The Police v Cameron John Slater DC Ak

• Jurisdiction: New Zealand
• Judge: DAVID J HARVEY
• Judgment Date: 14 September 2010
• Court: District Court
• Docket Number: CRN 004028329 - 9833
• Date: 14 September 2010

BETWEEN

The Police

Informant

and

Cameron John Slater

Defendant

CRN 004028329 - 9833

IN THE DISTRICT COURT AT AUCKLAND

Allegation that the defendant breached name suppression orders under s140 Criminal Justice Act 1985 — the defendant published an internet blog, “Whaleoil”, where names of individuals subject to non-publication orders were published in code by the use of pictograms and binary code — defendants blog site hosted in America — whether the Court had jurisdiction — whether the blog constituted a report or publication — whether the fact that the names were given in code did not lead to providing identifying particulars — whether s140 Criminal Justice Act 1985 was limited by s14 New Zealand Bill of Rights Act 1990 which provided the right to freedom of expression — whether the suppression orders were invalid — whether the suppression was maintained when the individual received a discharge without conviction — whether the publication of the names contravened a precise order — whether the information was already in the public domain.

Appearances:

Mr. Burns and Ms Brown for the Police

Mr. Thwaite for the Defendant

DECISION OF JUDGE DAVID J HARVEY

Table of Contents

Introduction and Summary of Findings	2
Preliminary Matters	10
The Charges	12
The Hearing	13
The Nature of Blogs	15
Mr. Thwaite's No Case Submission	18
Freedom of Expression and the Open Trial	19
Non-publication Orders and the Open Trial-Principles	20
Publication and Jurisdiction	24
Off-Shore Publication of Suppressed Names	27
Report or Account	28
The Futility of Non-Publication Orders	31
Mr. Thwaite's Concluding Remarks	33
Submissions by the Prosecution	34
Finding on The First Limb of Mr Thwaite's Argument	41
A Purposive Interpretation of s. 140	42
Mr. Thwaite's Second Submission	45
Is there a case to answer in respect of charges 1-9?	46
Liability	48
Mr. Thwaite's Further Submissions	48
Jurisdiction – No Publication in New Zealand	48
Orders Not Validly Made	48
Non–Publication Orders Where There is a Discharge Without Conviction Invalid?	50
Publication Did Not Contravene Precise Orders	51
Publication Not in An Official Language	52
Expiration of Order	52
Information in the Public Domain	53
The Order was Invalid and Made for Improper Reasons	54
Finding on Liability	55
Charge 1 CRN 0900402833—28 November 2009	57
Charge 3 CRN 09004028330—10 December 2009	57
Charge 2—CRN 09004028329—10 December 2009	59
Charge 4 CRNS 090040228343—15 December 2009	60
Charge 5—090040228344—15 December 2009	60
Charge 6 CRN 1000400298—31 January 2010 and 7 CRN 10004003299-Between 30 January 2010 and 1 February 2010	61
Charge 8 CRN 10004028329 —7 February 2010	64
Charge 9 CRN 100040283301—11 January	68
Charge 10—CRN 10004009833—19 May 2010	69
Conclusion	70

Introduction and Summary of Findings

1 This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow non- publication orders. That debate must take place in another forum. This is not a case about regulating the Internet. That is a vastly more complex subject that involves considerations of Internet Governance, the nature of the technical infrastructure and the manner in which the various organizations that administer that technical infrastructure are amenable to domestic regulation 1 Furthermore there is a

significant difference between technical and infrastructural regulation on the one hand and content regulation on the other. In some respects there are elements of content regulation that lie within this case. The real essence of the case is about human behaviour. It is a case about the law speaking in the light of changing technologies

2 The behaviour alleged was that the defendant Mr Slater breached non- publication orders made in the course of various cases which were before the District Court and, in one case, the High Court. He also faces one charge which alleges that as part and parcel of one of the breaches of s 140 of the Criminal Justice Act he breached a statutory prohibition contained in s 139 of the Criminal Justice Act in that he published a name or particulars which were likely to lead to the identification of a person upon whom an offence under the relevant section of the Crimes Act was alleged to have been committed.

3 This case raises some novel issues. The allegations of publication arise not from a publication in a newspaper, magazine, book or on a radio or television broadcast. The alleged publication was made on the internet by means of a website allegedly operated by Mr Slater known as a blog, of which I shall have more to say later.

4 Section 140 of the Criminal Justice Act 1985 states as follows:

140 Court may prohibit publication of names

• (1) Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person's identification.

• (2) Any such order may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if it is not so made, it shall have effect permanently.

• (3) If any such order is expressed to have effect until the determination of an intended appeal, and no notice of appeal or of application for leave to appeal is filed or given within the time limited or allowed by or under the relevant enactment, the order shall cease to have effect on the expiry of that time; but if such a notice is given within that time, the order shall cease to have effect on the determination of the appeal or on the occurrence or non-occurrence of any event as a result of which the proceedings or prospective proceedings are brought to an end.

• (4) The making under this section of an order having effect only for a limited period shall not prevent any court from making under this section any further order having effect either for a limited period or permanently.

• (4A) When determining whether to make any such order or further order in respect of a person accused or convicted of an offence and having effect permanently, a court must take into account any views of a victim of the offence, or of a parent or legal guardian of a victim of the offence, conveyed in accordance with section 28 of the Victims' Rights Act 2002.

• (5) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1000who commits a breach of any order made under this section or evades or attempts to evade any such order.

5 The prohibition is contained in s140(1) and the offence is created by s. 140(5)

6 Section 139 of the Criminal Justice Act 1985 provides:

139 Prohibition against publication of names in specified sexual cases

• (1AA) The purpose of this section is to protect persons upon or with whom an offence referred to in subsection (1) or subsection (2) has been, or is alleged to have been, committed.

• (1) No person shall publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against any of sections 128 to 142A of the Crimes Act 1961, or in respect of an offence against section 144A of that Act, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person, unless—

  • (a) That person is of or over the age of 16 years; and

  • (b) The court, by order, permits such publication.

• (1A) However, the court must make an order referred to in subsection (1)(b), permitting any person to publish the name of a person upon or with whom any offence referred to in subsection (1) has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person, if—

  • (a) that person—

    • (i) is aged 16 years or older (whether or not he or she was aged 16 years or older when the offence was, or is alleged to have been, committed); and

    • (ii) applies to the court for such an order; and

  • (b) the court is satisfied that that person understands the nature and effect of his or her decision to apply to the court for such an order.

• (2) No person shall publish, in any report or account relating to proceedings in respect of an offence against section 130 or section 131 of the Crimes Act 1961, the name of the person accused or convicted of the offence or any name or particulars likely to lead to the person's identification.

• (2A) However, a court must order that any person may publish the name of a person convicted of an offence against section 130 or section 131 of the Crimes Act 1961, or any name or particulars likely to lead to the person's identification, if—

  • (a) the victim (or, if there were 2 or more victims of the offence, each victim) of the offence—

    • (i) is aged 16 years or older (whether or not he or she was aged 16 years or older when the offence was, or is alleged to have been, committed); and

    • (ii)applies to the court for such an order; and

  • (b) the court is satisfied that the victim (or, as the case requires, each victim) of the offence understands the nature and effect of his or her decision to apply to the court for such an order; and

  • (c) No order or further order has been made under section 140 prohibiting the publication of the name, address, or occupation, of the person convicted of the offence, or of any particulars...