Editorial: The judge is wrong

OPINION: Every now and then, a judge makes a decision that undermines the good work of his or her brethren in trying to keep court processes as transparent as possible.

The latest to favour secrecy over openness is Judge Eddie Paul, who last week decided a well-known musician should escape conviction and have his identity suppressed, despite having committed an indecent act on a 16-year-old in downtown Wellington. The judge ruled the consequences of conviction and his name being published would be disproportionate to the offence's gravity, which he considered "medium to low level".

He is wrong. How to protect other young women who unknowingly find themselves in this sleazeball's company? And why should other entertainers who behave properly have to parry questions about whether they are the man in the news? Though no 16-year-old girl should be out cruising at 3.30am, no entertainer worthy of the description should have treated her as this man did, either. It was inexcusable.

The court was told Mr A, who conceded he was so drunk he could not recall the events, grabbed the girl's head, forcing it into his crotch. How gross.

Intentionally or not, Judge Paul has added weight to a widely held suspicion that courts treat celebrities differently.

When they find themselves facing a judge for usually alcohol-fuelled crime, lawyers routinely seek name suppression. Too often it is granted.

Lawyers resist forcefully when the mainstream media tries to have secrecy replaced with exposure. At the first court appearance of an American billionaire yachtsman facing drugs charges, for example, defence lawyer Marie Dyhrberg warned a reporter not to "try anything cute because we'll sue the arse off you and he has the money to do it".

A former justice minister once observed that public faith in the justice system depended on confidence that "a person's status or financial worth is irrelevant to the treatment they receive from the court". Would that were true. These days, whenever a judge suppresses a name, a suspicious public assumes that the defendant is a celebrity, has money, or both. That is regrettable.

Suppression of name and, sometimes, identifying particulars and facts, has its place. It can be in the interests of justice that information is kept from the public or a jury, at least till another proceeding is dealt with. But such circumstances should be rare.

As Chief Justice Dame Sian Elias said, when overturning the order suppressing the rich yachtie's name, the presumption as to reporting "is always in favour of openness", and reminded the judge involved of the Bill of Rights Act.

Another reason judges must be sparing with suppression orders is the reality of the internet. Details suppressed here can be revealed easily on websites hosted overseas; further, some bloggers ignore the rules of contempt of court, relaying information that a judge has deemed should be kept secret, defeating his or her wishes in a way courts have yet to consistently tackle.

Suppression is a useful tool but judges should use it carefully. They might also need to consider whether it is even worth employing when it can be so simply subverted.

- © Fairfax NZ News