Making History Behind Closed Doors: What could be New Zealand’s first case of Sabotage and why it is kept secret
By Chrissy Posner
On 8 December 2021, a man named Graham Philip was arrested and charged with what could potentially be New Zealand’s first ever conviction of “sabotage”. Sabotage is a crime under s 79 of the Crimes Act, notably carrying a significant maximum penalty of ten years imprisonment. To be guilty of sabotage, the offender must have acted with the intent to prejudice the safety, security or defence of New Zealand. Despite public interest in the trial, the High Court ordered both name and evidence suppression. Name suppression was lifted midway through this year, but the public are still not to be told anything about the accused’s past or the nature of what he is being charged with. The justification for the evidence suppression is unknown, however, Open Justice media reporters from the courtroom understand that it is ostensibly to prevent “copycats” from following in Philip’s footsteps. This brings values into conflict – some may say that closed proceedings are in direct contention with the principle of open justice and transparency in the justice system.
According to the House of Lords, the principle of open justice is our “true security for justice under the Constitution”. Open justice is the principle that justice must be seen to be done – the public must be able to scrutinise what happens in the courtroom. A free and fair trial is the starting position for all criminal cases in New Zealand. The principle had its roots in the common law inherited from Britain, however, it also aligns with s 14 of the Bill of Rights Act (NZBORA), which states that everyone has the right to seek, receive, and impart information and opinions of any kind in any form. Open reporting and public access to the court act as a check on the huge powers that judges have in deciding one’s fate.
Suppression orders are an exception to the principle of open justice. Section 200 of the Criminal Procedure Act allows the court to forbid publication of any information as to the nature of the offender’s identity (what is usually referred to as “name suppression”), while s 205 forbids publication of evidence or submissions made. The provisions list a number of factors that must be satisfied before the court may order suppression. These include a likelihood of publication to: “endanger the safety of any person” or “prejudice the security or defence of New Zealand”. “Copycats” of Philip’s actions could, potentially, do either of these two things. However, it is simply unknown whether these factors were the grounds that the Court considered satisfied.
Proponents for freedom of speech argue that suppression orders should be limited as much as possible. Despite this, courts in New Zealand are more empowered to grant suppression orders relative to other jurisdictions. New Zealand is unique in the fact that name suppression of the defendant is much more readily available in New Zealand than the UK and certain states of Australia, where name suppression for adult offenders is very rare. This is likely due to the way our Constitution is formed, versus, for example, the United States. The US First Amendment guarantees freedom of expression from government interference. In comparison, NZBORA provides a much weaker protection for freedom of speech. Its s 5 provision allows any rights to be limited as much as can be “demonstrably justified”. NZBORA is simply an ordinary statute, meaning it can be easily overridden by the provisions in the Criminal Procedure Act. This leaves much more room for the principle of open justice to be put by the wayside. To interpret the Criminal Procedure Act in line with NZBORA, judges should limit suppression to the minimum required. In terms of “copycats”, there should be a specific risk to be addressed that has satisfied the grounds in the Criminal Procedure Act. The suppression order can also be limited in terms of its time frame to the minimum necessary to ensure the risk is contained.
Hopefully, the risk in Graham Philip’s trial is very real and has been very calculated by the Judge. The point is – we simply do not, and cannot, know. Again, this goes to the forefront of the issue – suppression orders may cause some of the public to speculate, and, in some cases, question the integrity of the courts. People fill the gaps between the name Graham Philip and the offence of Sabotage with their own interpretations, based upon meagre public details. “Free Graham Philip” Facebook pages have broken out, with some of the 2,300 followers expressing their distrust in the judicial system. The media cannot correct any of the misinformation being spread, and in fact, correcting any misinformation would be illegal. Having this information open to the public could help satisfy these followers that Graham Philip is not being unjustly held in prison.
This disdain for the secrecy of information is not a new phenomenon. When name suppression was enacted by Parliament in 1920, it provoked a lot of controversy. The law was initially created for young, first-time offenders so that their future prospects were not hindered by their actions in their youth. However, very little consultation on the Bill at the time it was enacted led to a more encompassing statute. The New Zealand Times warned readers in 1920 of “a serious blow about to be struck at the administration of justice”. People also complained that there seemed to be one law for the rich who could “buy” name suppression, and one for the poor, who could not.
A recent example of the tension between open justice and suppression orders has manifested in the current Donald Trump investigation in the United States. A search warrant was issued allowing the FBI to enter Trump’s property to find out whether Trump improperly took sensitive materials with him from the White House. The former President argued that the search of his residence was unfounded and was a political move. The basis of the search had been kept secret in order for the investigation to go unhindered. However, now, to rebut Trump’s claims that the Justice Department acted without sufficient cause, the Department filed a motion to unseal the warrant containing the basis for the search. The Attorney-General stated that there is “substantial public interest in this matter”. Does New Zealand value that public interest factor?
One argument that the Court must weigh up in the Graham Philip case is that some information must be made public for the purposes of open justice and public scrutiny. The other argument may be that some information should be suppressed. Few would argue that we want to jeopardise the security and safety of our country by feeding “copycats” the sabotage-adjacent information they need. It is also important to note that during the last Century, suppression orders have evolved and become stricter in their approach. The Court of Appeal in 2015 held that suppression orders “are only to be made in restricted circumstances and the threshold is high”. Therefore, the risk they pose to open justice may be sufficiently small.
Graham Philip is set to reappear before the High Court on September 13 2022. For now, the public must subdue their curiosity by pledging our faith in the justice system of New Zealand and its administration.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.
Featured image source: Flickr.