I am going to comment on this case without mentioning Kafka. Franz Kafka. 1883-1924. Author of The Trial, concerning prosecution for an undisclosed crime.
Anyone who is less respectful of the law than I am might thing of Kafka when they read the order issued by the Court in the publicly available judgment in Farish v R [2024] NZSC 65:
“[82] We make a permanent order … prohibiting publication of the following:
(a) any evidence and submissions in this proceeding relating to the nature of the risk [REDACTED] and the information relevant to that risk [REDACTED]; and
(b) [REDACTED].”
Does such an order meet the requirement of the rule of law that the law should be ascertainable? Strictly speaking, a ruling is not a "law", not a legal norm effective as a precedent, but because it applies to future behaviour it needs to be ascertainable by more people than those directly involved in the case. [1]
The order, to be understood, needs to be read in its context, but in this case the context is in the Court’s judgment that is not published.
In a more helpful part of its judgment, the Court discusses s 205 of the Criminal Procedure Act 2011 which provides for suppression of evidence and submissions (see [25]-[33]).
Particularly noteworthy is the way the Court addressed the problem of whether suppression here might cause the public to think that the judicial system was favouring its own (the applicant for suppression here being a judge, who was not a defendant and who was not involved in the offending).
The public should be the judges of what happens in the courts [73], referring to Lady Hale P in Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association intervening) [2019] UKSC 38, [2020] AC 629 at [42]-[43]. The Court concluded that “the interests of justice do not require that the appellant accept a serious risk to personal safety so that a court can avoid giving the false impression that she is being afforded privileged treatment.”
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[1] See John Gardner, Law as a Leap of Faith (2012, OUP) p 193.
