The silent treatment

Judges remain far too ready to grant such secrecy and the “entertainer” or “prominent sportsman” who has beaten his partner or drunkenly molested a stranger gets away without this criminal behaviour being exposed.

The defences that granny is too sick to deal with any family fallout, or that employment would be adversely affected, are such stock in trade of defence lawyers it’s a wonder they can deliver them with a straight face.

That may be about to change under a far reaching overhaul of the court system embodied in the Criminal Procedure (Reform and Modernisation) Bill currently before New Zealand’s Parliament.

And the Media Freedom Committee – administered by the New Zealand Newspaper Publishers’ Association and representing all mainstream media including print, radio and television – is doing its best to ensure that the justice system becomes more open.

The committee made an extensive submission on the Bill and appeared before Parliament’s Justice and Electoral Select Committee on March 17 to argue its case.

The starting point was that suppression orders are far too readily applied in this county, far more so then in several comparable Commonwealth countries, and this undermines the principle of public access to the courts as an essential element of our system of justice.

It was acknowledged this is a contentious area, even more so in the internet age, that requires a balance between the judiciary’s need to ensure a fair trial and the media’s role as public surrogates in a courtroom.

The Bill as proposed raises the bar on defence arguments, stating “extreme hardship” and “real risk of prejudice” are the tests for suppression.

The fact that a defendant is well known does not, of itself, constitute extreme hardship, a clause welcomed by the MFC.

It added: “To the argument it is not fair to single anyone out, the answer is they are invariably people who are either held up as role models and trade on that, or they have built their reputations by courting publicity.

“They cannot expect to turn it off when it doesn’t suit them.”

Editors are pleased that the law would explicitly say that all suppression orders are reviewable at any time but are perturbed at a provision that if the term of an order is not specified, “it has permanent effect”.

Sometimes, good reason exists for evidence or identities to be suppressed during a court case in order to ensure a fair trial.

However, judges should use their power to suppress sparingly, impose orders for as short a time as possible, ensure that they are narrow in scope, and be precise as to their ambit.

This provision, if adopted, appears to fly in the face of the Law Commission’s discussion paper on suppression, on which this Bill is largely based.

The commission said: “Open justice has been regarded as an important safeguard against judicial bias, unfairness and incompetence, ensuring that judges are accountable in the performance of their judicial duties.

“It is also thought to maintain public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny.”

Members of the mainstream media also have concerns about the implications of the law that confers automatic suppression of identity in sex crimes.

As written, the law makes it extraordinarily difficult to alert the community to people who have abused their positions in respect of under-18s in their care.

This can mean that other victims do not come forward, simply because – unless the bush telegraph is working – they do not learn that Mr X, who interfered with them when they were young, also interfered with others.

The MFC noted the Bill would markedly increase penalties for breaching suppression orders.

Editors are emphatic that a corollary to increased penalties must be a way for MFC members to know that such orders exist.

The mainstream media does not blatantly breach suppression orders. On the odd occasion when this does occur, it is invariably a result of misunderstanding or poor communication.

Editors have lobbied for years for a register of suppression orders to be set up, similar to that which exists in South Australia, and which the Standing Committee of Attorneys-General in Australia is considering.

MFC representatives have three-monthly meetings with Ministry staff to work through issues that concern court registries and MFC members. Those meetings, which have been happening now for five years, have had on their agenda from the early days the creation of just such a register.

It is something that the Law Commission itself, though initially doubtful, has now agreed is a good idea.

Higher courts judges have also written to the Minister of Justice in the past six months to say that they support such a register.

It is accepted there would need to be strict controls and protocols around access. The MFC is not arguing it should be publicly available.

It is also expected that the authorities will target members of the on-line community – that is, bloggers, or those participating in message boards – with the same enthusiasm as they target members of the mainstream media.

Tim Pankhurst is the chief executive of NZNPA and secretary of the Media Freedom Committee.

Leave a comment