Cao v Stuff Limited

[2023] NZHC 3703

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-196

[2023] NZHC 3703

BETWEEN

DONG (ANNIE) CAO

First Plaintiff

AND

PAUL OULTON

Second Plaintiff

AND

STUFF LIMITED

First Defendant

AND

GARY JAMES FARROW

Second Defendant

Hearing:	11 December 2023
Counsel:	No appearance for parties
Judgment:	14 December 2023

JUDGMENT OF JOHNSTONE J

(Juror fine – Contempt of Court Act 2019)

This judgment was delivered by me on 14 December 2023 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

CAO v FARROW [2023] NZHC 3703 [14 December 2023]

[1]        In this case, Dong Cao and Paul Oulton claimed that Stuff Limited and Gary Farrow defamed them. The trial commenced on 30 October 2023, and concluded on 10 November 2023 when I reserved my judgment. I will deliver my judgment in the new year. In the meantime, another issue has required attention.

[2]        During most of the trial, I sat with a jury. But on 6 November 2023, I discharged one of the jurors. I did so because I had received information indicating that he had undertaken research into Stuff’s code of ethics, and might be liable to a fine under the Contempt of Court Act 2019.1

[3]        Shortly before discharging the juror, I explained to him why I was doing so. Later, I arranged for him to be served with a notice further explaining my concern, providing him with an opportunity to take legal advice, and requiring his attendance before me, so that I might receive from him any evidence or statement he considers relevant.

[4]        The juror appeared in Court before me on 11 December 2023. I heard his account, and details of his personal circumstances. I also heard from him on the question of suppression of his identity.

[5]At the conclusion of the hearing on 11 December 2023, I advised that:

(a)I was satisfied the juror had, during the trial period, intentionally researched information relevant to the trial.

(b)I would impose a fine of $250.

(c)I would suppression publication of the juror’s identity, except in respect

of his role as a juror in this trial.

(d)My reasons would follow.

[6]My reasons are set out below.

1      Contempt of Court Act 2019, s 13(1). Section 13(4).

Background

The trial

[7]        Ms Cao and Mr Oulton brought their claim as the promoters of a festival run annually at their home on the outskirts of Hamilton, under the banner of the Waikato Cherry Tree Festival. They alleged that a series of online and print articles published on the Stuff website and in the Waikato Times newspaper, and a podcast created and broadcast by Mr Farrow, were defamatory. They sought a declaration that Stuff and Mr Farrow were liable to them in defamation.

The juror’s discharge

[8]        At around 10 am on 6 November 2023, the jury foreperson sent the Court the following communication:

The jury would like the defendants to state the code of ethics that they work to, and whether they followed it in the reporting on the Cherry Tree Festival.

[9]        Separately, the foreperson indicated to a jury attendant that a jury member had prompted the communication by raising the issue upon arrival at Court that day.

[10]      I discussed the matter with the foreperson, in chambers with the parties and media present, at around 1 pm on 6 November 2023. No other jury members were present. The foreperson indicated that the juror had told several jury members in the jury room that morning that he had researched the Stuff code of ethics and felt it may have breached that code in its reporting on the festival. I discharged the juror soon after recommencing following the luncheon adjournment.

The ramifications for the trial

[11]      At that point, I had just dealt with an application by Stuff to discharge the entire jury. Stuff’s argument was that because the juror had raised the issue and indicated his preliminary view, its position had been prejudiced such that it could not receive a fair trial.

[12]      I declined that application, but only because I took the view that the issue of whether Stuff met or did not meet its self-imposed standards was not a matter for the jury to decide. That came about because of the way the case had been pleaded.

[13]      First, Ms Cao and Mr Oulton were not seeking damages. They were seeking a declaration that Stuff and Mr Farrow were liable to them in defamation.

[14]      And second, Stuff having admitted the publications, it denied they were defamatory, and it pleaded the affirmative defence of responsible publication on a matter of public interest outlined in Durie v Gardiner.2

[15]      Given these pleadings, I found it appropriate to seek special verdicts from the jury in the form of “yes/no” answers to sets of questions designed to determine three factual elements in respect of each allegedly defamatory statement:

(a)Was the meaning of the relevant publication as alleged by Ms Cao and Mr Oulton?

(b)If so, was that meaning defamatory of Ms Cao and Mr Oulton?

(c)And if so, had Stuff Limited and Mr Farrow proved that the harm caused by the defamatory statement was no more than minor?

[16]      If the jury were to answer any of those sets of questions affirmatively, it would then be for me to determine whether Stuff and Mr Farrow could rely on the defence of responsible publication. That would be the point at which the question of whether Stuff had behaved consistently with a particular standard would become relevant.

[17]      Having resolved to proceed with the trial, I informed the jury that I would not be answering their question about Stuff’s code. And I directed them to put the issue completely to one side, as it was not relevant to the questions I would be asking them to answer by giving their verdicts.

2      Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131.

Introduction of the Stuff code of ethics as an exhibit

[18]      As matters transpired, the jury answered in Ms Cao and Mr Oulton’s favour only one of the many sets of questions they were asked. The jury were then discharged, and I proceeded to hear evidence and legal argument on whether the responsible publication defence had been made out in respect of the one defamatory statement that caused more than minor harm. During that phase of the hearing, I heard Ms Cao and Mr Oulton’s legal argument that the defence does not operate where all that is sought is a declaration as to defamation. I also received the Stuff code of ethics as an exhibit, it being produced on the basis it will be relevant should I decide the legal point as to declaration against Ms Cao and Mr Oulton.

[19]      So, in summary, the Stuff code of ethics was not relevant to any issue for the jury. Following the juror’s research and his discharge, the remaining jury members were directed to put any question it raised to one side. But it was produced into evidence as an exhibit for my consideration.

Section 13 of the Contempt of Court Act 2019

[20]Section 13 of the Contempt of Court Act 2019 provides as follows:

13       Jury members who investigate or research case are liable to fine

(1)This section applies if a person who is a member of a jury constituted for a trial,—

(a)during the trial period, intentionally investigates or researches information relevant to the trial; and

(b)does so when the person knew or ought reasonably to have known it is or may be information relevant to the trial.

(2)This section does not apply if the person undertakes the investigation or research with the permission, or at the direction, of the trial Judge.

(3)If this section applies, the Judge—

(a)must explain or provide a written statement to the person that specifies the behaviour that the Judge believes may constitute a breach of subsection (1) and cause the person to be liable for a fine; and

(b)must give the person a reasonable opportunity to obtain legal advice; and

(c)may receive from any person any evidence or statement that the Judge considers relevant; and

(d)must make a finding under subsection (4).

(4)On finding beyond reasonable doubt that the person is guilty of the conduct described in subsection (1), the Judge—

(a)must not convict the person; but

(b)may impose on the person a fine not exceeding $5,000.

(5)Subpart 5 of Part 6 of the Criminal Procedure Act 2011 (appeals against finding of or sentence for contempt of court) applies to any finding of guilt and to any fine under subsection (4).

(6)In this section,—

information relevant to the trial means information about any of the following:

(a)the defendant:

(b)any other person involved in the events which are the subject of the trial:

(c)any person involved in the trial, including a witness:

(d)the events that are the subject of the trial:

(e)the law relating to the trial:

(f)the law of evidence

investigate or research includes—

(a)ask a question or have a discussion (by any means) with a person who is not a jury member or the trial Judge:

(b)search any information source, including the Internet:

(c)visit or inspect a place or an object:

(d)conduct an experiment:

(e)ask another person to perform any of the actions listed above

trial period means the period that—

(a)begins when a jury has been constituted under section 19 of the Juries Act 1981; and

(b)ends when the jury is discharged or, in the case of an individual jury member who is discharged during the trial, the member is discharged.

[21]In light of s 13, I was required to determine:

(a)whether the juror is beyond reasonable doubt guilty of having, during the trial period, intentionally investigated or researched information relevant to the trial, when knowing or having ought reasonably to have known it was or might have been information relevant to the trial; and

(b)if so, whether to impose upon him a fine, which under the Contempt of Court Act must not exceed $5,000.

The juror during the trial intentionally researched information relevant to the trial

Information relevant to trial

[22]      Stuff publishes its “Editorial Code of Practice and Ethics” on its website. It commences by observing that “Stuff editors and journalists must uphold the highest professional standards”. It goes on to describe at some length the professional standards that it requires be met.

[23]      The Stuff code of ethics is clearly information “about” Stuff. It is therefore “relevant to the trial”, by operation of s 13(6).

Intentional research during the trial

[24]      When the juror appeared in Court on 11 December 2023, I invited him to tell me whether he had undertaken research on the Stuff code of ethics during the weekend before the second Monday of the trial. But I made it clear I did not require him to do so.

[25]      The juror chose to confirm that he did research the code as described. And he added his explanation. He said that when counsel for the defendants put to Mr Oulton in cross-examination that one of the publications was “balanced, fair and accurate”, it jogged his memory of pre-existing knowledge of those matters being relevant to questions of journalistic responsibility. He said he thought more about the issue during the weekend break in the trial, and became unsettled about how to handle the fact of

his pre-existing knowledge alongside his role as a juror. He resolved to raise the issue with the jury, and potentially with me as the trial Judge. But he decided quickly to check on his memory of what was required via an internet search.

[26]      This account is consistent with the jury foreperson’s question about potential breach of the code, and her message to me that the juror appeared to have undertaken research on a matter relevant to the trial.

[27]      The juror further said that when on Monday, 6 November 2023 he raised his memory of journalistic standards with other jury members, he mentioned his research in passing. The juror commented that this confirms he did not, in the moment, consider his conduct to be problematic. If he had done so, he would have kept his research to himself.

[28]      The juror said that it was only when I spoke with him shortly after lunch on   6 November 2023, for the purpose of discharging him, that he realised his mistake, which he accepts. He said he was initially gob-smacked at his discharge, but is now bitterly disappointed in himself.

[29]      On this basis, I found beyond reasonable doubt that during the trial the juror intentionally researched information relevant to the trial.

Imposition of a fine

[30]      On 30 October 2023, once the jury was empanelled, and as is standard practice, I offered various preliminary remarks. These remarks included a specific direction to jury members not to make inquiries of their own, including by going on to the internet. I then warned them as follows:

If you do disobey this direction, the likely consequence will be that the trial will have to be aborted, because the trial has become unfair. Participants would be sent away, and the trial would likely have to start over again. There would be a waste of time and cost, and I need to mention this, I hope you will forgive me for doing so, intentionally carrying out your own inquiries might expose you to a significant fine under the Contempt of Court Act.

[31]      I accept that the juror did not have this warning specifically in mind when undertaking his research. But in its full context, his conduct was thoughtless, as he now recognises.

[32]      It put substantial public and private resources in jeopardy. It ran the risk of justice being defeated through the parties being unable financially to sustain the cost of a retrial, had that been necessary. If intentional research is undertaken contrary to such a warning, the Court should in my view seek further to deter research by imposing a fine of some sort.

[33]      That said, in the circumstances of this defamation case, where the nature of the information researched did not impact on any issue for jury consideration, the trial did not require to be aborted, and the juror accepted and expressed regret at his error, I assess the seriousness of the conduct in issue as falling towards the lower end of the scale.

[34]      The juror advised me he is retired, and that the financial burden of a fine would fall upon himself and his wife. But he did not suggest he could not pay a modest fine.

[35]I resolved that imposing a $250 fine amounted to the correct response.

Name suppression

[36]      Members of the media were present in Court when the juror appeared to offer his explanation on 11 December 2023. There is, I accept, a clear public interest in whether the Court will respond to apparent breaches of jury members’ responsibilities not to undertake their own investigations. The desirability of open justice in civil proceedings like this is such that departure should be permitted only where necessary to serve the interests of justice.3

[37]      During the hearing, the juror advised that in light of his disappointment at himself, and his embarrassment, he had not told members of his family other than his

3      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].

wife, nor anyone else, of the circumstances he had found himself in. Nor did he intend to do so.

[38]      I consider that the matters of clear public interest at stake in respect of the juror’s discharge and fine can be fully reported without publication of the juror’s name. In light of the juror’s responsible approach to appearing in response to his error, I consider that it would not serve the interests of justice that he might be named in any report of this matter.

[39]I made an order for suppression accordingly.

Johnstone J