McMahon v Fairfax Media

[2017] NZHC 1812

ORDER SUPPRESSING ALL DETAILS OF THE ALLEGED OFFENDING UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000237

[2017] NZHC 1812

BETWEEN

FERGUS REBEL MCMAHON

Appellant

AND

FAIRFAX MEDIA

Respondent

Hearing:	1 August 2017
Appearances:	M F Laracy and N C Baier for Appellant R K P Stewart for Respondent
Judgment:	1 August 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 1 August 2017 at 4.30 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

MCMAHON v FAIRFAX MEDIA [2017] NZHC 1812 [1 August 2017]

[1]                  Fergus McMahon is facing a number of burglary charges in the District Court. He appealed unsuccessfully against the refusal to grant him name suppression in the District Court.1 However, Lang J did accept that details of the alleged offending ought to be suppressed. In his judgment of 21 July 2017 Lang J said that:2

The interest of the public will only be aroused if details of the alleged offending are published. At present these are contained in a summary of facts that has been suppressed from publication for obvious reasons. Provided those details remain suppressed, there is no reason to believe that members of the public will have any cause to access the internet …

[2]                  Subsequently, Fairfax Media published a report on its “Stuff” website detailing the nature of the charges against Mr McMahon, though without naming him. The Public Defence Service has applied for a “take down” order in relation to the article. Fairfax opposed the application on the basis that it did not consider that Lang J’s judgment actually contained a suppression order.

[3]                  Following a telephone conference with counsel this morning, I made an order requiring Fairfax to take down the article. I was satisfied that the effect of Lang J’s statements set out above did have the effect of suppressing the details of the offending. I was reinforced in that view by information provided during the telephone discussion by junior counsel for Mr McMahon, Ms Baier. She had appeared in both the District Court and before Lang J and advised that there had been extensive and specific discussions about the need to suppress the details of the offending, particularly the fact that the objects of the alleged offending were rabbits. I did not accept Mr Stewart’s argument, for Fairfax, that because its information was not sourced from the summary of facts it could not have been in breach of any order. It is perfectly obvious that the purpose of Lang J’s decision was to ensure that the details of the offending remained suppressed. Whether those details were contained in a summary of facts that Fairfax had access to or not was irrelevant.

1      McMahon v New Zealand Police [2017] NZHC 1698.

2 At [11].

[4]                  Finally, Mr Stewart suggested that a more limited order would be sufficient, one which simply required the removal of any reference to rabbits or “bunnies”. Whilst Ms Baier had, initially, indicated that this was the main difficulty with the report, I considered that the appropriate order was that the entire article be removed. This is because of the risk that subsequent reports could be in practically the same form but include Mr McMahon’s name and remove the reference to rabbits. There is a distinct risk that members of the public would realise what had happened and connect Mr McMahon with the alleged theft of the rabbits. I therefore made an order in accordance with paragraph 1(a) of the PDS’ application, namely that Fairfax Media is to take down the article dated 2 June 2017 titled “Auckland Man Appears in Court Facing 22 Charges of Bunny Burglary” from the stuff.co.nz website.

[5]                  For the avoidance of doubt, this order has the effect of suppressing all details of the alleged offending by any person or media outlet.

P Courtney J