By Steven | January 12, 2010
Sigh. I’ve been avoiding weighing in on Whale Oil’s campaign to reform NZ’s suppression laws, or failing that, render them useless. (In my absence, Andrew Geddis has done a good job). But it’s an issue that won’t die. It doesn’t help that the media seem endlessly fascinated by it, and by him.
I won’t attempt a definitive analysis (in part because I’m not familiar with the precise scope of the suppression orders or with the details of the 16 defences Mr Oil says he has available.) But I can make some attempt to inject a bit of legal context.
1. I think Mr Oil is right that the entertainer shouldn’t have been given name suppression. He had been found to have committed [I initially wrongly wrote “convicted” - thanks to Graeme Edgeler for spotting this] a sexual crime that was fairly serious.
2. Still, I’m not sure how many of those who criticise the judge’s suppression decision have read it. The judge found that (a) a series of strong character references from people who knew the defendant well attested that this behaviour was very much out of character; (b) the defendant had agreed to pay $5000 in reparations; (c) the offending was not at the high end of the scale; and (d) a conviction and publicity would have disproportionate effects on his career, and in particular, his ability to travel. I still disagree with the decision (he was given a discharge without conviction as well - I think the name suppression went too far). But it would be nice to see a bit more reporting of the reasons for it.
3. There’s really no doubt that a name suppression order can be breached by pictures, if they are easily understandable, and particularly where this is obviously the precise intention of the defendant. Supressions usually include publication of “particulars liked to lead to the identification” of the suppressed identity.
4. More cryptic pictures (and codes) may or may not pass that test. It probably depends on how many people can decipher them. I would expect that the courts to find the breach proved (or the offence of evasion) if a significant number of people can work it out. It will not help a defendant if the obvious aim of the exercise is to provide clues for a guessing game.
5. Still, I’m not sure that the Olympian’s wife suppression was clearly breached. Mr Oil’s pictures were fairly obscure.
6. On the other hand, one of the people posting in the thread below Mr Oil’s pictures helpfully linked to another page containing the defendant’s name at the top. If Mr Oil didn’t take very quick steps to delete that post, he may well be liable for publishing it.
7. This next point really should be much more widely reported. One of the suppression orders Mr Oil is charged with breaching (the Olympian) and another he’s being investigated for (the former MP) involve charges of sexual offences against others. In those cases, no judge has chosen to suppress the defendant’s name. Parliament has done it. The same is true of the comedian. Victims of sex offences get automatic name suppression (though some can themselves apply to have it lifted). For offences of incest and sexual conduct with a dependent family member, the defendant’s name is automatically suppressed too, since naming that person will effectively identify the alleged victim. For other sex offences, the media have a choice. They can do what British papers usually do and report that a named person has been charged with an unspecified offence. Or they can do what NZ papers invariably do and report that an unnamed person has been charged with a sexual assault on his wife or daughter, or whoever.
8. The HOS has chosen the second path. (I have a friend in the UK who thinks our media are idiots for doing this). That means this information is in the public domain. So it’s too late to go back to the first path. If you start naming him (even if you don’t name who he’s alleged to have committed the offence on, eg his wife) then you’re effectively naming them both, since everyone can make the connection. Anyone who adds to the material that’s in the public domain in a way that provides extra details that can identify the suppressed person when put together with the HOS story has very probably committed a breach. This is known as “jigsaw identification”. So don’t go thinking that just because you have only added some small detail to the mix, and haven’t republished all the other stuff, that you can’t be prosecuted.
9. David Farrar seems dead right that the HOS looks to have provided enough clues to be guilty itself of breaching the order relating to the MP (or evading it, which is also an offence). As I said at the recent R v the Internet conference, this is pretty common. And you can argue that it’s unfair that he’s being charged when they’re not. It is. But this doesn’t provide a defence for Mr Oil.
10. Tim Watkin has suggested that the media use a rule of thumb about identifying details. He says if your details reduce the group of possible defendants under a dozen, you’ve published identifying details. I haven’t seen any case law to support that rule. It doesn’t sound like a bad guideline, depending on the precise terms of the suppression order.
11. It’s especially not a bad guideline because the police almost never prosecute papers for publishing too many details. Might this be partly because they have supplied those details in many cases? Dunno. I think it’s probably mostly because they’re usually too busy with other things, don’t regard such articles as outrageous, respect the fact that the media are at least paying some lip-service to the suppression order, and don’t see the case as a slam-dunk.
12. So why are they picking on Mr Oil? Well, whereas the media pay lip service to the suppression orders and laws, Mr Oil rather thumbs his nose at them. Also, I’m guessing the police may well be using Mr Oil as a test case to send a message to others. I don’t like that practice much, but again, they’re within their rights, and it’s no defence for Mr Oil to complain that he’s been singled out. The Solicitor-General has done that with contempt prosecutions fairly regularly.
13. I’ve talked about the “terms of the suppression order” a couple of times. Sometimes they are in very precise terms about what details have been suppressed. Usually the judge simply airily announces a suppression and everyone assumes that it covers names and identifying particulars. I’d expect a court in a name suppression prosecution to regard that as being clear. Remember, though, that many name suppressions arise by the operation of the law and are in place automatically (to protect sex crime victims, for example, or child witnesses).
14. Mr Oil has been charged with offences with $1000 maximum fines. The Law Commission has recently pointed out that these fines are really laughable low and recommended substantial increases.
15. The Law Commmission, in fact, has recommended tightening of the grounds for suppression. Their recommendations will not affect suppression of alleged sex crime victims. They would probably mean that the entertainer would not have got name suppression. (Incidentally, it’s very rare for people who are convicted to get name suppression in any case.)
16. For those who are going around saying that name suppression should never be granted except to protect sex victims, or never at all: consider some other possibilities. The crime is very minor (but quirky) and there is medical evidence that the defendant, a non-celebrity, has serious mental health problems and is suicidal. Or: the person is a witness and there’s evidence that the defendants or their mates might try to nobble them. Or: the naming of the person may hamper an ongoing police investigation. Or: the crime isn’t a sex crime, but the defendant and victim are closely associated and naming either one would have devastating consequences for the victim. Or: naming the accused would prejudice his or her right to a fair trial (eg the defendant is currently facing a jury trial on a similar issue).
17. For those who think it’s discriminatory to give suppression orders to celebrities but not oiks like us, consider this: if you got prosecuted for weeing behind a pub, the media wouldn’t be interested. If it was an All Black, it would be front-page news. Those are the effects of a judge opting not to impose a name suppression order. Isn’t there a decent argument that that would be discriminatory too, and that name suppression merely irons out the discrepancy? (Not saying I buy that entirely, just that the issue’s a bit more complicated than some people suggest.)
18. For those who think the internet renders name suppression useless: there were about 700 permanent name suppression orders in the last year (out of about 150,000 prosecutions). How many of them can you name? Feel free to Google.
19. It’s the police who prosecute name suppression breaches, not the Solicitor-General, though they may seek his advice. The S-G deals with contempt issues.
20. Speaking of contempt issues, I see the police are talking about investigating Mr Oil for contempt too. I don’t know whether the S-G is involved. I also don’t know what the police are talking about when they say:
Clearly it [Mr Oil’s alleged end-run around name suppression laws] attacks the very heart of our criminal justice system in a number of ways; that a person is entitled to presumption of innocence until the opposite is proven, the right to a fair trial…
Er. What about all the other publications of identifying details over the years, notably by the media? They weren’t quite so brazen, I suppose.
What has the presumption of innocence got to do with it? The defendants are all still presumed innocent, whether they’re publicly named or not. Lots of people don’t get name suppression. Sometimes it’s clear lots of people think they’re guilty. Is the presumption of innocence less for them?
What has a fair trial got to do with it? In very rare circumstances, suppression is imposed to protect a person’s right to a fair trial, usually when there are parallel proceedings involving a jury. I haven’t seen anything to suggest that’s the case here.
Sounds like police blather to me.
21. So might it be contempt? If a breach of a suppression order or suppression law is sufficiently deliberate and brazen (and, perhaps, repeated) such that the authority of the court is being flouted, affecting the administration of justice generally, then, yep, that might be a contempt of court. If so, we’re likely to see the S-G taking the lead. And the penalty rises way above a possible $1000 fine. In fact, it includes potential jail. If that transpires, I’m guessing that the S-G will seek a prison term of 3 months or less, to try to avoid the possibility of a jury trial.
22. Some people are a bit worried that commenting on Mr Oil’s case might get them into trouble for contempt. Isn’t the matter sub judice? Well, yes, but it’s hard to imagine that anything anyone says will prejudice his right to a fair hearing. That includes all of Mr Oil’s comments about the heroic superness of his position, and the pretty scathing attacks from those criticising him. The suppression charges will not go before a jury. Judges generally say they’re not affected by comments about the case, and are generally alive to the need to provide maximum play for robust public discussion of issues before the court.
23. Did Mr Oil really just slag people for saying he did something when it “hasn’t been proved in a court of law”?
24. There are actually quite a lot of suppression laws in the UK, though they’re generally not as wide as ours. There are also a range of suppression laws in Australia. Even the US allows judges to exercise control over what the parties can say publicly (though the First Amendment prevents restrictions on media reporting of court cases, even - and this is the best illustration of how US free speech law sometimes goes off the deep end - rape victims, where State legislation required their names to be suppressed).
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