When it was reported by local press in 2000 that a businessman caught bringing cocaine into New Zealand during the America’s Cup was let off with a fine, name suppression and a blessing from the judge to enjoy his holiday many New Zealanders were aghast for 5 minutes before ingesting their morning coffee. The cocaine smuggler’s lawyer Marie Dyhrberg QC chastised the press for sensationalism, mindful they never identified her convicted client.
A plethora of NZ court suppression orders have filled the years since. Court secrecy had become so bad that Parliament attempted in 2010 to make it harder for NZ judges to secretly conceal parties, resulting in passage of the Criminal Procedures Act 2011. The tiny community of judges’ answer was to have their staffs sequester the files.
New Zealand justice has always been a secret affair. Because it happens behind closed doors with few if any witnesses, often under the criminal threat of implied suppression, no media with a lawyer on staff will risk offending the two degrees of judicial separation in New Zealand. The result is criminals who are wealthy or have a judge in the family are increasingly getting off below the public radar.
How bad is court secrecy in New Zealand?
Consider the current case of lawyer Howard Thompson of McMahon Butterworth (pictured). The New Zealand Law Society was presented evidence early last year showing Mr Thompson factually misled the Court of Appeal when he claimed in submissions a person ordered to pay court costs to him was a party to the proceeding in question. The NZLS initially ruled this was not a breach of a lawyer’s overriding obligation of fidelity to the Court under Chapter 13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 because the Judge did not determine it was a breach.
The Complainant lodged a judicial review in the High Court on grounds the Law Society must act independently and not rely on any judge’s refusal to consider lawyer misconduct.
After being served with the judicial review, the NZLS contacted the Complainant begging for another crack at it. NZLS agreed in this second approach the Judge’s refusal to address Thompson’s conduct was irrelevant. In response, Thompson challenged jurisdiction and inundated the NZLS with submissions.
The NZLS acquiesced and then ruled Thompson was technically correct, in that, while the former defendant notified him three months before trial that he had resigned and had no interest in defending at trial, the man had not formally notified the court of this. The NZLS went on “to accept that Mr Thompson had formed the impression” the man was present for the trial despite sworn evidence to the contrary. In other words, Mr Thompson could not be misleading the Court of Appeal if he truly had the impression of the alternate reality he had represented.
The judicial review was renewed; this time on the ground that the NZLS relied upon irrelevant and unreasonable assumptions as it lacked any evidence for concluding Thompson had a biological impairment which caused him to mislead the Court of Appeal through no deliberate fault of his own.
‘Nek Minnit’ the High Court file is altered – apparently at Thompson’s request – to show the respondent Thompson as “party ‘Z’” and the Complainant as “party ‘A’”. All of this done well outside the prying eyes of the public.
Meanwhile Thompson is vigorously defending the NZLS conclusion that he spent 4 days in trial in a state of delusion, thinking a legally unrepresented man who never showed up in court other than to provide 15 minutes of material testimony was indeed the person opposing him in that trial. And he does not want anyone to know he misled the Court of Appeal on this matter of fact or that he now promotes the NZLS conclusion he was delusional as his defence. The NZ Court has agreed to the secrecy.
Why does any of this matter? Lawyers get struck off in New Zealand every other month for much less serious offences. Do the public not have a right to know when a lawyer commits a violation more serious than some which result in a lawyer being disbarred, particularly when he is let off scot-free on the basis he was in effect delusional?