John Key wanted to know which "prominent entertainer" got convicted on an indecency charge. So he asked someone

A very quick post today, as I'm about to take off for a week long holiday in Northland. In fact, it's a question for you to answer.

To what extent is it proper for the Prime Minister to encourage persons unknown to commit a contempt of court simply to satisfy his curiosity about a court case? Alternatively, does this just show John Key is just like the rest of us, and that the idea of suppressing information in this small nation is basically pointless?

Discuss below - but please don't get Pundit in trouble!

Comments (28)

by Tim Watkin on November 24, 2009
Tim Watkin

I'd be interested to learn how many of you know the entertainer's identity, but I'd add to Andrew's request not to name names, or try guessing, or anything like that. Any names will be deleted asap.

I'd like to think that the Prime Minister obeyed the law. You could argue that he provoked someone to break the law, and in those terms that's a front page scandal.

But the reality is that it merely re-inforces John Key's core political appeal, ie he's just like us. He likes to know secrets, just as we do. He's a bit of a gossip, as most of us are. And like many of us, he's found out who the entertainer is and probably told someone else, commiting contempt.

All that may be technically improper, but if controversey results from this it will only endear him to more New Zealanders.

Heck, if you have anything to do with media, law or politics in this country, it'd be hard not to know the name.

by Idiot/Savant on November 24, 2009
Idiot/Savant

I do.  The person I learned it from has no insider knowledge or special media savvy - but it had been a topic of gossip around their lunch table.

 

I think the more interesting question might be "who doesn't know?"  Because it seems with these orders that they are in practice, a complete waste of time, forbidding people from publishing something that is in fact common knowledge.

by Graeme Edgeler on November 24, 2009
Graeme Edgeler

It is incredibly inappropriate for a PM to encourage people to commit a contempt of court. However, this PM did nothing of the sort:

1. Breach of a supression order does not equal contempt of court.

2. You don't breach a supression order by asking (or telling) someone a supressed name.

by Claire Browning on November 24, 2009
Claire Browning

To what extent is it proper for the Prime Minister to encourage persons unknown to commit a contempt of court simply to satisfy his curiosity about a court case?

Andrew, snap. I was thinking along similar lines on my lunchtime rounds. Except, what I was wondering was ... to what extent would it be improper for me to encourage, etc.

If I'd just seen in the news who it was, I probably wouldn't have given a toss, but now half the rest of the country seems to know, being in the other half is extremely annoying. You might conclude that the suppression is not only pointless, it could end up counterproductive.

Graeme - second that.

by Claire Browning on November 24, 2009
Claire Browning

Heck, if you have anything to do with media, law or politics in this country, it'd be hard not to know the name.

And now I'm very worried.

by Tim Watkin on November 24, 2009
Tim Watkin

Graeme, as per point two, so what does breach a suppression order? Do you have to tell more than one person or publish or broadcast or what?

It just seems odd. Surely the point of suppression is to stop people knowing the identity, and if someone who knows (and ultimately everyone knew from someone who was in court) tells other people, that's contrary to the will of the court. So how does a court enforce its will in this matter, other than holding people in contempt?

by Claire Browning on November 24, 2009
Claire Browning

Belatedly, here's what the Law Commission said:

In the Issues Paper we asked whether “publication” should be defined in legislation. The courts have said that publication involves publicly disclosing or putting material in the public arena. It is not restricted to publication in the news media.  We set out our view that as a matter of policy, publication in the context of the Criminal Justice Act 1985 should include word of mouth communications. We asked whether the legislation should define more clearly what publication means. A statutory definition would have the advantage of legal clarity and certainty, but it may extend the ambit of the offence too far. Submitters were divided as to whether a statutory definition should be included, and equally divided as to whether such a definition should include passing information by word of mouth.

Graeme, you're on your own ...

by Rob Davies on November 24, 2009
Rob Davies

I have no idea who this person is. Today, for the first time, I made a concerted effort to find out. I turned to the internet -- Google, specifically -- to see whether my curiosity could be satisfied. No matter how hard I tried, I couldn't find either the name or a clue to this person's identity.

Now, like Claire, I'm dying to find out.

 

by Graeme Edgeler on November 24, 2009
Graeme Edgeler

Tim - as Claire notes, orders prohibiting the publication of names in relation to criminal proceedings are made under the Criminal Justice Act.

Section 140 of that Act states:
140 Court may prohibit publication of names
(1) Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person's identification.

...

(5) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under this section or evades or attempts to evade any such order.

Claire (and the Law Commission) are right that it's not limited to the news media - a report on a blog, someone handing out leaflets or yelling it out to passers-by in the street, etc. will likely be caught - but I do not see how a personal conversation of the type I assume John Key had (or that would result if I emailled the name to Claire if she's really that interested) is covered.

Surely the point of suppression is to stop people knowing the identity, and if someone who knows (and ultimately everyone knew from someone who was in court) tells other people, that's contrary to the will of the court.

I believe your assumption is misplaced. The point of a court exercising its powers under the CJA in suppressing names is to give those names the protections Parliament has decided they should receive in such circumstances. A judge may wish that someone's name never become known by anyone, if that's the case (in the criminal jurisdiction at least) that judge should be pushing for a law change.

A judge in criminal proceedings is empowered to make an order prohibiting the publication, in any report or account relating to any proceedings the name, address, or occupation of any person connected with the proceeding. Judges are not empowered in criminal proceedings to issue orders banning the private discussion of the name. As a matter of law, the point of name suppression in criminal cases is not to stop people knowing an identity, it's to stop people publishing reports or accounts containing the name. That the latter was historically enough to achieve the former is one of the reasons this is being looked into anew.

So how does a court enforce its will in this matter, other than holding people in contempt?

As quoted above, there is a fine for breach of a suppression order. It therefore doesn't need to be treated as a contempt of court. Particularly egregious breaches of suppression orders might be contempts of court, but this would be exceedingly rare. Contempt of court is a much more serious matter than in breach of a suppression order.

by Tobias Barkley on November 24, 2009
Tobias Barkley

Graeme, in response to 1, there is a difference between criminal contempt and procedural (or civil) contempt.

Criminal contempt is acts or words that interfere with, or might interfere with, the administration of justice (e.g., making comments that could prejudice the outcome of the trial). It is called criminal contempt because it is an offence resulting in a fine, imprisonment or other punishment.

Procedural contempt is disobedience of the Court's judgements or orders, and breach can be sued on by the person harmed by it (hence the civil). A breach of a name suppression order after a trial was finished would be this type of contempt. (Unless the name suppression was automatically given by a statute such as the Domestic Violence Act, as there would be no court order.)

Ta Laws of New Zealand

by Graeme Edgeler on November 24, 2009
Graeme Edgeler

Tobias - I am aware of the distinction between civil contempt and criminal contempt. Breach of name suppression is usually neither, but is a summary offence against the Criminal Justice Act. Orders made under s 140 of the CJA are not orders so much made for the benefit of individuals, as for the benefit of justice. They would never be punished as civil contempts. There is no plaintiff to bring this action. You may find the discussion of the Court of Appeal in one of the appeals arising from the Vince Siemer matter helpful in elucidating the difference.

The (exceedingly rare) situation I was considering where breach of a suppression order might be punished as a contempt, was one where a breach of a name supression order was so outrageous that it was effectively an attack on the administration of justice. In such circumstances it would be an example of a criminal contempt.

by Claire Browning on November 24, 2009
Claire Browning

I turned to the internet -- Google, specifically -- to see whether my curiosity could be satisfied. No matter how hard I tried, I couldn't find either the name or a clue to this person's identity.

That was my experience too, which makes the PM wrong in his assertion that suppression orders now "generally don't work" because of the internet. It's not the internet that's been the problem in this case, it's word of mouth ...

Claire (and the Law Commission) are right that it's not limited to the news media - a report on a blog, someone handing out leaflets or yelling it out to passers-by in the street, etc. will likely be caught - but I do not see how a personal conversation of the type I assume John Key had (or that would result if I emailed the name to Claire if she's really that interested) is covered.

... which I guess is where this kind of argument (even though it seems attractive, especially when blinded by self interest) runs into trouble. It boils down to what constitutes publicly disclosing or putting material in the public arena. If the cumulative effect of lots of individual person to person communications ends up the same as if you'd written it up on a blog, then in policy terms, I guess that's why the Law Commission would have been arguing it should be treated the same.

However, arguing against myself now (ie, coming back around to my original view ...) if you were wanting to hold a particular person legally liable for breaching the suppression order under the current law, you'd have to show that they, themselves, "publicly" disclosed, which maybe is more difficult if they can say hand on heart they believed it was a private communication. You'd also have to prove they gave a report or account of any proceedings - so if Graeme just randomly phones me up, says a name and hangs up again, or sends an email with the name in the subject line and nothing else, does that count? Dunno.

Graeme - don't though. :-)

by Graeme Edgeler on November 24, 2009
Graeme Edgeler

That was my experience too, which makes the PM wrong in his assertion that suppression orders now "generally don't work" because of the internet. It's not the internet that's been the problem in this case, it's word of mouth ...

Google doesn't get you everywhere.

This isn't about people posting the information on some blog or a trademe message board where it will be quickly deleted. A half dozen of your friends updating their facebook status with comments to the effect that "The Importance of Being Earnest will never seem the same again" gets around any suppression of Oscar Wilde's 'gross indecencies'...

And when you update your status just to randomly let people know what piece of art you are looking at, or book you are reading, or song you are listening to, or TV show you just watched, without any context, your 400 facebook friends find out too. This is how the Internet has changed it - it's no longer one person telling the friend they meet on the street, it's one person telling the hundreds of people following their facebook page - which no-one in the outside world gets to see.

If the cumulative effect of lots of individual person to person communications ends up the same as if you'd written it up on a blog, then in policy terms, I guess that's why the Law Commission would have been arguing it should be treated the same.

I think that's the argument. What the law says, and what it should be are quite different. Pre-widespread Internet use, a suppression order prohibiting publication of reports or accounts of proceedings was was enough to ensure the public at large didn't now. Now the public at large can find out, perhaps even without the order being breached.

by Fergus Barrowman on November 24, 2009
Fergus Barrowman

It seems to me that no one has yet addressed the real problem here, which is that false rumour and supposition can harm the innocent. I was told a name, but have no way of knowing whether it's the right one.

by dave on November 24, 2009
dave

Ah, i see others have coovered contempt of court v suppression breaches.  I'll add this. It is my understanding that you can breach suppression by emai - buy emailing out the guys name to someone who doesnt know,  for example, but not by phone. If a provate phone conversation was a breach, why would telling my partner over the dinner table not be? I could be wrong, but I dont think I am.  When Graham Capill was in court for his misdemeanours I got a phone call that afternoon telling me who it was, I didn't relay it by eamail,. but did by phone. I dont think I broke suppression, given the person I contacted knew Capill and would find out in a few days anyway...

clare if you want to know who this person is [rest of comment redacted ... Claire doesn't need to know this, and Pundit doesn't need the strife, thanks! - Andrew Geddis].

by Andrew Geddis on November 25, 2009
Andrew Geddis

Graeme,

Should have known I couldn't sneak a contraction of contempt and suppression orders past you! But why do you say "I do not see how a personal conversation of the type I assume John Key had (or that would result if I emailled the name to Claire if she's really that interested) is covered [by s.140]"? Both of these would be "publications" for the purpose of defamation law, and both of these undermine the rationale for having the supression order in the first place, so why wouldn't s.140 cover them?

Of course, anyone having a private conversation/sending a private email will never be detected or prosecuted, but that's not the same as saying they fall beyond the technical bound of the law.

by Eleanor Black on November 25, 2009
Eleanor Black

Good point, Fergus. There are plenty of entertainers, I'm sure, who would like to not be suspected of being this person.

by william blake on November 25, 2009
william blake

Interesting that we got to know of John Keys "desire to know". Is this just the over mediation of his position or a wee leak to soften the ground for a tinker with the law. He is the PM after all and he could get this information without public comment.

I tried gooogling the transgressor the other day to no avail; but it took about five minutes last night. His wiki page now just has the contempt of court laws posted up, by the site, which seems to confirm suspicion.

Perhaps judges will catch up with the idea that a name supression order will only serve to make people more curious and go to extra lengths ( the internet) to find out a transgressors identity. Meybe they already have?

by Jonathan Devine on November 25, 2009
Jonathan Devine

It didn't take long for me to find out. In fact, I found out when I was reading some comments on Kiwiblog about the case (for research purposes, I swear). Some friendly soul had commented using phrases that appeared innocuous but were actually segments from the performer's work.

Then it was only a matter of visiting the discussion section of the performer's Wikipedia page to see the debate about whether he could be named in that forum.

As a matter of interest, I just checked the Wikipedia page now. It now includes the Herald story about Key's curiosity!

by Graeme Edgeler on November 25, 2009
Graeme Edgeler

Both of these would be "publications" for the purpose of defamation law, and both of these undermine the rationale for having the supression order in the first place, so why wouldn't s.140 cover them?

As Claire noted earlier, "The courts have said that publication involves publicly disclosing or putting material in the public arena". I didn't put that into words in my initial post, but it was my understanding, and I believe the statutory language backs it up.

The particularly reasons for an expansive meaning for publication don't apply to s 140, and given that the interpretation of its prohibition needs to be as consistent as possible with the Bill of Rights, a really expansive definition doesn't seem proper. Parliament could very easily have termed its prohibitions in much broader language. And, of course, you can find case law that declares the a private conversation can be a publication for the purposes of defamation (how do we ever find out about those?), but I'm going to guess you won't find any saying the same about suppression orders.

Only tangentially is statutory name suppression about keeping people from knowing someone's name - on its face it's about prohibiting the publication of reports or accounts containing the name. The Law Commission, and the Government, are looking into whether this should be expanded - I note they're not really looking into whether it should be better enforced...

But feel free to lodge a complaint with the police/solicitor-general about John Key :-)

by Andrew Geddis on November 25, 2009
Andrew Geddis

Graeme,

Not sure JK has commited any offence, has he? Unless he tells someone else the name, of course! Can one be a party to a breach of s.140?

by Claire Browning on November 25, 2009
Claire Browning

As Claire noted earlier, "The courts have said that publication involves publicly disclosing or putting material in the public arena". I didn't put that into words in my initial post, but it was my understanding, and I believe the statutory language backs it up.

There are also the statutory interpretation-type issues of assuming that the drafters will have employed maximum economy of language (so that where an extra word is inserted, it isn't merely a redundant word) and having to give full effect to that word insofar as that can be achieved consistent with the Bill of Rights (unless Parliament had a clear intent to the contrary). (Sorry, non-lawyers.) Granted, those rules usually apply to Parliament's words; in section 140, it only says "publication", and the "publicly disclosing" etc part is a case law gloss. However, if the courts had meant merely "disclosing" in any context, that's presumably what they would have said. Instead, they've said "publicly". Why?

Dave, and anybody else - thanks for your concern. However, a public whinge about my predicament, for the purposes of trying to further an interesting discussion, is not the same as asking to be told; certainly not an invitation to put Pundit in jeopardy; and anyway, it took about five minutes after posting the comment for someone I knew to get in touch. Offline. Privately.

by Graeme Edgeler on November 25, 2009
Graeme Edgeler

Can one be a party to a breach of s.140?

I don't see why not: Section 3 of the Summary Proceedings Act. Section 66 of the Crimes Act. I don't believe breach of s 140 is analagous to prostitution in that there always has to be another party.

 

by Claire Browning on November 25, 2009
Claire Browning

Can one be a party to a breach of s.140?

Yes. Section 66 of the Crimes Act applies to aiding, abetting, inciting, counselling, procuring, etc any offence.

by George Darroch on November 25, 2009
George Darroch

John Key may not have broken any laws. But his answer isn't the kind I'd expect from a PM. I expect him to display better judgement.

by Robert Robertson on November 25, 2009
Robert Robertson

Isn't this story just a diversion?

Who gives a toss who the guy is ?

It really seems to be a non story and as for John Key and his prurient interest in it !! I'd have a lot more respect for him if he showed some leadership and guidance for our nation. At present he is the perfect beige man out there!

by Bruce Thorpe on November 28, 2009
Bruce Thorpe

I know. I deliberately sought out an internet site with a record of being loose on such restraint, the site a day or so later named on National Radio by a notable news commentator as being so.

it was easy to find a thread and read between the pretty crudely drawn lines.

I understood that the suppression order took into account the person's future capacity to travel and participate in the entertainment business.

By that standard the person is already undone informally but presumably the knowledge could be ignored officially.

I think it is not fair to other entertainment figures who might be the victim's of inaccurate rumour, and it is not fair to all those other rowdy characters with less status who get done for similar level offences, and suffer such consequences.

 

by Tim Watkin on December 14, 2009
Tim Watkin

For what it's worth, I talked to someone yesterday who had signed this performer recently in full knowledge of the offence. A suggestion, then, that naming the person would not harm his career as assumed.

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