Auckland businessman Leo Molloy has lost an appeal to quash his conviction for breaching a court suppression order when he named Grace Millane’s murderer online.
But the Auckland mayoral candidate says he still maintains the moral high ground.
The owner of Viaduct bar HeadQuarters is the only person charged by New Zealand police after dozens of suppression breaches before and after the high-profile murder trial of Jesse Kempson in November 2019.
The killer’s suppression remained for several months after he was sentenced to life imprisonment for murdering the British backpacker because he faced two further trials for violent sexual offending against two other women.
However, as Kempson’s jury was deliberating on the murder charge, Molloy notified people in a forum on the NZ Premier Racing Community’s website who the killer was and why he had name suppression.
After being charged, Molloy pleaded guilty to knowingly or recklessly breaching Criminal Procedure Act suppression provisions and sought a discharge without conviction.
But Judge Peter Winter convicted Molloy, fined him $15,000 and ordered 350 hours of community work in April.
Earlier this month, Molloy asked the High Court at Auckland to overturn Judge Winter’s decision.
But in a decision released today, Justice Timothy Brewer dismissed the appeal.
“It hasn’t gone our way but that’s the view of the court and we respect that decision,” Molloy told the Herald.
“We shall get on with our lives and commence the punishment as described.”
However Molloy said he hoped the highly-publicised murder trial might lead to better protections for victims’ privacy. Much of Millane’s sexual interests were introduced as evidence during the trial and reported in the media.
“Grace Millane deserved the protection of the courts and the judicial system. I’m of the view that the perpetrator of the crime didn’t deserve any such protection,” the 65-year-old said.
“To me I have the moral high ground. That said, I accept I have transgressed and I will now get on with completing my sentence.”
Court documents earlier released to the Herald show Molloy started the online discussion in the forum called “Main Street Cafe” – with some 2483 members at the time – on November 22, 2019.
At 4.54am, under the username “poundforpound”, he posted: “This is the Grace Mullane [sic] murderer.
“He got name suppression because he’s also up on another independent rape charge … he needs a bullet.
“… I put it here because this forum has the traffic and people need to know about this dog.”
Later in the evening Kempson was found guilty of murdering Millane and at 8.58pm Molloy made another post naming the now convicted murderer, court documents show.
“Jesse Kempson was an employee of my sisters at her restaurant bar, Oyster & Chop, and he flatted with my niece for a short period before he was asked to leave due to his inappropriate behaviour,” Molloy said.
“Just saying, and that is a fact.”
When spoken to by police, Molloy said: “Why should he be protected when this poor little girl wasn’t, and her family wasn’t.”
In his judgment, Justice Brewer accepted the website “was a specialist one” and Molloy would not have expected his posts to be viewed by the wider public.
“However, information posted on social media can be shared widely and easily be even a single reader who decides to do so. There is no allegation that this occurred, but the risk was there,” Justice Brewer said.
There were several breaches of Kempson’s name suppression on social media, in the British press and in a mass email by Google after his arrest and first court appearance during December 2018.
The blatant breaches led to police warning and caught the ire of then Justice Minister Andrew Little, the Bar Association, and led Prime Minister Jacinda Ardern to comment when asked about the effectiveness of suppression laws in the internet age.
Justice Brewer acknowledged Mollloy’s motive was not to prevent Kempson from receiving a fair trial, but, as evidenced by his affidavit, wanted to stop the killer “being protected by the law”.
Molloy, a qualified veterinarian, and his lawyer David Jones, QC, had raised concerns that a conviction may prevent him from travelling overseas.
But Justice Brewer did not consider there was a real risk Molloy’s conviction would impeded any travels to Australia and United States for his veterinary interests, nor a high likelihood the bar owner would lose his general manager’s licence.
The High Court judge also considered a sentence of community work was appropriate for Molloy’s offending.
“His offending went directly to harming the community by undermining the system of justice which underpins our society,” Justice Brewer said.
“I do not accept the submission that Mr Molloy’s involvement in the community and his charitable pursuits mean that a sentence of community work is inappropriate. Mr Molloy’s good character is primarily the reason why the sentence has been commuted from imprisonment. The sentence of community work responds directly to his offending and has nothing to do with Mr Molloy’s other community-spirited activities.”
Justice Brewer added 350 hours community work was within the available range for Judge Winter.
“The step-down from imprisonment required the non-custodial sentence to be a significant one.”
Kempson was found guilty of all nine charges he faced at his two other trials but is appealing. The sentences for all his crimes will be served concurrently, which includes a non-parole period of 17 years.
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