As at 3.13pm, media were happily reporting that the foreign diplomat who fled the country after invoking diplomatic immunity is Mohammed Ismail of Malaysia. Prior to then, the name and country of origin of Mr Ismail was the result of a suppression order, which was producing farcical scenes as the media attempted to dig to discover the diplomat’s identity.
Several days ago, Laura McQuillan tweeted that the Ministry of Justice were charging media $30 for a copy of the suppression order, but was refusing to tell them the case number to put on the application. Felix Marwick noted that there was no typed suppression order at all, just a notation on the file (which is presumably all the Ministry would tell him). No one seemed to know whether the suppression was an interim order granted at the diplomat’s first appearance that had yet to lapse, or whether a judge had granted a later suppression order granted by a Judge. Radio NZ then reported on Checkpoint yesterday evening that the order had in fact been granted by a judge, although quite where that information came from was a mystery. Suspicion was falling on Malaysia as the diplomat’s country of origin, given the area where the arrest took place is where the Malaysian High Commission is based.
However, reporters were being extremely circumspect about what was reported or tweeted, for fear of breaching a suppression order they weren’t even allowed to view. As Laura McQuillan tweeted:
“[T]hey could tell us what information is suppressed. We have no idea what we can’t report!”
Then along came Labour’s Dunedin South MP, Clare Curran, who provided the following tweet:
Curran’s tweet provided a link to a news story (link here) published by a foreign website, the Rakyat Post, that alleged the diplomat to be Malaysian. To my mind that was a clear breach of s 211(2) of the Criminal Procedure Act 2011, which states that a person commits an offence who publishes any name, address, occupation, or other information in breach of a suppression order. Section 211(6) then notes that for a prosecution of such an offence, it is not necessary for the prosecution to prove that the defendant intended to commit an offence. Essentially, it’s a strict liability offence – publish in breach of a suppression order and guilt automatically follows; it doesn’t matter what your intent was.
Readers will note that the image of Curran’s tweet above has the link to the news story partially obscured. That’s because the image comes from Cameron Slater’s Whaleoil blog, where he gleefully seized upon Ms Curran’s misdemeanour, but didn’t wish to be guilty of the same offence himself. It’s an interesting question though as to whether pointing viewers in the direction of Curran’s Twitter account in search of her offending tweet would still constitute an offence…
Regardless, having procured an urgent High Court hearing, news organisations were undoubtedly thrilled when Justice Collins determined that, with Malaysia’s Foreign Minister expected to make a public statement on the situation at 4pm, “[t]here is a very realistic chance that at 4pm today the whole world will know who he [the diplomat] is”. It would have been beyond farcical for the rest of the world to be happily discussing the name and country of origin of the diplomat, while New Zealanders risked prosecution…