"Sir" James Wallace and the Streisand Effect

It’s hard to imagine much being said in defence of James Wallace, the 85-year-old rich-lister and philanthropist who sexually assaulted three younger men in his Epsom mansion and then tried to use his money and connections to keep the scandal quiet.

A charitable view is that he was a pathetic old man, desperate to protect his exalted social position. A more sinister reading is that he considered himself above the law and had the hubris to think he could beat it. 

Trying to pervert the course of justice is unquestionably the more serious of Wallace's crimes and by far the more contemptible. In the end he was rightly exposed, as were the low-life accomplices (two of whom were given immunity in return for their co-operation with the police) who accepted his tainted money in return for their help in a series of bizarre plans to protect him.

That Wallace (he's still "Sir" James, but not for much longer) was able for five years to keep his name secret was itself scandalous. Confidence in the judicial system is undermined when the rich can use avenues not open to ordinary New Zealanders in order to avert justice, or in this case to forestall it. It’s also damaging to social cohesion, because it creates the perception that there’s a privileged class that can use its wealth and power to escape consequences that would be unavoidable for those without money and influence.

It’s said that the mills of God grind slowly – but in the meantime, public trust in the integrity of the system is eroded, rumour, uncertainty and speculation flourish, and suspicion falls on innocent people. 

Justice was finally done this week when the Supreme Court confirmed a decision by the Court of Appeal against allowing name suppression to continue. Whether New Zealand's highest court will remove five art works lent to it by Wallace in his role as a patron of the arts isn’t clear. The Supreme Court is only one of many institutions that find themselves embarrassed and compromised by their association with a man who now stands exposed as egregiously corrupt.

It’s interesting to speculate on what might have happened had Wallace pleaded guilty at the outset to the sexual assault charges against him and endured the shame of having his name published. There would have been a period of public disgrace following which the episode, along with his name, would very likely have been forgotten.

Prominent figures have come back after worse scandals; the entertainment world is full of them, to say nothing of Bill Clinton. Bear in mind that most New Zealanders had probably never heard of Wallace until this week; his name was well-known only in the top strata of society and in arty circles. But by going to extraordinary lengths to avoid fair and proper penalties for his actions, Wallace brought on himself intense media scrutiny (both Stuff and NZME, to their great credit, fought the suppression orders) and as a result must now endure far greater notoriety than would otherwise have come his way. Paradoxically, his attempt to keep his identity secret has had precisely the reverse result. This is a variant of the Streisand Effect.

The Supreme Court decision shows just how far Wallace was prepared to go – and who he was prepared to take down with him – in his determination to protect himself.

What has not been widely reported is that there was a second applicant for suppression in the case before the court. It was the McLean’s Mansion Charitable Trust Board (MMCTB), which is restoring an historic, earthquake-damaged Christchurch home – reputedly New Zealand’s biggest wooden house – with the intention of using it as an arts centre.

The court’s judgment reveals that in 2022, Wallace became chairman of the trust and undertook funding responsibility for the project. According to The Press, he paid off a $2.6 million loan and underwrote the entire project, which is expected to cost $10 million.

The MMCTB had submitted in the Court of Appeal that if suppression on Wallace’s name was lifted, the trust would suffer undue hardship as a result of being damaged by association – an argument repeated in the Supreme Court. According to the trust, the publication of Wallace’s name and the exposure of its relationship with him would hamper fundraising at a critical stage of the project and potentially deprive Christchurch of a public asset. The implication was that the entire project was at risk.

But the Court of Appeal pointed out that Wallace’s association with the trust began well after his convictions, and at a time when he knew that publication of his name was a very real prospect. To suppress his name in order to protect the trust, the court reasoned, would fundamentally distort the principle of open justice.

In a telling phrase, the court said the trust’s case had been advanced to give Wallace “an alternative pathway” to suppression. It pointed out that any hardship faced by the trust arose as a result of Wallace’s enhanced involvement in its affairs since his convictions, which the trust was aware of.

That seems a polite way of saying that having run out of other options, Wallace drew the trust into the sordid affair in the hope it would provide a smokescreen for him. And the trust, possibly desperate for funds, allowed him to do it. As a result the reputation of a worthy civic project may now also have been besmirched, much as it feared. (I note that The Press quoted a former trust chairman as saying he didn’t know of Wallace’s convictions at the time the trust decided to accept his money and hand control to him, but the Court of Appeal decision said otherwise.)

Of course, Wallace could argue that he involved himself in the trust for perfectly honourable reasons. Cynical observers, however, bearing in mind his previous conduct, could hardly be blamed for thinking his motive was devious.

In the final event, the three Supreme Court judges who heard the application for further appeals weren’t buying any of it. The only issue, they said, was whether a miscarriage of justice would occur if the appeals for continued suppression were not heard, and they were satisfied that criterion was not met.

It took a long time to get here, but better late than never. The irony is that having spent at least five years and probably millions in legal fees trying to save his reputation, Wallace has succeeded only in blackening it beyond redemption. Whether he ends up taking the McLean’s Mansion Charitable Trust down with him remains to be seen.

Sterile video is no substitute for flesh-and-blood court proceedings

Today the Supreme Court in Wellington continues hearing the Free Speech Union’s appeal arising from the controversial banning of Canadian speakers Lauren Southern and Stefan Molyneux in 2018.

It’s a significant case – the fact that the Supreme Court agreed to hear the appeal confirms that – and I was looking forward to watching proceedings. In fact I was on the verge of heading into Wellington yesterday morning when I received an urgent email from the FSU saying that because of Covid restrictions, the case would be heard entirely by video link.

Even the lawyers are not physically present. The FSU urged that the hearing be live-streamed so that its supporters could watch remotely, but the Supreme Court judges wouldn’t have that. Instead it's a virtual hearing, conducted via the sterile medium of VMR (Virtual Meeting Rooms) software. Interested parties were told that a maximum of 100 participants could register in advance so that the court could send them a link.

I declined. I find it utterly absurd and slightly alarming that when New Zealanders are able to attend sports events, go to movies, eat in restaurants, drink in bars and travel on public transport, the nation’s highest court locks its doors in apparent terror of the pandemic. Whatever happened to transparent, accessible, open justice?

In its email yesterday, the FSU cited the disruption caused by the protest at Parliament as an additional factor in the court’s decision. But the fact that the judges issued their ruling on Friday, when the protest was well contained within the immediate parliamentary precinct (in fact still is), suggests Covid was uppermost in their thinking. 

I suppose it's possible the judges' hand was forced by an over-cautious bureaucracy panicking at the Omicron outbreak, but there’s an important matter of principle here. As the FSU points out, any member of the public can normally walk into court and watch what’s going on. Only extreme circumstances would seem to justify suspension of that right, and you have to ask whether the almost negligible risk of infection from Covid meets that test. I mean, a Supreme Court hearing is hardly likely to be a super-spreader event.

There are other considerations too. I’m no lawyer, but I’ve sat through enough judicial proceedings to know that courtroom dynamics can be important. The way lawyers interact with the judges and with each other can have a bearing on the way the hearing plays out. Body language can tell you something.

It might seem an odd analogy, but I recall it being suggested at the inquiry into the Wahine sinking that if the ship had had open wings on its bridge, the captain would have been able to step outside and physically feel the brute force of the storm. But he was cocooned in a fully enclosed bridge and might not have fully appreciated what his ship was sailing into.

In the same way, it seems reasonable to suggest that it makes a difference when the participants in court proceedings are physically together in the same room – appropriately masked and distanced, of course – rather than forced to engage via the arid means of digital technology, even when the case is likely (as in this instance) to involve a lot of dry legal argument.

To put it another way, the quality of the judicial decision-making may be influenced by the circumstances in which the case is heard. Justice is ultimately a flesh and blood business, after all, and judges shouldn’t allow it to be dehumanised. 

For those interested in the background of the hearing, the FSU issued the following media advisory note:

Supreme Court to hear appeal of Moncrieff-Spittle v Regional Facilities Auckland Ltd

21 February 2022

FOR IMMEDIATE RELEASE

Time: 2.15 pm Monday, 21 February and continuing Tuesday, 22 February

Location: Supreme Court of New Zealand

Background

This is the first case to come before our appellate courts of attempts to de-platform by resorting to the heckler’s veto. Backing our case, Professor Philip Joseph, the author of New Zealand’s leading textbook on Constitutional and Administrative Law, will appear with the Free Speech Union’s lead barrister, Jack Hodder QC.

The Free Speech Coalition (now Union) was born out of an effort to crowdfund for this legal fight after Mayor Phil Goff ostensibly ‘banned’ two controversial Canadian speakers, Lauren Southern and Stephen Molyneux, from speaking at a Council-owned venue.

What happened in the Courts previously?

Once we filed proceedings in the High Court, we found out that Goff had lied. The decision to cancel the event was actually made by Regional Facilities Auckland Ltd (RAFL) personnel only hours after receiving an email threat from Auckland Peace Action to blockade the event venue four weeks before the event was to take place. No investigation into the credibility of the threat or what measures might have been taken to manage it took place at any stage. The Court ruled that our plaintiffs were on a “personal crusade” and didn’t have standing to bring the case. The Court also held that the decision to cancel the event was not judicially reviewable because RFAL’s decision did not, in the Judge's opinion, involve an exercise of public power and the venues were technically held in trust.

To our relief, the Court of Appeal reversed the most disturbing parts of the High Court Judgement, holding that RFAL must uphold free speech rights as if it were the Council. It also held that our plaintiffs did have standing to bring the case and we were relieved by the appeal decision to cut the costs awarded against us by 70% because of the importance of the issues and public interest in our bringing the case.

That being so, the Court of Appeal ultimately found the decision to cancel the event to be a ‘justified limit’ on freedom of expression under section 5 of the New Zealand Bill of Rights Act. In holding that the decision to cancel the event was a justified limit on free expression, the Court of Appeal considered the purported failings of the event organisers (in particular the Court of Appeal was critical of the event organisers for not warning RFAL venue management of the possibility of law-breaking protest at the time of booking), the experience of RFAL personnel, the venue hire agreement and the protest noise over the preceding week. The Court of Appeal held that the “heckler’s veto” concept we put forward had a general application as part of the section 5 analysis but did not go on to analyse it or consider its implications under section 5 in any detail.

Why this further appeal?

The Court of Appeal judges stopped after describing the thug's veto problem as if solving it was not their job, instead treating it like some sort of abstract long-term project when they had a perfect opportunity to​ address it head-on. We asked them to say how much should be done about thuggish threats before they can override free speech rights but after summarising the different approaches in other countries, they passed that ball into space.

While the Court of Appeal Judgement improved upon the High Court Judgement, it leaves the right to freedom of expression vulnerable to vague threats of violence. We wish to argue that the Court's failure to address the heckler's veto concept was wrong. The judgement allows for a threatened unlawful action (a blockade, with an implicit threat of intimidation) to effectively curtail the lawful exercise of fundamental rights. Free speech rights in public spaces and venues across New Zealand need protection from such a dangerous precedent.

Further, cancelling the contract for the event didn’t serve any objective aimed at substantive and urgent concerns (RFAL had other options to deal with the security concerns rather than outright cancelling the event). For example, RFAL took no genuine steps to obtain professionally based, reliable information about the security concerns, either by engaging with the police, its own security personnel or the event organizer. Rather, RAFL cancelled the event having succumbed to unsolicited threats of unlawful action. This is a disproportionate response to a breach of fundamental rights.

The Court of Appeal judgment also emphasised the event organisers’ non-disclosure of security arrangements for comparable events in Australia, and labelled this “contributory fault” but they were under no such obligation to disclose these (they were required to submit a health and safety plan 10 workings days before the event but RFAL cancelled the contract 28 days in advance.). In any event, it is standard for human rights cases to involve conduct that is near the margins.

Footnote: I originally posted this column yesterday, but took it down when confusion arose as to how the hearing was being conducted. I'm now satisfied that what I've written is a fair account of the situation.

Phew! Thank God for The Hobbit

(First published in the Nelson Mail and Manawatu Standard, October 27.)

The government must be grateful that the country was distracted last week by the media frenzy surrounding The Hobbit, because it overshadowed two damage control exercises that might otherwise have received much more aggressive scrutiny.

The first related to (then) Supreme Court judge Bill Wilson, who took the unprecedented step of resigning rather than face a protracted judicial inquiry into alleged misconduct arising from an undisclosed business association with a Queen’s Counsel acting in a case on which he was adjudicating.

Much of the publicity surrounding the resignation of Mr Wilson (as he has now become) focused on his estimated $1 million compensation package. This may have suited the government, the judiciary and perhaps even Mr Wilson himself, since it diverted attention from more serious issues.

Acting Attorney-General Judith Collins spun the payout as “good value” for the taxpayer, saying the costs might have been far higher if the inquiries into Mr Wilson had continued. And it’s true that, from a narrow legal perspective, the government could be said to have got off cheaply, since Mr Wilson’s appointment to the Bench had several years to run.

But what Ms Collins didn’t say, though she may well have thought it, was that paying Mr Wilson off also served the purpose of putting the issue to bed and, therefore, neatly pre-empting an inquiry which might have shown the judiciary in a poor light.

Here was a rare opportunity for some searching public scrutiny of the rarefied world of our top judges, two aspects of which have long been a cause of unease.

The first is the process by which judges are appointed and promoted, which has always been cloaked in mystery. Even senior lawyers profess to have only a vague understanding of how and why appointments are made. Occasional promises of greater transparency have never been fulfilled, and there remains a perception that it’s all done by nods, winks and shoulder-tapping.

Nelson lawyer Sue Grey, who represented the losing party in the Court of Appeal case on which Mr Wilson sat, hinted in a radio interview last week that there were questions to be asked about Mr Wilson’s own rapid rise through the judiciary, which saw him elevated from being a QC to a Supreme Court judge, via the Court of Appeal, in less than a year.

The other, perhaps bigger, issue relates to conflicts of interest. It has been often been said that New Zealand’s judges are selected from a small and exclusive pool. In a society as intimate and inter-connected as ours, personal and business associations are hard to avoid and scrupulous care must be taken to ensure ethical standards are not compromised.

You don’t need to look far for evidence of these connections. Mr Wilson not only shared interests in horse racing with Alan Galbraith, the QC who appeared before him in the Court of Appeal, but both men reportedly had racing connections with Chief Justice Sian Elias and her husband, Hugh Fletcher.

The closeness of the top legal fraternity was further demonstrated by the fact that Attorney-General Chris Finlayson stepped aside from involvement in the Wilson affair because he had worked with Mr Wilson and knew him well.

All of this reinforces, yet again, the folly of relinquishing the right of appeal to the Privy Council in London, where important cases were determined by British judges untainted by any suspicion of conflict of interest arising from friendships or business associations with litigants or their counsel.

Throughout the Wilson case there has been speculation behind the scenes that a public inquiry might bring to light other potentially compromising relationships between judges and lawyers and expose something of an old boys’ club, in which case there may well be relief in legal circles that Mr Wilson has fallen on his sword.

A veil will now be conveniently drawn over the whole affair and normal service will resume, though probably with a keener awareness of the need to declare possible conflicts of interest (not that that should be necessary, since it hardly took a top legal mind to spot an ethical problem in Mr Wilson’s undisclosed association with Mr Galbraith).

Avoiding an inquiry also means Mr Wilson is denied the chance to remove a stain on his reputation, when many of his associates say he has done nothing wrong. All this seems rather unsatisfactory.

Perhaps the most disturbing statement in the affair was Ms Collins’ remark that not ending the matter now would have caused “incalculable damage to confidence in the judiciary”. That carried the implication that whatever came out of the inquiry would have been embarrassing.

Does that mean, then, that we should close our eyes tightly and pretend it didn’t happen? Leaving important ethical issues apparently unresolved could surely have an even more corrosive effect on public trust in the integrity of the courts. It has unfortunate connotations of a cover-up.

The other damage control exercise last week was the decision by police commissioner Howard Broad to merely “review”, rather than re-open or re-investigate, the Crewe murders of 1970. On the face of it, this suggests the police will simply take another look at the same flawed police files that have already led to New Zealand’s most infamous miscarriage of justice.

If Mr Broad thinks this “gesture” (crusading journalist Pat Booth’s term) will finally put to rest 40 years of public doubt and agitation, he’s mistaken.

Two aspects of the Crewe case cry out for justice. The first is that no one was ever called to account for the planting of the bogus evidence that led to Arthur Allan Thomas’s wrongful conviction. The other is that the real killer of Jeannette and Harvey Crewe remains unidentified and has gone unpunished.

This may be the first time I’ve agreed with Peter Williams QC, who acted for Thomas, but Williams is right when he says this is a boil that must be lanced, and he’s also right when he says the job should be done by a distinguished judge from overseas. It cannot be left to the police to investigate themselves, because their record in this capacity inspires no confidence.

My late mother was convinced Arthur Allan Thomas was guilty, because she had implacable faith in the New Zealand police (her brother was an assistant commissioner) and in the fairness and good sense of New Zealand juries. I never argued the point with her, but I believe she was wrong on both counts.