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Beacon Media Group Ltd v Waititi

Beacon Media Group Ltd v Waititi

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2013-463-000106 [2014] NZHC 281

BETWEEN
BEACON MEDIA GROUP LIMITED

Appellant

AND

EDWARD TAIKA WAITITI Respondent

Hearing:
5 February 2014

(Heard at Tauranga)

Appearances:

R K P Stewart for the Appellant
C M Andersen for the Respondent

Judgment:

26 February 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 26 February 2014 at 10am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BEACON MEDIA GROUP LIMITED v WAITITI [2014] NZHC 281 [26 February 2014]

Introduction

[1] On 21 November 2013 Judge L M Bidois sentenced Edward Taika Waititi in the Whakatane District Court to a term of 40 months’ imprisonment following his guilty pleas to six charges including cultivation and supply of cannabis. The Judge declined Mr Waititi’s application for name suppression but made an order prohibiting the publication in connection with the sentencing of the name, address, occupation, relationship and any other identifying features of any of Mr Waititi’s relatives. Beacon Media Group Limited, which publishes the newspaper, the Whakatane Beacon, appeals against this suppression order.

Statutory Context

[2] The Judge made the suppression order pursuant to s 202 of the Criminal

Procedure Act 2011 which relevantly provides:

202Court may suppress identity of witnesses, victims, and associated persons

(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—

(a) is called as a witness; or

(b) is a victim of the offence; or

(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause undue hardship to the witness, victim, or connected person; or

(b) create a real risk of prejudice to a fair trial; or

(c) endanger the safety of any person; or

(d) lead to the identification of another person whose name is suppressed by order or by law; or

(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(f) prejudice the security or defence of New Zealand.

[3] Subsection (1) applies whether or not the court has made an order under s 200 suppressing the identity of the defendant.

[4] An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which can only be prohibited by an order made under s 200) or the nature of the charge.

[5] Unlike s 140 (1) of the Criminal Justice Act 1985, which conferred an unfettered discretion on the Court to make suppression orders in respect of anyone connected with the proceeding, s 202 of the new Act restricts the Court’s power to make such an order to those cases where at least…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 281
Decision Date: 26 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Beacon Media Group Limited, publisher of the Whakatane Beacon, appealed against a suppression order made by Judge L M Bidois in the Whakatane District Court. The suppression order prohibited the publication of the name, address, occupation, relationship, and any other identifying features of Edward Taika Waititi's relatives in connection with his conviction and sentencing. Beacon argued that the threshold test for making a suppression order under section 202(2)(a) of the Criminal Procedure Act 2011 was not satisfied, as it was not likely that publication would cause undue hardship to Waititi's relatives. The court assessed the meaning of "likely" and "undue hardship" in the context of section 202 and found that the term "likely" meant a real risk that cannot be readily discounted. The term "undue hardship" was defined as hardship that is disproportionate to the purpose justifying publication. In this case, the court found that the suppression order should only apply to one relative, referred to as X, who would suffer undue hardship due to the potential damage to their career and reputation as a result of publication. The appeal was allowed, and the suppression order was replaced with an order forbidding publication of the name, address, or occupation of X in connection with Waititi's conviction or sentencing.
The final orders of the court were to set aside the original suppression order made by Judge Bidois and replace it with an order pursuant to section 202(1)(c) of the Criminal Procedure Act 2011, forbidding publication of the name, address, or occupation of X in connection with the conviction or sentencing of Edward Taika Waititi.

Orders