Exley v NZME Publishing Limited - [2025] NZSC 90

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE DLM3360350.HTML

NOTE: INTERIM ORDER SUPPRESSING THE NAME OF W (APPELLANT IN SC 60/2023) AND ANY IDENTIFYING PARTICULARS MADE ON 9 JUNE 2023 IS TO CONTINUE UNTIL FURTHER ORDER.
SEE [2023] NZSC 164.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 76/2023
[2025] NZSC 90

BETWEEN	DAMON JOHN EXLEY Appellant
AND	NZME PUBLISHING LIMITED First Respondent
AND	THE KING Second Respondent

Hearing:	6–7 August 2024
Court:	Winkelmann CJ, Glazebrook, Williams, Kós and Miller JJ
Counsel:	L C Ord and E T Blincoe for Appellant K M Wilson and A L Alford for First Respondent M J Lillico and W J Harvey for Respondent in SC 60/2023 and SC 77/2023 and Second Respondent in SC 76/2023 C W J Stevenson KC, E A Hall and O H Fredrickson for Appellant in SC 60/2023 Q Duff, S L McColgan and G T R Duff for Appellant in SC 77/2023 E D Nilsson for Stuff Limited as Intervener in SC 60/2023 and SC 77/2023
Judgment:	30 July 2025

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe Court of Appeal was not correct to quash the High Court takedown order insofar as it related to the specific URLs identified in the takedown application.

____________________________________________________________________

REASONS
(Given by Glazebrook J)

Table of Contents

Para No
Introduction	[1]
Background	[9]
The legislation	[15]
Other developments	[22]
High Court decision	[25]
Court of Appeal decision	[29]
Issues	[36]
*Should the Courts below have used the test in Singh?*	[37]
Submissions	[38]
Our assessment	[41]
Relevance of compliance issues	[45]
Submissions	[46]
Our assessment	[54]
What reliance should be placed on juror studies?	[57]
Submissions	[58]
Our assessment	[61]
Effect of directions and juror oath	[63]
Submissions	[64]
Our assessment	[73]
What is the proper test?	[78]
Submissions	[79]
Our assessment	[87]
Role of the Crown	[94]
Should a takedown order have been made in Mr Exley’s case?	[97]
Submissions	[97]
Our assessment	[101]
Summary of decision	[103]
Result	[114]

Introduction

The appellant, Mr Exley, was facing trial on three charges, namely, sexual violation by rape, assault with a weapon and abduction for the purpose of sexual connection (the relevant offending). He applied for a takedown order under ss 199B and 199C of the Criminal Procedure Act 2011 (CPA) seeking removal of online articles relating to his previous convictions and general character. Mr Exley also sought an order for continued name suppression pending resolution of his trial.[1]
[1]Name suppression was initially granted to Mr Exley by the District Court and was continued on 12 May 2022: New Zealand Police v Exley DC Masterton CRI-2022-035-121, 12 May 2022 (Minute of Judge Morris) at [5]. We note that both the High Court and the Court of Appeal referred to the starting point for consideration of a name suppression application being the presumption of open justice: R v E

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: [2025] NZSC 90
Decision Date: 30 July 2025

CaseChat Overview and Summary

The Supreme Court of New Zealand has allowed the appeal of Mr Exley against the Court of Appeal's decision to quash the High Court's takedown order. The appeal was allowed because the Court of Appeal was incorrect to overturn the High Court's decision to the extent it related to the specific URLs identified in the takedown application. The Supreme Court found that the Court of Appeal's approach to the test for a takedown order was incorrect, as it involved a balancing exercise between the right to a fair trial and freedom of expression, which was not required. The right to a fair trial is absolute, and if there is a real risk of prejudice to a fair trial, this suffices to justify a takedown order. The terms of any takedown order, including its duration, must be only those necessary to protect the right to a fair trial. The Supreme Court found that the material in question was highly prejudicial and easily accessible, and that there was a real risk to Mr Exley's fair trial rights if a juror accessed it. The Supreme Court's decision has no effect on Mr Exley's convictions, as the takedown order remained in place insofar as it related to the particular URLs identified in the takedown application. The Supreme Court's decision also clarifies the appropriate test for determining whether a takedown order should be made under ss 199B and 199C of the Criminal Procedure Act. The test involves evaluating whether a takedown order is necessary to ensure a fair trial, taking into account the nature of the material, the extent and accessibility of the material, and the circumstances of the trial. The most significant factor to be taken into account is the nature and extent of the risk to a fair trial should the material be accessed by a member of the jury. If a takedown order is necessary to ensure a fair trial, such an order must be no greater in scope or duration than is necessary to ensure a fair trial.

Orders