Has Anyone Seen Our Sub Judice? - by Michael S.

Updated: Sep 13, 2021

An employment advocate was recently required to gag herself about proceedings because of the "sub judice" rule. She said it could be contempt of court to do anything that might influence the outcome of a case so she could not comment.

The "sub judice rule" is an informal term popular with journalists, especially those who think a Latin term will frighten people into not asking any more questions. It has two real practical meanings.

The first one is the one that really is made for journalists. It is where there is or will be a criminal jury trial. It is important that the jury, as lay people, are not influenced by information about the defendant that they should not take into account. That means things like the defendant's previous convictions. Publishing inadmissible evidence before or during a jury trial could interfere with the court process and the administration of justice. That would be "contempt of court".

Where there is no jury trial, if judges are claiming to be so influenced by comments on legal proceedings that people have to be gagged and threatened, one wonders why. What is it the judges don't want the public to know, and what happened to open justice and the free press - and democratic society?

The second one is a rule that really is called the "sub judice rule". The UK Parliament decided it would not comment on matters being dealt with in court cases or where Parliament had delegated its powers of inquiry to other bodies. That doesn't affect anyone who isn't an MP though.

The invention of a "sub judice rule" within employment proceedings generally appears to be part of the general gagging of employees or anyone who might talk about what New Zealand officials are doing.

Leighton Associates have reported on how the employment process has been used to enable officials to give each other public money and suppress the documents by which it's done. Remember that the architects of the process itself are public officials: employees of Crown entities, including people like Member "Fun Bum" Fitzgibbon and Tony Smith, who drafted the Act that enabled officials' "orders" to be enforced through contempt proceedings, regardless of their legality. That puts the officials above the law.

Member Fitzgibbon was the biggest practical invented of a "sub judice rule", in the Bay of Plenty DHB case against Ana Shaw. As a public servant, she suspended rights of free speech about what public officials like Pete Chandler had been doing. Pete Chandler was one of the men that fired Ana Shaw for talking about fraud at the DHB. Since then, he and other public servants have paid hundreds of thousands of public dollars to local lawyers Christie Goodspeed and her colleagues at Holland Beckett and to her former colleague, Mark Beech, who is now a barrister sole, to wear out Ana Shaw and others with proceedings that will land New Zealand in international dirt. Other Members have joined in as though the process was legal because Member Fitzgibbon said it was.

In fact, that is what the lawyers who advise how to use public money to suppress reporting of corruption say is the law - that these public officials can do what they like and say it is the law.

Employment Relations Authority officials and public servants like Tony Smith can overrule Parliament and take taxpayers' money and gag anyone from talking about it Fancy that.

You would expect some serious academic comment on such a serious constitutional change, from the "critics and conscience of society". ... Oh, wait. Perhaps not. The academic that Andrew Little and Grant Robertson listen to is Professor Tony Smith (associate and former. client of Helen Cull QC). He is now supported by Professor Mark Hickford, a public servant who used to be in the Department of Prime Minister and Cabinet.

Leighton Associates asks why no MP will stand up to them even by querying the death of the free press and the overruling of the parliamentary process. This seems to have begun thirty years ago with the introduction of Cull orders to cover up criminal offences. What are the MPs scared of?

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