JUDGES BACK WATCHDOG ROLE OF NEWS MEDIA

Two High Court judges ruling on the billionaire drug case have strongly
supported the role of the media in upholding freedom of speech.

Justices Potter and Nicholson yesterday released their 26-page judgment
allowing the naming of the American billionaire who escaped conviction for
importing drugs into New Zealand.

The man, labelled L, has five days to appeal before his full name is
published. The Herald was awarded costs, which are likely to run into six
figures.

The judgment outlines how 66-year-old L arrived at Auckland Airport on
January 5. He was found to be carrying 33g of cannabis plant. He stated it
was for his personal use. A search of his yacht turned up a further 47g of
cannabis plant and 56g of cannabis resin.

The next day, in the Otahuhu District Court, L appeared before Judge David
Harvey and pleaded guilty to two counts of importing a class C drug and one
of importing a class B drug - the resin.

Adjourning the case, Judge Harvey stated with reference to L: "He can make
a voluntary donation to Odyssey House and then I will give consideration to
a section 19 discharge."

The next day, having confirmed the donation of $53,000, Judge Harvey
discharged L without conviction and granted him permanent name suppression.

A legal battle ensued involving Herald publisher Wilson & Horton's right to
lodge an appeal against the suppression order.

L's counsel, Marie Dyhrberg, had objected to Wilson & Horton's right,
stating that a Herald reporter was in court when the suppression order was
granted but failed to "take advantage of the opportunity to be heard in the
District Court, so lacked standing to seek review."

Yesterday's judgment came out strongly in favour of earlier case law
confirming the right of the media to apply to overturn suppression orders.

"Freedom of speech and expression is a fundamental freedom enshrined in New
Zealand in section 14 of the New Zealand Bill of Rights Act 1990.

"The news media as the watchdog for the public in protecting that
fundamental right and freedom ... has standing to bring proceedings to
judicially review such a decision."

It dismissed as "unconvincing" Ms Dyhrberg's submissions that the Herald
reporter's failure to challenge the suppression order at District Court
level meant the company lost its right to be heard.

The right to freedom of expression included the right of the public to
receive information and the right of the news media and others to impart
it, the judgment said.

"Any restriction on those rights must ... be demonstrably justified."

Name suppression was a matter of discretion, and the court must exercise
that discretion "in a manner which recognises and respects the rights and
freedoms enshrined by the Bill of Rights ... Failure to do so will give
rise to an error of law."

In a strong comment on Judge Harvey, the judgment said: "Nothing the judge
said or did indicated that he gave consideration to the relevant provisions
of the Bill of Rights in exercising his discretion ... He therefore made an
error of law."

Justices Potter and Nicholson also sent out a message to other judges about
the need to give reasons for granting name suppression.

"We are concerned that the judge did not give any reasons for his decision
to prohibit publication of L's name. Even though the suppression order
followed a decision to discharge without conviction and even though both
applications were not opposed by police, the exceptional nature of drug
importing calls in our view for statement in court of the reasons."

Furthermore, because of L's wealth and his payment of $53,000 to a charity,
the granting of a discharge without conviction and the name suppression
which followed could, as Wilson & Horton's lawyer Bruce Gray submitted,
have "created an unfortunate impression that name suppression could be
purchased," the judgment said.

"The payment of $53,000 undoubtedly played a part in the judge's decision
to discharge without conviction. If there had been conviction, then it
would have been extremely unlikely that a name suppression order would have
been made.

"Therefore there appears to be a consequential link in logic between the
payment of the money and the suppression order. This makes it even more
regrettable that the judge did not state his reasons for making the
suppression order."

Ms Dyhrberg had earlier said that there had been a discussion with Judge
Harvey in chambers, behind closed doors, before court started on the day L
was discharged. The police prosecutor was present. She had indicated to the
judge that L might be willing to made a donation around $50,000, and the
potential for losing his senior company job if he was convicted and his
name published.

Wilson & Horton had submitted that Judge Harvey had failed to take into
account that L's name was likely to be made public via the Internet and
publications outside New Zealand. This rendered the suppression order
impractical. Likewise, L had no reputation in New Zealand deserving of the
protection of name suppression.

The judgment said that Judge Harvey was fully aware that he had no power to
make an order binding overseas publishers or covering what was released on
the Internet from international sources - nor could such an order be enforced.

However, "he was aware that for such publication to be effected beyond New
Zealand there would have been publication from New Zealand to an overseas
source and that publication would be in breach of the order. In this he was
logically and legally correct."

The judgment criticised L, and therefore Ms Dyhrberg as his lawyer, for not
providing Judge Harvey with all the relevant material to make his decision.

"Therefore he was not able to and did not take into account all relevant
considerations."

He was given "selective character information."

For instance, he was not told that it was widely reported in America that L
was a prominent supporter of, and donor to, the campaign to legalise
marijuana or that he was described in Fortune magazine by a friend as a
"functioning pothead."