We all see the merit in Justice’s blindfold that speaks of all being equal under the law, but isn’t it high time we re-examined the gag on her mouth? The number of court suppression orders is inordinately high.
That assessment is based on a comparison of suppression data collected by the New Zealand Herald and by the Melbourne newspaper The Age.
Data assembled by the Herald’s data editor Chris Knox and revealed in Shayne Currie’s Media Insider column on Saturday shows that name suppressions have risen by 47 per cent in the past decade and last year stood at 1616 orders. That represents 2.5 per cent of all people charged, up from 1.3 per cent a decade ago.
The fact that suppression has risen almost by half since 2014 was worrying enough, but what made Knox’s figures all the more disturbing was a story I had read in The Age a couple of weeks ago.
The paper’s courts and justice reporter, Erin Pearson, wrote a story about how Victoria had become the suppression capital of Australia. She revealed that, in 2023, 521 suppression orders were issued in Victoria compared to 308 in South Australia and 133 in New South Wales.
Let’s put that in some perspective. On a population basis, Victoria has about a million more people than New Zealand and New South Wales an extra three million. South Australia has about a third of our population.
None of the Australian states, even allowing for population differences, came close to New Zealand’s level of name suppression.
In both countries – leaving aside the statutory suppression of the names of minors and victims of sexual offences – the core reasons for granting suppression are similar. They fall into two categories:
- To ensure a fair trial for a defendant and to protect the presumption of innocence.
- To protect the privacy of victims or others involved in a trial where doing so might identity them.
In 2010 the Law Commission reviewed name suppression following widespread concerns that it had become too easy for well-known people to get it. Legislation under the Criminal Procedure Act 2011 was designed to make that more difficult by setting out in detail the matters a judge needed to consider in granting suppression.
‘Extreme hardship’ is cited as a potential reason for suppression, although the Act makes in clear that being well-known is not sufficient grounds. In Australia there are related grounds amounting to harm, but also a test of ‘necessity’.
Both countries have similar systems of justice (Australia’s federal structure notwithstanding) and shared principles of common law. Roughly speaking, both countries have similar approaches to suppression.
Our societies are very similar so why is suppression seemingly granted more readily on this side of the Tasman?
The short answer: I’m damned if I know.
When I look at commentaries on suppression by jurists, lawyers, academics, and journalists in each country, I see similar patterns: The right to a fair trial, principles of harm, the need for open justice, the public’s right to know, and so on. The issue is acknowledged to be a complex balancing act.
Each jurisdiction notes that in many cases suppression is only temporary.
That, however, should not be a justification in itself.
While more than three quarters of the New Zealand orders last year were interim – the names of the accused were eventually available for publication – the delay in the public learning the identity of someone in even a high-profile case can be protracted.
So, how temporary is ‘temporary’? How long is a piece of string?
James Wallace remained a ‘prominent Auckland businessman’ (and kept his knighthood intact) for five years before – in spite of his money and top-shelf legal advocacy – he exhausted avenues to keep secret his identity as the person jailed for sexually assaulting young men.
News media are recognised parties (as representatives of the public) in challenging suppression orders but, more often than not, their objections are retrospective, and a defendant can move anonymously through much of the court process before challenges to orders are heard and determined. And they cost money that cash-strapped news organisations can ill afford.
When the defendant is well-heeled, the fight may go all the way to our highest courts. The bid to keep Wallace’s name secret went to the Court of Appeal and would have gone higher had his application to take the matter to the Supreme Court not been denied. In that case, the Crown prosecutor opposed continued suppression.
During my time as a newspaper editor, we fought a suppression order all the way to the appeal court in the case of the ‘American billionaire’. Peter Benjamin Lewis, had been charged with importing cannabis to New Zealand. Lewis (who headed a U.S. company with an annual turnover of $US6 billion) had been discharged without conviction. It took the Herald eight months from his first appearance to obtain the right to name him. And it cost a lot of money.
While the 2011 Act gives greater guidance to judges, I continue to worry that suppression orders may depend too much on the ability to hire a lawyer with status, a strong knowledge of jurisprudence, and legal eloquence.
There are plenty of defendants in Australia who are capable of securing a top barrister, yet successful applications for suppression remain significantly lower than in this country. So that may point to an attitudinal issue.
Perhaps New Zealand society believes the threshold should be lower than it is in Australia. Maybe, but I think it is more likely to be a combination of public apathy and a willingness on the part of the judiciary to give weight to legal arguments of potential ‘extreme hardship’ that might not pass a test of absolute necessity.
There is no doubt whatsoever that courts must have the power to suppress matters that come before them. The justifications for making orders are many and varied. Victoria’s suppression orders, for example, spiked during a gangland war in the early 2000s when the identity of witnesses and some defendants had to be suppressed for their physical safety. In this country, the name of the killer of Grace Millane was suppressed because the defendant, Jesse Shane Kempson, had yet to stand trial on separate sexual offences. And, always, there is a need to ensure that victims are not re-victimised by publicity.
On the other hand, the principle of open justice is fundamental to the public’s trust in the justice system. It has been a cornerstone of justice in countries based on the English legal system for centuries. The then English Chief Justice, Lord Hewart, perhaps articulated the concept most clearly in 1924: “[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
Secrecy tends to breed suspicion and that is no more so than now – a period that future historians, looking aghast at the surviving remnants of social media, might dub ‘The Age of Conspiracy’. Conspiracy theorists will find malfeasance wherever they look for it. The rest of us have no doubt our judges are above suspicion. However, increasing suppression numbers will eventually cause the public to raise an eyebrow, then start to wonder what is being hidden from them. That would not bode well.
Suppression is a matter of balance and I do not doubt that our judges are acutely aware of that in considering individual cases. However, given the rising number, it could be time for our judiciary to consider collectively whether their counterparts in Australia have achieved a better balance in the interests of open justice.