In its report Delivering Justice for All - A Vision for New Zealand Courts and Tribunals (NZLC R85, Wgtn.,.2004) the Law Commission addresses the issue of name suppression in the criminal courts, and recommends changes. Its reasoning starts with ‘the presumption that there should be name publication in criminal proceedings’, but concludes that, ‘since the Proctor (Prockter v R  1 NZLR 295 (CA)) decision in 1997, the law... does not appear to have given sufficient recognition to the presumption of innocence.’ The Commission finds it ‘difficult to discern ... the weight to be given to the presumption of innocence and in what circumstances the balance will tilt.’ This, it is argued, reflects a lack of understanding of the presumption of innocence, and of the nature of legal presumptions in general.
Underlying the Commission’s argument is the idea that the ‘Bill of Rights guarantee of the presumption of innocence’ should protect the wrongly accused and the acquitted alike from the adverse consequences of public exposure. Every person accused of crime would then be treated equally, whereas ‘present practice can be regarded as inconsistent, with only some people ever likely to gain the benefits of name suppression.’ Publicity is allotted inconsistently, judges are reluctant to prohibit it, and applicants risk the very consequence they hope to avoid – public scrutiny.
The Commission accepts that name suppression for all until their guilt is proven would intrude too much on the principles of open justice and free speech, while also creating practical problems for both the media and the courts. As a result it proposes a compromise: that every accused’s name should be suppressed until such time as ‘the substance of their case is presented to the Court.’ This would occur when the facts are presented at sentencing, depositions, or fixture. Exceptions would be needed, so the Court would have to be able to make an order lifting suppression where ‘the particular circumstances or the interests of justice require it.’
This reform was first proposed in 1972 by the Criminal Law Reform Committee, (Report of the CLRC on the suppression of publication of the name of the accused, NZCLRC, Wgtn., 1972) but rejected by legislators in favour of the more radical proposal to suppress the names of all but the convicted. That particular amendment to the Criminal Justice Act, bitterly opposed by the press, died with the government which introduced it.
While the present proposal avoids its worst aspects, it similarly recommends an erosion of the public’s right to know who is appearing before the criminal courts, and why. This right, which gives rise to the presumption in favour of open reporting, is fundamental to our system of justice. Along with freedom of speech, it underpins the very existence and health of our political and legal institutions: Re Victim X  3 NZLR 220; 229 (HC), per Hammond J.
The presumption of innocence is no less fundamental to our system of justice, but is misconceived by those who see it as somehow compromised by the open reporting of Court proceedings. What the Commission fails to grasp is that the two presumptions it considers – of innocence and of open reporting - are not counter-balancing. They serve the same end and are important for essentially the same reason: they seek to ensure that trials will be fair.
The Importance Of Publicity
Publicity has been described both as the hallmark of judicial, as distinct from administrative, procedure (McPherson v McPherson,  AC 177 (PC)) and as a constitutional principle of greater importance than Parliament’s right to inquire freely into public grievances (G. Nettheim, "The principle of open justice" (1984) 8 UTLJ, 25).
Publicity has long been regarded as society’s most effective guarantee of judicial accountability. To quote Bentham:
Without publicity, all other checks are fruitless; in comparison of publicity, all other checks are of small account. It is to publicity, more than everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst. (Works of Jeremy Bentham Vol. 4 Bowring ed., 1843)
Its paramount purpose is to ensure that justice is actually done, a fact reflected in the media’s general right to remain in Court to observe, even when the public is excluded. Judges thus have a responsibility to protect the principle of open justice in the courts in which they preside: Re Victim X  3 NZLR 220; 232 (CA), per Keith J.
From the above we might conclude that the principle of open justice should only be compromised for the most important reasons. This is certainly the attitude of the courts, which have repeatedly stressed that the presumption of innocence itself is not capable of displacing it. (See eg. Prockter v R  1 NZLR 295, 299; R v Philipiah CA, 18 October 2001, CA300/01, per Salmon J) In R v Russell CA133/96, 16 May 1996, the Court of Appeal held that the question of the weight to be attached to the fact that guilt is not established when deciding whether to suppress name before conviction is not a question of law, because the answer necessarily depends on all the circumstances of the particular case.
The point is that the presumption of innocence, in this context, supplies no more than a casting vote when factual considerations are otherwise evenly balanced. It is more likely to ‘tip the scales’ before trial because no facts have been proven in Court. Once a prima facie case has been established it has less weight, because it is more likely to be rebutted by the evidence, and once the Court has made its decision it has no effect at all.
The Power Of Presumptions
Presumptions exist in law to ensure that facts are placed before the Court to assist it in reaching its decisions, and to enable it to continue with its proceedings where they are not. In the absence of evidence they are determinative. Presumptions abound in the law, but the presumption of innocence is particularly important because it ensures that the onus of proof stays where it belongs - with the Crown. Innocence is generally not susceptible to proof, least of all by those who are commonly hauled before the courts. A presumption of guilt would sacrifice innocent people in the name of efficiency. It would be the antithesis of justice.
Despite this, the presumption of innocence it is in fact frequently overridden in Court, most obviously by the refusal of bail. A pre-trial remand in custody offends the presumption of innocence with the most serious sanction available to a Court – incarceration. It cannot be said that the presumption has been abrogated, however, because it will continue to operate at every stage of the trial process until a conviction is entered. Nor is it displaced by the disclosure of the accused’s identity, which is known to everyone in Court from the outset. The possibility that publicity might jeopardise the accused’s right to a fair trial, by displacing the presumption from the minds of jurors or by leading them to weigh evidence which is not before the Court, is the real concern. This is met by the rules of sub-judice and contempt. Where these fail to protect the accused the trial will be aborted.
The Law Commission’s proposal to offer general name suppression until the facts of one’s case are put before the Court would be ‘presumptive only, as the Court would always be able to order the lifting of suppression.’ This might enable the Court to protect the public when necessary, but only at the expense of removing a statutory protection from a person not yet convicted. Given the courts’ acceptance that publicity is punitive in effect, (see eg. M v Police HC Auckland, 12 July 1983, M 949-83, Barker J; Police v O’Connor  1 NZLR 87) and the fundamental requirement that no-one should be punished by the Court for an offence until proven guilty of it, it is difficult to see how such an order could be reconciled with the Court’s strict obligation to comply with the Bill of Rights.
Like the denial of bail, such a departure from procedural justice could only occur when demonstrably justified in a free and democratic society. It is not difficult to justify pre-trial refusal of bail in these terms: to be free and democratic any society needs an effective system of justice. The same can not be said of a decision to strip away a statutory right to privacy in the interests of people who are not before the Court. Freedom and democracy are not threatened by the absence of such Court orders.
The Role Of The Media
To the extent that it does constitute punishment, publicity is actually a penalty imposed by the public and its media surrogates, not by the Court. It could be the modern equivalent of the stocks, which once ensured that offenders were publicly known as such, but is not a sentencing option today. The Bill of Rights, we might recall, has no application to the media or the public. They can punish whoever they like, whenever they like, provided they don’t break the law. They bear no legal obligation to presume anyone’s innocence.
While the courts may be properly disposed to alleviate this suffering by ordering name suppression, their ability to do so is actually quite limited. They can certainly suppress the media’s publication of information, but they can hardly prevent those members of the public who already know it from passing that information on as gossip to anyone who is interested. Nor can anyone be prevented from forming their own opinions about the accused, and those associated with them, on the basis of what they find out. We all enjoy an unfettered right to form and hold such opinions.
News is reported because people want to know what is going on around them. It aspires to present facts, and if those available are of sufficient interest to carry a story, the absence of a name will inevitably lead to speculation. Thus in a recent case the publication of no more identifying details than a sexual offender’s age and the fact he was a Christchurch businessman produced a raft of malicious and widespread rumours. Such phenomena may be undesirable features of society, but they are not susceptible to legal controls. As the Court acknowledged in lifting name suppression, they are best despatched by accurate and widely available information: Police v M HC Christchurch A9/02, 5 March 2002, Panckhurst and Chisholm JJ.
Given the importance of media scrutiny as a means of ensuring that our system of justice is accountable we should obviously be wary of any proposal which might diminish its operation. It is undeniable that the absence of the accused’s name in a Court report weighs heavily against the chances of that story surviving the editing process to appear in a publication. It follows that if the prospects of getting usable copy from Court proceedings are reduced, so too is the likelihood that a reporter will be paid to attend Court.
Public confidence also demands more than judicial accountability and evidently just practices by judges. As Chief Justice Burger has put it:
People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open there is at least an opportunity both for understanding the system in general and its workings in a particular case. Richmond Newspapers Inc. v Virginia 448 US 555 at 571-572 (1980)
Given that people learn little about the court system in the course of their compulsory education it is likely that the media play a significant social role in this regard. Even if the information they do provide is limited, it does at least keep the system in the public eye and provides interested parties with a basis for further enquiries. In New Zealand we also have the practical experience of a virtually closed Family Court to draw upon. Informed debate cannot occur in the absence of accurate information.
The Law Commission suggests that the effects of its proposal would be modest because they would be temporary, but delays in the Court system would ensure that a long period of protection was available to most offenders. For most of them, however, nothing would change. Of the thousands who appear in our criminal courts each year only a few attract reportage at their first appearance, and they are not selected at random. They are likely to be well-known or to be accused of involvement in something which is either novel or very serious. These are the same people who would inevitably be subject to applications for orders to lift suppression, so they would still be the recipients of unequal treatment, from the Commission’s point of view. And since judges would still be required to over-ride a presumption on the basis of the facts before them, discretionary powers, and disagreements over the way they are exercised, would also endure.
Before The First Appearance
Before tackling the problems faced on the accused’s first appearance in Court, the Commission examines the situation which applies once an individual is charged, but before they appear in Court. It finds that convention alone, supported by a police policy to withhold names, prevents publication at this stage.
Because the matter has not yet reached the Court the Commission considers that the open justice principle doesn’t necessarily apply and that the privacy interests of the accused should be paramount. Publication at this stage pre-empts the right to apply for a suppression order, but is not, according to the Commission, a contempt of Court. As a result the Commission recommends a new law to prohibit the publication of identifying details between charge and first appearance, unless the accused consents.
This analysis surprisingly ignores the fact that anyone who prejudices the accused’s right to a fair trial will be in contempt of Court. The basis of the police policy to not release names is not explored by the Commission, but probably has more to do with their interest in seeing offenders brought to justice than with respect for their privacy. The media act cautiously in this area, rather than conventionally, because it is difficult to predict whether any particular publication will actually have a prejudicial effect and so be liable to attract prosecution. This is dangerous territory for a publisher with only a few facts, little time in which to verify them, and a limited budget with which to defend its decisions in Court.
To suggest that the Court’s reach does not extend to the pre-appearance stage, as the Commission does, is simply wrong. In TVNZ Ltd. v Solicitor General  1 NZLR 1 the Court of Appeal held that:
... the Court has an inherent jurisdiction to protect a fair trial of proceedings while they are merely potential, whether imminent or not. Thus, in a case ... where the commencement of criminal proceedings is highly likely, the Court has jurisdiction to prevent the risk of contempt of Court by granting an injunction.
In short, the courts have an obligation, reflected in the presumption of innocence, to protect the accused’s right to a fair trial in all circumstances. They have no such obligation to protect the accused, or anyone else, from the effects of publicity. Where the trial process is not threatened by publicity they are reluctant to interfere and where it might be advanced their powers are limited. They can allow publication to occur, but generally lack any power to order it.
To the extent it might prevent publicity capable of prejudicing fair trials and spare publishers the anguish of potential damnation and fines, the proposed new law is unobjectionable enough, but the question of whether it is necessary must also arise. Delivering Justice for All mentions only ‘a few isolated cases’ of pre-appearance name publication, without identifying them. Nor does it consider whether further exceptions might be needed, as when an accused fails to answer police bail and can’t be found. It might be rather difficult to get the accused’s consent for an appearance on Police 10/7, after all.
The balancing of public and private interests which is required to secure justice for those accused of criminal behaviour does not lend itself to the application of a blanket rule favouring name suppression. The demands of justice are as various as the circumstances of those who appear before the courts, and need to be assessed in that individualised context if justice is to be done. The starting point for a Court exercising the discretion this implies must be the importance, in a democracy, of freedom of speech, open judicial proceedings and the right of the media to report the latter accurately as ‘surrogates of the public.’ (R v Liddell  1 NZLR 538 (CA) per Cooke P.)
As Jeffries J observed in Elston v Police, HC Napier October 2 1989 AP 43-89:
Competing with [the] desire to prevent individualised suffering and unhappiness is a very great principle that freedom of speech and freedom to publish must be protected. It is not possible always to reach solutions that do not harm one or other of the ends mentioned.
The fact that the criminal justice system cannot remedy every injustice perceived to arise in its scrutiny of human affairs is, in this respect, an inevitable consequence of its own dependence on public accountability.
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