By James Murray and Jerram Watts
Controversial blogger Whale Oil, also known as Cameron Slater defended himself against multiple charges of breaching name suppression orders at Auckland District Court today.
Judge David Harvey has just adjourned the court saying he will make his decision on September 14th.
Mr Slater upped his online profile earlier in the year after publishing encrypted messages on his site, which revealed the names of suppressed defendants in high profile cases.
The blogger has been a strong opponent of New Zealand’s suppression laws, even starting an anti-suppression group called Shame.
Shame, which stands for Suppression Helps Abusers Make Excuses, was started after people approached Mr Slater to “affect change”.
"There's a lot of support for my stance," he said in January.
"The first day after I appeared in court I had 400 emails, a lot of them from victims as well saying we support your stance, we want to name the people who abuse us."
Mr Slater mainly ‘outed’ people charged with offences of a sexual nature with name suppression, including a former MP, a well-known entertainer and a former Olympian.
3news.co.nz is at Whale Oil's trial and will keep you updated as events occur.
10:00am – Judge David Harvey say live web transmission from the courtroom is not allowed. We will bring you updates as soon as we can. Slater is tweeting on the case but has been similarly thwarted.
10:15am – Defence lawyer Thwaite asking for all details of the prosecution to remain suppressed.
10:22am – Judge David Harvey says the suppression orders from other trials will remain and media will not report on suppressed evidence in this trial either.
10:25am – Prosecution lawyer Burns opens with his address which is broken down charge-by-charge. Begins with ‘the entertainer’ named by Slater. The entertainer had a final order for name suppression granted. On November 28 Mr Slater published a blog talking about changing name suppression laws and the blog had a photo of two images which would have identified the entertainer. Prosecution argues the publication did not name the entertainer but the images implied his name. The images are as good as a name. Next two charges relate to a ‘former olympian’ – two charges for Mr Slater, first of all a suppression order in place of his name. Mr Slater’s blog again shows images which denote the Olympian’s name. There is sufficient information available to identify the Olympian. The difficulty arises where Mr Slater says he has a right to freedom of expression and that well-known people shouldn’t be granted name suppression – the purpose of section 139 is to provide protection for victims of sexual crime without their names being published. Prosecution argues the approach Mr Slater has taken, which is effectively the outing of prominent people, is going to have the impact on the victims of those prominent people.
10:37am – Judge Harvey describes Whale Oil’s blogs as like a shotgun blast, it hits the person and then other people he doesn’t want to hit.
10:38am – Burns – charges against subsequent continued publication of suppressed names when Mr Slater was told of the breach he continued to leave the names on the site. Mr Slater has a part of his blog called ‘interesting names’ – a teacher who sexually interacted with a student was named in this part of the blog. Anyone who is modestly informed of the net would be able to associate the images with the name. A doctor is also named in the ‘interesting names’ part on February 7.
10:47am – Mr Slater is sitting at the back of the courtroom; wearing his usual white long-sleeve shirt with dark blue sleeves. He is bearded, arms folded and watching the trial unfold with apparent nonchalance. He writes the occasional note on his hands but remains impassive.
10:50am – Burns – next suppression order comes from Nelson, a former national figure appeared in court charged with assaulting a young girl. The figure was a former MP. Mr Slater published the name in binary code, it was examined by a policeman from the electronic crime lab who decoded the text and the results showed the binary code named the ex-MP. The final suppression charge is a suppression order made in Wellington during the course of a trial about a senior civil servant charged with assaulting his son. The ruling was made at the outset of the trial and continued to the end of the trial. Mr Slater abandoned all pretence and simply referred to the case by name – no code, no images. Slater names him outright. That, in a nutshell, is the background to the charges and the specific breaches that were alleged.
10:55am – Burns calls first witness of Timothy Robert Traviss a police detective from the criminal investigation branch of Auckland Central Police.
10:57am – Mr Traviss – conducted a ‘whois’ search on Whaleoil’s blog page. The ip 65.61.167.225 is hosted by rackspace.com, hosted in the US. The administrator of the website is listed as Cameron Slater. The site is physically hosted in the US. In the article on December 16, 2009, the images were listed which named the Olympian in question. The jpeg was named after the Olympian’s initials.
11:06am – Cross examination. Mr Thwaite asks about Mr Traviss’ technical experiences and whether he was directly involved in the Olympian’s case. Mr Traviss was not directly involved. Mr Thwaite asks why Mr Traviss did not investigate the image’s authenticity. Traviss says it was unnecessary because the images were not ambiguous.
Next witness. Gareth Antony Jacobs. Digital forensic technician for NZ police.
11:16am – Mr Jacobs. On 11 January 2010 the lab was requested to look at the code on Whaleoil’s site where binary code had been posted.He examined the page and decoded the message which directly named the MP involved in the sexual assault case.
11:20am – Cross examination. Mr Thwaite asks how long the examination took. Less than 10 minutes. Mr Jacobs used two methods, he Googled some search parameters which provide an interface to allow decoding to happen, after he did that he then decoded the message mathematically.
11:50am – After recess. Witness is Mark Ronald Greeves. Detective at Auckland Central and police officer in charge of investigation against Olympian with sexual violation charges.
11:52am – Defence interrogates detective over his involvement in the Olympian’s case. Examination is short, very short.
11:58am – Prosection calls witness. Marcia Joy Murray, Detective Sergeant at Auckland CIB.
11:59am – Ms Murray recalls the day she met with Mr Slater about what he had published in his blog. A DVD of the interview with Mr Slater is played to the court.
START OF DVD EVIDENCE
In the interview Mr Slater confirms he is the registered owner of the domain name. He confirms he is known as Whale Oil. He confirms he is sometimes the author of articles on whaleoil.gotcha.com. He says he has a number of other authors from whom he publishes articles. He calls it ‘ghosting’.
Ms Murray asks him about articles he posted about the Olympian. He says he wrote an article about celebrity name suppression and said he published some pictures to go with the article for ‘interests sake’. He says they were ‘interesting pictures’ and says people have had guesses at what they meant. He says ‘they could mean anything’. It was one image that contained four images. He says he doesn’t believe the Olympian should have name suppression because he is a ‘violent criminal’. He says he understood that no one was able to publish his name, age or occupation. He says he did not mention his occupation nor his age nor his name. He says he quoted from the NZ Herald and put up a random image - ‘you can take it anyway you want’.
“I don’t care what people read into them, I post things for my own pleasure. I haven’t worked for five years, I’m clinically depressed, I started writing a blog which no one read, it enabled me to get out feelings of anger, I write it for me, for nobody else.”
Another article, November 9, 2009, Ms Murray cites images posted by Slater pertaining to the entertainer. The article in question is about name suppression; Slater says he thinks he posted that article. He says he didn’t agree with the name suppression laws and is campaigning to get them changed. He says the article was about an entertainer who likes to put young girl’s faces on his crotch. Ms Murray says the images essentially identify the entertainer in question, Slater says he didn’t name him and that the images were associated with the lifestyle of the entertainer. Slater says they are random pictures which he gets off Google.
Ms Murray presents the last article regarding the naming of a doctor who had name suppression. He says the public deserved to know who the doctor was. He says he printed the name because “he felt like it”.
“I’m clinically depressed, I do things sometimes, strange things.”
He says doctors investigating doctors is a nice cosy little club that got upset by some business people.
“I do random things. There are no names there.”
Slater then confirmed he had read the suppression order for the doctor and for the entertainer. No suppression order had been typed or produced for the Olympian (at the time he said). He admitted knowing he couldn’t publish the doctor’s name but did it anyway.
Ms Murray asks what medication Slater takes for his depression. He names a number of different drugs which he takes in the morning and the evening. He confirms he is taking medication everyday, otherwise he loses his balance and falls into a ‘blackhole’.
“It is what it is [the] mad ramblings of a mental person”. The Whaleoil posts “are my thoughts”.
END OF DVD
12:35pm – Mr Burns talks to Ms Murray about process of obtaining documents.
12.43pm – Mr Thwaite cross examines. He asks if Ms Murray had copies of the suppression orders present at the initial interview, she says she cannot be certain. She says the first she became aware of the breach of name suppression was when the file was handed to her.
12.50pm – Mr Burns says that concludes the evidence for the prosecution.
12.51pm – Mr Thwaite says he will be calling no witnesses in defence
LUNCH
2:21pm – Mr Thwaite: Begins with talking about the Bill of Rights – the core values of freedom of expression; including the right to speak and the right to listen, an essential aspect of democracy and the open trial.
2:30pm – Re: Open trials… Judge asks Mr Thwaite about the concerns of parliamentarians in the 1640s about the Star Chamber and secret trials. It had to deal with the examination of the process, the steps by which a person was brought to trial and all of those matters involving the allegation and the standard of proof – that’s what the open trial was about; the scrutinisation of the process.
2:32pm – Judge Harvey and Mr Thwaite are debating syncretic method – it’s pretty heavy stuff.
2:38pm – Mr Thwaite says there is a difference between a report and commentary. He says a blog is a conversation. Mr Thwaite says the words ‘report’ and ‘account’ must be construed very narrowly.
2:44pm – The judge and Mr Thwaite are having a lengthy discussion over the laws of name suppression; historical cases are brought to the fore along with many hypothetical situations. The judge seems to enjoy the debate very much and brings a wealth of knowledge and authoritative opinion to the argument.
2:46pm – Mr Thwaite defines a report or account as tied in with an eyewitness to the event. Judge says the basis of the prosecution is to stop people publishing suppressed names on the internet. Mr Thwaite says people can evade the suppression order by guessing the name. Mr Thwaite contests section 140 should only apply to the news media. Judge refutes the argument.
3:00pm – Mr Thwaite says there is no evidence Mr Slater found the evidence personally from the court. Mr Thwaite says Mr Slater quoted verbatim the NZ Herald report. Slater never saw a copy of the order and was only interested in the criticism of the suppression order. The commentary that he makes was consistently critical of the suppression of details of all persons but particularly of those of certain offences.
Mr Thwaite submits Mr Slater has only been critical of the court system, Mr Slater’s articles have only been commentary. Mr Thwaite says only the doctor in question was named, as he admitted in the interview. My prime submission is that no person was named, save for the doctor and the other names were put up under ‘interesting people’ and not associated with any story.
3:08pm – Mr Thwaite says the pictogram was not sufficient in identifying the persons. Judge contests would it be the same if the name was written in Arabic? Mr Thwaite says that brings up the issue of who are the recipients of the information, who is able to interpret it? Judge says a nom de plume would also be a way of identifying an individual, the same as a pictogram.
3:15pm – Mr Thwaite says the doctor and MP were both interesting names and the senior civil servant was only named in binary code. Mr Thwaite says in the case of the binary code, since the recipient of the information would have to decode it mathematically, they willingly enter a commentary and the information is not directly given. Judge Harvey says if he wrote a commentary about Mr A who has been charged with raping his wife to her utmost humiliation, and included in it information about the victims and described her as his wife is he not governed by the provision in section 139? Mr Thwaite says yes.
3:20pm - Judge says there is a statutory order in place to protect the victims. Mr Thwaite contests it is ok for information to be published in a commentary that leads to the identification of the victim of a crime where the accused’s name is suppressed.
3:23pm – Mr Burns says he feels the debate has turned from an argument over the bill of rights to minute arguments over law. He says it has been suggested in Mr Slater’s blogs that suppression has only been granted because the persons involved are famous. Mr Burns says there are a spate of other reasons why name suppressions is granted, including affecting the person’s reputation.
3:30pm – Mr Burns says anyone who has the ability to disseminate information widely must come under the laws of name suppression. Mr Burns says there is no point in arguing when a discussion becomes a publication because in this case it is quite clear that the information was published online for all the public to see.
3:36pm – Mr Burns presents information that Mr Slater included in his blog. Information as to how people can interpret the images which portray the Olympian’s identity. Mr Burns says it is quite clear from the comments on the blog that many people have picked up quite easily how to interpret the images. Mr Burns says the suppression order was made for the entertainer because he was a very public figure and would be easily identifiable.
3:40pm – Mr Burns says even though binary code isn’t a name, there are particulars which would lead to the indentification of the person involved. Judge says he agrees that the internet is no different to the media in its publishing of information, just that it does it quicker.
3:45pm – Judge Harvey says bloggers can often scoop the media, that people can comment on the Herald website; he says the increase in technology capabilities means this discussion will have to be revisited in future. The Law as it stands does not prevent any person from coming along and asking a question. He says blogs do occupy a space in the news media foray.
3:48pm – Mr Thwaite says Mr Slater’s motivation for publication is irrelevant.
3:50pm – Judge Harvey says he does not intend to present a decision now. He proposes to remand Slater at large until 10am on September 14 when he will have his decision. Judge says he can make a finding on the no case issue and he can find there is no case to answer and the whole thing evaporates. Or he finds there is a case to answer, he can articulate that and he can give Mr Thwaite an opportunity to address the judge on liability. Or he can proceed to determine the no case argument, if there is a case to answer he can consider the elements have been proven beyond reasonable doubt.
Mr Thwaite will present a memorandum as to which route he wants the judge to go down by 11am tomorrow morning.
COURT ADJOURNED
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