PUBLIC JUSTICE

"ENJOY THE FRESH air . . . don't let anything get in the way of you and the
atmosphere," District Court Judge David Harvey told an American billionaire
in January caught importing cannabis plant and oil into this country.

He then discharged him without conviction and ordered his name suppressed,
after the man donated $53,000 to charity.

So many were the unsatisfactory aspects of this case that the press had a
powerful duty to pursue the public's right to know. The offender, named
this week as Peter Lewis (66), chairman, president and chief executive of
Progressive Corporation, one of the five largest vehicle insurance
companies in the United States, had been carrying cannabis when he arrived
at Auckland airport and a search of his luxury yacht in Auckland harbour
uncovered more.

Fresh air indeed.

Here was a case, at first sight, where suppression of the offender's name
could not possibly be justified.

The judge's decision left the impression with the public that a rich man
could buy himself suppression. That was exactly the view of the High Court
at Auckland, when the New Zealand Herald appealed against the order.

Justices Potter and Nicholson quashed it, saying it gave the unfortunate
impression that suppression could be bought.

And the Court of Appeal this week upheld that decision.

One of the most annoying features of this case was that Judge Harvey did
not give reasons for his decision and heard argument about suppression in
private. Technically, it seems, the judge's mistake was not then to have
repeated his reasons in open court.

The Chief Justice, Dame Sian Elias, said, in giving the Court of Appeal's
decision, that the offending by Lewis was not trivial and the rights to
freedom of speech and open justice meant Judge Harvey was wrong to suppress
Lewis' name. Open justice was critical to maintaining public confidence in
the justice system, she said.

The case is but one in an unfortunately lengthening list. The cancer of
secrecy in the public arena is spreading virtually unchecked.

The Lewis decision may make district court judges consider suppression
requests with more consideration of the public's right to know, but it is
just a small step to retrieve a situation that is, frankly, quite out of
hand. Routinely, officialdom shelters behind various pieces of legislation
to prevent the public from knowing what is going on, what went wrong, or
who goofed. Routinely, "confidentiality agreements" are signed between
sacked officials and their elected masters to prevent any taxpayer or
ratepayer from knowing how their money is being spent.

Politicians have always been prepared to manipulate the timing and amount
of official information they have at their disposal, and to deprive the
public of its right to know. They are now surrounded by several "walls" of
obfuscation, downright obstruction, lies, "spin-doctoring" and other
prophylactic measures.

The press may have the money, the time, the staff and the commitment to try
to penetrate these defences, but what of poor Joe Public, trying to find
his way to the truth about a matter of concern to him? He has little or no
chance.

The courts are but one arm of this particular octopus.

When the doings of individuals impinge directly on the community, it is
unhealthy indeed to pretend that individual privacy is more important.

Suppression by a court effectively means the total identity of the
miscreant is hidden from view. The introduction of selective suppression -
for that is what it is - is relatively modern.

In past times, name suppression would have been an absurdity because every
man and his neighbour in the village would soon have known. Even in this
age, the Internet has made a village of the world: Lewis' name was
broadcast on the "web" within hours of its formal suppression.

There are very limited circumstances in which protection of the identity of
offenders is justified; sex cases where offender and victim are members of
the same family sharing the same name are an obvious choice.

But for general criminality, suppression requires sparing use. It is
excessively granted now, often on grounds that seem inconsistent and
idiosyncratic. The generalised suppression available, for example, at
preliminary hearings has developed into a form of closet justice.

Chief Justice Elias said of the Lewis case that public faith in the justice
system depended on its confidence "that a person's status or financial
worth is irrelevant to the treatment they receive from the court". We would
go much further than this: full public justice is the keystone of a society
and the good of individuals within it.