Tuesday, July 15, 2014

ATTENTION OSCAR PISTORIUS TRIAL EDITORS: The rule against publication which could prejudice the administration of justice is known as the sub judice rule

Through the grapevine I've heard word of contempt of court Nick van der Leek. Apparently I am an idiot who doesn't understand media law.  That's a curious thing because I have three years of Commercial law, as well as Family and Private law in my back pocket, but...uh...let's examine my ignorance when it comes to matters of the media and the law.  Personally I think SA media watch too much American/British TV, and should maybe definitely catch a wake up!
No. I think he’s an idiot [Nick vd Leek].
The reason the SA media will not publicise his book has nothing to do with Brand Pistorius and everything to do with the sub judice rule. Your mate is very likely to find himself in contempt of court at the very least. At worst he may have handed Pistorius his Get Out of Jail Card. If Oscar is convicted his lawyers can now seek a mistrial on the grounds that your mate has prejudiced the outcome. If that fails they can seek an appeal on the same grounds. >>>The idea of a mistrial is something I specifically researched for Resurrection, and hence published an extract here.
Take note my comments in this excellent article by Webber Wentzel's Dario Milo and Stuart Scott are provided in bold.
But could the publication of the video/article/eBook down under/or over here amount to a mistrial?
We submit not. I submit not too.
Significantly, the footage has not been relied upon by the state or the defence and thus it has no bearing on Pistorius’s murder trial whatsoever. 
Why would they not relie on it?  Because it's irrelevant to their own stating of their case in court.  
It follows that there is simply no basis for the view that Oscar’s or the state’s right to a fair trial has been infringed by the mere publication of the footage.
Accordingly, there is with respect no basis for the view that the broadcast creates what the Americans call a “mistrial”.
The legal reason is that our Supreme Court of Appeal made it clear in the Baby Jordancase that the test for whether a publication during a pending or on-going criminal trial is unlawful is whether there is a real risk of demonstrable and substantial prejudice to the administration of justice. And “[e]ven then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.”  This rule against publication which could prejudice the administration of justice is known as the sub judice rule.
Importantly, the panel deciding Oscar’s legal fate is not a jury comprised of lay people who might be erroneously influenced by evidence which is not before the court, but a Judge and two legally-trained assessors.  Our courts have emphasised the importance of this distinction.
A helpful example in this regard is the case of Joseph Arthur Walter Brown v the NDPP and Others in which the former chief executive of Fidentia, (this case law, incidentally, is discussed in RESURRECTION) along with comment from David Dadic and Ulrich Roux) who had been charged with numerous counts of fraud and theft, applied for a permanent stay of the prosecution against him on the basis that pre-trial media coverage infringed his right to a fair trial.
The court agreed that there was indeed adverse media coverage in relation to his case but found that Brown had failed to show any link between the publicity and the effect that it would have on his trial.
>>>One also has to ask the question, if an idiot journalist were to write a book that could result in his, a publications and those he quoted being sued, why would litigation experts contribute to it?  Simple answer, we know something the ADD starved MSM don't.  Perhaps it's time you paid attention to the details people...

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