Why do we even have name suppression?

New Zealand stands alone

In any discussion about name suppression law here’s an argument that’s hard to refute: if Rolf Harris, Harvey Weinstein and Bill Cosby had been New Zealanders we’d probably never know about them.

That’s because there’s every chance their names would have been suppressed, especially during their trials, and quite possibly afterwards.

For some reason New Zealand stands alone among western democracies in its liberal use of name suppression, a situation that’s developed through various pieces of legislation since 1920, although the first suppression of court evidence actually occurred in 1905 to “allow judges to protect public morality.”

The issue of name suppression is relevant again with the disgraceful and preposterous decision by District Court Judge Maria Pecotic to give a convicted child sex offender “from a wealthy family” permanent name suppression.

Our court system began soon after the signing of the Treaty of Waitangi. The first Supreme Court sat in 1842 and for 63 years there was no such thing as suppression of any sort. Yes, there was censorship practiced by the newspapers of the time but there was no law requiring them to do it.

In 1905, as mentioned above, judges were given powers to suppress evidence but the first name suppression came in 1920 with the Offenders Probation Act. Essentially that was about giving young offenders a second chance in life as their name would not reach the public sphere. Just why our legislators and jurists took such a compassionate view compared to their peers in Britain and other Empire jurisdictions is not known.

During the course of the last 105 years various changes have been made to laws surrounding name suppression. They hit their nadir – or their zenith depending on your point of view – in 1975 when the Labour government of the time made it law that everybody who appeared in court would have their name suppressed until they were convicted. Looking back only 50 years it seems – and was - an outrageous handbrake on the concept of open justice in a democratic society.

The move was opposed by not only the Press Council but also by the Police Commissioner and numerous lawyers. Thankfully the law only lasted ten months because ironically, an MP in the very government that passed the law was accused of molesting two boys. The man’s occupation could be reported so numerous other Labour MPs approached various media to assure them they were not the alleged molester. When that law was repealed under Muldoon’s National government in 1976 the identity of Island Bay MP Gerald O’Brien could be revealed publicly, although the bush telegraph of the time meant his name was widely known anyway. The charges against him were dropped.

Name suppression laws then reverted back what had been legislated for in 1967, namely that all those accused would be eligible for name suppression but judges were directed to use it sparingly - apart from in sexual assault cases where the identity of the alleged perpetrator would lead to the identity of the victim.

The most recent iteration of name suppression law comes in Section 200 of the Criminal Procedure Act 2011. There are eight reasons why a judge can suppress a name before or after conviction. The first is that naming of the person charged or convicted would be likely to cause extreme hardship. But the following clause specifically states that if a defendant is well known that does not, of itself, mean that publication will result in extreme hardship.

I remember once having a discussion with a District Court Judge friend of mine who was of the opinion that all those charged should be protected by name suppression till found guilty – the 1975 law. The DCJ argued that for those who are charged with serious offending and are then found not guilty the stigma of the charge itself would live with them for years. The alleged rape case of prominent cricketer Scott Kuggeleijn in 2016 and 2017 would bear that out. He still cops it from various sectors of the feminist community to this day, especially when he plays for the Black Caps.

I had a friend, prominent in his field, who was accused of beating his wife. He had name suppression. The charges were found to be false. The case was thrown out and he could resume his career with the case long forgotten.

But there’s a difference between accused and convicted. When you’re found guilty, and sentenced to prison, what possible reason can there be for permanent name suppression, especially on matters of importing objectionable child pornography when the victims of the crime are most likely living overseas?

That’s why Judge Pecotic’s decision is more than baffling. It has a nasty stench of corruption too, especially when she gave a discount on the prison time for “good character.” This is a person who had 11,775 objectionable files on his computer.

Good character ? Come on, and that’s before the $50,400 donated to charity which to all the world looks like a bribe to dispense with open justice.

This was a District Court decision. I don’t know if the Crown can appeal to higher authorities. But cases like this make me angrier and angrier about some well-meaning but ultimately flawed decisions of 105 years ago to feel sorry for young first time offenders.

If we didn’t start down the road of name suppression, like every other country we equate our justice with, then we wouldn’t have these highly questionable outcomes surfacing far too often.

Only our lawmakers can do anything about it.

But that requires political courage. And there’s precious little of that in our current parliament.