Nash Stuart: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
Nash Stuart: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
[Volume:676;Page:21589] 
STUART NASH (Labour) 
: 
 There are two points I will raise and perhaps ask the Minister in the chair the Minister of Justice a couple of questions on. I start on clause 201 “Power to clear the court”. Clause 201 states: “A court may make an order excluding from the whole or any part of any proceedings in respect of an offence all or any persons …” and it lists the people who are allowed to stay in the court after an order to clear the court has been given. The question I ask is on this: there is an exception for members of the media. The bill says that when the judge declares that the court must be cleared the media are actually allowed to stay in there except if it relates to the security or the defence of New Zealand—let us park that to one side. 
Let me give an example. Clause 203 “Court must be cleared when complainant gives evidence in cases of sexual nature’’ is something I understand completely agree with and think anyone with a heart would agree with. But my question comes round to why the media is allowed to remain. Why put in the legislation that the media is allowed to stay in some of these cases when the complainant may in fact find the presence of the media intimidating to the point where they do not give evidence? I think we are all aware of a number of those cases where the media have stayed and these cases have been reported. I wonder where that line is between society’s right to know versus the right of the victim or the complainant. I argue that in some cases and certainly in some sexual cases the right of the victim or the complainant should override society’s right to know what happened in that trial. So that is the question: I wonder why the media are specifically being given an exemption. 
Clauses 204 to 208 talk about the suppression of the identity of the defendant and that includes the identity of defendants in sexual cases and identity of child complainants or in fact where the judge determines that it is not in the public good. There are a couple of questions. Firstly in the bill as introduced clause 204(1) stated: “A court may make an order forbidding publication of the name and any other identifying information about a person”. For some reason the Justice and Electoral Committee changed that wording to read: “A court may make an order forbidding publication of the name address or occupation of a person”. I would have thought that “name address or occupation” are simply a subset of “any other identifying information”. I do not know why the committee narrowed that provision right down from “any other identifying information”. I would have thought there was a risk that with identifying information other than name address or occupation someone whose name was suppressed could be identified. It is a question I have on that point. 
Another thing also is that clause 204(2) states: “The court may make an order under subsection (1)”—which I have just read out—“only if the court is satisfied that publication would be likely to—(a) cause extreme hardship …”. What is the definition of “extreme hardship”? I am not too sure; it is not defined in the bill. Extreme hardship for one is not extreme hardship for another. We have seen a number of high-profile people in this country who have been given name suppression due to the fact they are a sportsperson or high-profile business person yet others who could well be identified within their circle of friends but are not considered high profile by the media or by the court do not get name suppression. Where is that line? I have a huge concern about this. Again it comes back of course to the community’s right to know versus the rights of the complainant. I understand that but there has been huge debate around this name suppression and where the line should be drawn. If you were an All Black—not you Mr Chair—but if the defendant is an All Black— 
The CHAIRPERSON (Lindsay Tisch) 
: Could be! 
STUART NASH 
: —could be no disrespect to your rugby-playing skills Mr Chair—is that enough to cause extreme hardship? Clause 204(2) lists a number of times when the court may make an order to suppress a name as it would cause extreme hardship. I understand that but what is the definition of “extreme hardship”? 
Another in clause 204(2)(b) is “cast suspicion on another person that may cause undue hardship to that person;”. I would have thought that is a reason to actually name a defendant as opposed to suppressing their name. We recently saw a case where a high-profile person has been given name suppression and others—normally sports or business people—have felt they had to come out and say: “It’s not me. Don’t cast aspersions in my case. I have not done this.” In a recent case a high-profile rugby player has written an autobiography and he has put in that autobiography a case where he was sent to court and I think he was tried although I am not too sure. He did that because he did not want aspersions cast on other members he played with. What we get are cases where suspicion is cast on other people simply because there has been name suppression. 
Again I would not mind a definition of the word “address”. It sounds pretty simple if one was a postie. Does it mean someone’s city? Does it mean someone’s suburb? Does it mean the road someone lives in? Remember the media are allowed to be present during these trials. Are the media allowed to say: “Mr Businessman from Ngapuhi Road in Remuera Auckland has name suppression.”? If that is not defined as “address” because it does not specify that person’s exact house then it is easier for an investigative journalist or someone who has the wherewithal to go through any sort of roll and determine that OK it cannot be 95 percent of residents and therefore it must be three four five people due to the fact there are only five people who fit the profile in Ngapuhi Road in Remuera Auckland. So the definition of “address” would be good. This is why I am unsure why the select committee amended the words “any other identifying information about” and simply went to “address or occupation”. So there are a couple of questions there as well. 
The other thing is one of the areas where we can have name suppression is as clause 204(2)(d) states where it would “create a real risk of prejudice to a fair trial;”. If it is a jury trial then obviously the jury will know who this person is anyway. If there is name suppression then the media is not allowed to put this information out there but in a lot of cases the name is out there. We are seeing this at the moment in the United States where Michael Jackson’s doctor is being tried by media. It is a shame but that is the way it works. The question I ask is where the line between the community’s right to know and the defendant’s right to a fair trial lies. I am not too sure and that is why I have major concerns about identity suppression. There are cases of course where it is an absolute given and my personal view is that it relates to children of course. If a child is a defendant then we do not want that person’s name released in any way shape or form. I suggest other areas where perhaps it concerns a trial of a sexual nature. It does outline this in clause 205 and I completely agree with it. Clause 205 “Automatic suppression of identify of defendant in specified sexual cases” makes complete sense but these other cases I have concerns about. I just wonder whether the Minister can just allay my fears—there may be a very good reason for this—as well as the concerns of many others. It is a debate that has gone on in the blogosphere through the courts as well as in society over the last couple of years. 
Again I come down to clause 209 on the suppression of evidence and submissions. We come to that undue hardship test again as well. I wonder whether there is an undue hardship test or whether undue hardship is a concept that will be determined by the presiding judge. If it is this may mean that undue hardship is in fact a term that will be open to legal precedent as opposed to something that is defined by legislation and I just wonder whether there perhaps should have been a definition of “undue hardship”. As I say it is a relative term but I think there could have been a test that outlined that matter. That is all at this point but there are some questions there that I would not mind just a little bit of a steer on. Thank you very much.