The Court of Appeal has declined to hear a second appeal from a group of news media companies wishing to name the New Zealand First Foundation accused before the election.
The High Court yesterday dismissed an appeal by the assortment of media firms attempting to lift a suppression order for two people charged by the Serious Fraud Office (SFO) over allegations of improper political donations.
Neither of the accused are a minister, sitting MP, candidate in the election or a member of their staff, or a current member of the New Zealand First political party.
Today, lawyer Robert Stewart, who is representing Herald publisher NZME, Stuff, RNZ, TVNZ and MediaWorks, sought leave from the Court of Appeal for a second urgent hearing before Saturday.
Stewart yesterday argued in the High Court that constituents still to vote must be informed who the two criminally charged are before entering the ballot box.
"The public shouldn't have to speculate or guess, they should just be told," he said.
However, after a teleconference this afternoon with the lawyers involved in the case, Court of Appeal president Justice Stephen Kós declined the request for another hearing tomorrow afternoon.
"Fiat justitia ruat caelum. Justice must take its normal course, even in abnormal times," he said, invoking the Latin legal phrase which translated reads: "Let justice be done, though the heavens fall."
The judge also said two contextual points should be noted.
"First, tomorrow afternoon is, of course, the eve of the date of the general election. Secondly, an unprecedented level of advance voting has occurred already in this election.
"As at the end of Tuesday, 13 October, 1,418,171 people had cast their votes. The number now is likely to exceed 1.6 million. The number of enrolled voters is 3,436,178."
Justice Kós said he was not persuaded that additional information shared with some voters justifies a departure from due process.
"The primary interests requiring consideration here are those of the defendants in obtaining a fair trial. Any decision by this Court is likely to be a final determination," he said.
"It should not be undertaken with an undue haste, particularly when the appeal grounds are not strong and the public interest in departure from due process is so limited.
"Attempting to shoehorn the hearing into the very limited time available over the next 24 hours will cause significant actual and potential prejudice to the defendants."
Justice Kós had indicated in an earlier minute this morning that the media's chances of success were slim.
The two accused have not been named after a series of hastily arranged court hearings and interim suppression orders were made after the SFO laid charges on September 23.
The court hearings, which were held in the absence of journalists, included NZ First's failed attempt to stop the charges becoming public until after a government is formed.
The suppression order was first challenged by the media in the Waitakere District Court last week.
Judge Peter Winter decided to keep the order in place and said publication of the accused may "unfairly unsettle those who already cast their vote as much as it informs those who have not".
Charging documents allege the pair deposited a total of $746,881 between September 30, 2015 and February 14 this year with "intent to deceive the donors of the monies, the party secretary of the New Zealand First Party and/or the Electoral Commission".
"The defendants adopted a fraudulent device, trick or stratagem, whereby party donations for the party were paid into the bank accounts of [suppressed] and the New Zealand First Foundation and not notified to the party secretary, or declared by the party secretary to the Electoral Commission," the papers read.
"Those undeclared funds thereby became available to [suppressed]/New Zealand First Foundation to use as the defendants saw fit, and were used to pay expenses of the party and to develop a fundraising database for the benefit of the party and [suppressed]."
The accused duo are due to appear in the North Shore District Court to face the charges on October 29. Their name suppression is also extended to this date.
NZ First leader and Deputy Prime Minister Winston Peters has distanced himself from the foundation - reported to have bankrolled the political party - and has denied any wrongdoing after it first came under scrutiny last November.
After charges were laid, Peters claimed he and the party were "exonerated".
At a press conference he was also highly critical of the SFO and its decision to lay charges so close to the election.