The plaintiff alleged that the respondents were in contempt of court because they had published information that gave rise to a real risk of interference with the due administration of justice by compromising the fair trial rights of the persons who currently face criminal charges. This allegation was held not to be made out (134):
In Chamberlains v Lai (blogged here 11 September 2006) the Supreme Court noted that a "real risk" of the loss of a more favourable verdict is a lesser standard of proof than the balance of probabilities. A person could show that such a risk existed by adducing relatively slight evidence, and the sensitivity of the court to the issue would operate to put the burden on the other side of excluding that risk.
The present case concerns the risk that a trial could be unfair. The right to a fair trial is absolute (Condon v R, blogged here 24 August 2006) and the fairness of the trial is a matter for judicial sensitivity. Yet here, arguably, the High Court has diminished that in its formulation of its conclusion.
Certainly, the prosecution must prove its allegation of contempt to the standard of beyond reasonable doubt. What that means here is that the contents of the publications and the identities of the publishers must be proved beyond reasonable doubt. The publications in question must be of the kind that could give rise to a real risk of trial unfairness, otherwise they are irrelevant to the proceedings. But once that relevance test – which does not carry a particular standard of proof - is met, the only live issues for proof beyond reasonable doubt, given that the contents of the publications are not able to be disputed, are the identities of the publishers.
In Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563; (1995) 13 CRNZ 244, Richardson P, giving the judgment of the Court of Appeal, held:
“The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.”
In the present case the Full Court departed from this by requiring the prosecution to show beyond reasonable doubt that the publication prejudiced trial fairness: this is not a guarantee of a fair trial, it would permit trials that are probably going to be unfair as long as they would not beyond reasonable doubt be unfair.
See also my blog for 19 July 2005,"Proof and Risks".