Bouwer v Allied Press Ltd

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/01

BETWEEN	COLIN DAVID BOUWER
Appellant

AND	ALLIED PRESS LIMITED
Respondent

Hearing:	12 April 2001
Coram:	Thomas J Blanchard J McGrath J
Appearances:	B Cash for the Appellant J E Sutton for the Respondent
Judgment:	12 April 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The appellant, Dr Bouwer, is a psychiatrist formerly employed by Health Care Otago Limited in Dunedin. He is currently in custody in Dunedin having been charged with the murder of his wife. Allegedly, the method which he adopted was poisoning.
Dr Bouwer has denied the charge and a deposition hearing commenced on 9 April. It is anticipated that the hearing will continue for some weeks yet.
The respondent is the proprietor of the Otago Daily Times. The newspaper learned that Dr Bouwer has an adopted son, one Colin Bouwer, who lives in South Africa. He has also been charged with the murder of his wife. The method adopted is alleged to be strangulation. The Otago Daily Times wishes to publish this information.
The editor of the Otago Daily Times wrote to Dr Bouwer’s counsel advising that it had come to the newspaper’s knowledge that Dr Bouwer’s son was to go on trial in the Johannesburg High Court on 23 April. The letter continues:
Details of the South African charge faced by Mr Bouwer, and of the coincidence of a similar charge against his father in New Zealand, have already been published in South Africa. It will be only a matter of time before similar reports surface in the media in New Zealand, and I intend to publish an article along those lines.   The article would be confined to facts and would not include speculation.
The Otago Daily Times sees itself as a responsible newspaper, and I am therefore giving notice to you and your client that publication of this information is imminent.   We have no wish to prejudice your client and are prepared to stay publication until Saturday to provide time for you to consider the move.   Any statement you might choose to make would, of course be considered for publication.
There is considerable interest in the case involving your client, and I know of speculation in the community about serious criminal charges faced by another Bouwer family member.   I believe it is in the public interest for the facts of the charge against Mr Bouwer to circulate, rather than ill-informed rumour, and I suggest that such honest publication of public facts is a legitimate exercise of the right of free speech.
Counsel for Dr Bouwer at once sought an injunction to restrain the publication of any allegations relating to the murder charge being faced by Dr Bouwer’s adopted son in South Africa.
The application for an injunction came before Chisholm J in the High Court at Christchurch on 11 April. The learned Judge declined to grant the injunction but, in order to allow Dr Bouwer the opportunity of considering an appeal to this Court, granted a temporary injunction until 5p.m. today, 12 April. An appeal was quickly lodged and the matter was heard in this Court at 10 a.m. this morning.
Chisholm J referred to the test set out in Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1, at 3. That decision confirmed the Court’s jurisdiction to prevent the publication of material where criminal proceedings are pending and there is a real likelihood that a publication of the material will seriously prejudice the fairness of the trial. The Judge also referred to the principle in Gisborne Herald Co Limited v Solicitor-General [1995] 3 NZLR 564, 575. That decision clarified that where the right to freedom of expression and the right to a fair trial cannot both be accommodated, freedom of expression should be temporarily curtailed. In considering whether freedom of expression may affect the right to a fair trial, three factors need to be considered; namely, the impact of any intrusion, that is, the prejudice caused; the proportionality of the intrusion to any benefits achieved under the free expression value; and any measures reasonably available to prevent or minimise the risk occasioned by the intrusion.
In applying this test on refusing the injunction Chisholm J summarised the factors which influenced him in reaching that decision. He set them out as follows:
(a)Based on the letter from the editor of the Otago Daily Times the report would be of a purely factual nature.
(b)Any connection between Dr Bouwer and his son and the similarity of the charges faced by them is completely outweighed by the fact that the trials are in different countries, involve different accused persons and different victims. I find it difficult to conceive that a properly directed jury would draw any connection at all. It is also possible, given the offer of the editor, for Dr Bouwer to provide any information that he may wish to be published for the purpose of distancing himself from his son.
(c)The injunction would not only cover the information that the Otago Daily Times seeks to publish on Saturday but would also attempt to prevent publication in this country of any reports about the South African trial as it progressed. The chances of successfully achieving that must be relatively remote.
(d)There is something to be said for the view that it is better to allow an accurate publication at this stage rather than to run the risk of granting an injunction which might allow speculation to run rife.
(e)Overall it seems to me that there would be no real risk of an unfair trial given the opportunity for an appropriate direction to disregard any information relating to the South African trial if such a direction seems to be necessary when the trial is heard later this year.
In this Court, Mr Cash, who appeared for Dr Bouwer and presented a well-constructed argument, did not contend that Chisholm J applied the incorrect test. Rather, he argued that the Judge failed to properly balance the two competing rights of freedom of expression and the right to a fair trial.
We do not agree. In applying the test in Television New Zealand Ltd v Solicitor-General the Court recognised that prior restraint on publishing material which may constitute contempt is usually more intrusive on freedom of speech than the subsequent punishment of offending publications. That is because the Court is almost invariably unaware of the precise content of what the media wishes to publish. The injunction may cover material which in hindsight was legitimate. There is accordingly a high threshold.
In our view, the prejudice to Dr Bouwer by virtue of the publication of the charge against his son in South Africa is not sufficiently serious to warrant prior restraint. The fact that the son is at the same time facing a charge of murder of his wife is a remarkable coincidence. As such, it is a matter of interest to the public. But the prejudice that results from the knowledge that would be acquired as a result of the publication is, at the most, through supposed guilt by association rather than the prejudice which can arise from evidence of similar fact or propensity relating to the past conduct of the accused.
Moreover, we are satisfied that any prejudice to Mr Bouwer can be readily met by an appropriate direction from the trial Judge. The perspicacity and conscientiousness of juries is not to be under-estimated.
We also doubt that this Court could make an injunction which would be wholly effective. It appears that the fact Dr Bouwer’s adopted son is being charged with the murder of his wife in South Africa is already on the Internet. Publication in that medium could well render any injunction largely nugatory.
We are also conscious that, as a matter of reality, it would be impossible to avoid rumours circulating in Dunedin, and possibly beyond, which could contain an element of unnecessary speculation and, ultimately, inaccurate material. Such speculation and rumours would be likely to be more damaging to Dr Bouwer than the publication of the correct facts.
We would clarify that, although we are dismissing the appeal and declining to make an injunction, we are doing so on the basis that we do not consider the prior restraint of the publication to be justified. Our decision does not exonerate the respondent or any other publisher from accepting responsibility for any publication that might go beyond the bounds of what is permissible and constitute contempt.
The appeal is dismissed. The order made in the High Court prohibiting publication of the decision of that Court until completion of Dr Bouwer’s trial is set aside.

Solicitors

Bell Gully, Wellington, for Appellant
Rudd Watts & Stone, Wellington, for Respondent

[2001] NZCA 131

12 April 2001