Murder accused, name suppression and international media

The Grace Millane case has raised the issue of the ineffectiveness of name suppression (non-publication orders) when it only applies to New Zealand media. It has been simple online to find out the name of the person accused of the English tourist’s murder, even without trying.

To clarify the situation – at the first court appearance on Monday the accused person’s lawyer asked for name suppression based on fair trial rights, this was declined by the judge, but the lawyer immediately appealed as he is legally able to do. Under current law this gives the accused 20 days automatic suppression, and the judge will make another decision after arguments for and against have been made.

The police have made it clear what the current situation is:

It would be stupid (as well as illegal) to name the accused, or to aid identification of him in any way. Technically, saying ‘you can find it with Google’ could be deemed an aid to finding out, but it is so obvious a way of discovery that it would be ridiculous to take action.

Lawyer Graeme Edgeler tried to do something practical regarding the law: Name suppression appeals

I have long thought that the 20 working days allowed to appeal a refusal to make a suppression order is too long, when the law requires the court appealed from to make an interim suppression order for that period.

The law did not used to require this. There was no automatic right for interim suppression, which used to be a matter of discretion. A defence lawyer could tell a judge of the intention to appeal, and ask for interim suppression.

The judge might ask: will two days (a week/whatever) be enough to appeal? The lawyer might respond: I’ve a trial tomorrow and Thursday, I’d appreciate if I could have until Friday. And the judge could agree. It didn’t always work. But it also didn’t meant an automatic 20 days.

The new law treats an appeal from a refusal to make a suppression order the same as any other appeal – allowing 20 working days to file the notice of appeal, and automatically extending an interim suppression order.

Usually, delaying filing an appeal will be bad for a defendant (if you wait 20 days to appeal a refusal of bail, that means you’ve spent 4 weeks extra in prison), but this is one time where it doesn’t.

It also unreasonably affects the public and news media who wish to report on matters of public importance, and which a judge has ruled it is unreasonable to prohibit them from doing so. In light of this 20 working days is excessive.

So I have drafted a bill, the Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill, which would reduce the 20 working days allowed to appeal a refusal to make a suppression order to 5 working days.

If anyone knows an MP whom they think would like to propose it as a member’s bill, feel free to direct them to it, over at the Progressive Bills Wiki.

However the Prime Minister has used Labourese for ‘not interested in addressing this’ by saying “At this time, it’s not part of our agenda.”

NZ Herald:  Name suppression laws not about to change

Prime Minister Jacinda Ardern says the Government has no plans to change name suppression laws, even though international media have named the man accused of murdering Grace Millane.

This morning Justice Minister Andrew Little criticised British media for naming the accused, who has interim name suppression.

Little said it was potentially jeopardising a fair trial, which could heap more misery on the grieving Millane family.

I think that there is potential for ‘jeopardising a fair trial’ it is unlikely – I think that trials found to have been unfairly  jeopardised are rare (I think Edgeler has said that).

Ardern said she agreed with Little and that name suppression should be adhered to.

Asked if name suppression laws were out of date with global connectivity, Ardern said: “There’s no doubt the environment has changed.”

But the Government was not looking at doing any work on name suppression laws, she said.

“At this time, it’s not part of our agenda.”

So Ardern doesn’t want to fix something that is clearly not working.

If it is something obviously needing modernising because it has become a farce I would have hoped the Government would put it on their agenda.

This is more evidence that the current Ardern led Government can be quite conservative at times, despite claims by Ardern and others that they are ‘progressive’.

Lauda Finem down

It looks like the Lauda Finem website has been taken down:

LFDown.jpg

Lauda Finem has confirmed:

Lauda Finem have been advised our domain name has been transferred to a New Zealand Barrister & thus jurisdiction.

This is great, about time serious action was taken against them.

They had indicated in a couple of posts they were subject to a High Court order, and stupidly appear to have breached that order before going down. Publicly attacking the judge is not the smartest of responses.

Despite their claims about being ‘justice campaigners’ and international whistle blowers and having no connection to New Zealand their posts were just about exclusively targeting New Zealand issues and New Zealand people (literally hundreds) and what they posted on happened to coincide with the interests of a small number of people in New Zealand.

They frequently contradicted their own claims.

They blatantly breached suppression orders, they made numerous false accusations, some of them quite extreme, and they abused and smeared many people.

Despite targeting a number of judges, police officers and lawyers it seems to have taken the initiative and determination of one private citizen to deal to them.

They (LF) have claimed it is some sort of an attack on free speech but they were amongst the of the dirtiest abusers of free speech I have encountered. They have exercised none of the responsibilities that a responsible site would have.

This is unlikely to be the end of the matter. They have said they will try to set up an alternative site but that would appear to be in breach of the court order.

At this stage I don’t want anyone named here so please don’t.

Farrar only blames the judge

David Farrar has posted at Kiwiblog again on the court order that disrupted this site a couple of weekends ago – Judge got it wrong on HDCA.

Amazingly the Judge did not realise the provisions of the Harmful Digital Communications Act which he relied on, were not to come into force for a couple of years.

I’m shocked a Judge would make such a wide ranging order, and not even have properly read the Act to realise most of it was not in force yet.

Comments on that post show that while the judge was ultimately responsible and allowed a mistake to go through he rectified it as soon as he  was aware of the problem.

Comments also do what Farrar didn’t, they pointed out the incompetence (at best) of person or persons involved in the court order, Marc Spring by the look of things with the assistance of Dermot Nottingham.

Here’s some of the comments, by people with obvious legal backgrounds.

In the Hager decision, the High Court made it plain that all relevant information, both factual and legal should be placed before a Judge who is considering an application made without notice to the other side.

A number of things should have been made clear to the Judge by the applicant. First, the Act under which the order was obtained was not yet in force. Second, the order requiring YourNZ to appoint a moderator was not available under the Act in any event. Third, there was no reason why George should not have been served with the application and given the opportunity to be heard. Presumably none of this was advised to the Judge. If that was done in the knowledge that the grounds did not exist, it seems a clear attempt to pervert the course of justice. If not, it says something about the legal skills of the applicant.

It is also a worry that a Judge, faced with a lay litigant invoking novel powers to abrogate the right to freedom of speech, should grant such an order without checking that he was able to do what he was being asked.

That is a worry.

The District Court Judge, Gary Harrison, is well respected by his colleagues and has a solid pedigree in law dating all the way back to being Justice Mahons assistant in the Erebus Inquiry. Clearly he had a bad day and dropped the ball but it is to his credit to have acted quickly to withdraw his decision when he realised the facts and law, as presented, were quite wrong.

Sounds fair.

Seems the lawyer who sought the order needs to be hauled up before a disciplinary committee. The lawyer is as much to blame as the judge for the foul-up, indeed significantly more so. This is even more so in an ex-parte application (where the judge makes a decision without hearing from the other party because of urgency etc). In such a case the person seeking the application is obliged to put all relevant stuff before the judge, not just the stuff that aids the application.

Litigants do not like the other party spouting off publically about matters before the court and judges tend to side with this. I possibly see the original judge’s ruling as being to in aid of stopping public disclosure of matters concerning the case. This could also explain why the judge is reluctant to release the papers concerning this to the other party. Perhaps the judge is being excessively sensitive about this or may have real concerns.

Except that in this case it was the litigants who spouted off publicly about matters they had put before the court.

I assumed that the order was applied for by a litigant in person. If it was a lawyer who made the application it is serious misconduct. The Judge in making any order under that Act is supposed to give a written decision; it would have been interesting to see that but I suppose that as the Act was not even in force, there is no need for the Judge to comply with it.

There’s been no indication a lawyer was involved. Why wouldn’t it  still be serious misconduct for a lay litigant?

Well, either that or apparent negligence (if we are going to be slightly charitable about it).  If there was a lawyer on either side then the judge should have been told.  If there were no lawyers involved then we get to whether the judge checked that the legislation was in force!

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball.

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball

And:

Yup, it is up there.

However, I think he will realise that and he will be kicking himself.

In his defence he might have relied on the supporting memorandum from the applicant and decided not to go behind it to check his jurisdiction under the enabling act.

And:

I had assumed that the person was represented and that it was a High Court proceeding. A High Court judge would have a ‘clerk’ (generally a junior lawyer) to check out these things. A District Court judge may not have had such assistance and so bears the onus of having to verify things but in practice often has to rely on memory or instinct or he/she would not get anything done.. A District Court judge would not have the time to reflect on things that a High Court judge would.

It was District Court.

Interesting comments.

Ultimately it was the judge’s responsibility as he signed the court order. But the appalling stuff ups,  either through incompetence or a deliberate attempt to pervert the course of justice, seem to have been due to the actions of non-lawyers. One way or another they seem to have tried to con the court.

I don’t know why David Farrar only blamed the judge.

Court order discharged

The court order Spring versus George was discharged today by Judge Harrison.

CourtOrderDischarged

Obviously that’s great news.

I have removed the auto moderation except for first comments by new people.

The original order that caused a lot of consternation around the blogosphere and lawosphere.

CourtOrderSpringvGeorge

UPDATE: Lynn Prentice has covered this in detail at The Standard:

Judge scammed by a legal idiot and his pet pest