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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA206/2015 [2015] NZCA 279
BETWEEN
MARTIN VICTOR LYTTELTON
Appellant
AND
THE QUEEN Respondent
Hearing:
11 June 2015
Court:
Stevens, French and Cooper JJ
Counsel:
Appellant in Person M D Downs for Respondent J B Orpin as Counsel assisting the Court R K P Stewart for Media Applicants
Judgment:
30 June 2015 at 11.30 am
JUDGMENT OF THE COURT
AThere is a declaration that this Court has jurisdiction to hear this appeal under s 66 of the Judicature Act 1908.
BThe substantive appeal is dismissed subject to the undertakings of the media applicants set out at [61] of the judgment.
CThere is an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial.
Publication in law report or law digest permitted. Leave to apply.
LYTTELTON V R CA206/2015 [2015] NZCA 279 [30 June 2015]
D There is no order as to costs.
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
To take down or not to take down? [1] Background [6] The offending [7]
Court of Appeal decision [8] The take down order [9] Revocation of the order [10]
Is there jurisdiction? [13] Submissions [16] Our analysis [24]
Substantive appeal [54] The competing arguments [54] Need for undertakings [59] Our evaluation [63]
Result [69]
To take down or not to take down?
[1] This appeal concerns the balancing of important interests including open justice, fair trial rights and freedom of speech. The specific context is a retrial of a criminal proceeding some years after the original trial. At issue is whether this Court has appellate jurisdiction in respect of a High Court Judge’s exercise of the inherent power to order media entities to take down historic articles about the case from searchable online platforms (the take down order).1 The appeal is brought by the defendant, Mr Lyttelton, following the subsequent revocation of the take down order.
If jurisdiction exists, we are asked to decide the appeal.
1 The articles had been published in the ordinary course at the conclusion of the original trial, given (as was normal) no publication restrictions were imposed. Online versions of the articles (prior to the take down order) were available on the websites of the relevant media interests, at various uniform resource locators (URLs). The media entities involved are Fairfax New Zealand Ltd (which owns stuff.co.nz), NZME Publishing Ltd (which owns nzherald.co.nz) and Mediaworks TV Ltd (which owns TV3.co.nz).
[2] We must first decide the availability of an appeal under s 66 of the Judicature Act 1908 in the somewhat…
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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AGLC
Lyttelton v R [2015] NZCA 279
Case
[2015] NZCA 279
Decision Date
CaseChat Overview and Summary
The appeal is brought by Mr Lyttelton against the revocation of the take down order. The take down order was a direction from the High Court that certain articles about Mr Lyttelton’s original trial be removed from online platforms. The media applicants complied with the order and removed the articles. However, they later sought to have the order revoked. Justice Lang revoked the order, and Mr Lyttelton appeals the revocation. This Court must first decide whether it has jurisdiction to hear the appeal. If jurisdiction exists, the appeal will be decided. The take down order and its revocation were made in the exercise of the inherent power of the High Court. The inherent power of the High Court to make such orders was not challenged in this case. The take down order and its revocation were made without reference to any statutory powers whatsoever. There is no statutory appeal pathway pursuant to which Mr Lyttelton could appeal against Lang J’s decision to make or revoke the take down order under the Crimes Act 1961. Nor does the Criminal Procedure Act 2011 (CPA) apply to the proceeding. Section 66 of the Judicature Act provides this Court with jurisdiction to “hear and determine appeals from any judgment, decree, or order … of the High Court”. This provision applies only to the exercise of the civil jurisdiction of the High Court. The availability of s 66 as a source of appellate jurisdiction therefore turns on whether an application to make and/or rescind a take down order in the context of a criminal proceeding may properly be characterised as a civil proceeding. It is common ground the take down order and its subsequent revocation were made in the exercise of the inherent powers of the High Court to make non-statutory suppression orders. Counsel also agree, and we accept, the take down orders could not have been made under any statutory provision. The fact an inherent power was used limits the available basis for appellate review. It is not disputed that for non-statutory suppression orders made by the High Court, there is no statutory appeal pathway. There is no general right of appeal under s 379A of the Crimes Act, which prescribes the orders on which appeals may be brought before trial and retrial. Nor does the Crimes Act provide a specific right of appeal against non-statutory suppression orders of the kind in question. The legislation governing the proceeding and any suppression issues related to it, the Criminal Justice Act 1985, could not support the take down order made by Lang J. Section 138, for example, provides the power to clear the court or forbid any publication or account of the evidence adduced or submissions made – suppression under that section would not extend to publication of the substance of judgments or rulings: Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [44]–[46] and [139]–[143]. Section 379A(1)(ba) applies to ss 138 and 140 of the Criminal Justice Act, which is not capable of supporting the take down order made in this case. Section 282 of the CPA defines a suppression order as “an order made under section 200, 202, or 205”. Any right of appeal applies only to the statutory suppression orders, enabled under the Act itself. In neither statute is there an ability to appeal against the take down order. Section 66 of the Judicature Act provides this Court with jurisdiction to “hear and determine appeals from any judgment, decree, or order … of the High Court”. This provision applies only to the exercise of the civil jurisdiction of the High Court. Section 2 of the Judicature Act defines “civil proceedings” broadly as “any proceedings in the [High] Court, other than criminal proceedings”. The availability of s 66 as a source of appellate jurisdiction therefore turns on whether an application to make and/or rescind a take down order in the context of a criminal proceeding may properly be characterised as a civil proceeding. The burden of advancing this part of the argument fell to Mr Orpin as counsel assisting the Court. Relying on the approach of the majority of the Supreme Court in Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18, Mr Orpin submitted an application to rescind a take down order is properly seen as a civil proceeding. The majority in Mafart held that where proceedings can result in conviction for a crime or punishment of an offender, the proceedings are clearly criminal. Where applications are necessarily linked to the determination of crime or punishment, they are properly regarded as criminal. In all cases, however, the Court must look to the substance of the application and the order sought under it to accurately characterise the proceeding. The underlying proceedings, which provide the occasion for the application, are not determinative. What may be regarded as the correct characterisation of a given proceeding may change over time. Consequences of a criminal characterisation that indicate that conclusion may not be appropriate include: the absence of any appeal rights; the creation of an anomaly for non-parties in the general scheme of appeal rights; and uneven rights of appeal or review within the judicial hierarchy. In the present case, the application has no penal consequences. Nor is the application necessarily or inextricably linked to determinations of crime or punishment. In many cases a criminal proceeding will merely provide the occasion for the application, such that an application’s context but not its substance is criminal. Moreover, a suppression order (of which a take down order is a particular type) is not necessarily a criminal matter, as in substance it may equally be made in civil proceedings. Mr Orpin submitted an examination of the substance of the application to rescind confirms its civil nature. Substantively, this is a civil case between Mr Lyttelton and the media applicants. Importantly, there are no penal consequences to this proceeding; the outcome of the dispute is not necessarily linked to the determination of a crime or punishment for a crime. Finally, Mr Orpin emphasised that it would be anomalous to treat the present application as criminal, which could not be appealed, when the position is otherwise with suppression orders made under the CPA (and previously, under the Crimes Act), and where other analogous orders (such as those made by the District Court, or before charges are laid, or in civil proceedings) could all be the subject of an appeal. For the Crown, Mr Downs presented the contrary argument. He accepts a feature in favour of civil characterisation is the absence of penal consequences to the immediate application. He also acknowledges the access to justice concerns of inhibiting a right of appeal in this context. However, Mr Downs emphasised that the underlying proceedings are and remain criminal: the proposed appeal is brought to protect the defendant’s trial rights. But for the criminal proceedings, there could be no suppression order. Therefore the application is “necessarily” or “inextricably” linked to criminal proceedings, so as to give it that character. Mr Downs contends the issue of “contextual legislation” was a relevant feature of the reasoning in Ma