Tuesday, May 21

New Zealand’s Star Chamber: When Secret Justice is No Justice

The term “Star Chamber” has its origins in the English court system of the same name. It was a court that tried people too powerful to be brought before ordinary common-law courts. It was abolished in 1641. Today the term refers pejoratively to any secret court proceedings that seem grossly unfair.

But the ghost of Star Chamber lives on in Wellington, it seems. On 14 September 2023, members of the Survivors Network of those Abused by Priests (SNAP), in Aotearoa New Zealand, showed up at the Court of Appeal. They wanted to hear cases CA461/2023, CA529/2023, and CA530/2023 which were being heard together in the Permanent Court’s Courtroom One.

The parties were D, A, and R versus Discovery NZ Limited, a subsidiary of Warner Bros which operates several television channels in New Zealand along with the Newshub service.

The people who call themselves the survivors knew what the cases involved. They were about what happened to them as children in the care of Catholic priests and nuns in New Zealand in the late 1970s, and now their freedoms under the New Zealand Bill of Rights to have their stories told publicly are being denied: the freedom to hear how their stories were being told, and the freedom for others to hear who might have suffered similar treatment. Some have probably suffered alone, never knowing that there could be vindication.

So, on 7 August 2023, Newshub was going to broadcast the survivors’ stories. However, lawyers of the affected Church leaders filed an urgent interim injunction to block the press from running the story. There was a hearing that day.

The judge at Wellington’s High Court, hearing arguments for both sides, dismissed the Church leaders’ lawyers’ claims and ruled that the press had a right to broadcast the story given its significant public interest.

The Church leaders had three days to decide if they wanted to appeal the judgment. The judge instructed that if they decided to do so, then the case should be considered with urgency.

Lawyers acting for the Church leaders appealed the ruling on the third day, on grounds of public interest immunity. There was an urgent meeting between the Court of Appeal and lawyers for both sides to decide when the appeal case would be heard. The hearing was set for 10 AM, 14 September 2023.

The afternoon before the trial, survivors were told by the court that the hearing would be open to the public. However, the following morning, by order of the court, the court was closed. Only the affected Church leaders, the press as defendants, and a small group of pre-agreed people were admitted. The survivors were excluded.

The honourable Justices Cooper, French, and Goddard heard the secret cases. They have now reserved their judgment as the matter proceeds to a possible permanent injunction in which no one will ever know anything about the matter. That’s if Discovery NZ Limited loses or chooses not to appeal to New Zealand’s Supreme Court.

The Free Speech Union (FSU) knows nothing of the merits of the case against the Church leaders. FSU does not know any of the complainants. They have not been contacted by Discovery NZ Ltd or Newshub on this matter. But FSU opposes this court suppression on instinct. They oppose it because judges apply it without any knowledge of what it costs, or whether the values they claim to be protecting have any weight at all against the freedom values they trash.

We know that court secrecy is wrong. It favours the powerful and the well-connected and the guilty, ahead of victims, ahead of public confidence in the honesty of our ruling classes. It flatters the justice system insiders – the lawyers and judges, that they can safely handle knowledge that ordinary New Zealanders cannot be allowed to know. Suppression abandons the tradition of open justice we inherited with the Treaty of Waitangi. Judges say there is a high threshold for gaining suppression, but the Free Speech Union simply does not believe them. They take months to even decide on secrecy issues, without telling the victims and journalists even enough to know what they can publish and can’t. Secrecy is sometimes scandalous. And it makes our justice system complicit in scandal.

The exclusion of the representatives of SNAP while the prestigious lawyers representing power conferred in secret just compounds the harm the survivors complain about. That was how they were treated by the Church leaders. And now the courts are continuing in that pattern, conniving with the Church lawyers.

This wasn’t a historical issue for survivors. SNAP says that some perpetrators went on to become rulers in Catholic organisations, using their positions to routinely deny survivor complaints lodged through their inhouse redress Te Houhanga Rongo / A Path To Healing, using secrecy, concealment, silence, and coverup to continue to harm them.

The key purpose of the survivors’ wanting to be present in the courtroom was to hear the legal arguments presented, and in light of those arguments, ascertain what options were available for the victims. They need to know who is saying what. They have been kept at a distance and fed patronising scraps for decades.

However, they were denied this opportunity. The court gave them no explanation for the decision.

Knowing what a court is hearing and the arguments is essential to trust in justice. SNAP is grateful for Newshub’s interest. But as Newshub is the target of the Church leader’s current tactic, the survivors were not party to the proceedings. Yet the court heard evidence produced by others about the survivors, without them even being able to know what it is, let alone being able to tell the truth to the Court.

Open justice deters insider arrogance. It makes bias and favouritism less likely. It enables the public (and those indirectly affected) to see that justice is being administered impartially. It maintains public confidence.

Open justice is like freedom of speech generally, it makes it less likely that uninformed and inaccurate speculation and comments, and suspicion about proceedings can persist. It can result in evidence being volunteered which would otherwise not come to light. And it can ensure that law enforcers know that lack of diligence will not go unreported.

Star Chamber processes (where the public is totally excluded and even the terms of suppression orders are not published or explained) are inexcusable. FSU fears that this case is just another evidence of the indifference of the legal ruling classes to the fact that no one should be above the law, including judges. And freedom of speech is part of our law.

General justifications advanced for closed courts are that they enable cases to be tried which would otherwise be un-triable and therefore destined to fail, or not fairly triable without excluded evidence. On this basis, it is argued that secret justice is better than no justice at all.

However, when secrecy is given to situations where justice could be frustrated if the cloak of anonymity were not provided, then no one outside the hearing would know whether or not justice had actually been served.

Further, when secret justice is used in cases of significant public interest, for example, granted to powerful Church leaders accused of raping children, then the matter has substantial impact not only on the victims who were excluded but also on the public now deprived of the knowledge of the judges’ ruling.

Even Voltaire’s risk of saving a guilty person rather than condemning an innocent one did not command secret justice.

When it comes to priests raping children, justice insulated from public scrutiny not only undermines the court system, but it also makes society a dangerous place to live in. Lord Acton said, “Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” (1861)

Despite every outcome, justice was severely compromised in Wellington’s Courtroom One on 14 September 2023 because such a matter of significant public interest should not be kept secret. This is why the personification of justice is blindfolded to represent her impartiality, and truth is naked to reveal she has nothing to hide.

The only benefit of a closed court serves to hide the shame and embarrassment of the guilty, to conceal their identities from the public, and protect their privilege. Because if they were innocent, then there would be no need to hide.

To reduce the unfairness inherent in September 14’s hearing, provision for a special advocate to represent the survivors could have been granted, someone privy to the secret material, appointed to represent the interests of the survivors from whom it was being withheld.

However, this was not granted.

To date, all decisions around the matter, including that in the first instance at Wellington’s High Court are suppressed. Suppressed justice, like secret justice, is no justice at all for those who matter the most, the victims. In fact, it amounts to another injustice.

Therefore, it may be fairer and safer to try these cases in the public arena.

But truth will out somehow. It may take a while, and Church leaders will probably continue to fund its suppression, but eventually truth will out.

Until then, despite all possible outcomes in such secret cases suppressing survivors’ voices about priests having raped them as children, it appears that Star Chamber is alive and well in Wellington.