The irony in the lead story of last Friday’s New Zealand Herald was plain: One rich-lister was wrongly pilloried because another rich man tried to hide his wrong-doing.
Businessman and philanthropist Wayne Wright was the victim of a chatbot that proved that artificial intelligence is not always very intelligent.
Grok, the chatbot owned by Elon Musk’s X (formerly Twitter), named Wright as the man found with 11775 objectionable files, including extreme child sexual abuse involving bestiality, pre-pubescent children and toddlers. The defendant was sentenced to two years and five months imprisonment. The court permanently suppressed the man’s name, his family’s name, and the name of his business. Grok had been asked to find his name and did so by scouring speculation on social media.
Wayne Wright was named, but he was not that man.
Understandably, Wright has now called on the offender to apply to the court to have suppression lifted. Customs is also considering an appeal against the permanent suppression. The Herald has stated categorically that Wright is not the offender but, of course, is prevented from naming the guilty man.
The episode is yet another example of the damage that may be wrought by the use of imperfect AI by unaccountable platforms, and of name suppression tarnishing the public’s perception of the courts.
Social media has long been recognised as an untrustworthy source of information. Artificial intelligence suggests the opposite: Almost by definition it is seen as something in which we can place a higher level of trust. In reality, it is far from perfect and only as good as the large language models, data scraping and analytical framework on which it is based.
The case with which Wright erroneously became identified involved a man described as a rich-lister paedophile. My guess is that Grok identified Wright as a rich-lister, connected him to children through his family’s fortune based on childcare enterprises, added in social media criticism of his financial support of online media site The Platform, and reached entirely the wrong conclusion.
At the very least, it was an object lesson in exercising caution with chatbots.
Unfortunately, it will not be the last episode of the sort. Repeats are virtually guaranteed by the unfettered nature of the platforms that see generative AI as the new El Dorado for social media as well as search. In our remote corner of the world we can do little but watch with growing disquiet.
The other outcome from the case in question, however, is within the country’s control.
Name suppression – aside from the fully warranted automatic suppression of the names of victims in cases such as sexual abuse – is a vexed issue. This is particularly so when it reinforces a public perception of a two-tiered justice system: One for the rich and famous and another for the rest of us.
Name suppression is largely governed by the Criminal Proceedings Act and there is nothing in that legislation that, of itself, differentiates between social classes. Interim suppression is, first and foremost, predicated on fair trial rights. However, Section 200(2)C of the Act allows the court to temporarily or permanently suppress identity if publication would be likely to “cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence or any person connect with that person…” However, Clause 200(3) states that the fact a defendant is well known does not, in itself, mean publication will result in extreme hardship.
The judge in the case with which Wright was erroneously linked found that naming the defendant would cause extreme hardship and endanger their safety. National Business Review reported that the defendant’s sentence was reduced in recognition of a number of factors that included “good character” and the fact that he had made sizeable donations to two charities totalling $50,400.
Courts are not persuaded by public perceptions but society’s attitudes toward out justice system are nonetheless coloured by what it might conclude from the decisions handed down by judges.
And the perception from this case is that it is another example of a system that National Business Review has said makes it “too easy for well-resourced defendants to keep their identities secret”.
NBR has cited the case of rich-lister Peter Huljich, who kept involvement in the Pushpay insider trading case secret for years. There are numerous other examples of “well-resourced defendants” keeping their names secret for protracted periods of time. In February former ACT president Tim Jago was finally named three months after being jailed for sexually abusing two teenage boys and more than two years after first appearing in court. Rich lister and jailed sex offender James Wallace kept his name secret for more than five years through a series of appeals.
Applications for interim suppression, followed by protracted appeals, is a far from uncommon means by which defendants have kept their names secret. Serial sex offender Luca Fairgray, whose crimes began in 2017 when he and his first victim were both aged 14 and continued for the next five years, kept his identity secret through a protracted series of appeals that were not exhausted until this year. In his case, however, it was not deep pockets but the taxpayer who footed the bill. He had been granted $120,000 in legal aid to pursue the appeals. The sum, however, is a drop in the bucket for well-heeled defendants able to use the appeal system as an automatic fallback if their expensive counsel’s eloquence fails to persuade a judge.
Last month Hayden Donnell wrote a satirical piece for The Spinoff titled ‘Prominent New Zealander Strikes Again’. He chronicled the century-long crime spree by a shadowy figure labelled ‘Prominent New Zealander’ by journalists frustrated by court-imposed suppression orders.
In an unintentional preview of what befell Wayne Wright, Donnell noted that “the secrecy causes problems for the prominent community, which is often the subject of wild speculation and rumours when a Prominent New Zealander is before the courts”. He added that name suppression also had an impact on “the non-prominent, or ‘peasant’, community, mainly as an ongoing reminder of the justice system’s inequities”.
The latest example will, I have no doubt, add to that perception of a two-tiered justice system.
NBR described the offending as “horrific”. A reader comment attached to their coverage of the trial said that “each sentence evinced fresh horror”. The reader went on to suggest the sentencing remarks relating to donations by the defendant meant “Rich privilege has never been starker”. The business publication cited another case with offensive material involving bestiality and sexual exploitation of children. There was no name suppression for that defendant.
I was left asking myself: What ‘extreme hardship’ or ‘danger’ will the 46-year-old rich lister face that will not potentially be faced by the 22-year-old in the other case? The disgusting nature of the material, and the knowledge that there are young victims whose lives are forever blighted by the horrors they endured, will be as abhorrent to the acquaintances of one as of the other.
Or is ‘hardship’ determined by the effect on wealth? Is a rich person’s potential loss of a million dollars more significant than a poor person’s loss of five hundred?
Or is it reputation? When I see stories about a ‘prominent sportsman’ being granted name suppression, I am minded to think the values system is skewed in favour of Donnell’s Prominent New Zealander.
The reality, however, is that prominence has no real value in determining the impact that being named (and, yes, shamed) will have on a defendant or their family. That much is clear from Clause 200(3) in the Act. Nor can ‘hardship’ be measured in numerical monetary terms.
I have an egalitarian yardstick by which I measure these types of decisions by the courts. It asks a simple question: Would a manual labourer from Otara be accorded the same treatment?
In a strict interpretation of law, the answer is ‘yes’. The reality, however, is too often ‘no’.
The reason lies in inequality of legal representation. The wealthy can pay for levels of legal expertise and eloquence that others cannot afford. Our legal aid system is designed to ensure everyone has legal representation, but its starting point is not a king’s counsel. Nor is legal aid designed to exploit an appeal process beyond verdict and sentence for the sake of secrecy.
NBR says our laws relating to name suppression need to be revisited and I agree. Justice is not served when there is a public perception that it favours the wealthy and well-placed. The Act needs to explicitly preclude impact on wealth and business activity from grounds of extreme hardship. It must find ways to prevent the use of appeal processes to prolong secrecy. And it needs to set an exceptionally high threshold for permanent name suppression, especially for anyone sentenced to a term of imprisonment.
Publication of the names of individuals facing the court, and particularly of those convicted of criminal offences, serves important purposes. First it is part of the process of justice being seen to be done. Secondly, it is part of the punishment society exacts for breaching its rules. It also alerts the public to the potential hazard of reoffending. And it is part of the healing process for victims who want to see the cause of their hurt also arraigned in the court of public opinion.