An Auckland couple who breached lockdown to go to Wānaka have thrown name suppression into the spotlight. Te Aniwa Hurihanganui of RNZ can now reveal startling statistics about suppression.
William Willis and Hannah Rawnsley, now known as 'The Wānaka couple', only had name suppression for the briefest time, before they let it lapse and apologised for breaching Auckland's Covid-19 lockdown and heading south. But it was enough to make name suppression a talking point.
Now, RNZ can reveal that Pākehā are granted name suppression three times as often as Māori, even though Māori are charged and convicted with more crimes.
Last year, Māori were charged with 43 percent of crimes but only accounted for 17 percent of the interim and final name suppression granted, an RNZ analysis shows.
Pākehā were charged with 36 percent of crimes, but accounted for 65 percent of interim and final name suppression, Ministry of Justice figures show.
These figures do not include automatic name suppression granted to protect the identity of victims.
Auckland criminal lawyer Fletcher Pilditch said it seemed to be easier for certain types of people to convince a judge that being publicly identified would cause them extreme hardship.
"You've got to establish a hardship beyond the hardship that is ordinarily associated with being identified as a person who is facing criminal charges before the court. There's no hard and fast rules about what extreme hardship might look like but often the grounds relate to the ability of the person to continue in some form of employment or professional capacity," he said.
"Tragically, many Māori offenders appearing before the court are coming from a background of hardship and challenge and deprivation. I don't see that as triggering the sort of consideration that courts normally consider when they consider extreme hardship."
Pilditch has represented many Māori clients and questioned whether the courts were culturally competent enough to understand the significance of a Māori defendant's reputation within their whānau or wider whānau network.
"I don't know whether the [extreme hardship] test is being applied to take into account questions of mana and how your own whānau or hapū are going to respond to these allegations, and your feelings about that being known within the wider group.
"If your offending is a product of coming from that impoverished environment and having all of those challenges in life, then you're unlikely to be a person who also has the sort of reputation and standing that needs to be protected with name suppression."
The Ministry of Justice does not collect data on unsuccessful name suppression applications so it is impossible to tell whether Māori are applying at the same rate as other ethnicities and being turned down, or are applying less.
University of Canterbury Dean of Law professor Ursula Cheer said the figures should be explored.
"I think there's a good place for some more work to be done in this area by some good criminal justice researchers."
It was possible the statistics indicated bias was at play, she said.
"In theory, of course, they shouldn't be biased, but wherever a judge has an ability to exercise discretion, it is arguable [there can be bias]."
Chief Justice Helen Winkelmann doubted the disparity reflected a bias by judges, but she would not rule it out.
"As a judicial leader I can't overlook the possibility it also reflects unconscious bias on the part of the judiciary and for that reason we educate judges to try to address that. We have to really strive as judges to be consciously impartial as we sit in judgement and that requires us to know about our own weaknesses."
She accepted that wider societal factors could not be ignored and may be contributing to the disparity.
"The person comes into the courtroom with all sorts of disadvantages. They may carry with them previous convictions, they may not be in a job, not have a family relationship, all the sort of things that are taken into account in name suppression."
Quentin Duff, a Māori barrister from Auckland, had confidence in the integrity of judges and their decision-making.
He agreed with Winkelmann that bias or prejudice are probably not major factors in the disparity.
"My experience with the judges that sit there is that they're colour blind and apply interim suppression in the interest of justice," he said.
"The courts apply that extreme hardship standard pretty harshly. It's not an easy threshold for anybody to meet, quite frankly."
Cheer said it was also possible the statistics reflected inequities in access to quality legal representation.
"It takes a tenacious and really strong lawyer to keep arguing about suppression. Suppressions are supposed to be granted exceptionally, they're not meant to be granted easily. So you do have to make good strong cases to get them.
"Having access to a good lawyer, and being able to pay a good lawyer to do that for you is obviously an advantage. So the ability of a defendant to get a good lawyer and pay that good lawyer is relevant and may impact on whether you get a successful order or not."
Pākehā are more likely to be able to afford a private lawyer because they earn more income on average than Māori. A 2018 study on income disparities found at every age Māori received a much lower average income than the general population. Māori aged 40 to 60 earned $10,000 less a year than their non-Māori counterparts.
The report said the disparity existed in part because one third of the working age Māori population have no qualifications and over half have lower skilled jobs.
Name suppression rules were tightened in 2011 following public anger that it had been granted to a raft of well-known figures and celebrities.
Pitcher said far fewer people had been granted name suppression since, but the demographic of successful applicants remained unchanged.
"So the test was elevated to extreme hardship to make it really difficult to get name suppression, but when you look at the cases it's still sports people, celebrities, people with standings. It seems to be the same cohort of people getting name suppression, albeit there's less of them."
- Data analysis by Farah Hancock