The Police v Cameron John Slater DC Ak

 
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IN THE DISTRICT COURT AT AUCKLAND

CRN 004028329 - 9833

BETWEEN
The Police
Informant
and
Cameron John Slater
Defendant
Appearances:

Mr. Burns and Ms Brown for the Police

Mr. Thwaite for the Defendant

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.

The issues were: 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 CJA was limited by s14 New Zealand Bill of Rights Act 1990 (“NZBORA”) 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 and whether the information was already in the public domain.

Held: Section 140 CJA prohibited “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”. Conceptually a blog was no different from any other form of mass media communication especially since it involved information which anyone who had an internet connection was able to access. It fulfilled the concept of “publishing” and “publication”. It made information available to a wider audience, that was why people blogged. Although a blog was no more than a personal diary, it was no different from a private citizen who gave their opinion of a court case including the name of a person who was subject to an order under s140 CJA and posted it into private letterboxes or pasted it on a billboard. Even if the blog had been accessible only by means of subscription it could well be subject to the same constraints. A blog was also the subject of updating posts by viewers and the author which affected the continuing nature of the offence.

The word “publish” had to be considered because it had an impact upon the manner of dissemination of the “account” or “report”. “Publish” meant to communicate to an audience, thus the element of communication to an audience was implicit. A “report” or “account” related to any narrative or information relating to proceedings in respect of an offence. If, in the course of the narrative, any details likely to lead to the identification of a person were disclosed, an offence could be made out.

The Court had jurisdiction notwithstanding the fact that the server hosting S's website was in the United States of America. That was because publication of information took place where the material was downloaded and comprehended. The website “comes” to the user. In addition, the evidence showed S had posted the material from New Zealand thus performing an act necessary for the commission of an offence.

Section s140 CJA could not be overridden by s14 NZBORA (freedom of expression).

Within the context of s140 CJA “particulars” meant pieces of information which when taken together, identified a person. There may be sufficient pieces of information to identify a person by process of elimination, that fact that the information was in code, binary code or a pictogram did not matter. The information could be decoded in the same way that an aggregation of information could lead to the identification of a person by way of a process of elimination — another form of interpreting a particular code or solving a puzzle.

The argument that a suppression order could only be made upon accusation or conviction strained the language of s140 CJA. The report or account referred to in the section could relate to any proceedings in respect of an offence thus widening the scope of s140 CJA. Furthermore, once the proceedings had concluded with a discharge without conviction, the fact of accusation remained.

The argument that the publication did not contravene the precise order because it revealed the stage name only was of no merit. People were often known by names other than their given one. The real enquiry was whether or not the information was sufficient to identify an individual be it by stage name of proper name. In these days of the cult of celebrity, the publication of the stage name was sufficient identifying information and the use of the words and pictures amounted to particulars.

It did not matter that there may already be sufficient information in the public domain to identify the person. What mattered was whether or not there was identification of person by name or particulars. The Court could not revisit the original decisions granting suppression. There was no authority for a Judge to declare another Judge's order invalid in circumstances such as these.

The charges had been proven beyond reasonable doubt and the defendant was convicted.

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

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