Tarrant v R - [2024] NZCA 579

Date of Judgment

13 November 2024

Media releases

Decision

Tarrant v R (PDF 261 KB)

Summary

CRIMINAL PRACTICE AND PROCEDURE - NAME SUPPRESSION, LAWYERS

Mr Tarrant was convicted of 51 charges of murder, 40 charges of attempted murder and one charge of engaging in a terrorist act. He was sentenced to life imprisonment without parole. Mr Tarrant has applied to appeal his convictions and sentence.

Mr Tarrant's appellate counsel, Lawyers A and B, have applied for an order permanently suppressing their names as connected persons under s 202 of the Criminal Procedure Act 2011. Their application was made on the grounds that they would suffer undue hardship and/or that they and their families would be endangered if their names were published in connection with Mr Tarrant. The application was opposed by the Crown and four media organisations.

Affidavits were received from Lawyer A, Lawyer B, and two other senior defence barristers. The thrust of the evidence was that senior criminal defence lawyers have been subject to extensive abuse and threats of harm because of their association with high-profile notorious defendants.

The Court was required to answer three questions in determining whether to allow the application:
- are counsel for Mr Tarrant "connected with the proceedings" or otherwise "connected with" Mr Tarrant? If so;
- have counsel established that publishing their names would be likely to cause them undue hardship or endanger the safety of any person? If so;
- should the Court exercise its discretion to make the order sought?


Are counsel for Mr Tarrant "connected with the proceedings" or otherwise "connected with" Mr Tarrant? Held: Yes

The Court held that Mr Tarrant's counsel are "connected with the proceedings". The Court observed the ordinary and natural meaning of "connected" equates to a person being "related or associated" with another person or event. A lawyer who appears in court on instructions from an offender performs a vital element in the proceedings and are therefore intrinsically connected with the proceeding. In the absence of information concerning purpose or context that could assist in determining the meaning of "connected with the proceedings", the natural and ordinary meaning of "connected with" was treated as determinative as it did not produce a totally untenable result.

This meant it was not necessary for the Court to determine whether Mr Tarrant's counsel are "connected with" Mr Tarrant, though it considered they likely are.

Did counsel established that publishing their names would be likely to cause them undue hardship or endanger the safety of any person? Held: Yes.

Although the evidence before the Court did not identify specific risks of abuse or threats to Lawyer A and Lawyer B, the Court was satisfied that Lawyers A and B would likely receive abuse and threats if their identities were made public. The Court considered that the abuse and threats would arise from people hiding behind the relative anonymity that social media platforms provide and could come from both those who abhor and those who support Mr Tarrant. The nature and seriousness of the abuse received by the senior defence lawyers who gave evidence, in combination with the unprecedented and highly publicised nature of Mr Tarrant's offending, satisfied the Court that Lawyer A and Lawyer B would be likely to receive extreme abuse and threats, thereby causing them undue hardship. The hardship they would be likely to face was considered of a level and character beyond that of which defence counsel should be expected to weather.

Although not strictly necessary for the Court to determine, it considered that there was a genuine risk that the safety of Lawyer A, Lawyer B, and the members of their families would be compromised if they were publicly identified as the lawyers representing Mr Tarrant.

Should the Court exercise its discretion to make the order sought? Held: Yes

After considering various factors, including open justice, potential danger to the criminal bar, the cab-rank rule, the efficacy of any orders, and the potential precedential effect of the decision, the Court concluded that it should exercise its discretion in favour of the application.

The Court fully endorsed the principle of open justice and the role of the media in reporting on court proceedings, and noted that in almost all cases open justice will require counsel to be named. However, the Court considered in this case, media reporting would not be materially affected by suppressing counsels' names. The identity of the persons speaking on behalf of counsel is not nearly as important as the submissions made, which are able to be reported.

The Court did not place any weight on the media's argument that there may be a risk of danger to several criminal barristers suspected of representing Mr Tarrant. It considered it unlikely that an ill motivated individual would attack a random lawyer, or many random lawyers, on the off chance they were acting for Mr Tarrant.

The Court also did not agree with the media's submission that allowing the application would undermine the cab-rank rule. Under the cab-rank rule lawyers are professionally obliged to act for clients who instruct them. Lawyer A and Lawyer B are playing a critical role in the administration of justice in what is undoubtedly a very difficult case. They have been instructed to represent Mr Tarrant and intend to do so in accordance with the cab-rank rule. The application was designed to prevent Lawyer A and Lawyer B from facing undue harm and did not impact upon or undermine the cab-rank rule.

As to the efficacy of any orders, although the Court noted that those who attend Mr Tarrant's potential hearing would be able to learn the identity of counsel, it considered that the application should not be declined simply because a subversive individual may elect to breach the orders. Practical concerns raised by the Crown, and the availability of other methods to protect counsel, were held to not influence the outcome of the application. The purpose of the application is to prevent harm from occurring and, given the risk of harm Lawyer A and Lawyer B are likely to face is significant, the Court considered suppression of their identities was necessary in the circumstances.

Although cognisant of the potential precedential effects of the decision, internationally and nationally, the Court considered the uniqueness of Mr Tarrant's case meant the decision would not be an invitation to open the floodgates to other applications of a similar character.

The Court granted Lawyer A and Lawyer B's application. It permanently suppressed their names, addresses and identifying particulars, and made other related orders.