Worn and Tattered Cloak of Name Suppression

NZ Truth, Issue 1211, 14 February 1929, Page 1

Worn and Tattered Cloak of Name Suppression

iiiMiiiiiiiiiiuiiiiiiiiiiiiiniiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiniiiiiiiiiMiiiiiiiMim GIVEN an astute legal adviser, a lenient magistrate and a pleasant afternoon with section 10 of the Destitute Persons' Act before the court, and you may proudly face your fellow citizens with your blandest expression, and cherish high hopes; that suppression of your case will be granted. At one time the plea for concealment of identity was broached with some degree of hesitation »by defending counsel, and as carefully considered by the bench. It was then a matter for deep consideration. To-day it is becoming ludicrous by virtue oi constant repetition, and the simplicity with which mischievous persons. may have their misdeeds successfully .; masked a magisterial ■brdeiviof i^uppression;;^..^ • V :^. ?w ._,-..,. '•^i£hl»£b^^ question of merit. Now, it seems to be a matter for clever advocacy on the part of ■ counsel, coupled with a subconscious urge m the mind of a magistrate who has created an un-

Wise Discretion

fortunate precedent and finds he cannot break -the habit. '-...' A few years ago it was left to the good, sense of New Zealand journalists to exercise their dis- • cretion m matters of doubtful nature or theme as to whether or not certain evidence m court cases should bo exorcised from the columns, of the newspapers. The scheme was an implied compliment td the tact and forbearance of pressmen, who invariably refrained from featuring the exploits of defendants m the police courts, and until the .amending Act of 1926 the essence of this quasi-contract between the magistracy .and. pressmen worked with ■ becoming smoothness. For reasbns which are enshrouded m a thick pall of doubt as to the wisdom of. changing a satisfactory circumstance, magistrates now have' a complement of weapons for doing almost as they please m the direction of quashing the publication "of details, or even names, relative to cases which may come before them. j ! One of the grounds upon which the bench may decide a man's identity is

Definite Declaration of Magistrate Not To Favor Policy of Hush -Hush Upset by Recent Decision WHERE DOES MR. McNELJTAND WITH DJV ACT? (From "N.Z. Truth's" Special Wellington Representative) :

. Seemingly, the Destitute Persons Act of 1926 is replete with cubby-holes of protection against the bright light of publicity, and if defendants are able to ; enlist the, services of a skilled advocate the ways of retreat may be made smooth. Whatever the nature of the circumstances under which the litigation was inspired, it is comparatively easy, unless the presiding magistrate is firm, for misdemeanor to be screened from public comment. A striking illustration of this has been provided quite recently m a case that came before Mr. McNeil,- S.M., m Wellington. .

that suppression is- made m the interests of public morality. . Quite so, and , a very seemly provision, too, m a numberof cases. V A little further down one finds a clause relating to. the tremendous power with which a magistrate may be invested it the circumstances warrant. Wisely exercised, this, too, is a sound provision. , -. When Thomas Borthwick McNeil magistracy early In the xsew Year, he made what purported to be a strong dfeclaratibn against the practice of permitting people to hide behind the skirts held out by certain Acts of the LegislatUj-e. 7: ■■■ ■ He. said: "I want it to be clearly understood that this is not a practice I intend to follow. It is only the exceptional circumstances of this case (a' matter for the Children's Court), which prompt me to. suppress the name m this case." A very desirable,, and quite dignified pronouncement, too! That v statement was made by Mr. McNeil on January 14, the 'date of his first sitting as a magistrate. Eleven days later he had changed his. mind, or else his previously strong convictions on the subject had. been swayed by His experience m court procedure and practice m the meantime. On January 25 he exhibited and practised a volte face which, shorn of its legal nicety and an atmosphere of court decorum, would have appeared ridiculous had, it been pendant to the actions of an ordinary executive m a commercial organisation. Of course, it may be argued that contiguous circumstances should decide any issue or that it is permissible for . magistrates to ; alter their opinions if they think fit to do so. Indeed, it is conceded that m matters of ordinary routine such a course is both permissible and desirable. , The difference arises when the mat-

An Interim Order

ter is one with a direct bearing upon national life and behavior, and m this regard' some comment must be passed upon an extraordinary decision of Mr. McNeil, concerning his 'holusbolus decision m -the case where a defendant recently before him was allegedly involved m some unsavory incidents with women. On the grounds of persistent cruelty and failure to provide adequate subsistence, this man's wife sought, separation, maintenance and guardianship orders, and at the close of the first day's hearing the magistrate (Mr, T. B. McNeil), made an interim order that certain unsavory evidence . should be exorcised from the newspaper • reports. . In point of actual time taken for the .recording of evidence, . the case occupied, two days, but at the close of a. day and a half the pai-ties decided to confer m the magistrate's room, with the result that the action was dismissed by consent, coupled with the pronouncement that publication of any reports of the proceedings, or any account of the evidence, was forbidden. The magistrate' said he made the order m the interests of public, morality, but from a searching scrutiny of the details adduced, other than those which Mr,. McNeil rightly suppressed, it appeared to "N.Z. Truth'" that the sole virtue' m the claim for legislative camouflage was. that defendant's counsel had been successful enough to convince the magistrate that . the cloak of suppression should garb his client. With the exceptions previously outlined, the case ; differedi not at all m essentials usually, associated with the machinery of maintenance, cases, and it appears that the combined weight of. legal pleas was top much for the one-time rock-like contentions of the magistrate. ■ ■ v Certainly, his declarations were only eleven days old, but surely there is a lifetime , of. thought where such a vital issue. is .concerned? The story of "Please, sir, I would like ray name luppi'essed," has become a common; one; m. our courts, while the ridiculous- incidence of ap r

plications for this sort of thing make a drab reflection , upon the degree .of adult intelligence. .

Furthermore, the sweeping powe.rs vested m. magistrates by this';,l926 Act place- a weight on one side of . the scales, likely enough to 'the advantage of those whose only merit is their notoriety or public ■, eminence. 10 of the Destitute Persons Act of 1926 was framed and affirmed, certain

features close at hand blunted the judgment of those responsible for. its passage, because anyone with some slight degree of foresight could have prophesied that -before long this particular section of bur legislature-would be riddled .with the : 'holes of misap-' plication. ' These observations are not made m the spirit of- slighting regard for the. New Zealand magistracy as a whole. Rather, is it an ' example cited for the' pm*pose of demonstrating how

the clever and unscrupulous may evade the punishment which- widespread comment brings, and for the greater ;purpose of demonstrating the acute heed for amending legislation within the coming session. In fine, for the greater good to the greater number. , There has yet to be an unanimous answer to the question of jwhether the publication .m the press .'■,' of suc.h ; J a'flS^f!prW^^ the moral welfare of the community; Perhaps there- will never be an

[unanimous answer for the reason that experience has shown just how div.cr 7 gent are the views of the general pub-lic-on this point. To put it baldly and bluntly, what is one man's meat is another man's poison. As a rule, however, the average citizen takes the view that it Is an insult to his intelligence to assert that he is m danger of corruption when he reads of divorce cases. . . Right-thinking people will have

whole-hearted sympathy with any movement that has as its object the maintenance of national purity of mind. . The menace of salacity and prurience is one to which the parenthood of the couhtry must present an undivided front if the outlook of .future generations is to be free from defilement. At the outset, therefore, "Truth" em- ■ tße. i pJ^as^ej ! t faqt,.thatvit stands,sho.uld--er to shouider with those whose object it is to banish from the columns of the press all that may tend to inflame passions and on which there is not the curb of comrnonsense. In- this matter* however, there must be no coercion. Reforms are welcome, if they are wise; and to be wise they must be framed with due regard to effect and consequence. Often it is found, it will be admitted, that when reformers set out to deal with a situation which to them appears to heed improvement there is a conflict, between zeal and judgment. Generally speaking; when; zeal triumphs the last state of affairs is worse than the first. In recent years there have been -.two. notable instances which may be adduced m support of this argument. America's unhappy experiment with prohibition is- one. The attempt m Great Britain to improve public morals' by the suppression of divorce reports is the other. . ■ ■.'•.-/.,, It is the failure of the attempted reform m Great Britain which is of most consequence at the momept, for what practically, ever.y English judge is decrying, New Zealand may have thrust upon it sooner or later. • . .. ■' " : !1 A Judicial Proceedings (Regulation of Reports) Bill, 1928, is mooted m the Victorian (Australia) Parliament. This new measure is "to regulate the publication of reports of judicial proceedings m such a manner as to prevent injury to public morals, and for other purposes." : j ■.'''

Matter Of Detail

The section under which it is proposed to restrict the publication of reports sets out that it shall not be lawful to print or publish •or cause to procure to be. 'printed or published: — ','■■■'.<' (a) In relation to* any judicial proceedings any indecent matter or indecent medical, surgical, or physiological- details, being matter j or details, the publication of which : Avould be calculated to injure; pub-, lie morals; .or (b) In, relation to any" judicial :. proceedings for dissolution of mar- '■ ■ I riage, for nullity of marriage, for judicial separation, or for ■ restitu- ': tion of conjugal rights, any particulars other than the following:— ;• (1) The names, addresses, and - occupations of the parties and witnesses; • • . (2) A concise statement of the ;/ charges, defences, and. counter- ; charges m. support of which cvi- ' dence has been given. . ; ._.'• ; (3), Submission on any point of. law arising- m the course of tlie proceedings, and the decision of the court thereon; ■• ■ . - ' j. '■ (4) The summing-up of the '\ judge, and the finding of the jury , .(if any) ( and the judgment of • the court and the observations of the judge m giving judgment. .' ... : , / . It is /provided 'also that 'nothing 'm paragraph (b) of this section shall be held to permit the publication of anything contrary to the provisions of paragraph (a). . ' r Not to divorce courts alone does this legislation apply, for "judicial proceedings," as mentioned m the title of the Bill and m the section quoted above may be taken as including any case , or inquiry presided over by a judge, police magistrate, coroner, or; justice of the peace. '..;. . ' ; . .., ; ■ ..;';.■ Than this there has never been a -greater blow at the liberty of . the press m Victoria. In effect, ' the framers of the legislation say to every newspaper published m the State: "You are not to be trust-, ed; we . have no respect whatever for your discretion, and, therefore^

MlllllllllllllllllllllinilllllllllllllllllllllllllllllllllllllllllllMllllllMlllllllMMllllinilllN we are going to take away from* you the right to exercise it." As to the new English legislation one of tn'e strongest criticisms of the prer sent law was that uttered some time back by Mr. Justice Atherley- Jones while presiding over a case at the Old Bailey. '•..'■ "It is much better that the public should know the facts," remarked his honor, "and it is just as well that the veil! should be lifted from time to time. To my mind, there is nothing more pharisaical than to attempt to suppress newspaper reports by legislation." Further, as showing the weakness of the new law, it is interesting to note that certain English newsp^ef s with, .very,, wide,' circulationsii;liaii^«aabpte'd' the practice of reporting verbatim the summing-up of judges, m divorce petitions. . By doing this they are able to give their readers a much clearer insight into the proceedings than might otherwise be the case, for it is not at all

Farcical Laws

unusual for the judge to traverse at length, points m the evidence which might be disregarded m reporting evidence-in-chief or cross-examina-tion. It only goes to show that the legislation m England can be made to appear farcical. ; . . But what paper of any repute, it may be asked, wishes to publish such things as would come under the heading of "indecent medical, surgical, or physiological details ?" Certainly not "N.Z. Truth." By all means, let there be suppresr sion: of these details m divorce and other cases, the publication of which is not m the interests of public morals. In support of that, "Truth" holds up both hands. Indeed, the tens of thousands of 'those who peruse it each week must be aware already that it has given a lead to every other section of the press m this . connection. •••■.'. But, above all, let us • avoid coercion, interference with civil liberty, or curtailing of the freedom .■ of the press. The rights enjoyed by British peoples m this respect Avere not easily won. .They cannot lightly be taken away.