The man with the blurred face: Why did Jesse Kempson’s suppression continue for so long?

EXPLAINER

If you know how to use Google then you already knew who was accused and convicted of murdering Grace Millane long before today.

You may have been one of the more than 100,000 Kiwi users who typed his name into the internet search tool in the days after his arrest. Or maybe you were someone who read one of the many British news stories, or even just logged onto Facebook.

But whatever the case was, what has now become apparent for those without learned legal minds is why Jesse Kempson continued to enjoy name suppression – even long after he was sentenced to life imprisonment.

Kempson, it was revealed today, faced two other trials for violent sexual offending against two women after the Millane trial. He was found guilty of all nine total charges at both trials, which he is now appealing.

Kempson has also signalled an application to the Supreme Court for a second appeal of his murder conviction.

His name had been suppressed by the courts throughout the case to protect his fair trial rights.

In many ways, however, it appeared simply a case of timing as to why he wouldn’t be named shortly after his arrest in December 2018.

After all, Judge Evangelos Thomas had dismissed the first application for interim name suppression by Kempson’s lawyer, Ian Brookie, at the initial appearance in front of a packed courtroom.

Brookie sought the order then on fair trial rights, citing the enormous public scrutiny on the case, and was opposed by prosecutors, the Millane family and the media.

He appealed Judge Thomas’ decision, automatically imposing a 20 working day suppression order. But before Brookie could even leave the courtroom his client had become New Zealand’s worst-kept secret.

One person sitting in the public gallery had already posted a photo from the hearing on their Facebook page, media commentators quickly began giving their uninformed reckons, and in the UK and Australian press Kempson was already being named.

The blatant breaches caught the ire of then Justice Minister Andrew Little and the Bar Association, while one London newspaper even flippantly replied to the concerns of a Millane family friend by saying “the law in New Zealand does not apply”.

The officer in charge of the case, Detective Inspector Scott Beard, was warning New Zealanders that it was a crime to identify the accused killer on their social media pages, and Prime Minister Jacinda Ardern was soon commenting on questions about the effectiveness of our suppression laws in the internet age.

Google’s algorithm then inexplicably sent a mass email to its New Zealand subscribers naming Kempson. The tech behemoth was later warned by police and apologised.

It seemed harder to find people who didn’t know the Kempson name and it appeared to be only a matter of time before his face would be pixelated no more.

However, by February 2019, everything had changed.

On January 31 last year, Brookie advised the High Court of a fresh application for name suppression.

Kemspon’s character, he argued, had been blackened and his identity already published by irresponsible elements of the media. Brookie said the intense, if not hysterical, coverage was already prejudicial to his client’s right to a fair trial.

More importantly, however, were some new developments.

The Crown had given notice it intended to lay more charges against Kempson – unrelated to the murder.

After Millane’s death, police began closing in on Kempson as the prime suspect.

As they investigated him and searched their files, detectives found an earlier complaint by another woman and a corresponding restraining order. A third woman was also interviewed by police about a violent Tinder rendezvous she had with Kempson.

New charges were laid, nine of them, and Kempson was ordered to appear in the District Court again on February 18.

But this time the courtroom was locked, the public would be kept in the dark, and the Herald the only media at the hearing.

Kempson’s name and the fact he faced more allegations would remain suppressed, the courts ruled for fair trial reasons.

But while the Millane case continued under a bright spotlight and because the reasons for the continued suppression were also hidden from the public, the rumour mill spun and wild conjecture ran rife.

People began to speculate Kemspon was a man of high standing in society, some bizarrely claiming he was the son of a politician who had asked a judge for a favour.

Before Kempson’s murder trial began in November last year, the courts had ruled he would maintain suppression until after all his trials had been determined.

As the Millane murder trial began, people filled the public gallery of courtroom 11 in the High Court at Auckland. Some were even seen arguing over their seats. Almost all wanted a glimpse of the killer with the blurred face.

After hearing nearly four weeks of evidence, the jury reached its unanimous guilty verdict. But Justice Simon Moore warned those in the courtroom not to name Kempson and said his identity would remain suppressed “until further order of the court”.

The warning, however, seemingly fell on deaf ears.

Kempson was soon named in the UK media and on social media in New Zealand, which led to police issuing another warning.

Controversial and well-known Auckland bar owner Leo Molloy became the first person to be charged by police with flouting the suppression order. He has since pleaded guilty.

Others were given personal warnings by police.

Kempson at this stage was now a convicted but legally nameless killer and waited for his sentencing. He would be given life imprisonment with a minimum non-parole period of 17 years in February by Justice Moore.

But his suppression continued – the reasons for it had not changed.

Before his sentencing, however, the lawyers and media received a minute from High Court Justice Timothy Brewer.

“Mr Kempson has two trials pending. I have been assigned as trial Judge,” it read.

The judge, who is known for being a no-nonsense straight-talker, then began to ponder: “I am considering whether the interests of justice would be best served if name suppression were lifted.”

Justice Brewer said his concern was the risk of potential jurors in the second and third trials connecting Kempson to the Millane case, the speculation about why his name was still suppressed, and the similarities between all three cases.

“The risk of Mr Kempson being linked to the Grace Millane case depends largely on how widely his name is known,” he said.

Brookie would file for a stay of the new charges – arguing an unrecoverable damage to his client’s fair trial rights arising from the numerous breaches of the suppression orders.

Justice Brewer said: “My current view is that the question of lifting name suppression is inextricably interwoven with the question of whether there should be stays. The two shall be determined in the same hearing.”

Brookie’s stay application was ultimately unsuccessful but Kempson’s two further trials, original scheduled for March, were postponed until October and November because of the rampant public conjecture and recency of the murder sentencing.

As most expected, Kempson then appealed his murder conviction and sentence – another twist to the suppression issue.

Today, two years and one week since Kempson first appeared in court, he was legally named for the first time.

The Court of Appeal had ruled his suppression would lapse at the same time it delivered its judgment last Friday, before ultimately a last ditch attempt to have the Supreme Court continue suppression was also dismissed.

Court of Appeal President Justice Kos said “it is time now for a dose of reality”.

“While the New Zealand media deserves great credit for its obedience to the suppression orders made in the High Court and this court, these orders have not been effective in overseas jurisdictions,” he said in the decision ordering suppression to lapse.

He said Kempson’s name has been widely published in association with the death of Millane and any internet search instantly identifies him.

“Regardless of his culpability for murder, Mr Kempson admits he killed Ms Millane and disposed of her body. There was no issue as to identity at this trial, and nor could there be,” he said.

“This all occurred more than two years ago. Mr Kempson has been convicted at all three trials and no longer enjoys the presumption of innocence. In the ordinary way, there is a genuine and proper public interest in his identity being disclosed.”

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