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How on earth did Hotchin get name suppression?

By Steven | April 21, 2011

So this is what I’ve been wondering. Mark Hotchin, in 2003 a high flying businessman, director of New Zealand’s biggest private finance company, gets duped in a ponzi scam. He loses more than $200,000 of his own money.

At the time, and since, there were thousands of investors who might have been interested in this insight into Hotchin’s business acumen.

Why did the court give him name suppression?

He was a possible witness in the case against the fraudsters. A victim. He applied for name suppression, which the court has power to grant to victims. His affidavit makes several points:

Hanover requires the public’s confidence over the nature and quality of investments…

Reputation is central to the efficient and ongoing operation of [Hotchin’s long-established business] relationships upon which Hanover’s business rests.

Publicity would lead to “concern over the investment strategies adopted within the Hanover organisation because of the loss of credibility and damage to my reputation”

Investors and third parties with whom Hanover and its entities deal could well come to the conclusion that if one of the directors of Hanover was making inappropriate investment decisions personally then he could well be doing the same for the group.

You think?

So anyway, these are the arguments for suppression.

Hotchin and Hannover’s then chief executive Kerry Finnigan were given interim name suppression before the trial by a justice of the peace. I haven’t seen that decision, if indeed there was a written one. But it was only supposed to last until a District Court judge looked at it before trial. It seems that a judge ordered that it be carried over during the trial. Hotchin, in the end, wasn’t required to give evidence at trial, though he did provide depositions evidence. At the end of the trial, the question arose as to whether the Hotching and Finnigan suppressions should be made permanent. (A number of victims were in the same boat. Some of the witnesses were given final suppression orders during the trial. Others were denied permanent suppression.)

The issue came before Judge Weir. The “press” (perhaps the Rotorua Daily Post, which was covering the trial) apparently sent in a letter opposing the continued suppression. That letter may have been written at very short notice, because going by the judge’s description, it was startlingly inept. It advanced only two arguments: one, that some other witnesses didn’t get name suppression, and two, that there were no compelling reasons to give Hotchin suppression. You might think that the wider public interest in the soundness of these businessmen’s judgment might have been worth a mention, but from the judge’s account, that argument wasn’t made.

The Serious Fraud Office didn’t oppose the suppression. (The prosecution is in a bit of a bind here. Their business is to prosecute the bad guys and protect the public. Hotchin and Finnigan were the victims here. The SFO also really needs the cooperation of victims as witnesses. It would be mean of them to stab those very people in the back by opposing their suppression application. On the other hand, they are there to represent the public interest…)

The judge brushed aside these arguments. The cases were to be decided individually, on their merits, he said. The reasons for suppression concerned their reputation in the community, the likely personal and financial consequences of disclosure, the likely effect on employees and affected organisations, and the significance of victims’ rights to privacy and dignity.

He added:

There is a failure to identify any person or past person who would specifically benefit by publication of the details of the case.

He did factor in the open justice principle. He didn’t (surprise, surprise) mention the right to “seek, receive and impart information and ideas of any kind” in the Bill of Rights Act.

Judge Weir granted permanent suppression under section 138 of the Criminal Justice Act. I’m not sure that really applies to Hotchin: it only covers “witnesses” and he didn’t give evidence at the trial. But section 140 gives power to suppress the names of anyone “connected with the proceedings”, so that probably covers Hotchin.

Was the decision correct? Here, we have to resist the extreme temptation to be wise in hindsight. There was no suggestion of Hanover’s collapse back then. Had this been reported, it’s not clear what impact it would have had on Hanover, or on the behaviour of investors. The media didn’t seem to be busting their guts to argue the case, so I have to wonder how significant they thought the story was, and how much play it would have been given. Hotchin could have been expected to deploy sophisticated PR. It’s possible he could have lost his job, as he deposes, but it’s not clear that would have made any difference to Hanover’s fate. Publishing his name may not have averted the train wreck that was Hanover Finance.

Still and all. I like to think I would have said this decision was wrong had I come across it in 2005.  As the judge said, compelling reasons are required to depart from the open justice principle. The Court of Appeal held in the Victim X case that this applies to the names of victims too. (That was the case where Sir Ron Trotter’s son was an intended kidnapping victim). Judge Weir distinguished that case by saying that the victim’s circumstances had changed since he’d been granted a suppression order originally: he was now to give evidence and his wife’s position had improved in some unexplained way.

That’s not very convincing. In this case the judge wasn’t called on to vary an existing suppression order. It had expired. The question wasn’t: “has anything changed?” It was: “are there compelling reasons to depart from the usual principle of open justice?”. It was also: “would this exercise of my power to suppress the media’s speech be demonstrably justifiable?” He didn’t ask those questions. And he didn’t grapple with the most powerful public interest reasons in favour of releasing the name. That’s partly because those arguments don’t seem to have been made. But the judge should have factored them in anyway. They should have been obvious… from the affidavit of Mark Hotchin himself, which was surely on the file, though the judge didn’t mention it.

Investors and third parties with whom Hanover and its entities deal could well come to the conclusion that if one of the directors of Hanover was making inappropriate investment decisions personally then he could well be doing the same for the group.

The media couldn’t have put it better themselves.

Topics: Name suppression | 1 Comment »

One Response to “How on earth did Hotchin get name suppression?”

  1. Merv Says:
    April 22nd, 2011 at 3:29 pm

    “Investors and third parties with whom Hanover and its entities deal could well come to the conclusion that if one of the directors of Hanover was making inappropriate investment decisions personally then he could well be doing the same for the group”.

    And the public keeps asking itself, wanly: “Why do we suffer the consequences of these blindingly stupid and destructive decisions, that prevented us from ever knowing?”

    Does anyone believe, Justice James Weir’s decision, will prey upon his conscience as to the Hanover investors’ wealth-destruction, he’s complicit in? Directly or otherwise?

    No. He will continue to traipse, gaily, off to the Rotorua District Court, each and every day, oblivious to the emotional and financial wreckage his decision has wrought upon so many people. Where are the sanctions, rebuke and the Chief Justice’s censure, that this judge is so fully deserving of?

    Justice Weir’s reasoning — in suppressing Hotchin and Finnigan’s names — is really not too different from keeping the name of a known sex offender suppressed, because it may militate against his chances of securing employment as a schoolteacher. That’s how astonishingly bad, it was.

    It’s an accepted fact — that the higher up the judicial hierarchy, one progresses, the more rarefied is the air. So much so, that many of our “Learned Judges” become hopelessly intoxicated by their own supercilious conceit. They live in a parallel universe of their own construct. And they function in spite of their own mistakes and the damaging — and damning — decisions, they hand down.

    They remain firmly ensconced in a position of Gilded Privilege. Immutable and beyond reproach. They are not only masters of their own universe, but they also lord over ours. And we, the public, suffer the consequences of their dispensing ill-considered judgments; along with the social havoc that accompanies them.

    Justice James Weir is the unwelcome incarnation of an Alfred E. Neumann. His title is not only a scornful oxymoron for the profession, he serves, but also a perverse parody for Judicial Wisdom. His lack of foresight is only matched by the dullness of his intellect. He has no right to be sitting in judgement of others, when his own is so singularly wanting.

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