Editorial: Big names not now easily suppressed

It is hard to believe, after nearly eight months of litigation, that the "billionaire case" is over.

A case which, right from the outset, looked like a blatant breach of principles of open justice, has wound its way through procedural thickets to the High Court and finally to the Court of Appeal.

But at each stage the battle has turned out to be worthwhile, not simply so we can name the billionaire, but to establish at ever higher levels some important legal milestones in the battle for public information.

And at each stage, the judgments have highlighted disturbing elements of dealings in the Otahuhu District Court on January 6 and 7, when the wealthy visitor appeared on a charge of importing cannabis.

The case was effectively decided in the privacy of the judge's chambers where lawyer Marie Dyhrberg said the defendant could donate $50,000 to a drug rehabilitation charity and asked that he be discharged without conviction and his name suppressed.

When the case was called in open court it proceeded in a way that was unintelligible to anyone except those who had been privy to the hearing in chambers.

In those circumstances the Court of Appeal finds the judge's failure to explain the reasons for his decisions "a clear breach of principles of open justice."

Judges should explain their decisions openly, says the Appeal Court, not only for the sake of confidence in the legal system and the ability of higher courts to check their decisions, but also as a check upon themselves.

"In the present case it is hard to believe the judge would have granted the [suppression] order if he had formally marshalled his reasons for doing so."

The decision issued by the Court of Appeal yesterday endorses the ruling of the High Court in June and advances it in some ways.

Most importantly, the Appeal Court has firmly dispelled the idea that someone answering criminal charges may be granted name suppression simply on the grounds that he or she is prominent or successful and may therefore attract "undue" interest.

The five appellate judges declare that courts "cannot enter into assessment of whether media or public interest is appropriate or 'undue.'

In future, courts considering an application for name suppression would need to weigh up "whether the harm caused [by publication] would be disproportionate to the public interest in open justice and freedom to receive information of any kind."

Just in case defence lawyers imagine that any well-known client could plead "disproportionate harm," the Appeal Court makes it clear the test must not give prominent people a privilege not available to others.

It was unimpressed by Ms Dyhrberg's contention that the billionaire's name should be suppressed because he was, "an extraordinarily successful businessman, community leader and philanthropist."

The decision has confirmed the right of news media to challenge suppression orders after they have been made. That, too, should force judges to give clear and convincing reasons whenever they take that drastic step.

But most importantly, the case has firmly established the principle that whenever judges are asked to suppress the name of defendants, they must give due consideration to section 14 of the New Zealand Bill of Rights Act, which attempts to safeguard freedom of expression.

That means the right of media to report the story and the right of others to receive it. In all but exceptional cases, that freedom now prevails.