Suppressing the dogs of law

Martin Devlin says name suppression became an issue. Photo / Dean Purcell

As Lulu and Molly set off for their walk they would have had no idea that their usual afternoon gambol would result in a lengthy and bitter legal battle. But when one of them was kidnapped - in a swift and well organised operation on a suburban Auckland street - it fuelled an acrimonious Family Court feud between a well-heeled couple, now divorced, who have spent hundreds of dollars battling over who should have custody of their "babies".

The couple fighting over the division of their assets have name suppression because the case is being heard in the Family Court. And this extends to their charges, Lulu and Molly - and no, those are not their real names.

What is extraordinary in this case is Lulu and Molly are dogs.

Even the judge, revealing his astonishment, said: "I have never dealt with this type of issue before." At a time when name suppression, and who should be awarded it, is a matter of hot debate there can be no better example of how the law can be pushed to ludicrous extremes.

Not only can the dogs not be named, but we can't show pictures of them or report where they live. We can't even tell you what breed they are - though, suffice to say, they're not vicious child-maiming American pitbulls.

It seems ludicrous, but the underlying issues are serious. Nobody would argue that anyone charged with a criminal offence deserves a fair trial, but there have been mounting fears that name suppression is increasingly sought by the rich and famous to protect their reputations.

Name suppression is being used not to protect the integrity of the justice system but to undermine the principle of fair and open justice by providing the rich and famous (and their dogs) with special treatment.

The Government is so concerned that it has introduced a Criminal Procedure Reform and Modernisation bill, now before the Select Committee, to make it harder for defendants to have their names, and evidence, suppressed.

In announcing the proposed reforms last October, Justice Minister Simon Power said: "There has been growing concern that the current grounds for making suppression orders are unclear and that suppression is granted too readily and inconsistently.

"The Government's proposals replace the current broad discretion for granting suppression orders with more clearly defined and tighter grounds."

He added that there would be no presumption of extreme hardship- one of the grounds on which name suppression is granted-simply because of a defendant's status.

"Being famous is not a good enough reason to be granted name suppression," he said. "There must be one set of rules for everyone."

There are two main justifications for name suppression: the first is the protection of the complainants or victims, particularly the young and vulnerable; the second is the genuine belief that publishing identities will prejudice a fair trial.

But though the law works well to protect child witnesses and victims, adults who have been given name suppression - particularly celebrities -claim it is a double-edged sword and can work against their best interests.

They believe the media is incited by it to publish details of their court appearance, despite the fact the crime may be relatively small, simply because of the intrigue created by the veil of secrecy.

Sports broadcaster Martin Devlin, 46, outed himself as the "celebrity" in an Auckland disorderly behaviour case after name suppression spawned a hunt by the media to discover the identity of the accused.

The furore erupted after Devlin, a sports talkback host on Radio Live, was charged with disorderly conduct in Auckland last December. Devlin had been dropped off from a car driven by his wife, on December 29 on Auckland's Quay St to catch a ferry to Waiheke, but realised he had left his bag and wallet in the boot of the car.

The family had missed an earlier morning ferry to Waiheke because Devlin was engrossed in a football match and he and his wife were not speaking. In a fury, he stormed into mid-morning traffic to stop the car and get his bag.

But he also further illustrated his displeasure by sitting on the bonnet. It was a relatively small misdemeanour but one that gained national attention. Devlin had his name suppression lifted almost a month later and issued a statement saying he had behaved "like a plum" and apologising for wasting police and court time.

"It was stupid and I apologise," he said.

In hindsight, the broadcaster thinks name suppression, suggested by his lawyer, was the worst thing he could have done. "I don't plan to ever appear in court again, but I agree that name suppression definitely fuelled speculation and media interest," he told the Herald on Sunday this week.

"In retrospect it was the wrong decision, but I'm a big believer in self responsibility and can't get away from the fact that name suppression only became an issue for me because of my behaviour in the first place."

Criminal lawyer Bill Nabney of Tauranga, agrees. He said: "Ten per cent of my clients ask for name suppression but only 1 per cent of them go for it in court.

"The advice I give my clients is that they need to have a watertight case if they go for name suppression as otherwise I can almost guarantee their case will be reported whereas it might not have been.

"I think it makes itmore intriguing to the press when there's name suppression. Everyone wants to know a secret."

Nabney represented Lisa Catherine Edwards, a former Tauranga doctor now believed to be working in Australia, who was caught drink-driving at more than twice the legal limit and tried to have her name suppressed in her court appearance last month. "In that case we asked for it because I was applying for a discharge without conviction because it was argued this would hurt her career," Nabney said.

But neither was granted. When Nabney asked in court why there was so much media attention on "a female professional trying to do well" in her career the implication of sexism seemed to anger Judge Louis Bidois, who responded: "Because she's fighting it ... If she just fronted up and said, 'I made a stupid mistake,' then we can all deal with it. You can't complain about media attention because that's what drives half of it, whereas it could have all been over in a day."

Police prosecutor David Pawson highlighted the point further. "People get convicted every day and lose their jobs. Is this a doctor who is getting diversion because she can afford counsel?"

Certainly it has reached the point where any professional who finds themselves in court appears to believe they can demand name suppression on the grounds that revealing their identity will "cause hardship" -that is, damage to their careers.

Barrister Sandra Anne Grant, 47, who was convicted in the Auckland District Court on a drink-driving charge last month, is a case in point. She had been granted interim name suppression and the court was told: "She is devastated by appearing in court and the publicity has been intense."

She was fined $500 and disqualified from driving for six months.

Last week the mother of Sophia Bickerton - a 24-year-old childcare worker who appeared in Waitakere District Court charged with possession of methamphetamine, weapons and unlawfully taking a vehicle - rang her daughter's solicitor demanding that he ask the judge for name suppression.

Jenny Bickerton, deputy principal at Otahuhu Intermediate School, said she was concerned that identifying her daughter in court would damage the reputation of her family. She pointed out her role in the education system, said Sophia's father was in real estate, and mentioned her son was also "a professional".

Jenny Bickerton did not return calls and her daughter would not comment about the plea for name suppression. But her father Rod Bickerton told the Herald on Sunday this week: "We've put this in the hands of our lawyer and want it to remain a family matter."

Judge Philippa Cunningham did not share that view. Last Monday she granted bail for Sophia on the condition that she observe a 24-hour curfew at the family home in Ellerslie, and did not consume or possess illicit drugs or paraphernalia.

"I considered whether I could grant name suppression because of the effect it would have on Ms Bickerton's family," the judge said. "There seems to be no overriding reason that would trump the basic principle of the need for there to be open justice. The application was declined."

Blogger Cameron Slater, who writes under the nom de plume Whaleoil, spent much of last year breaching suppression orders to express his support for open justice (and, perhaps, attract a few extra readers to his blog). He argued that name suppression should be granted only to child witnesses and victims.

In October last year he was convicted on nine charges of breaching name suppression orders. "I went out on a limb and named them," he says. "I don't regret it. I'd do it again." He has appealed against the convictions.

He did not seek name suppression - in fact, he is treating the prosecution as a badge of honour. Slater agrees that the media is more likely to report charges against well known people than against "nobodies" - but says that is the flip side of the benefits celebrities accrue from their fame.

"I think it's a case that nobody cares about nobodies," he says. "Women get bashed by their husbands every day and those cases are not reported.

If an All Black bashes his missus that's news."

He says suppression orders effectively smear other people. What he means is that if an unnamed All Black is reported to have assaulted his partner, every All Black comes under public suspicion.

One former All Black star has permanent name suppression for ripping off taxi chits when he worked as a public servant. After being approached about the case this week, the ex-All Black revealed to the Herald on Sunday that he planned to ask the courts to remove the suppression order - allowing him to publish his tell-all memoirs.

We can't tell you who he is. But he was granted permanent name suppression a few years ago after pleading guilty in the Wellington District Court to fraudulently using a previous employer's taxi chits worth $152.50. He was fined $500 plus costs.

The judge reportedly said he granted name suppression of the man, and the complainant, to ensure the man suffered no further humiliation.

Slater believes the intention of the legislation is laudable-to protect victims. But he says the media has no wish to re-victimise victims by publishing prurient details anyway.

His concern is that the law is "designed to keep secrets" from the wider community. "And I don't believe in keeping secrets. It was manageable when we had a couple of daily newspapers and a small audience. "But with the advent of citizen journalism, blogging and Facebook you can't shut it up. Everyone soon knows who these people are. It doesn't take long for the facts of the case to come out."

Slater says suppression laws have been suffering a "creeping death" for years, and Power's law changes would simply create more loop holes. "America has no name suppression at all. And I think that's good. It's part of people facing the consequence of their actions."

Bill Hodge, law professor at the University of Auckland, agrees there is no law on name suppression in the United States - the freedom of information is enshrined in the First Amendment. "But a judge can order, and often will, in child victim cases, that the name not be released," he adds.

There's not much that newspapers can't publish there - so Hodge says its common for American judges to simply issue an instruction to jurors:

"Don't read the newspapers." Chief District Court Judge Russell Johnson says that suppression should not be granted easily. He describes himself as "a hardliner" on concealing the identities of alleged criminals. "I don't believe there are many cases where name suppression should be given."

In the mid-1970s, the names of defendants were suppressed until they were found guilty. The law was shortlived:

Though there had been a strong argument in favour of it, most people rapidly came to regard the secrecy as "objectionable".

But he cautions against removing the screen of privacy completely. "I don't think that would serve the interests of justice or the need for openness of proceedings," he explains. "You have to leave the discretion to the judiciary as to when to exercise it."

He does not believe celebrities receive special treatment, but he does agree that name suppression increases public interest in a case.

"Smart lawyers take that into account when they apply for name suppression," he says. "I have noticed that the press tends to pursue people who have sought name suppression.

"And I think there will be people who regret having sought name suppression when it results in them getting even more publicity."

Back in suburban Auckland the human companions of Lulu and Molly have no doubt learned, the hard way, exactly what he means.

Despite the fact that neither their names nor those of their dogs can be published, the story of their battle over their beloved canines has now been reported in newspapers across the country.

And word of mouth has ensured that half the country knows who they are.