Pubdate: Wed, 28 Jun 2000
Source: New Zealand Herald (New Zealand)
Copyright: 2000 New Zealand Herald
Contact:  PO Box 32, Auckland, New Zealand
Fax: (09) 373-6421
Website: http://www.nzherald.co.nz/
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Author: Josie Clarke

BILLIONAIRE CASE JOLT FOR COURTS

A milestone High Court ruling yesterday vindicated the Herald's
campaign over the billionaire American drug smuggler - and sent a
strong warning to judges about name suppression and secrecy in court.

Two justices found that a District Court judge who discharged the
billionaire without conviction and suppressed his name during the
America's Cup had overlooked the Bill of Rights Act and acted wrongly
in law.

The judgment yesterday lent weight to the Herald's charge that the man
had been given unusual treatment and his identity kept secret after
negotiations away from open court and never made public.

It found that the paper had an explicit right to challenge the name
suppression, and accepted the Herald's application to overturn the
permanent suppression order.

However, the newspaper must wait five working days to publish the name
of the man, known here only as L, while he decides whether to appeal.

In their decision, Justice Potter and Justice Nicholson strongly
criticise Judge David Harvey for the way he handled the billionaire's
appearances in the Otahuhu District Court on January 6 and 7.

"Having regard to L's wealth and his payment of $53,000 to a charity,
the granting of discharge without conviction and the name suppression
which followed could as submitted by [Herald lawyer Bruce Gray] have
created an unfortunate impression that name suppression could be purchased."

They said Judge Harvey made an error of law by seemingly failing to
consider the Bill of Rights - specifically the public's right to
freedom of speech and to receive information, and the role of the
media as surrogates of the public in attending and reporting court
hearings.

Justices Potter and Nicholson said Judge Harvey was not told that the
billionaire was already well known in his home country as a supporter
of a campaign to legalise marijuana, and was therefore unable to take
that into account when he made his orders.

They said there appeared to be an unfortunate link between the
billionaire's payment of $53,000 to the Odyssey House drug
rehabilitation centre and the order suppressing his name. That link
made it even more regrettable that Judge Harvey did not give the
reasons for his ruling.

Justices Potter and Nicholson said it also concerned them that some
submissions were presented to Judge Harvey behind closed doors, and
that the Herald did not have access to other submissions handed to
Judge Harvey on behalf of the billionaire.

The ruling includes an order that the billionaire pay the Herald's
legal costs for the High Court hearing.

The decision follows a seven-month legal battle by the Herald to name
the 66-year-old businessman who admitted smuggling more than 100g of
cannabis resin and plant into the country.

The billionaire's lawyer, Marie Dyhrberg, said she would consider her
options and take instructions from her client. She has until the end
of Tuesday next week to decide if she will appeal.

The Herald's Mr Gray said the decision was a "clear signal" that the
Judiciary needed good reason to interfere with freedom of speech, and
that those reasons should be explained in any judgment.

"The court agrees that the Herald's stand was the right one, and that
we've done the right thing. Although this was an apparently minor
case, it involved important issues of principle and the court has
recognised this."
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