NAME SUPPRESSION IN THE AGE OF CELEBRITY
The All Black accused of assaulting his pregnant wife. The comedian charged with performing an indecent act on his daughter. The high-profile public servant acquitted of punching his teenage son in the head. Their identities have been suppressed, but that doesn’t mean you don’t know who they are.
In part introduced in response to outrage from the public and media over this perceived ‘celebrity treatment’, the recent revisions to the Criminal Procedure Act 2011 are intended to make it harder for defendants to obtain name suppression. But one of the country’s top criminal defence lawyers believes this to be a step in the wrong direction. Salient chief feature writer Elle Hunt asks what’s in a name.
In the small hours of one Thursday in March 2009, down an alley off Courtenay Place, a man who would come to be known as ‘the entertainer’ forced a 16-year-old girl’s head down to his crotch. As the Herald reported at the time, “The victim felt the man’s penis on her cheek and moved her head to stop it entering her mouth… As she ran from the alley, she could hear him laughing.”
Eight months later, the entertainer was discharged without conviction after admitting one charge of committing an indecent act. He was also granted permanent name suppression, as Judge Eddie Paul ruled that identifying him would have a “significantly adverse effect” on his music career. (Though, judging by his media profile three years later, that was already on a downward trajectory.)
“Everybody attacked that case because it was a sex crime, it was a youngish girl, it was down an alley,” says Steven Price, media law specialist and adjunct lecturer at Victoria University’s Faculty of Law. “On balance, I don’t know if name suppression was justified, but when you look at all the factors that the judge took into account, you can see where he was coming from.”
Under changes to the Criminal Procedure Act 2011 that took effect last month, things might have been different for the entertainer. His legal counsel would now have to prove that his name being made public would result in “extreme hardship”, rather than “undue hardship”, which was the test in place at the time.
While what constitutes “extreme hardship” is up to the individual judge to determine, the new law explicitly states that “the fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship”. “There is no reason for a defendant to get name suppression simply because they are famous,” Justice Minister Judith Collins told 3 News.
Price is critical of this simplistic definition, as well as the media’s focus on this provision. “I don’t think any lawyer would have stumped up in the past and said, ‘Your honour, my client, as you’ll be well aware, is very well known, so he should have name suppression’,” he says. “The argument has always been that because they’re well known, the consequences of the publicity if they don’t get name suppression are going to be out of all proportion to the seriousness of the offence.”
In theory, the new requirement of defendants to prove “extreme hardship”, rather than “undue hardship”, will make it harder to obtain name suppression. This, says Wellington-based criminal defence lawyer Mike Antunovic, goes against the presumption of innocence enshrined in our bill of rights.
“It’s an inalienable fact that the state shouldn’t punish any individual until or unless there is a conviction,” he says. “What I’ve seen over the years is that, in many cases, considerable harm is done to the defendant by publication of his name and the allegations he’s facing before trial.”
This harm can extend to loss of employment and damage to personal relationships, as well as considerable stress and embarrassment. “With this new rule, the Crown is effectively saying that it’s okay for a defendant to receive some kind of punishment by way of harm that arises as a result of the publication of his identity,” he says. “And then only when it becomes ‘extreme’ will the state do something about it. That has to be, in my view, fundamentally wrong.”
Antunovic has been calling for significant reform of name suppression law since as early as 2009, when he defended police cadet Mark Tulloch on charges of rape. The case was thrown out of court when the judge ruled that the complainant’s testimony was unreliable, but, by that point, the damage to Tulloch’s reputation had been done.
The woman’s identity, meanwhile, remains secret because the state guarantees automatic and permanent name suppression to victims of specified sexual offending: “They get it by law, even if they’re shown to be liars, and so my view is that the law is wrong.”
Antunovic is in favour of extending the same treatment to defendants “across the board”. “My opinion is that there should be a presumption of fact for automatic name suppression until or unless the person is convicted,” he says. “And there should be a corresponding rule that the police or Crown should have to show good reasons exist for that person to be publicly identified before any conviction is entered.
“The public can wait, can’t they? How on earth can it benefit the public to know that Citizen A has been charged with an offence? The public has a right to know that various offences might have been committed—I’m not saying don’t tell them that—but the public don’t need to know who that person is until they’ve been convicted.”
To a certain extent, the New Zealand Law Society’s submission on the proposed changes to the Act in 2009 echoed Antunovic’s views, in that it called for name suppression to be made more readily available to individuals accused of a crime, and less readily to those convicted. “For the vast majority of the population, there is a perception that there is no smoke without fire—[that] someone charged is probably guilty”, the submission stated, reiterating the need for “greater protection at the pre-trial stage”.
This point is of particular importance given the ease with which an accused individual with name suppression can often be identified through details given in the media. In most cases, the judge orders the suppression of the defendant’s name only, meaning other details, such as their address and occupation, are able to be published.
“The offence is to publish material from which a person can identified… but there’s a little bit of wriggle room there,” says Price. He points out that different media organisations provide different pieces of information, and this is often enough to narrow the accused down to either one person or a small pool of people. “They’re on thin ice a lot of the time, but they kind of get away with it,” he says. “It’s only the really brazen breaches, like Cameron Slater’s, that people go for.”
Slater, who blogs at WhaleOil.co.nz, was convicted on eight counts of breaching name suppression and one count of identifying a sexual abuse victim in 2010. Most notably, he named a high-profile public servant (a client of Antunovic, who condemned Slater as a “renegade”) acquitted of the assault of his teenage son. He remains critical of name suppression law in New Zealand: “My personal policy is to let it all hang out there. I think sunlight is the best disinfectant.”
Slater, who considers himself to have “forced” the changes to the Act (and is “pretty chuffed” about it to boot), nonetheless believes them to be ineffectual, protecting what he dubs the “vested interests of the legal fraternity” at the expense of victims’ wishes. Just last week, he points out, individuals that suffered sexual abuse at the hands of now-70-year- old Dennis Aubrey Newell in Christchurch in the 1970s and 1980s insisted that his identity be made public.
It’s in lawyers’ best interests to campaign for name suppression for their clients, says Slater. “There’s a whole lot of extra hearings along the way, which are more billable hours. They’re just milking the cow.” (On the contrary, Price says criminal defence lawyers tend to caution their clients against seeking name suppression.)
He refutes the suggestion that to circulate the name of an accused individual in the public domain goes against presumption of innocence, arguing that charges cannot be laid without sufficient evidence. “There are many thousands more cases where the defendant didn’t have name suppression— are we saying those people didn’t have fair trials?”
Slater is of the opinion that no-one should be eligible for name suppression except victims of crime. “If we had a blanket suppression on all the details to do with the victim—other than saying a girl or a boy or a man or a woman—and there was no name suppression for those charged, you wouldn’t have that to and fro between courts, and all the delays in the justice system as a result of that.”
Slater notes that in Australia, the threshold for obtaining name suppression is much higher, and so that country’s federal speaker Peter Slipper is having to front up to allegations of fraud and sexual harassment in the media. “Every lurid detail of that case is now being debated in public,” he says. “If that was in New Zealand, all you’d be able to say would be a ‘prominent politician’. Probably not even that.”
Of course, reference to a ‘prominent politician’ would be enough to pique the interest of the media and the public, and that’s often enough to render a suppression order futile. “Once the guessing game gets underway, there’s really no win for the celebrity,” says Price.
But, he points out, there are around half a dozen or so such cases a year. “That leaves two, three, maybe five hundred suppression orders that aren’t about people who are well known. Those work fine, and that’s the meat and potatoes of suppression in New Zealand.”
Price blames much lazy and sensationalist reporting for the public’s skewed perception of name suppression law.
“There’s this narrative line in the media that says name suppression is bad, here’s this evil judge giving name suppression to this evil person, like they do all the time,” he says. “They never put it in context, never point out that name suppression is only given in one per cent of cases—and a lot of them are automatic to protect child victims or sex crime victims, and most of them are only temporary.
“They often leave that stuff out in order to generate their standard outrage about name suppression, which is what has led to these changes.”
Price notes that the new law took effect too recently to predict how successful it will be in practice. But by and large, the revised legislation is an exercise in tinkering with terminology: the ultimate decision whether or not to grant name suppression is left largely up to the discretion of the judge, as it did prior to March. What the changes to the Act have provoked is discussion and coverage of the principles behind name suppression and the law that governs them, as well as the consequences for those that say a name and let it break.