There can barely be a person alive in New Zealand who has not at some time heard at least a paraphrased version of English Lord Chief Justice Gordon Hewart’s famous statement: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” So why is his famous injunction regularly disregarded by New Zealand judges – usually junior judges – who seem to think they know better?
The latest offender is Judge Semi Epati, who in the Manukau District Court yesterday suppressed all details of a depositions hearing against seven men charged in connection with the fatal shooting of South Auckland liquor store owner Navtej Singh.
Not only were names and details of the charges kept secret, but Judge Epati also suppressed the reasons for the suppression. Suppression orders don’t come much more blanket than that (unless, of course, the judge even prohibits anyone from disclosing the fact that judicial proceedings are taking place, as happened in a celebrated contempt of court case against Horowhenua author Anne Hunt several years ago, at which point things get scarily Kafka-esque).
Because Judge Epati suppressed his reasons for making the orders, we have no idea whether they were fair and reasonable. There is some suggestion he may have "inherited" orders imposed by other judges at earlier appearances and felt obliged to keep them in place. But there would need to be extraordinarily compelling circumstances to justify such sweeping suppression, particularly in a case that commanded huge public attention.
The orders were described in media reports as “temporary”. How “temporary” isn’t immediately apparent; but given the importance of open and transparent courts, even short-term suppression orders in proceedings relating to a fatal shooting shouldn’t be imposed lightly.
Problem is, suppression now seems the norm at first appearances and preliminary hearings. Lawyers apply for them automatically and many judges seem to grant such applications almost as a reflex action. This has not always been the case, as experienced court reporters will attest.
One expects wily defence counsel to seduce doddery old JPs, summoned into court from the garden or the bowls club, with impressive-sounding rhetoric about how their clients would be severely disadvantaged if their names were to be published. Judges, however, should be made of sterner stuff and set the bar high. At present the default setting is so low that defence lawyers barely need to hitch up their trousers (or skirts, as the case may be) to step over it.
Former High Court judge Sir John Jeffries, in his capacity as president of the Press Council in 2005, was scathing about the indiscriminate use of suppression orders, describing them as “mostly reprehensible”. His successor, Barry Paterson QC, also a retired High Court judge, told a press freedom seminar in Wellington last year that District Court judges with heavy workloads were sometimes tempted to take “the easy way out” by granting suppression applications. The Court of Appeal, however, had said the assumption should always be one of openness.
The one encouraging thing is that the news media no longer take suppression orders lying down. In the Navtej Singh case, several news organisations were to challenge Judge Epati’s ruling today. If the matter ends up in front of a High Court judge there’s a good chance that at least some of the orders will be reversed, since higher courts generally subject suppression applications to a much tougher test than lawyers are accustomed to at District Court level.