A shiver down the spines of the rich and famous

Justice Minister Kiri Allan’s call for a review of name suppression in New Zealand courts should send shivers down the spines of the rich and famous. And rightly so.

She was asked on TVNZ1’s Q&A whether the current system appears to favour them, and she agreed.

“If you’re well-funded, well-resourced, then you can seek to have your name suppressed for a range of different reasons,” she said. “I don’t think that leads to just outcomes.”

Allan told the show’s stand-in host Jessica Mutch McKay that she has sought urgent advice on this particular area of the law and added: “I don’t think it’s just, I don’t think its fair, and I don’t think New Zealanders looking in on the system think the system is working adequately either.”

The straight-talking minister deserves a rousing round of applause.

The ability of judges to suppress certain details in proceedings before the court is well-founded. Few would question the automatic right of children and the victims of sexual assault to have automatic name suppression, although Kiri Allan rightly questions the delayed and expensive process the latter must go through if they wish to forego that right. Similarly, fair trial rights must be protected.

It is little more than a decade since suppression laws were revised but, in spite of what were seen as changes for the better, the suppression of the names of accused and convicted people still leaves Lady Justice’s scales looking decidedly lopsided.

Name suppression can be sought by anyone but that is not how it pans out in our justice system. For example, an analysis by Radio NZ last year showed that Māori were charged with 43 percent of crimes but only accounted for 17 percent of the interim and final name suppression granted. Pākehā were charged with 36 percent of crimes, but accounted for 65 percent of interim and final name suppression.

There is a clear socio-economic divide, and a strong perception that the system is weighted toward defendants who can afford barristers who see suppression on first appearance as a default position. If initially unsuccessful in keeping their clients’ identities secret, they are paid to exploit the appeal system in the hope of a reversed decision or at least to delay exposure for as long as humanly possible.

A case in point is that of a wealthy New Zealand businessman found guilty by a High Court jury last year of indecently assaulting three men. He was also convicted of twice trying to pervert the course of justice and was sentenced to two years and four months in prison. He has appealed conviction and sentence, and has had interim name suppression throughout his trial and also during an earlier aborted hearing. He was first arrested in 2017.

That case also highlighted how suppression laws can be used to shield others associated with proceedings. A ‘prominent political figure’ named in the case was last week identified as former National Party president Michelle Boag. She has denied any involvement in the criminal conspiracy that led to the businessman’s convictions for perverting the course of justice. Boag exhausted all avenues of appeal in a bid to have her name kept secret. Last Friday the Supreme Court declined her final attempt after the Court of Appeal upheld the decisions of two other judges that her name should be published. Her bid for name suppression began three years ago and she had interim suppression until the matter was finally resolved.

In a similar case, boxer Joseph Parker was last year identified as the ‘high-profile sportsman’ who had been named during the trial of three men found guilty of importing methamphetamine. Parker was never interviewed or charged by Police and he fought all the way to the Supreme Court to keep his name secret. The court decided the principles of open justice outweighed Parker’s right to secrecy.

And last year – in a case said to signal the wealthy’s sense of entitlement – an Auckland couple facing breaches of the Covid rules for travelling to their Wanaka holiday home engaged a Queen’s Counsel to successfully seek interim name suppression before charges were laid.

In many cases like these, the news media challenge the suppression orders and spend large amounts of money – which could be far better employed in newsgathering – doing battle through multiple appeal layers.

New Zealand sits at the higher end of suppression statistics in the English-based court system. Over the past decade an average of 1200 defendants a year have been granted interim or permanent name suppression. In the year to June 1350 were granted suppression. By way of comparison, the total number of suppression orders in Australia in 2018 was around 700.

Contrast the treatment of the ‘wealthy New Zealand businessman’ with the glare of publicity faced by ex-pat businessman Ron Brierley after he was arrested at Sydney Airport and subsequently charged with possessing more than 46,000 child abuse images. There was no question of name suppression for him in the New South Wales court.

Section 200 of the Criminal Procedure Act sets out eight grounds on which a judge may grant name suppression to a defendant. It is the first reason that is most often cited: “…publication would be likely to cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person”.

Section 200 goes on to state that the fact that a defendant is well-known does not, of itself, mean the publication of his or her name will result in extreme hardship.

With respect, M’Lud, any lawyer worth the fee can conjure up a raft of reasons that skirt around the point while never losing sight of their client’s wealth or fame.

The ability of those wealthy enough to instruct senior counsel who will highlight what they characterise as disproportionate hardship on a glittering career or position in society has given rise to the perception that name suppression is the province of the well-to-do.

It is their right not only because they can pay for counsel to eloquently plead severe hardship but because their reputations are perceived to be worth more than those of ‘lesser beings’.

I see that as a sort of 21^st century neoliberal version of scandalum magnatum, a law passed in the reign of Richard II to protect the honour of Great Men of the Realm, which was deemed to be higher than that of other men. It was on the statute books for more than 600 years.

In truth, the reputation of a wealthy person is worth no more than that of a labourer, office worker, or shop assistant. The loss of a job or the respect of one’s peers is as painful for one as for the other. Libel lawyers, conveniently forgetting Iago’s villainous character, are wont to quote Shakespeare’s lines from Othello: He that filches from me my good name, robs me of that which not enriches him, and makes me poor indeed. It is a universal concept, not one determined by position or by the money to fully access the justice system.

Equal access to justice is a core principle of modern constitutions that is, in theory, enjoyed by all New Zealanders. It is unacceptable, therefore, that name suppression is seen to be more available to some than to others.

Levelling out the legal system must be society’s aim, but it will take time. As far as name suppression is concerned, there is a faster solution: Lower expectations that it will be granted.

Suppression is applied too readily in New Zealand compared with other countries that employ English jurisprudence. Rather than grant interim suppression, courts should be emphasising the presumption of innocence until found guilty. In other words, a person’s reputation remains intact until there is good cause – a conviction – for it to be diminished.