Dialogue: Publication of names would undermine diversion

Appearing as duty solicitor in the Manukau District Court this week, I acted for five people who the police agreed were suitable for diversion. All were adults, had not previously been charged with offences, and were appearing on minor charges. These included shoplifting goods worth $20, stealing flowers, and minor disorder offences.

The clients had several other things in common: they were chastened by being arrested, terrified at appearing in court and worried about the consequences of a conviction. One experience of dealing with the police and being required to attend court was enough to convince them they did not ever want to reappear. Most will never come before the courts again.

Diversion offers them a chance, meaning that they can admit guilt but have the matter dealt with speedily and not incur a conviction. The aims of diversion are to prevent reoffending, offer the offender another chance, avoid a conviction, provide reparation to the victim and use community resources in rehabilitation.

In practice, offenders have also been protected from publicity because the police have generally assumed that the process was confidential. However, a High Court decision by Justice Robertson has challenged that view. The judge said he knew of no reason diversion cases should be dealt with differently from others, stating that those granted diversion should expect to be named unless there were good reasons for suppression. He added that if it was Parliament's intention that those diverted should enjoy name suppression, this should be expressly provided for in legislation.

Confidentiality is an integral part of diversion and if Parliament needs to spell that out in law to ensure name suppression for those granted diversion, it should do so. Publishing the names of those granted diversion would run counter to the philosophy of the scheme and undermine its value. If granting an offender diversion at an early stage can help to prevent that person from reoffending, that will save future victims anguish as well as sparing the offender's family.

At present, no one need know about the offence, but publicity could have serious consequences for an offender's employment, as well as in other areas. The "last chance" concept at the heart of diversion would be severely damaged. Diversion is available only for less serious offences. Typical recipients are those who have momentarily done something foolish which they bitterly regret. The offenders are adults of all ages but they have never been in trouble before.

Offenders who do not learn from their experience and who come before the courts again will be dealt with by the legal system. However, for those prepared to heed the warning, the goal should be to ensure that they never return to court, both for their sakes and for the protection of potential victims. Publicising their names would undermine that aim. That is not to say that there are no concerns about diversion. But if the scheme is to be placed in the spotlight, the focus should be on its uneven operation.

In Dunedin, offenders are eligible for diversion for traffic offences; in Christchurch and Auckland, police prosecute all traffic offences; and in Wellington diversion may be granted if the traffic offence is a victimless crime. This undermines the concept of an even-handed legal system because the outcome of a case hangs on the accident of geography of where the offender lives.

A client of mine in her 50s appeared in a South Auckland court charged with dangerous driving. She had never previously appeared before the courts, there was no accident and no one was injured. As she appeared in Auckland, she was not eligible for diversion. She was disqualified from driving for six months and fined $400 and court costs of $130.

Contrast that with the case of MP Tim Barnett, who appeared in court in Dunedin after an accident in which his partner was left with a broken back. As he appeared in Dunedin, he was eligible for diversion, meaning that he did not incur a conviction, did not lose his licence and was not fined.

There are also anomalies within the Auckland region itself. I acted for a man who appeared in the Auckland District Court charged with theft as a servant. He was granted diversion. However, a short time later I observed another lawyer appearing in South Auckland and being advised that diversion was not available there for that offence. A 19km difference in where her clients resided and offended would have spared them convictions.

Diversion is a valuable scheme but it should operate evenly throughout the country.

And wherever it is applied, its aims should continue to be enhanced by providing confidentiality to those to whom it is granted.

* Catriona MacLennan is a South Auckland lawyer.