Kahia v New Zealand Police

[2018] NZHC 2684

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2013-069-001200 [2018] NZHC 2684

BETWEEN

HENDRIX JOHN KAHIA

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	(On the papers)
Counsel:	Elizabeth Hall for the Applicant Sean Casey for the Respondent Tania Goatley for the Respondent Media
Judgment:	17 October 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 17 October 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

KAHIA v NEW ZEALAND POLICE [2018] NZHC 2684 [17 October 2018]

Introduction

[1]      On 11 May 2018 I declined to make orders suppressing and removing all previous online reporting of various matters including Mr Kahia’s arrest, first trial, conviction, and sentencing.1   Various members of the media2 were represented at the hearing. Having successfully opposed the application for take-down orders, they now seek costs.

[2]      This judgment resolves deals with that application.

Background

[3]      Mr Kahia was convicted of murder in December 2014.   He successfully appealed his conviction on the basis fresh evidence gave rise to a miscarriage of justice.3  A retrial was ordered.

[4]      In advance of the retrial Mr Kahia’s counsel, Ms Hall, applied for take-down orders removing all online coverage of the first trial and Mr Kahia’s subsequent conviction and sentencing.   She argued that despite any judicial direction warning jurors not to search online for material concerning Mr Kahia, there would remain a real risk to Mr Kahia’s fair trial rights because the possibility of disobedience was not remote, and aspects of the earlier reporting would prejudice jurors against Mr Kahia.

[5]      I disagreed, finding that an appropriately tailored direction would operate to sufficiently mitigate the risk of a disobedient juror undertaking their own internet inquiries.4  I also found that even if a disobedient juror undertook a Google search and found the online material which was put before me, there was no risk of prejudice to

Mr Kahia’s fair trial rights arising from the content or nature of the material.5

1      Kahia v Police [2018] NZHC 1023.

2      Stuff Ltd, NZME Publishing Ltd, Television New Zealand Ltd and Radio New Zealand Ltd, herein

“the Media”.

3      Kahia v R [2016] NZCA 601.

4      Kahia v Police, above n 1, at [36].

5      At [37]-[48].

The Media’s costs application

[6]      Ms Goatley, joint counsel for the Media, has filed a memorandum seeking indemnity costs of $7,455.92 arising from the Media’s successful opposition to the application for take-down orders.

[7]      The Crown has taken a neutral stance on the costs application, though Mr

Macklin does note Mr Kahia is legally aided.

[8]      Ms Hall, Mr Kahia’s counsel, has not filed submissions. However, in an email sent to Registry she has advised the application is opposed, noting Mr Kahia is legally aided and that the retrial is yet to commence.

[9]      While Mr Kahia is criminally legally aided, it appears he did not obtain civil legal aid for the take-down order application, which Ms Goatley submits falls within the court’s civil jurisdiction.

Analysis

[10]     It is possible to deal with this application relatively briefly.  In a judgment I issued recently, R v Tarapata, I addressed an identical issue.6    In determining that application for costs I had the benefit of more comprehensive submissions from Ms Goatley for the Media and defence counsel.  I found:

(a)      The Court of Appeal’s decision in Lyttelton v R is binding on this court on the question of whether take-down orders are made in the civil or criminal jurisdiction.7     Take-down orders are made in the civil jurisdiction.

(b)It is in the public interest for defendants to be able to bring reasonable applications for take-down orders in order to guard against a perceived risk to their fair trial rights without the prospect of a costs award being

made against them in the event of failure.8   Accordingly, unless it can

6      R v Tarapata [2018] NZHC 2680.

7      Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21.

8 At [34].

be shown the application is unreasonable, the Media is unlikely to be successful in seeking costs.

[11]     While Mr Kahia was unsuccessful in his application for take-down orders, it was not an unreasonable application. As in R v Tarapata, I consider an order for costs in this context would have an unjustifiable chilling effect on defendants seeking to protect their fair trial rights.

[12]     I have thus arrived at the conclusion, as I did in R v Tarapata, that costs should lie where they fall. That is not a reflection of the way the Media conducted themselves throughout the proceeding.   Their behaviour and approach to the application was entirely responsible.  Rather, it reflects my firm view that this is a context where fair trial considerations must trump the principle of open justice.

Result

[13]     Costs shall lie where they fall.

Moore J

Solicitors/Counsel: Ms Hall, Wellington Crown Solicitor, Rotorua Bell Gully, Auckland