The Press MONDAY, APRIL 29, 1957. Reports of Preliminary Court Hearings

Press, Volume XCV, Issue 28263, 29 April 1957, Page 8

The Press MONDAY, APRIL 29, 1957. Reports of Preliminary Court Hearings

Discussion in England (arising from the Dr. Adams case) about reporting and publishing the preliminary hearings of cases which must eventually be tried in a higher court has attracted the attention of New Zealand lawyers; and the Dominion legal conference provided the opportunity for public discussion of the issues involved. It is an old controversy that was revived by the Judge’s summing up in the Adams trial. He said that the Eastbourne magistrates would have been wiser had they used their discretion and held the preliminary hearings in private. The Judge was particularly disturbed because, at the Magistrates’ Court hearing, the prosecution brought forward a great deal of information which was not advanced as evidence at the trial; the pretrial publicity, which might have been seen by some, or all of the jurors, could therefore have prejudiced the trial. This unusual circumstance, of course, lent some additional plausibility to the case for prohibiting publication of reports of preliminary hearings. The case for suppression ordinarily rests on the supposition that the trial of an accused person may be prejudiced by jurors’ minds being influenced by reports they have read, weeks or months earlier, of the evidence for the prosecution—the evidence for the prosecution alone, since the defence is usually reserved for the superior court. It is important to bear in mind that the procedure which aggravated the assumed risk of prejudice in the Adams case was the responsibility of the prosecution and not of the newspapers which reported the court proceedings. How great is this risk, in fact, in a “ normal ” case? How great even in an aggravated one such as the Adams case? As “The Times” has pointed out, in spite of all the preliminary publicity giving only one side of the Adams case —and too much of it at that—- “ 10 men and two women, the “lay agents of justice, have “ triumphantly survived the “perils into which such weak “ vessels are alleged to plunge “ when they are exposed to “ publicity ”. Moreover, it is not sound to argue that publicity necessarily works against the defence. Crossexamination of witnesses for the prosecution may produce publicity favourable to the defence. The defence is not always reserved; sometimes an accused person may have a strong case which he is anxious to put on record as soon as possible. Reports of the preliminary hearing may assist the defence by rallying friends to

the support of an accused person or, indeed, by attracting the attention of persons whose evidence might be valuable to him but who were not aware that he was on trial. When there is reason to fear that publicity from previous hearings may be harmful to an accused person, his counsel and the judge may be relied upon to impress upon the jurors that they must make up their minds solely on what they hear in court. And the average juror is not so incapable as his would-be protectors believe of assessing the reliability of the sources from which information reaches him, whether they be newspapers, witnesses, gossipers, counsel, or judges. But the case against secret court proceedings rests not so much on these practical considerations as upon considerations of principle. Although some eminent lawyers in England would change the present practice, “ The Times ” has reminded them that Lord Shaw of Dunfermline, a great lawyer, having quoted the verdict of Hallam that the publicity in judicial proceedings ranked even higher than the rights of Parliament as a guarantee of public security, said that there was no greater danger of usurpation of this liberty “ than that which proceeds, “little by little, under cover of “rules of procedure, and at the “ instance of Judges them- “ selves ”. Another great lawyer, Lord Halsbury, had, at that same time, some hard things to say about what he defined as “ injunction to perpetual “ secrecy ”, for which, in his view, there was not a judgment of authority to be pleaded in justification. It may be argued that such powerful injunctions hardly apply to a court taking preliminary hearings. But the principle is the same for one court as another. The right of a preliminary hearing in open court is a fundamental safeguard; any infraction of it must weaken it. Inspired by the Adams trial (though rather illogically, some may think in view of its outcome) the Home Secretary has set up a committee, over which Lord Tucker, one of the law lords, will preside, to report “ whether it is “ necessary or desirable that any “ restriction should be placed on “ the publication of reports of “ proceedings before examining “ justices ”. Many in New Zealand will share “ The “Times’s” views that “Lord “Tucker will perform a public “ service if he comes down “against secrecy on the ground “ that British juries are com- “ posed of grown-up men and “ women of the world