The right to know – when silence threatens justice

The Story of New Zealand Writer Anne Hunt.

Steven Price, who wrote Media Minefield (a journalists’ guide to media regulation in New Zealand) says he thinks he’s right in saying Anne Hunt’s book, Broken Silence, is the only book ever to be banned and ordered to be pulped by NZ’s High Court.

A stay of execution was required to prevent the destruction of her books in accordance with a High Court order, after she was found to be in contempt of court, fined and ordered to pay damages.

Following a successful appeal, the Court of Appeal quashed all orders, including orders to destroy the book and suppression of the book’s title.

However, the most disturbing aspect of this case is that the High Court had issued ex parte orders suppressing the existence of the proceedings, in response to a request by Hugh Rennie QC to allow the plaintiff, his client, his day in court.

In essence, Mrs Hunt faced the prospect of a secret trial to ban her book, which was published during May 2003.

Prior to her first appearance on 8 December 2003, she was not permitted to tell even her husband that she had been summoned to the High Court in Wellington to face serious charges: contempt of court and breach of confidence.

Nor could she contact anybody apart from her lawyer; prohibiting her from gaining access to the files used for her research and which had been returned to their owner.

As a consequence, she had been unable to challenge claims that she was in contempt of court, and therefore had no option but to recall all copies of her book from bookshops and place them in storage pending a further order of the court.

Her lawyer, Dr David Collins QC (who is currently the country’s Solicitor-General), was unable to represent her in this matter, because there was a likelihood he would be required as a witness. There was even a possibility that he could also be charged with contempt of court as a co-defendant. (He had vetted a couple of other books written by Mrs Hunt, including The Foxton Murder  published during 1981. )

On 21 June 2003, Dr Collins QC had phoned Mrs Hunt to ask if she would be prepared to write a book on a landmark civil claim for exemplary damages, a case in which he had represented a woman who had accused  a prominent Wellington health professional of rape during therapy.

The health professional had been acquitted of all criminal charges, and a complaint to his professional disciplinary body lapsed following procedural irregularities. The civil claim (which was legally-aided to the Privy Council because it argued principles of law previously untested in New Zealand) had been settled out of court the previous month. Both parties retain permanent name and occupation suppression.

For her own litigation, Mrs Hunt found herself in a quandary because Dr Collins QC was President of the Wellington Law Society at that time, and the few lawyers who agreed to take her case urged her to join Dr Collins QC as a co-defendant, because he and the claimant had been the source of the information which the plaintiff claimed to be in contempt of court. Mrs Hunt chose not to take this course of action because she did not want to prejudice his legal career.

Representing herself therefore, Mrs Hunt soon discovered that she could not guarantee that she would receive a fair hearing unless she managed to convince a Judge to uplift the order suppressing the existence of the proceeding.  To do so, she had posed a hypothetical question to the Law Commission and attached to her memorandum, an e-mail from the Law Commission’s consultant Neville Trendle advising that: “Potential prejudice to national security interests might warrant the exercise of the powers referred to.”

Nine months after the order was imposed, Justice Miller conceded that the order suppressing the existence of the proceeding was ‘extraordinary’ and removed it.

Nevertheless all ten interlocutory hearings continued to be heard in closed Chambers, and all documents remained confidential to the parties until 6 August 2007.

(Determination to be able to prove that the High Court has the mandate to suppress the existence of the proceedings to deal with freedom of speech matters became the sole motivation to proceed with this matter until Mrs Hunt could obtain the right to disclose the court documents confirming that New Zealand Courts have the right, and more importantly, are prepared to exercise that right, to hold secret trials to deal with matters other than national security.)

In closed Chambers of the Wellington High Court, Mrs Hunt, an accredited Commissioner under the Resource Management Act, continued to encounter double standards which compromised her right to a fair trial.

Whilst the plaintiff failed to disclose crucial documents such as the court order directly related to the criminal trial, she was penalised for failure to number the pages during the discovery of documents.

Twice, important court documents she had travelled some distance to deliver direct to the Court, went missing and therefore the content was relayed verbally and briefly; thus given only cursory attention in the final minutes of the ‘hearing’.

A Judge admitted merely skim-reading her comprehensive affidavit, yet engaged in a meaningful discussion on the minutiae of the plaintiff’s submission.

When Mrs Hunt sought access to a letter which unbeknown to her, Dr Collins QC had sent to the plaintiff’s lawyers and which the plaintiff had withheld from her,  the Judge instructed her to sit down.

She was ordered to obtain her legal file from Dr Collins QC and disclose all 116 documents, even though this material contained information she considered legally-privileged.

She was also ordered to hand over a copy of her manuscript, which contained handwritten notations on a total of 41 pages, including those relevant to the proceeding. This was the manuscript, she would testify, which had been delivered to Dr Collins QC in his Chambers on 21 February 2003 and collected from Dr Collins QC in his Chambers on 3 March 2003. (The Court of Appeal would eventually acknowledge that: “Dr Collins undoubtedly made quite extensive notations on the manuscript.”)

The basis upon which Dr Collins QC viewed the manuscript was “to determine information he deemed appropriate for publication”.  His file confirmed that before the manuscript had been delivered to his Chambers, Dr Collins QC had received two copies of a consent form signed by the complainant giving Mrs Hunt the right to access the complainant’s legal and medical files, and publish information deemed appropriate by Dr Collins QC, a lawyer familiar with the legal proceedings upon which Broken Silence was based.

After one particularly gruelling session, Mrs Hunt felt keenly the absence of the media or members of the public to witness the manner in which the Judge conducted the hearing.

In a memorandum dated 17 May 2005, she stated: “It is my belief that it is not the role of a Judge to persist with questions in order to pressure the defendant into making a statement which the defendant knows to be untrue.”

“As stated in my submission presented to the Court on 2 May 2005, I have consistently corrected any person who alleges I have claimed that Dr Collins QC approved the manuscript and I will continue to do so. As stated in this submission, there is a difference between claiming that Dr Collins QC carried out a legal assessment of the manuscript and claiming that Dr Collins QC approved the manuscript or authorised publication of the manuscript.”

Though she resiled as soon as possible from a statement conceded only in response to prolonged questioning  by the Judge, this statement was reported in the Judge’s minute and cited frequently in subsequent submissions and judgements.

During these closed sessions, Mrs Hunt was also told that she would not be permitted to produce any evidence relating to Dr Collins QC unless she summoned him as a witness. She chose not to, on the basis of a draft brief of evidence he had submitted which made no reference to the manuscript she had delivered to his Chambers shortly before Broken Silence was published.

The manuscript Dr Collins QC marked up was in all material respects identical to the one that was published, except for the implementation of the changes he had recommended, and a few stylistic and typographic changes.

During the High Court trial, Mrs Hunt was constrained from referring to Dr Collins QC during her testimony, particularly during cross-examination, on the grounds that she chose not to summons him as a witness and therefore any evidence relating to Dr Collins QC (whether contemporaneous documentation or verbal) would be considered ‘hearsay’ evidence.

The plaintiff’s lawyers, on the other hand introduced documents gleaned from her legal file, and made claims on behalf of correspondents who were not called to give evidence.

In his judgement dated 17 May 2006, Justice Wild put entirely to one side Mrs Hunt’s claim that Dr Collins gave her legal advice about her manuscript. “In deference to Mr Collins from whom I have not heard, I record that he is on record as disputing that he assessed the defendant’s manuscript and approved it for publication.”

Found to be in contempt of court, Mrs Hunt was ordered to pay a fine, damages and the plaintiff’s disbursements.

An order was issued to uplift and destroy the books which had been held in storage since December 2003.

Mr Price, on reading the judgement sent out a six-page e-mail concluding with the question: “Am I the only person uncomfortable with this?”

He agreed to handle her appeal.

To the Court of Appeal Mr Price submitted that the central issue was whether Justices Wild and Young were wrong to find that the appellant’s evidence was hearsay. “If they were wrong the appellant has not had a chance to put her case properly. This is particularly serious given the criminal nature of a finding of contempt of court, and the order to destroy a book that rests on it.”

He said there was also a more fundamental problem. “Punishing an author for innocently and accurately using court documents provided by a lawyer is an unprecedented extension of the law of contempt.”

He added that: “Most significantly the judge found that the book did not identify the respondent.”

On 6 August 2007, the Court of Appeal delivered their judgement, stating that of course Ms Hunt could not give evidence as to what Dr Collins said for the purpose of establishing the truth of what he might have said. “But she could give evidence as to what she understood had been said as going to her state of mind and subsequent conduct.

“In the event, we think the Judge was inadvertently drawn into error on the ruling he gave in this instance. The proposed evidence went to Mrs Hunt’s state of mind and why she acted as she did.”

In allowing the appeal, the Court of Appeal stated that this lawsuit represents and attempt by ‘A’ to ‘close down’ any further public discussion of the various matters covered in the book. “It is easy to emphasis with A: for some years he had been subject to a harrowing series of experiences which must have resulted in enormous emotional stress, and most likely very substantial legal fees and disruption to his everyday life. In the end he had been found ‘not guilty’. But the law does not say that the fact that he had been found not guilty precludes (subject to any appropriate suppression orders or confidentiality provisions) a consideration of those events.

“What may be written about is both innocence and guilt, or for that matter the ‘unproven’ cases in our courts. This may well be uncomfortable for one party or another, but it is part of the process of open justice and even wide considerations of freedom of expression.

“At the end of the day, the question raised by the book – which is a perfectly legitimate one – was that posed by Mr Price: “Did Annette get justice?’. Ultimately, it is for the reader to form his or her own impression of what answer should be given, if any can be had, to that particular question.”

Remaining copies of ‘Broken Silence’ can be ordered directly from the author Anne Hunt by contacting her atannehunt@inspire.net.nz