Judgment rules for naming of billionaire

Five Court of Appeal judges have strongly upheld the importance of an open justice system and restricted the power of judges to suppress defendants' names.

Court president Sir Ivor Richardson, Chief Justice Dame Sian Elias and Justices Blanchard, Tipping and Sir Kenneth Keith yesterday released their 34-page judgment allowing the Herald to name the man, known only as L.

Dame Sian said the outcome was inevitable. Judge David Harvey was "plainly wrong" when he prohibited publication of L's identity.

"No grounds were available to the judge which could justify departing from the important principle of open justice and the freedom to receive and impart information protected by section 14 of the New Zealand Bill of Rights Act 1990. The order was accordingly made in error of law."

The businessman had sought five days from yesterday's decision to consider his options, including a possible appeal to the Privy Council, but has been given only until 2.15 pm today.

His lawyer, Marie Dyhrberg, is in Dublin and was unavailable for comment yesterday.

Yesterday's judgment detailed what happened when L appeared in the Otahuhu District Court on January 6 and 7 this year, because, "regrettably," Judge Harvey had neither conducted proceedings wholly in public nor explained what information he had received and taken into account.

The judgment outlines how L's lawyer and a police prosecutor held a private conversation with Judge Harvey behind closed doors and gave him written submissions before the 66-year-old billionaire businessman pleaded guilty in open court to charges of importing cannabis plant and resin.

A handwritten note from New Zealand Customs expressed concern that discharging L without conviction and with his identity permanently suppressed could lead to a perception that those entering the country on super- yachts were being more favourably treated by Customs.

Adjourning the case until the next day, Judge Harvey said he would consider a section 19 discharge if L made a voluntary contribution to drug rehabilitation centre Odyssey House.

The next day, January 7, after L's lawyer confirmed the donation of $53,000, Judge Harvey discharged L without conviction and with his name permanently suppressed.

The case would have been largely unintelligible to anyone present in court. It effectively proceeded on a basis understood only by those who had participated in the chambers meeting.

The ensuing eight-month legal battle by Herald publisher Wilson & Horton to overturn the name suppression has passed through the District Court, the High Court and finally the Court of Appeal.

Dame Sian said the Court of Appeal had already recognised the importance of freedom of speech enshrined in the Bill of Rights, the importance of open judicial proceedings, and the right of the media to report court proceedings.

L's standing as "an extraordinarily successful businessman, community leader and philanthropist" was not grounds for suppressing his name.

The court could not enter into assessment of whether media or public interest was appropriate or undue. The right to receive and impart information was not limited according to qualitative and subjective standards adopted by the judge.

It was the public's right to receive information of any kind in any form, unless the judge identified real harm from publicity. "Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the court's perception of its value."

The court dismissed as "unsubstantiated and wholly speculative" the suggestion that charities and businesses associated with L could suffer adverse consequences from publicity about L's criminal charges.

L's offending was not trivial. The quantity of the drugs, and the fact that he imported them on two separate occasions, could not have justified Judge Harvey prohibiting publication of L's name.

"It can only be inferred that the judge misdirected himself and that the decision was taken in error of law."

The court criticised Judge Harvey's decision to hear submissions, including the summary of facts, in private, and for his failure to give the reasons behind his ruling in open court.

The principle of open justice was critical to the maintenance of public confidence in the justice system.

"Without reasons, it may not be possible to understand why judicial authority has been used in a particular way.

"The public is excluded from decision-making in the courts.

"Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined."