Why and when do people get name suppression in New Zealand? We asked a lawyer to explain.
First of all, the straightforward one:
Complainants - so the person who claims the crime has happened to them - in specific sexual cases will always automatically have their identity suppressed
The purpose of this is to protect the complainant.
Robert Stewart, one of the country’s leading media law and defamation barristers, says “you’re asking a complainant to reveal deeply personal and distressing events that relate to them being sexually offended against”.
In order to ensure those sorts of crimes are brought to the courts and offenders are dealt with appropriately, he says, you want to remove as many barriers as possible.
“The jury will know who they are, but they won’t have their name bandied across media.”
Okay, so what about the person who is accused of the crime? What’s the justification for keeping their name quiet?
There’s a number of reasons why a defendant - aka the person accused of a crime - might have their identity suppressed.
Identifying the person would:
- Cause extreme hardship to the defendant, or any person connected with them
- Cast suspicion on another person
- Cause undue hardship to a victim
- Create a real risk of prejudice to a fair trial
- Endanger the safety of any person
- Lead to the identification of another person whose name is suppressed
- Prejudice the “maintenance of the law” including the prevention, investigation and detection of offences
- Prejudice the security or defence of New Zealand
Robert Stewart, one of the country’s leading media law and defamation barristers. Photo: supplied.
Wait - none of those are for being high-profile. Do people get name suppression just for being famous in New Zealand?
In short: no, says Stewart.
About ten years ago a change was made to the law, he said, “after there was a sentiment that some high profile sports people were getting suppression just because of the fact that they were well known and famous.”
The rules around name suppression are laid out in the Criminal Procedure Act 2011 and the act specifically says “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”.
High-profile people need to meet the same standard as anyone else for name suppression.
First, they need to convince a court there would be serious consequences for having their name public - most commonly that it would cause extreme hardship or that it would affect their right to a fair trial.
Next, the court needs to weigh up whether the person’s argument for suppression outweighs the public interest in identifying the person.
Stewart said the courts have made it clear it has to be a very strong argument, because of the importance of open justice and freedom of expression.
Judges aren’t out here protecting the elite, he said.
He said it’s quite the opposite, citing the case of boxer Joseph Parker, who lost his bid for name suppression when he was linked to a case involving methamphetamine importation, but was never charged.
“He wasn't even a defendant and the courts decided that even though he was going to suffer undue hardship, when they did the balancing exercise, they thought it was important for the public to know how the trial had been run.”
Okay, so back to the actual reasons - let’s break these down a little, with some recent examples.
Publishing their identity would cause “extreme hardship” to the defendant or any person connected with them
Extreme hardship could be things like clinical evidence that a person is suicidal and is likely to take their own life, Stewart says.
A recent example was a Wellington man who masturbated in his neighbour’s house, whose identity was permanently suppressed by a judge.
The NZ Herald reported the man’s lawyer argued for suppression “on the grounds that his career would be forever ruined and a high-risk of self-harm if his name was published” and the judge found there was a "real and appreciable risk" he could harm himself if his identity was published.
Extreme hardship could also be argued when there is clear evidence that someone is likely to suffer extreme financial distress as a result of being named.
Or, Stewart says, when there's misinformation spreading and it means the person is going to be unfairly vilified on social media.
He gives the example of a 21-year-old man who was discharged without conviction in 2019 after pleading guilty to assaults at a Young Labour summer camp.
“The evidence in the court was of an enormous amount of piling on and trolling of that person, and the court thought because of their young age and susceptibility, by naming the person their life would become quite miserable, and there was a lot of misinformation on social media.”
It’s a high bar, Stewart says. “Most of the people who apply under extreme hardship won’t get it because it's such an extreme threshold.”
Publishing their identity would create a real risk of prejudice to a fair trial
This is one of the most common reasons for name suppression, Stewart says.
A fair trial means you’re judged by a jury of your peers based only on the evidence that is brought before the court.
The defendant needs to know what evidence has been levelled against them, so they “don’t have to second-guess what the jurors might have heard” and have a fair trial to respond to that evidence, he says.
The defendant also should “not be judged by other material that you don't know about and haven't had a chance to respond to,” he says.
It's important to have jurors who are not prejudiced or biased against you because of things they've heard or rumours they've been told that could affect their impression of you.
Name suppression comes into play so that jurors can’t have a pre-formed opinion based off what they might have already heard about a person through media or social media.
For example, during the murder trial for British backpacker Grace Millane, her killer Jesse Kempson had name suppression.
This was to do with his right to a fair trial because he was facing other charges relating to two other women.
His lawyers argued that if the juries in those other cases knew he was the person convicted of Grace Millane’s murder, their decision would be influenced.
“If you were on the jury that was trying him on the charge of sexually assaulting a former partner and you knew he had also been convicted of murdering Grace Millane,” says Stewart, “you would either be subconsciously or consciously biased against him"
On that note: most of the time, juries aren’t allowed to know if a defendant has previous convictions.
“The person may have rehabilitated. They may have three previous convictions 20 years ago, but they are a completely rehabilitated person,” he says.
“It's not enough to say they've done it in the past, they are more likely to do it again.”
There are some cases where the prosecution can mention previous convictions if the court is satisfied they are “evidence of propensity” (a tendency to behave a certain way).
But mostly people should only be judged on the evidence that's before the court and the prosecution has to prove the charge beyond reasonable doubt, Stewart says.
Fair trial and extreme hardship are the two most common reasons for name suppression. But a few other reasons include:
Publishing their identity would endanger the safety of any person
An example of this was the man who carried out a terrorist attack at a West Auckland supermarket in 2021.
In 2018, he was facing a number of charges including distributing restricted publications and failing to assist police officers.
A judge granted him suppression at the time on the grounds publishing his name was likely to risk his safety if he was deported back to Sri Lanka.
His death in the supermarket terrorist attack meant he would no longer face trial for his earlier charges, so name suppression was lifted.
All defendants in Youth Court get automatic name suppression
Media can’t report on anything at all that happens in Youth Court unless the judge specifically allows it, and even if permission is granted, there are specific details in Youth Court cases that are automatically suppressed.
By law, both the defendant and the complainant get automatic name suppression in incest cases
This is to protect the complainant. All complainants in incest cases get automatic name suppression, so if you named the defendant, and people knew it was a case of incest, it could be quite easy to work out who the complainant was.
What happens if you breach a suppression order?
If you identify someone whose identity is suppressed, you’ve committed an offence.
If the court determines it was done “knowingly or recklessly”, a person could face up to six months’ prison, and a company a fine of up to $100,000.
If it wasn’t done knowingly or recklessly, then a person could face a fine of up to $25,000, and a company a fine of up to $50,000.
Stewart says be careful what you post on social media, and don’t break suppression orders.
“Publishing something on social media is treated the same way as publishing something in a newspaper.”
“If you breach suppression online, there will be a record of it, and that will give prosecutors good evidence, and it's a serious matter.”
You should be thinking about the victims, he says. “Because if you publish all of that on social media you may cause the trial to be aborted and the charges to be dropped on the basis of a fair trial.”
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