12 March 2003
It is a basic civil liberty which, along with freedom of association, of assembly and of religious practice, is critical to the advancement of both mankind and the individual. As such, it is enshrined in the New Zealand Bill of Rights Act. As such, it should be out of touch to those who wield authority. Too often for comfort that is not the case. Take the instance of Judge Gregory Ross, who last week granted euthanasia campaigner Lesley Martin bail only on condition that she did not speak to the media.
Martin was charged in the Wanganui District Court with the murder of her cancer-ridden mother, Joy Martin, in 1999. Judge Ross' motives for applying a gag can only be surmised. Perhaps he worried that Lesley Martin's strident and repeatedly expressed right-to-die views might prejudice a fair trial if allowed to continue. Whatever the concern, he ventured into territory where he had no right to go. No court has the right to gag a citizen. Section 14 of the Bill of Rights Act makes that clear. Everyone, it says, has the freedom "to seek, receive and impart information and opinions of any kind in any form".
If Judge Ross harboured concerns, he might, quite appropriately, have drawn Lesley Martin's attention to rules and conventions that ensure her trial could not be prejudiced by continued espousal of voluntary euthanasia. Chief among these is the sub judice rule. If a case is due to be heard, this rule constrains the publication or broadcasting of any comments that could interfere with the trial or the system of justice. In any case, and particularly one generating as much emotion as that of Lesley Martin, its impact is to stop prejudicial media publicity - what might be decribed as trial by media - and to uphold public confidence in the impartiality and lack of preconception of the court system. The sub judice rule means that Lesley Martin's continued pleading of the cause of euthanasia would, of necessity, have fallen on deaf media ears.
Judge Ross' indiscretion does not end there. Effectively, his bail gag put the court on a slippery slope. If Lesley Martin should breach that condition and speak to the media, she could face additional charges and be held in custody. Yet such imprisonment would also fly in the face of the Bill of Rights Act. Section 22 of the act, which deals with individual liberty, states that "everyone has the right not to be arbitrarily arrested or detained". The capricious nature of the original gagging condition surely renders follow-up imprisonment arbritrary. In its zeal to silence Lesley Martin, the court would pile injustice upon injustice.
As it is, Lesley Martin has found an avenue of expression and publicity, albeit not one she would have preferred. Judge Ross' decision has given her fiance every justification to talk about how her rights to freedom of speech have been destroyed. "It's a democratic right that people are able to talk and the freedom of speech has been taken away from her, which she finds excessive," said Warren Fulljames. Lesley Martin, he added, was getting "heaps of support".
Such comments should make the Judiciary blanch. Lesley Martin's trial may not have been prejudiced but the gag has proved to be utterly counterproductive. Most worryingly, the public has reason to be slightly less confident that justice will always be administered impartially and without preconception. Lesley Martin was singled out for treatment that transgressed a legally enshrined right. For whatever reason, sound rules and conventions that would have safeguarded the legal process, while upholding her rights, were deemed inadequate in this case. So patently foolish was the decision, and so salutary the aftermath, that it must never happen again.