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Two cases last week illustrate the impossibility of enforcing name suppressions in today’s digital world in high-profile cases.
Both the name of the murder accused in the Grace Millane homicide and that of the Australian cardinal convicted of sex abuse in a Melbourne court spread over the internet.
While mainstream media in New Zealand and Australia abided by the rules, the ubiquity of the information online mocked court suppression orders.
The Otago Daily Times weighs strongly for open justice.
Even after name suppression direction was tightened, courts still sometimes suppress material that should be public.
However, as with free speech, there are limits. Suppression is important at times for justice to be carried out, notably, for victim protection.
The Millane case judge, despite the lower bar for an interim order on a first appearance, declined name suppression.
The defendant’s lawyer immediately gave notice of appeal, and so the interim suppression continues until the appeal is heard or the 20-day appeal period lapses.
Even if grounds are feeble, appealing is a lawyers’ tactic sometimes used to stretch suppression and prevent publication while the matter is at a public-interest peak. If that was the aim this time, it failed. More than 100,000 people Googled to search for the name, Google sent out the name in a subject line in a mass email about trending searches and overseas media outlets published it. It has been bouncing around social media, despite warnings from police.
There should be a way to stymie appeals used simply to delay. Perhaps appeals could be held almost immediately rather than waiting out at least the 20 days.
The cardinal case is stark.
The matter is so significant internationally that Australians could read about the conviction on overseas sites. Australian outlets and newspapers, meanwhile, could only cry censorship — not just over the name but other information about the trial that was also suppressed.
The court’s rationale for suppression was because the cardinal faces further charges. Any jury would, it is claimed, be prejudiced against him in the next trial knowing what an earlier jury had decided.
The same rationale applies in New Zealand and British courts. Juries are not supposed to know about past convictions so they evaluate the specific evidence on its own.
But, first, information often can be searched online, and it would be naive to think this does not happen. Secondly, it might well be time to question the fundamental reason for demarcating a defendant’s record.
While there is a presumption of innocence in court, common sense suggests someone’s record could be taken into account as part of a picture about him or her.
After all, this type of information is available in some respectable legal jurisdictions, including the United States.
The responsibility on the judge for good guidance would increase. Even with a broader understanding of the defendant’s background, juries would still be expected to determine guilt beyond reasonable doubt on the facts and arguments for that particular case.
This suggestion is sacrilege to many steeped in our legal system. They earnestly will endeavour to protect the current set-up.
As it is, unbecoming information is in the public arena about the Millane defendant. On a strict reading, it will be difficult already for him to get a fair trial.
But do not we have to have more faith in juries, their judges and the court lawyers to come to the correct conclusion no matter information out there? We need to find ways to secure effective suppression when it really matters — for victims or in circumstances where identity might be a crucial issue. However, in most areas this particular "contempt of court" can, and should, be loosened as a matter of reality.