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Fairfax Escapes Contempt Finding, But Judges Express Criticism

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By Kent Atkinson of NZPA

Wellington, Oct 10 NZPA - Two senior High Court judges say police should have prosecuted news organisation Fairfax New Zealand Ltd and Dominion Post editor Timothy John Pankhurst over breaches of suppression orders and illicit publication of intercepted communications.

Fairfax and Pankhurst breached court suppression orders, and unlawfully published communications intercepted by police, they said.

"We are at a loss to understand why these breaches were not prosecuted," High Court chief judge Tony Randerson and senior judge Warwick Gendall said today.

Noting responsibility lay with the police, they said failure to prosecute was possibly influenced by the fact that the maximum fine for unlawfully publishing intercepted material and was only $500, with a penalty up to $1000 for breaching a suppression order.

"We would urge Parliament to consider a substantial increase in the fines for these offences so that the prosecution of offenders is a meaningful deterrent," they said.

And they noted that part-way through the contempt hearing Solicitor-General David Collins unsuccessfully sought to amend his application to add an allegation of an independent contempt through breach of the suppression orders.

They dismissed the solicitor-general's application for Fairfax and Pankhurst to be declared in contempt of court for publishing material that affected the right to fair trial of people arrested in a series of controversial police raids last October, which were linked in initial reports to claims of terrorism.

Dr Collins had not proved beyond reasonable doubt that the Fairfax articles caused a real risk "as distinct from a remote possibility" of prejudicing future trials.

But the judges said they were still concerned about Fairfax's publication of transcripts of conversations police secretly recorded in an investigation into military-style training camps in the Ureweras.

"Fairfax breached at least some of the suppression orders and ... Mr Pankhurst was a party to those breaches.

"There was no reasonable basis for any belief by Mr Pankhurst (and through him, Fairfax) that it was lawful to publish the intercepted communication," they said.

"It was in fact unlawful to do so".

To suggest the Dominion Post and other Fairfax media, including the Stuff website, published in the best traditions of responsible and fearless journalism was not sustainable.

"Publications which are unlawful can never be regarded as responsible or justifiable," the judges said.

On the issue of who should carry the costs of the four-day hearing in the High Court at Wellington last month, the judges appeared to indicate their displeasure with Fairfax by noting their "provisional view that any application for costs in favour of the respondents is unlikely to be viewed with favour".

Fairfax group editor John Crowley said the company noted the court's comments about the breach of suppression orders and the use of extracts from intercepted communications.

It would take those into account "as we study the ruling in depth", he said.

Pankhurst said the newspaper strove to reach a fair balance between the rights of the public to know with the rights of those being charged.

He told Radio NZ that police had investigated charging Fairfax journalists with breaching section 312K of the Crimes Act -- prohibiting disclosure of intercepted communications -- but chose not to prosecute, something he characterised as an "interesting" decision.

Pankhurst, who separately chairs the Commonwealth Press Union, said it was hard to say this stage what the implications of the judgement were for the wider media.

But it was clear that the judges had not been able to see that reporting two years before the substantive trial of an accused person would necessarily influence that trial.

"Juries are fairly robust in being able to decide a case on the strength of the evidence put before them," he said.

But he would be "a bit cautious" about suggesting the media could be bolder in its reporting: "we still need to take great care".

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