in court but the arguments raised by both sides suppressed. Here, however, the proceedings of the court were conducted without even the media in court. Judge Rota's rulings refusing bail for all three of those charged were later passed on by a court official in the lobby. His written reasons emerged much later, with all salient details suppressed. He is yet to explain the removal of the media and public, the enforcement by police sentries of closed courts and how this sits with open justice - other than an initial remark about "erring on the side of caution". Worse, in the course of these hearings, he allowed into the court selected members of the defendants' families to observe some aspect of this secret theatre. It is not known what transpired at the whanau-only hearings.
The whole affair has been subject to criticism by Maori and activist groups. It is to be hoped that some can see the human rights implications of closed courts. Threats to justice globally almost inevitably occur where the work of the courts cannot be seen to be done.
An appeal by the Media Freedom Committee of the Commonwealth Press Union, which represents all major newspapers, radio and television broadcasters, to the Chief Justice to intervene in the Rotorua policy has proven futile. Chief Justice Sian Elias replied on Friday that "the question of open justice is one that I and all judicial officers take very seriously indeed" but that it would be improper of her to communicate with a judge on a matter before him. As of today, however, it remains permissible for the media to communicate their views to a judge. We urge Judge Rota and his colleagues to start with the Court of Appeal's "presumption of openness" and then to err on the side of ... the public.