Graeme Edgeler said lengthy delays and drawn-out appeal processes let people exploit the system.
Chief victims adviser to the Government Ruth Money said there were two justice systems – one for the wealthy, and one for everyone else.
A plan to hand decision-making power to victims in sexual offending name suppression cases doesn’t do enough to address some of the bigger issues with the system, an expert says.
Justice Minister Paul Goldsmith announced a proposal late last year to change the law so convicted sex offenderscould not be granted permanent name suppression without the consent of the victim.
Law expert Graeme Edgeler said in both cases, despite the lengthy suppression orders in place, the court had made the right decisions.
Jago was named earlier this year as the abuser of two teenage boys. He indecently assaulted the teens between 1995 and 1999 while mentoring them through a sports club.
He was able to keep his name secret for two years after being charged, but Edgeler said this wasn’t a sign the name suppression process had failed.
He said there were plenty of cases where the court “got it right”, but the defendant still used the appeals process to extend name suppression as long as possible, as Jago had done.
The political figure sought interim name suppression in January 2023 when he was charged, and following guilty verdicts at trial was able to use the lengthy appeals process to keep suppression in place for nearly half a year more.
Despite being declined permanent name suppression, he still could not be named due to these appeal processes, which allow the matter to be extended for a month just for an appeal to be filed, let alone for the hearing to be held.
“He just got to drag it out for a year. That’s not going to change with this law change,” Edgeler said.
Legal expert Graeme Edgeler says there are other aspects of name suppression the law could target. File photo / Hagen Hopkins
He felt one of the biggest issues for name suppression was the large delays in resolution when defendants started appealing court decisions.
“The main issue is sorting it out quickly. That’s something I think can be dealt with,” he said. “It shouldn’t last for as long as it does.”
He suggested the 20-working-day timeframe to lodge an appeal could be shortened, perhaps to five working days, as one way to cut down the time name suppression appeals took.
Another possibility was removing the right to appeal, and making defendants apply for leave to appeal name suppression decisions instead.
“For the appeals where actually they’re just doing it to waste time - because the longer it takes the less the media will be interested in publishing it – that certainly could be something that could at least reduce the delays.”
He did note the law change would “vastly reduce the scope for appeals”, hopefully cutting down the time spent in the appeal process.
“If the only way that someone qualifies for permanent name suppression after a conviction is with the consent of all victims, any attempt to appeal should be able to be swiftly rejected.”
Kempson was arrested in late 2018 for the murder of Millane, whose death sparked waves of outrage at home and abroad.
He too, also aided by lawyer Ian Brookie, used the appeals process to extend his suppression despite having it declined, but part-way through this process a good reason for suppression reared its head.
Jesse Kempson during his trial for rape. File photo / Sam Hurley
The Crown had indicated they were charging him with rape for incidents unrelated to Millane’s murder, and the court found naming in relation to Millane would inevitably prejudice his fair trial rights in the second case.
Edgeler said these two cases showed the existing threshold of extreme hardship to receive name suppression was working.
Why recommendations could have ‘undermined’ law change
As part of Goldsmith’s law change, Justice staff proposed amendments to allow judges to retain decision-making power in some circumstances, such as when there was the risk of detrimental harm to a third party, or when there were “exceptional circumstances” such as a high risk of suicide for the defendant.
Edgeler noted “exceptional circumstances” would likely be similar to the existing test, “extreme hardship”, and the suggestions would have undermined the law change.
Regardless, the recommendations did not make it into the draft bill.
“There are risks to other completely innocent parties when name suppression is lifted, for example, completely innocent family members of the offenders. But this is a question of balancing rights,” Edgeler said.
“Telling victims of serious sexual offending that they are not allowed to tell their story publicly is a massive imposition on victims. It is entirely reasonable for the Government to form the view that causing additional harm to victims by making it a crime for them to talk publicly about the person who offended against them is worse than the speculative harm to others that might arise.
“Allowing victims to talk publicly about what happened to them, and who was responsible for the harm they suffered is a substantial advance in freedom of expression and freedom of the press.”
One issue that has been highlighted in the proposal is when offenders seek suppression for themselves on the basis that publishing their name would lead to the identification of the victim.
Chief victims adviser says draft bill could do more to help victims
Chief victims adviser to the Government, Ruth Money, said the system should not allow that.
She was also concerned with defence lawyers making appeals on suppression orders that were “often without merit”.
“They often just grasp at unlikely situations that may happen as opposed to dealing with facts.
“Because of our very full justice system, a victim and defendant could be out six to eight weeks until that appeal is heard in a higher court – all the while the victim is gagged.”
Money felt New Zealand had “two justice systems”, one for the average offender, and one for wealthy, resourced offenders who could afford to have a King’s Counsel take their appeal all the way through to the Supreme Court.
“Unfortunately for the victims of those types of offenders, their journey becomes four years, not two years.”
She felt the draft bill as it stood achieved what it set out to do, but “I never think draft bills go far enough in terms of protecting victims”.
“Do I think we could be achieving more? Yes.”
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
