Social Networking and major murder trials

NZ has had two highly publicised murder trials in the last few months, and during both of these trials the issue of contempt of court was raised.

In both cases the social networking site Facebook triggered questions about whether posting a personal opinion, or joining a Facebook group claiming the guilt or innocence of the defendant, would be considered contempt of court.

During the David Bain retrial, several Facebook sites were set up. Some relating to the famous knitted jumpers Bain seemed so fond of, and some for those who believed Bain was guilty, or innocent.  Most of these sites have been removed, and after the innocent verdict not only was contempt of court raised as a problem, but defamation also.

As Bain was not found guilty due to ‘reasonable doubt’, anyone who says he is a murderer is technically defaming him.  One of the defences in a defamation case is that of an honestly held opinion, and in a case such as Bain’s, almost everyone will have an opinion. Another defence is truth, however as the defendant of the defamation charge is the one who must prove truth in the statement that might be a difficult one to use. If a jury of 12 could not find Bain guilty beyond reasonable doubt, it seems a bit far-fetched that a member of Facebook would be able to do so.

But as David Farrar points out, at what point are we allowed to comment? In a case such as Bain’s, where he was found guilty, and then more recently released, are comments made after the original guilty verdict potential lawsuits?

During Clayton Weatherston’s trial for the murder of Sophie Elliot, contempt of court was the key issue with these groups, as Weatherston had already admitted he had killed Elliot. Weatherston had not admitted to murder however, he had admitted to killing her and was using the defence of provocation.

With such a long trial and jurors allowed home at the end of each day, there will always be concern that other material relating to the defendant will be seen by a member/members of the jury.

Steven Price, media law expert, talks about the Weatherston case in his blog.

Being tried by a ‘jury of your peers’ should mean that a sample of the community is taken, and the decision should in some way reflect the greater public’s opinion on the matter. As a member of the jury in a case gaining huge amounts of media coverage, with strong opinions held by members of the community, there must be a lot of pressure to come up with a decision the majority of the population will, to some extent, agree with.

The decision made, however, is not based on your opinion or those around you, but based on the evidence presented in the court room and allowed by the judge. The danger some are seeing with sites like Facebook, and also Google (see Steven Price’s blog) is that information not allowed in court may be available online and influence a juror’s decision. For example, information on an accused’s prior convictions may not have been allowed in court, but can be seen on the internet. And blogs and social networking sites, full of personal opinion, could also sway a juror either way if they feel they need to make a decision to please the public.

It seems ridiculous that someone would attempt to take legal action over members of a Facebook group like “Clayton Weatherston is a Heartless Pig!” (229 members) or “We Hate Clayton Weatherston” (647 members).

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