Word spread because word will spread

If you know something about a case that a court has suppressed, when can you safely tell another person about it? According the the Supreme Court, it all depends.

There's a certain vicarious thrill at seeing your ultimate boss' name on a Supreme Court decision - it's like being in court yourself, but without any of the hassle or expense. So the case of ASG v Hayne (the latter being the Vice Chancellor here at Otago) was always on my radar, irrespective of any legal issues it raised.

As it happens, however, the decision is of real importance to everyone who likes to have a good gossip about legal matters. It purports to set out exactly what constitutes (and does not constitute) a breach of a judicial suppression order. That's a matter that is of real interest to the public at large - we should be able to know what we can (and cannot) say about matters that are or have been before the courts, and who we can (and cannot) say it to. The problem is, the Supreme Court's decision addresses this issue in a way that leaves me (and, I suspect, the Court itself) somewhat confused.

The background facts to the case are fairly straightforward (although the issues raised, as we'll see, become very complex). A Campus Watch employee - Campus Watch being Otago University's internal squad of shit-kickers-and-name-takers, who rule over the student body with a fearsome mix of affable care and genial tolerance - was arrested and charged with domestic violence offences. He subsequently was discharged without conviction, in part because the judge was concerned about the consequence of any conviction for his ongoing employment with Campus Watch. The judge also suppressed publication of the employee's name and details of his offending under s.200 of the Criminal Proceedure Act 2011.

However, watching events unfold from the public section of the Court was the University's Deputy Proctor, who manages the Campus Watch service. After consulting the University's lawyer about what he had witnessed, he reported the employee's behaviour to the University's HR team, which resulted in a temporary suspension and final written warning for the employee.

The employee then challenged the University's disciplinary action, alleging that as his name and details of the offending had been suppressed by the Court, the Deputy Proctor should not have been able to report that information to the University's HR team. And without knowing what the Deputy Proctor had heard, there would be no grounds for any disciplinary action against him.

In the end, the Supreme Court rejected the employee's argument. It found that given the employee's responsibility for helping to protect students, the Deputy Proctor had a genuine reason to inform about the violent behaviour that then justified his doing so ... and in any case, the original judge should never have suppressed the employee's name and offending in the first place ... and so the employment sanctions were lawfully imposed. Which rather settles that little storm in a teacup.

But as with anything that makes it as far as the Supreme Court, the case is less about the fate of the individual parties and more about what broader legal principles emerge from it. In particular, what does the Court have to say about what constitutes a "publication" of material that a court has ordered suppressed? For publishing something that has been suppressed by a Court can have serious consequences: if you do so "knowingly or recklessly", you can go to jail for up to six months; if you do so accidentally or inadvertently, you can be fined up to $25,000.

There is no actual definition of "publish" or "publication" in the legislation - it deliberately has been left for the courts to define its meaning over time (see [68] in the judgment). So the Supreme Court went through the legislative history, some Law Commission work on the topic, and the few lower court decisions that had dealt with the issue, before summing matters up in this way:

[79] ... the focus in s 200 is, generally, on publication beyond the courtroom to the public or a section of the public at large. We say “generally” because it is necessary to ensure the passing on to one other person or to a small number of persons (including dissemination by word of mouth), in the situation where that will undermine the very purpose of the suppression order, is captured by the section. The section does not encompass the dissemination of information to persons with a genuine need to know or, as the Court of Appeal put it, “a genuine interest in knowing”, where the genuineness of the need or interest is objectively established.

[80] It is important to maintain an objective test. While the trivial should not be caught up, the approach to the interpretation of publication has to apply across the range of situations governed by subpt 3 of pt 5, including that of automatic suppression. There would be real concerns, for example, for the safety of a witness where one person’s disclosure to one other person may be sufficient to lead to harm to the witness or where there are misguided attempts to bring particular allegations to light within a particular group of affected persons. Such dissemination will be caught by the prohibition because, on an objective assessment, there will be no genuine need or interest in the recipient having the information.

I have to say, this summation leaves me somewhat baffled. As best as I can understand these paragraphs, the Supreme Court is telling us the following:

One: If you reveal some suppressed detail to "the public or a section of the public at large", you do commit an offence. Hence, writing or speaking about suppressed details in newspapers, on TV/radio, on the open internet, etc, is always unlawful (which everyone knew already).

Two: If you reveal some suppressed detail to someone in a one-on-one or small group conversation (either orally or by, say, email or text), you do not commit an offence - that is a "trivial" form of publication which the statute was not intended to capture.

Three: Unless, that is, your revelation to someone in a one-on-one or small group conversation would have the consequence of "undermin[ing] the very purpose of the suppression order." If that is the case, then you do commit an offence - which you can do, remember, either knowingly/recklessly or accidentally/inadvertently!

Four: Unless, that is, your revelation in (3) involves "the dissemination of information to persons with a genuine need to know". For in such a case, you do not  commit an offence.

Needless to say, the broad principles above can become very murky very quickly when real world situations are considered. Consider, for example, this hypothetical:

  • I gossip to my colleague and tell her that the supressed identity of a man charged with highly publicised sexual offending is Mr Pink, where the reason for the suppression order being imposed is to protect the identity of a victim (Mr Pink's stepchild). If my colleague doesn't know Mr Pink (and therefore can't deduce the identity of Mr Pink's stepchild), I have not committed any offence because of (2) above. 
  • My colleague then tells his hairdresser, who (unbeknownst to my colleague) knows that Mr Pink's stepkids go to his daughter's school ... but doesn't actually know who Mr Pink's stepkids are. Has my colleague committed an offence under (3) above, or is it still situation (2)? 
  • And what if the hairdresser then tells his friend (whose kids he knows are in the same class as Mr Pink's stepkids at the school) "don't ever let Mr Pink near your kids - he's that guy in the paper!" Is that an offence under (3) above, or not an offence under (4) above?

From this fact pattern, we can see (at least) two problems emerging from the Supreme Court's approach.

First, liability apparently can pop into existence depending not on what you say about a case, but on the knowledge of the person you are communicating with and/or the reason for the original suppression order being given. Gossiping with others who do not know an individual whose identity has been suppressed usually will be safe under (2) above - it doesn't "undermine the purpose of the suppression order" if all you are doing is communicating the name of a "Mr Pink" that your gossip-mate will never meet or interact with. But if you gossip about that individual with someone it then transpires does know Mr Pink - thus "undermining the purpose of the suppression order" - suddenly you have committed an offence under (3); because, remember, a breach of a suppression order may either be knowing/reckless or accidental/inadvertent. And further, what if the original reason for the suppression order is to generally protect the identity of a well-known public figure so as to allow them to maintain their employment in the public eye; doesn't any spreading of gossip about her/him in any way then undermine the purpose of such a suppression order? 

Second, any such liability for undermining the purpose of a suppression order will disappear if it is "objectively" determined that the person you communicate suppressed information to has a "genuine need or interest" in receiving it. Exactly what that might mean in practice is not spelled out in any detail by the Court. Which means, in practice, you escape liability if a court thinks it is OK for you to have spoken as you did - which you only will discover after you've been arrested, charged and tried for the offence. 

All of which is to say, the Supreme Court's judgment raises as many questions as it settles. Now, that's not entirely the Court's fault. It was required to interpret and apply legislation against a contextual background where there is some fundamental uncertainty as to how supression orders are intended to work. Nevertheless, the Court’s decision leaves the actual state of the law in a bit of a mess, which it itself acknowledged in its penultimate paragraph:

the current approach gives rise to some uncertainty. It may be that some legislative clarification could be considered.

And unless and until that clarification comes, the safest thing very well may be not to gossip with other people about matters that have been suppressed by a court. 

Yeah. Right.