Editorial:Trading in secret with convictions

Secrecy is the father of suspicion. The secrecy imposed on the identity of a wealthy visitor who admitted drugs charges in Otahuhu District Court has given an impression - mistaken, we trust - that justice is for sale in this country. The man made a contribution to the drug rehabilitation centre Odyssey House in accordance with a suggestion made to the court on his behalf. He was then let off without a conviction and granted an order prohibiting his identification.

Many have jumped to the conclusion that the donation secured his discharge. Whatever was arranged, it ought to have been openly acknowledged and explained at the resolution of the case. The Criminal Justice Act allows judges to use their discretion to waive a conviction, but require the guilty to contribute to the cost of prosecution or make amends in an appropriate way.

It turns out that just minutes before the well-heeled cannabis carrier was sent on his way, the same judge exercised this discretion in favour of another traveller who had been caught bringing the drug into Auckland Airport. That individual was discharged with an order for costs. Judge David Harvey considered a conviction would have unjustly jeopardised his job. The man did not ask for name suppression and did not get it, although he had been caught with a fraction of the 100g of material that landed the high roller in court. In the billionaire's case Judge Harvey considered a conviction unwarranted and this time he was also persuaded that public identification would be a penalty out of proportion to the crime.

So the more serious case was given additional leniency. It is hard to escape the conclusion that a substantial gift to a good cause made all the difference. There might be nothing much wrong with that, so long as wealth is not the only currency the courts can recognise. Under the 10-year-old diversion scheme, minor offenders can be let off without a conviction on condition they contribute in a variety of ways to an appropriate cause or perform some other exercise or service. It is common enough for lawyers to seek diversion for their clients but is rare that the accused has much of value to offer. In most cases the decision is likely to be made purely on considerations of justice.

But when an extremely wealthy individual is in the dock and his lawyer is talking, delicately, about donations to a needy cause, it must be much harder to put aside monetary considerations. It would be better in such cases that the courts initiate proposals to deal with the charge in that fashion, and set a contribution that reflects the seriousness of the offence, the character and circumstances of the offender and the principle of equality before the law. There might be less room then for suspicion that very deep pockets can secure extra considerations.

The judge could have ordered an appropriate payment at the conclusion of the case and left no unfortunate impressions. But privacy became an over-riding consideration, and that has led to understandable conjecture. Privacy ought to have no part in criminal proceedings, not least because it so frequently leads to unequal treatment. The rich and prominent are far more likely to be protected on grounds that they have more to lose. So they do, and they should forfeit some of that status when, from their elevated positions, they break a law.

When dealing with the wealthy the courts need to take particular care to see that their decisions are open, transparent and well understood in the community they serve, and beyond suspicion.