Name suppression: Wallace’s wallet hid the truth

The end of the long and tortuous road to revealing multi-millionaire James Wallace as a convicted sex offender will be a tipping point.  It will be the final straw in a growing stack of calls for reform of a system that allows the rich to use court processes to hide from the public.

Suppression of Wallace’s name was finally lifted last week after he exhausted his last avenue of appeal – the Supreme Court – and the public learned he was the “prominent businessman” now serving a prison sentence of two years and four months for sexual offences against three young men.

Three of New Zealand’s metropolitan newspapers led their front pages with the news that he could be named. ‘Knighted arts patron named as sex offender’ said the New Zealand Herald, while the Waikato Times baldly declared ‘Predator’s name revealed’, and The Press disclosed Wallace was the ‘Jailed businessman behind restoration’ of an inner-Christchurch mansion.

Wallace, who was first charged in February 2017, used every avenue of appeal against conviction, sentence, and name suppression. Had our judicial system still allowed appeals to the Privy Council in London, he would doubtless have sought that avenue as well. He could afford the legal costs: The ‘rich-lister’ is said to be worth $165 million.

And, of course, the Covid pandemic – when court activity was reduced to a minimum – further stretched his period of anonymity.

Wallace is not alone in using the full extent of the legal system in an attempt to keep his name secret. News media have periodically carried headlines such as ‘Top sportsman’s name suppression reaches High Court’, ‘Entertainer loses name suppression but can’t yet be revealed’, and ‘Teen rapist heads to Supreme Court to keep name secret’.

Last year, when she was appointed Minister of Justice, Kiritapu Allan agreed with TVNZ’s Q&A programme that name suppression was not working.

“If you’re well-funded, well-resourced, then you can seek to have your name suppressed for a range of different reasons  . . . and I don’t think that leads to just outcomes,” the minister said, adding that she’s seeking “urgent advice” on what to do.

Her advisors have been grappling with a difficult issue. Interim name suppression is nuanced. Each case will have its unique characteristics and there are issues such as the presumption of innocence and fair trial rights in play. So it’s not surprising that eight months later we have yet to see any proposals emanating from the minister’s office, although the Wallace case will put on the pressure.

Wallace’s case may be unique in the tenacity with which his legal representatives utilised his appeal rights but, once again, it highlights problems with this country’s application of name suppression.

After Kiri Allan made those comments last year, I wrote a Tuesday Commentary applauding her determination to do something about it. I highlighted not only that socio-economic divide but also the fact that there were a significantly higher number of name suppression orders made here than in Australia.

Both of those issues remain unresolved, but would a change to the law bring improvement? I now believe we need a different approach.

It is only 12 years since legislation relating to name suppression was amended. The Criminal Procedure Act 2011 implemented many of the recommendations of a Law Commission study on name suppression and set out eight grounds on which the identity of a defendant could be suppressed. The first – and sometimes the most challenging for a judge – is that publication be likely to cause “extreme hardship”. The remaining grounds largely relate to the maintenance of justice, security, and personal safety.

The Act also contains a provision stating 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, which is one of the grounds for name suppression. That does not, however, stop counsel for the rich and famous from suggesting their clients have so much more to lose if named. Nor does it stop them from employing many of the 14 clauses in the Act relating to appeals over suppression orders.

The ‘well known’ provision acknowledges that, on a human scale, a factory worker may suffer as much hardship from being named as a ‘prominent businessman’. Yet when did we last hear of a factory worker from one of Auckland’s down-at-heel suburbs fighting through appeals to hide his identity? It simply does not happen.

The judicial appeal process is there for good reason. It is a fundamental part of our legal system, ensuring that judges’ decisions can be tested by their peers and that there are checks on the power of the bench. Lawyers have every right to employ it in the interests of their clients. To do so, however, takes money. For most, using appeals to hide identity while before the courts is a luxury they cannot afford.

The news media, for their part, see such ongoing appeals against refusals to grant suppression as unwarranted challenges to the principle of open justice. They also may see some cases where suppression is granted as flying in the face of that principle.

I certainly took that view as editor-in-chief of the New Zealand Herald during protracted litigation in which we sought to reveal the identity of American billionaire Peter Benjamin Lewis, who had been granted name suppression and discharged without conviction over the importation of more than 100g of marijuana.

After the District Court hearing, his lawyer warned the Herald reporter covering the case of dire consequences if anything was published to indicate his identity.

“Don’t try anything cute,” the reporter was told, “because we’ll sue the arse off you, and he has the money to it.”

I believed then, as I believe now, that the suppression was contrary to the principle of open justice and that the order should not have been allowed to stand. Nor should the newspaper have bowed to threats.

The Herald was given leave to appeal the suppression order, won in the High Court, but Lewis took the matter to the Court of Appeal. The Herald won that appeal, too, and the billionaire (now dead) was named.

The principle had prevailed, but the legal bill was significant.

I have no doubt that Stuff and the Herald’s publisher NZME sustained equally substantial costs in fighting every step of the way against Wallace’s bid to keep his name secret. I applaud them for their tenacity but fear that the ability to fund protracted legal battles on matter of principle will become increasingly difficult for cash-strapped media.

The principle of open justice has been emphasised by the Chief Justice Dame Helen Winkelmann. In her inaugural annual report last year she said:

It is a fundamental principle of common law that the administration of justice must take place in open court. Subject to specific statutory exceptions, this principle underpins the public’s right to attend court hearings, the media’s right to report proceedings, and access rights to court documents. It is not open to the parties to agree to private hearings, to the sealing of the court file, or to suppression of the judgment.

The requirement that justice be administered in a manner which renders it open to public scrutiny is the surest means of holding judges and courts to the ideal of a fair hearing. In this way, open justice maintains public confidence in the justice system.

On that basis, it should not be the sole responsibility of news media to challenge attempts on the part of legal counsel to delay or deny the application of that principle through zealous use of the appeal process. This is particularly so if financial constraints prevent the media from issuing legal challenges that would be in the public interest.

However, there is a real risk of unintended consequences if the current law is amended to prevent a relatively rare occurrence like the Wallace case. It is in no-one’s interest to constrain the courts when there are, in fact, circumstances in which publication would result in extreme hardship for not only a yet-to-be-convicted defendant but for their family.

Just as access to justice at every level will not be achieved by a stroke of the legislative pen, nor will amending the Criminal Procedure Act solve the name suppression issue.

One possible solution does not require any law change, but would ease the pressure on news media to be the Challenger of Record.

The Solicitor-General could charge prosecuting counsel with the responsibility to rigorously oppose appeals over name suppression when they fail to meet statutory thresholds and are contrary to the principle of open justice. Any counsel determined to continue the fight for anonymity would do so in the certain knowledge they would be challenged by Crown counsel every step of the way in appellate courts.

It would not overcome all of the issues. Socio-economic inequalities would remain and it may not stop a ‘prominent businessman’ for whom legal fees are no object. It would, however, send a clear message that truth will out – if not now, then eventually.