New Zealand’s Supreme Court last week re-affirmed the absolute right to a fair trial. In the process it denied citizens another fundamental right in an attempt to hide the past from jurors.
The court handed down its decision in an appeal over a takedown order that required Herald publisher NZME and other media to remove all stories relating to the previous convictions and character of a man now serving his second open-ended sentence of preventive detention.
The takedown is now moot because Damon John Exley (pictured above) has already been convicted and sentenced in the case during which the take-down order was made and then successfully appealed by NZME. Exley (also known as John Douglas Willis) was granted leave to take the matter to the Supreme Court, which elected to continue the appeal because it “raised a point of public importance”.
That process meant a takedown order remained in force during his trial on charges of rape, assault with a weapon, and abduction while an escapee from Rimutaka Prison where he was already serving a term of preventive detention. However, the jury was aware of some of his past convictions because the Crown had been given leave to introduce a list in what is known as propensity evidence.
Last week the Supreme Court found in Exley’s favour and said the Court of Appeal had been wrong to quash the takedown order. It found that the was “a real risk to Mr Exley’s fair trial rights if the material was accessed by a juror”.
The judgement has far-reaching effects because it found the right to a fair trial is absolute and the test to be applied “does not involve the balancing of the right to a fair trial against other rights, including freedom of expression”. It overturns the previous two-step test that first assessed whether continued publication represented a real risk of prejudice to a fair trail, but which then asked whether a takedown order would be a reasonable limitation – set out in Section 5 of the Bill of Rights Act – on the right to freedom of expression. That limitation requires that it be “demonstrably justified in a free and democratic society”. Continue reading “Far-reaching consequences of cloaking this man’s past”
