Parangi v The Queen
[2018] NZHC 3123
•30 November 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE FINAL DISPOSITION OF RETRIAL IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2016-087-738
[2018] NZHC 3123
BETWEEN DONNA CATHERINE PARANGI
Applicant
AND
THE QUEEN
Respondent
Hearing: 23 November 2018 Appearances:
S Gray for the Applicant
H Sheridan for the Respondent
R Stewart for Radio New Zealand and Stuff LimitedJudgment:
30 November 2018
JUDGMENT OF GORDON J
This judgment was delivered by me
on 30 November 2018 at 12.15 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Tauranga
Izard Weston, Wellington
Counsel: S Gray, Auckland
R Stewart, Auckland
PARANGI v R [2018] NZHC 3123 [30 November 2018]
Introduction
[1] Donna Parangi faces a retrial on one charge of manslaughter in relation to the death of her infant grandson, Isaiah Neil.1
[2] Ms Parangi successfully appealed her conviction to the Court of Appeal.2 The retrial will be held in the Hamilton High Court in March 2019. Ms Parangi presently has name suppression.
[3] Ms Parangi applies for take down orders directing that particular articles displayed online be removed for the period leading up to the retrial through to its completion. She says the publicity during the first trial was of such a nature that, in the absence of take down orders, it is likely to create a real risk that a fair and impartial trial cannot be held,3 and that one or more of the jurors will have an irrational bias against her.
[4] The Court made a direction that Ms Parangi serve the media organisations against which the orders were sought so that they would have an opportunity to be heard.4 Only Radio New Zealand Ltd and Stuff Ltd responded. They both oppose the application.
[5] While the Crown did not adopt a strong adversarial stance, its position was that the orders were not necessary in order to achieve a fair trial.
The alleged factual background
[6] The Crown case at the first trial was that on 2 November 2015, Ms Parangi and her daughter, Lacey Te Whetu (Isaiah's mother), drove to Kawerau to purchase synthetic cannabis.
1 Crimes Act 1961, ss 152 and 160(2)(b).
2 Parangi v R [2018] NZCA 46.
3 Contrary to her right under s 25(a) of the New Zealand Bill of Rights Act 1990.
4 The websites are listed as follows: NZ Herald, Stuff, Newshub, SST Offender Database, Radio NZ, Facebook (Rotorua Daily Post), Whale Oil Beef Hooked, Newstalk ZB, Newsie – United Independent New Zealand News, Pressreader, Greymouth Star, Sunlive news, Ashburton Guardian online, Family First NZ, Loabay, Better Blokes.
[7] Ms Parangi and Ms Te Whetu took Isaiah with them for the journey. When they returned home at about 12.30 pm, Isaiah was asleep in the car. They decided to leave him there. The car was parked outside in the sun with the windows up and the doors closed.
[8] Ms Parangi and Ms Te Whetu went inside the house, smoked the cannabis and promptly fell asleep. Some three hours later, at about 3.30 pm, Shane Neil (Isaiah's father) went out to the car, picked up Isaiah, who was hot, sweaty and appeared lifeless, brought him inside, and laid him down on the bed next to Ms Te Whetu.
[9]Ms Te Whetu later placed Isaiah in his cot and went back to sleep.
[10] At about 6.30 pm, Ms Te Whetu awoke and found Isaiah in a lifeless state. An ambulance was called at 6.36 pm and Isaiah was pronounced dead at 7.21 pm.
[11] There was a dispute at trial over the cause of Isaiah’s death. The Crown case was that Isaiah died from hyperthermia as a result of being left in the car. The Crown called forensic pathologist Dr Joanna Glengarry who provided an autopsy report. Dr Glengarry observed that Isaiah had suffered multiple blunt force injuries in various places on his body. She excluded the blunt force injuries as having caused Isaiah's death and concluded that he died from hyperthermia.
[12] The defence called consultant forensic pathologist Dr Stuart Hamilton. Dr Hamilton considered that the cause of death was “unascertained”. He considered that there was nothing specific in the autopsy findings that would enable a conclusion to be drawn that Isaiah died from hyperthermia. Towards the end of his cross- examination, Dr Hamilton raised the prospect that Isaiah may have died from asphyxiation (including smothering). That possibility had not been put to Dr Glengarry as it only arose when Dr Hamilton was being cross-examined.
[13] Ultimately, the jury was satisfied beyond reasonable doubt that Isaiah died from hyperthermia as a result of being left in the car.
The appeal
[14] Ms Parangi appealed her conviction on the basis that there were material errors in the evidence given by Dr Glengarry. She applied to introduce new evidence from another forensic pathologist, Dr Fintan Garavan, who concluded that the available evidence was insufficient to justify a conclusion that Isaiah died from hyperthermia. Dr Garavan considered that other causes of death, particularly asphyxia, could not be excluded.
[15] The Court of Appeal held that Dr Garavan’s evidence was credible, cogent, and could “fairly be regarded as fresh” in the circumstances of this case.5 It concluded that the evidence could lead to a different verdict.6
[16] The Court also recorded concerns over the formal admissions introduced pursuant to s 9(2) of the Evidence Act 2006.7 Shortly before the trial commenced, Ms Te Whetu and Mr Neil each pleaded guilty to the same charge brought against Ms Parangi. The s 9(2) admissions introduced at Ms Parangi’s trial included the fact that Ms Te Whetu and Mr Neil had pleaded guilty, and the summary of facts to which they had pleaded was included in full in the s 9(2) document.
[17] The summary of facts included the temperatures recorded on that day; that the windows and doors of the car were closed; and that Mr Neil said baby Isaiah was “hot, sweaty and appeared lifeless” when he took him from the car.
[18]There was also a reference to statements by Ms Te Whetu.
[19] Neither Ms Te Whetu nor Mr Neil gave evidence. As the Court of Appeal noted, the summary of facts was inadmissible unless Ms Parangi accepted its contents.8 In particular, Ms Parangi did not accept that the car windows and doors were closed. She also did not accept that Isaiah was “hot, sweaty and appeared
5 Parangi v R, above n 2, at [25].
6 At [21] and [25].
7 At [26].
8 At [14].
lifeless” when Mr Neil took him from the car.9 Those were both important facts relied on by Dr Glengarry in giving her opinion on the cause of death.
[20] Ultimately, the Court granted the application to introduce the further evidence of Dr Garavan; allowed the appeal against conviction, which it set aside; and ordered a retrial.10
The proposed cases at the retrial
[21] Ms Sheridan, who appeared for the Crown, advised that the Crown will be running its case at the retrial on the same basis as it did in the first trial, but with a few adjustments, as follows:
(a)Ms Te Whetu and Mr Neil will be called as witnesses. The evidence that Isaiah was “hot, sweaty and appeared lifeless” will come from Mr Neil rather than from a s 9(2) admissions document;
(b)Both Ms Te Whetu and Mr Neil’s statements record that the car doors and windows were closed. Again, the Crown will rely on direct evidence rather than the s 9(2) admissions document (there will also be other witnesses on this issue who were called at the first trial);
(c)Evidence of the likely temperature inside the car if the doors and windows were closed will be called from a thermodynamics expert rather than from the paediatrician who gave evidence on this issue at the first trial. The evidence to be given is that the temperature inside the car (on a conservative basis) within an hour would have been a minimum of 41 degrees (as opposed to 45 degrees which was the evidence of the paediatrician at the first trial); and
9 Ms Parangi did not give evidence but her position on these two issues was recorded in her Police interview, the DVD of which was played as part of the Crown case.
10 At [27]-[29].
(d)Dr Glengarry, while maintaining her opinion as to cause of death (i.e. hyperthermia), accepts that asphyxia is a possible cause of death if the car doors and windows had not been closed.
[22] As will already be apparent, the defence will call Dr Garavan to give evidence on the cause of death as referred to in [14] above. He will rely in part on a narrative that includes traumatic non-accidental injuries which Isaiah suffered at around the time of death. These include teeth marks on his arm and ear and a large bruise on his abdomen. While none of these injuries contributed to Isaiah’s death (either individually or in combination), the pathologists agree on the likely timing of the injuries and that the bruise on his abdomen was caused by blunt force trauma and the teeth marks were adult teeth marks.
[23] Ms Gray, for Ms Parangi, advises that both Ms Te Whetu and Mr Neil will be cross-examined on asphyxia as a cause of death.
The challenged articles
[24] Harriet Krebs, a barrister employed by Ms Gray, has made an affirmation in support of the application dated 10 September 2018. She attaches a table to the affirmation detailing the internet searches she made. Those searches were made on 9 August 2018 and 13 August 2018.
[25] Ms Krebs undertook searches on different search engines or websites using the following search terms:
(a)Google – “Parangi”, “Donna Parangi” and “Hot Car Death Baby”;
(b)NZ Herald – “Donna Parangi” and “Hot Car Death”;
(c)Stuff – “Donna Parangi”;
(d)Bing – “Donna Parangi”; and
(e)Yahoo – “Donna Parangi”.
[26] There was a range of search results and articles under each search term. I do not set out the content of each article located, but I briefly summarise a few of the articles which represent the nature of the reporting overall:
(a)An article which appeared on the NZ Herald on 23 May 2017, “Donna Parangi guilty of manslaughter for death of 8-month-old grandson”, under the following link:
861374
The article referred to Isaiah dying in a hot car while Ms Parangi “smoked drugs”. There are references to the temperature within the car being as high as 45 degrees for between 90 minutes and two hours.
(b)An article which appeared on Stuff on 30 June 2017, “Mother and grandma who got high and left baby to die in hot car sentenced”, under the following link:
grandma-who-got-high-and-left-baby-to-die-in-hot-car-sentenced
The article referred to Isaiah dying while Ms Te Whetu and Ms Parangi were “getting high”. There are references to a “hot car”, the temperature within the car (double the outside temperature of 22 degrees) and the effect of those temperatures on Isaiah’s body which finally “went into shock”. It also referred to Lang J’s comment at the sentencing that the greatest culpability for Isaiah’s death was borne by Ms Parangi.
(c)An article which appeared on Newshub on 30 June 2017, “Mother, grandmother sentenced for baby’s death in hot car”, under the following link:
grandmother-sentenced-for-baby-s-death-in-hot-car.html
The article referred to the doors and windows of the car being closed, that Isaiah had died after being left inside a hot car, and that Ms Te Whetu and Ms Parangi were inside where they had consumed synthetic cannabis.
(d)An article which appeared on Radio NZ on 30 June 2017, “Parents’ ‘repeated failures’ led to death of baby left in hot car”, under the following link:
failures-led-to-death-of-baby-left-in-hot-car
The article referred to Isaiah dying after being left in a hot car where the temperatures soared to more than 40 degrees while “his parents and grandmother smoked synthetic cannabis and went to sleep”. The article stated that Isaiah died from hyperthermia and dehydration.
(e)An article which appeared in the New Zealand Herald on 1 July 2017, with the heading “Why did this baby die?”, under the following link:
herald/20170701/281479276432461
The article commences, “Social workers were repeatedly warned about the dysfunctional family of a baby who died in a hot car while his carers smoked synthetic cannabis inside the house”. It continues, “… documents obtained by the Weekend Herald show there were at least eight referrals to [Child, Youth & Family] about Isaiah’s family in the years leading up to his death, including two about synthetic cannabis in the house in the preceding months”. Further, it records that, “In 2013 another concerned relative warned CYF that Isaiah’s older siblings
could be the ‘next Nia Glassie’, a reference to the Rotorua toddler killed in 2007 because of the dysfunction in the family”.
Lastly, the article records that, “Last night, the Ministry for Vulnerable Children – which replaced CYF – confirmed social workers ‘didn’t act with the appropriate degree of urgency in assessing Isaiah’s safety’”.
The law
[27] Take down orders have been considered by senior courts in the context of retrials on three previous occasions.11
[28] Those judgments make it clear that this Court has an inherent jurisdiction to make a take down order.12 This involves the balancing of important interests, namely open justice, fair trial rights and freedom of expression.13
[29] Ultimately, the question is whether there is a real risk to the defendant’s fair trial rights if the order is not made.14 As Wylie J recently explained in Y v R:15
[28] The inherent jurisdiction to make a take down order should not be exercised lightly. It should be exercised only in cases where the risk to fair trial rights is real …
[30] In Kahia v Police, Moore J helpfully summarised the principles applying to take down orders which have arisen from the case law:16
(a)The Court must be careful to balance the right to freedom of expression with the right to a fair trial, conscious that the extent to which the interests will be engaged will depend on the context of the application.
(b)Because the right to a fair trial is absolute, the context may require an order impinging on the media's right to freedom of expression by ordering the removal of news stories until the conclusion of the trial.
11 Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21; R v Tarapata [2017] NZHC 3209; Kahia v Police [2018] NZHC 1023. There is also a judgment of Wylie J in Y v R [2018] NZHC 489 and Ellis J in R v Lyttle [2017] NZHC 2426 (both of which did not involve a retrial).
12 Lyttelton v R, above n 11, at [13].
13 At [1].
14 R v Tarapata, above n 11, at [42]; Kahia v Police, above n 11, at [17]; Y v R, above n 11, at [25].
15 Y v R, above n 11. See also R v Tarapata, above n 11, at [46].
16 Kahia v Police, above n 11, at [15].
(c)The threshold question is whether there is a real risk that the applicant's fair trial rights will be adversely affected if the material remains available. The test is “whether there is a real or substantial risk a determined and irresponsible juror might undertake internet inquiries”. The Court must be satisfied that a real risk exists despite a direction to the jury not to undertake inquiries of their own.
(d)In resolving that question the following factors will be relevant:
(i)the level of notoriety, that is whether pre-trial publicity will be inevitable and simply irredeemable in terms of jury exposure to published material;
(ii)the likelihood that despite compliance with the take-down order, material out of the control of the media will nevertheless remain available online which is in contravention of the order; and
(iii)whether interim suppression orders will have the practical effect of permanently removing material from the public historical record, and the imposition on the media in terms of the costs of compliance.
(Citations omitted)
Submissions
[31] Although the application on behalf of Ms Parangi (as filed) was for both the period leading up to the retrial and during the retrial, in her oral submissions, having regard to the existence of name suppression for Ms Parangi, Ms Gray confined her argument to the period from the commencement of the retrial. While not formally abandoning the ground that there is a risk of prejudice prior to the retrial, Ms Gray did not make any submissions in relation to the pre-trial period.
[32] Ms Gray submits that in the digital world, total confidence placed in jurors not to access online media is misplaced. She says the publicity during the first trial was of such a nature that it is likely to create a real risk that a fair and impartial trial cannot be held.
[33] Ms Gray submits that the articles are prejudicial because they contain evidential content from the first trial that is in dispute at the retrial. In particular, they refer to Isaiah’s cause of death being hyperthermia. Ms Gray also says that whether the car was closed or ventilated during the critical time is in dispute. So is the temperature in the car.
[34] Ms Gray also submits that further prejudice can be established due to the emotional nature of Isaiah’s death. Ms Parangi comes from a small town in the Bay of Plenty, and she has suffered hatred and abuse from locals for her alleged part in the death. She says the nature of the alleged offending evokes an emotive response.
[35] As to the historic nature of the articles, Ms Gray notes that the trial was in May 2017, and due to the nature of the internet, historic articles are easily accessible.
[36] Ms Sheridan accepts the Crown is not prejudiced or indeed directly affected by any take down orders. But she submits that a fair trial remains achievable in the vast majority of cases provided appropriate directions are made. This is such a case.
[37] In the context of this case, Ms Sheridan says the original trial was 22 months prior to the retrial and was not so notorious as to remain in the memory of ordinary citizens. As Ms Parangi has interim name suppression, this will limit publicity leading up to the retrial.
[38]Ms Sheridan also notes the following factors:
(a)This is not a case where the articles contain material that has been ruled inadmissible at the retrial;
(b)While the defence at trial has altered, this is a refinement rather than a complete change;
(c)Any inaccuracies in the articles are minor and relate to disputed issues that will be fully explored at the retrial;17
(d)References to alleged failures by CYF (now Oranga Tamariki) are not prejudicial to Ms Parangi and in any event, the jury will hear the
17 Ms Sheridan identified only two inaccuracies. First, that the evidence as to the temperature in the car will be 41 degrees as opposed to 45 degrees. Second, that there was a reference to the Crown opening address which referred to the number of witnesses who would give evidence that the car doors and windows were closed. (Some of those witnesses did not come up to brief)
contextual evidence of synthetic drug use in the household during the lead up to the death;
(e)While the Facebook comments are emotive, it would be apparent to any reader that these types of comments come from persons who did not attend the trial and who have no connection to the persons involved. A juror would also have to take the additional step of not only clicking the article, but also scrolling through and reading the comments; and
(f)There is a large volume of material identified by Ms Parangi.
[39] Mr Stewart, for Radio New Zealand Ltd and Stuff Ltd, submits that applying the principles in Kahia to the facts of this case, a fair trial remains achievable without the take down orders being made. He submits Ms Parangi has not demonstrated there is a real or substantial risk that a determined and irresponsible juror might undertake internet inquiries, especially in the face of appropriate judicial directions once empanelled.
[40] Mr Stewart further submits that there is nothing in the articles themselves that is so prejudicial that take down orders are warranted. He says that trying to prevent content relating to the first trial being found online for the duration of the retrial would be futile as there is online content readily accessible which would not be covered by the orders sought.
[41] Mr Stewart refers to affidavits from Megan Whelan, on behalf of Radio New Zealand Ltd, and Patrick Crewdson, on behalf of Stuff Ltd. They first depose that the identified articles are not readily accessible. They then say that the effective removal and reinstatement of historic online content on their respective websites is not a straightforward task. They further say there is a real risk that articles taken down may not be reinstated, and that part of the permanent public record would be lost. Lastly, they say that a take down order may amount to oppression as it applies to some sections of the media and not others (thereby limiting their freedom of expression).
Discussion
[42] For completeness, I address the issue as to pre-trial risk. I do so briefly, noting that Ms Gray did not seek to advance any arguments in relation to the pre-trial period.
[43] As already mentioned, Ms Parangi has name suppression. Members of the jury pool will therefore not know that they are for selection to try Ms Parangi’s case until they arrive in the courtroom and empanelling gets underway. They will then be subject to directions by the trial judge.
[44] I also note the affidavit evidence of Ms Whelan and Mr Crewdson respectively that the RNZ and Stuff articles are not located on the home pages of their websites and they are not linked to any more recent stories about Ms Parangi. Therefore, the articles cannot be located by any person unless that person was actively and deliberately seeking out information about Ms Parangi or the first trial.
[45] The evidence referred to above reflects the historic nature of the trial which was held in May 2017. There is no evidence that the case is in the public consciousness, it not being a notorious trial such as Bain or Lundy.
[46] For all of those reasons, I consider that the likelihood of the identified material coming to the attention of a potential juror prior to trial is remote.
[47] I now turn to Ms Parangi’s argument regarding prejudice after the jury is empanelled. On this issue, counsel were agreed that the appropriate test is “whether there is a real or substantial risk a determined and irresponsible juror might undertake internet inquiries”.18 I first address the presumption that jurors will conscientiously endeavour to follow the directions they receive from the trial judge.
Juries and judicial directions
[48] There have been many judicial comments on the question of whether jurors may be expected to adhere to judicial directions. There is a division between two
18 As articulated by Moore J in Kahia v Police, above n 11, at [15](c). See also R v Tarapata, above n 11, at [47].
views, first what Moore J termed the “traditional and orthodox view” and the view based on empirical evidence that jurors often make their own internet inquiries despite judicial directions not to do so.19
[49] I first detail the development of judicial comments. Although most of these comments arose in the context of pre-trial publicity, they are useful in illustrating the views of judges on whether jurors will follow judicial directions.
[50] The Court of Appeal’s comments in R v Harawira in the late 1980s illustrates the faith that the criminal justice system has traditionally placed in the ability of jurors to carry out their role impartially:20
Our system of justice operates in an open society where public issues are freely exposed and debated. Experience shows that juries are quite capable of understanding and carrying out their role in this environment, notwithstanding that an accused may have been the subject of widespread debate and criticism. A ready example — far removed from this case factually — is the way charges of serious violence against gang members are dealt with. Undoubtedly there is widespread prejudice against them, yet juries still acquit or fail to agree on occasions, indicating that when confronted with an actual case, they can be expected to carry out their task responsibly in the light of the evidence.
[51]The Court later reiterated that view in Burns v R:21
[11] … even if a prosecution were to occur and Mr Burns was brought before a jury at some time, obviously well into the future, the jury could be expected to act impartially. The clear conclusion from the research conducted for the Law Commission by Dr Young and his co-researchers suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal (Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (Law Commission Preliminary Paper No 37, 1999), also cited by Lord Hope in the Privy Council's decision in Montgomery v Her Majesty's Advocate and Anr [2001] 2 WLR 779, 809- 810). In short, fair trial values affecting the possibility of a prosecution and the possibility of a risk that media publicity may be prejudicial in the event of a prosecution, cannot be said to be significantly engaged, and certainly not so as to justify stifling freedom of expression and the role of the media as surrogate of the public.
[52] In R v Rickards, Randerson J reiterated the substance of those comments in the context of deciding four pre-trial applications.22 The Judge was relevantly dealing
19 Kahia v Police, above n 11, at [29].
20 R v Harawira [1989] 2 NZLR 714 (CA) at 729.
21 Burns v R [2002] 1 NZLR 410 (CA).
22 R v Rickards HC Auckland CRI-2005-063-1122, 28 November 2005.
with an application for a stay of proceedings partially on the ground that the publication of material by the media meant that it was no longer possible for the defendant to receive a fair trial.
[53] In concluding that a fair trial was still possible despite the adverse publicity the preceding year, the Judge stated:
[97] … I agree that any adverse effects caused by the earlier publicity will have largely dissipated by the time of trial. Experience shows that, notwithstanding the trial publicity in cases which have attracted widespread media interest, jurors focus on evidence before them as the material most immediately and recently to hand for their assessment. It is not to be assumed that jurors ignore judicial directions to put to one side matters they may have heard outside the Court. Again, experience shows that jurors are responsive to judicial directions of that kind and tend to be more robust than defence counsel often assume. A strong judicial direction to the jury will be given in respect of pre-trial publicity. I am satisfied that, in the formal atmosphere of the Court, a fair trial for these accused will be possible.
[54] In an associated judgment, Randerson J accepted that a real risk of an unfair trial could be eliminated by the trial judge seeking appropriate assurances from the jury panel during the empanelling process and by firm jury directions.23 He commented, “I am confident that juries in this country are capable of approaching their task conscientiously and fairly and, in my experience, juries do follow judicial directions carefully, putting extraneous considerations to one side”.24
[55] However, the Court of Appeal in R v B (CA459/06) subsequently qualified comments of this type for the first time.25 In that case, the Court was dealing with an appeal against a decision refusing to prohibit the publication of the appellant’s name.
[56]In the majority judgment, William Young P first acknowledged the following:
[77] Judges are reluctant to allow prejudicial publicity to stultify the criminal process. Where there has been such publicity, judges usually rely on appropriate judicial directions to limit the risk that the defendant will actually be prejudiced. This willingness to go on with the trial is not premised on the assumption that all risks of prejudice can be eliminated with appropriate directions. Rather it is based on a pragmatic assessment that the possibility of
23 R v Rickards (No 2) HC Auckland CRI 2005-063-1122, 25 May 2006 at [59]-[60]. See also NN v Police [2015] NZHC 589 at [62].
24 At [61].
25 R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293.
prejudice to a defendant associated with such publicity does not outweigh the public interest in criminal cases being tried.
[57]The Judge then stated:
[78] Jury research has established that jurors often make their own inquiries despite judicial directions not to do so. Internet inquiries, perhaps just in the form of “googling” the defendant, must be commonplace. This means that publicity about a defendant can no longer be assumed to be of only transitory significance. In the course of preparing this judgment, we took the opportunity to “google” the appellant. This revealed a previous conviction for entirely unrelated offending. No doubt without the current name suppression, references to all the charges laid against him would have also surfaced. This means that in the absence of interim name suppression there would have been a very substantial risk (indeed likelihood) that some jurors would have learnt that he was facing (or had faced) allegations of other sexual offending. Associated with this is a possibility that such knowledge might illegitimately enter into the decision-making process: cf R v McLean (2001) 19 CRNZ 362 (CA).
[79] A specific direction to jurors not to “google” the defendant may put the possibility of doing so into the mind of a juror who might not otherwise have thought of it. There may be scope for debate as to whether it is best for a judge to square up to the detail of the prejudicial material or to deal with the topic with generalities. The reality is that there is no simple and fool-proof way for a trial judge to address the availability on the internet of prejudicial material about the defendant. Rickards is significant for what should be done where there has been prejudicial pretrial publicity, not whether such publicity should be permitted.
(Emphasis added)
[58] Nevertheless, since that decision, the Court has continued to express support for the traditional view. In McNaughton v R, it stated that “[t]he jury system operates on the basis that jurors will follow the trial Judge's directions, not only about publicity, but about all matters on which the Judge must direct the jury”.26 It referred to its prior comments from R v Smail with approval:27
… the solemnity, intensity and focus of the trial process and the associated diligence of jurors should not be overlooked. A jury which hears all the relevant evidence over a period of perhaps weeks, along with the addresses of counsel and the summing up of the Judge, can logically be expected to deal with the case on the basis of what happened in Court. Jurors will recognise that this is of far greater probative value than tittle-tattle from third parties or snippets of information taken from the media or the internet. As well, jurors will readily understand how unfair it would be to take into account extraneous information. A simple explanation as to the reason for the direction to ignore
26 McNaughton v R [2012] NZCA 16 at [21].
27 At [21]; citing R v Smail [2009] NZCA 549 at [34]. See also Lyttle v R [2017] NZCA 279 at [24].
any extraneous information is easily grasped by jurors and makes it all the more likely that the direction will be complied with.
[59] In R v Bailey, the defendants applied for a stay of proceedings on the ground of pre-trial publicity.28 They said they could not receive a fair trial.
[60] Without referring to R v B (CA459/06), Winkelmann J concluded that the oath jurors “take as jurors, and judicial direction” would be sufficient in that case to address the issue.29 She stated:
[67] Trial judges regularly express confidence in the efficacy of judicial direction. These are not expressions of wishful thinking, but reflect the common experience of the trial Judge that juries do follow judicial direction. Judges are able to measure the efficacy of judicial direction in the verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and the proper use of evidence.
…
[71] The final risk is the risk of jurors researching the internet during trial. This is now a risk present in most trials to a greater or lesser extent. The solution is to direct the jury not to undertake internet searches. Were a juror to search the internet they would be presented with a mishmash of opinion, speculation and excerpts of what purport to be intercepted communications which are inadmissible. What they discover will tend to reinforce a well crafted judicial direction addressing in general terms the unreliability of earlier media and internet reports, and to the effect that the best evidence is what the jurors will see and hear in the courtroom.
(Emphasis added)
[61]Turning to cases involving take down orders, in R v Lyttelton, Lang J stated:30
[20] There will inevitably be occasions on which, either deliberately or inadvertently, a juror will ignore or disregard these directions. The criminal justice system proceeds, however, on the assumption that jurors will conscientiously endeavour to follow the directions that they receive …
[21] As Mr Raftery, for the Crown, and Mr Lyttelton both realistically accepted, the risk to a fair trial in the present case will only arise after the jury is selected. At that point, members of the jury may be tempted to use the internet to learn more about the case. By the time they have the opportunity to take that step, however, they will already have received the Judge’s initial directions. The Court must proceed at this stage on the assumption that they
28 R v Bailey HC Auckland CRI-2007-085-7842, 23 April 2010.
29 At [65].
30 R v Lyttelton [2015] NZHC 763.
will follow those directions, and resist the temptation to make their own enquiries on the internet.
[62] On appeal, the Court of Appeal placed emphasis on the comments of the Law Commission in a 1999 report:31
… jurors were only rarely aware of sufficient details of pre-trial publicity to enable them to form any bias or prejudgment. When they were, for the most part they reported that they consciously made an effort to put that aside and focus upon the evidence alone; and when they did not, other jurors in the process of collective deliberations generally overrode any individual bias or predetermination. While some other jurors were more affected by the media coverage during the trial, there is similarly no evidence that any of the collective deliberations of the juries in the sample were ultimately driven or even influenced by this.
[63]Ellis J, in R v Lyttle, cited the same report.32 Her explanation was as follows:
[14] In 1998, the New Zealand Law Commission conducted research in which it was found that jurors in five out of 48 trials had made external inquiries such as visiting the crime scene or bringing explanatory research into the jury room, and that “not infrequently” they attempted to obtain additional information on the law. The study found that jurors were only rarely aware of sufficient details of publicity to allow them to form bias or pre-judgment, and that when they were, they mostly made an effort to put that aside, and if they didn't, other jurors generally overrode individual bias or pre-determination. Mr Stewart [for the media] relied on this research (as he had done in the Court of Appeal in Lyttelton) as supporting his submission that any “googling juror” risk to fair trial rights was small.
[64] Significantly, however, Ellis J referred to both a more recent report of the Law Commission and research from the United Kingdom:33
[15] But in 2014 the Law Commission (in its Issues Paper Contempt in Modern New Zealand) expressed the view that the 1998 findings probably under-represented the extent to which jurors use the internet to find information during a trial, because of the increased use of the internet today. The Commission referred to a study conducted in the United Kingdom by Cheryl Thomas in 2010, which found that in high profile cases, 26 per cent of jurors said they “saw” information on the internet while 12 per cent said they “looked”, and in standard cases 13 per cent said they “saw” information and five per cent said they “looked”. Given that the “looking” jurors were admitting to doing something the Judge had told them not to do, Thomas suggests that the figures may well reflect under-reporting.
31 Lyttelton v R, above n 11, at [58]; citing Law Commission Juries in Criminal Trials – Part Two: A summary of the research findings (NZLC PP37, 1999) at [7.44] and [7.57].
32 R v Lyttle, above n 11.
33 Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at [5.26] and Cheryl Thomas Are Juries Fair? (Ministry of Justice (UK), Research Series 1/10, February 2010) at 43.
[65]Ellis J then cited a Law Commission report from 2017:34
[16] And relatedly, the Law Commission has recently recommended enacting a statutory provision enabling the Courts to make take down orders if satisfied that the order is “necessary” to protect a person's right to a fair trial.
[66] Referring to these reports, and the overseas research, Ellis J noted that the Court in Lyttelton had overlooked “much more recent research” by the Law Commission.35 She stated:
[17] The signal point is that the much more recent research referred to by the Law Commission in 2014 was not referred to by the Court of Appeal in the Lyttelton decision (although the 1998 research was). In my respectful view, there is simply no meaningful comparison to be drawn between internet use in 1998 and its ubiquity now.
[67] In identifying factors in that case in favour of granting the take down orders sought, the Judge concluded, “notwithstanding the truth of the proposition that faith in the jury system is necessarily predicated on the assumption that jurors will comply with judicial directions, there is empirical evidence (which was not before the Courts in Lyttelton) that strongly suggests that that is not always the case in relation to internet searches”.36
[68] To the contrary, both Moore J, in R v Tarapata and Kahia v Police, and Wylie J, in Y v R, adopted the traditional view.37 In Tarapata, Moore J stated (in his reasons judgment):38
[65] … In summary I do not accept there is a real risk a juror would breach the very firm directions I gave at the beginning of the trial. To accept otherwise is to acknowledge jurors do not comply with judicial directions. And yet the criminal jury trial process is founded on the fundamental principle that juries do follow judicial directions.
[66] I am conscious my decision contrasts with the careful and thoughtful analysis of Ellis J in Lyttle. However, unlike Ellis J, I have had the considerable advantage, which she did not, of receiving evidence and extensive submissions from the media respondents.
34 Law Commission Reforming the Law of Contempt of Court: A Modern Statute (NZLC R140, 2017) at [2.55]-[2.58].
35 R v Lyttle, above n 11, at [17].
36 At [19](d).
37 R v Tarapata, above n 11; Kahia v Police, above n 11; Y v R, above n 11.
38 See also Y v R, above n 11, at [31]-[33] and [42]-[43].
[67] I am reassured in my conclusion by a question asked by the jury during the trial. The jury sought my permission to undertake a Google inquiry as to what the King's James Version (“KVJ”) of the Bible was. I told the jury they were not permitted to make this inquiry although I did commend them for seeking my permission. Plainly this question reveals the jury's understanding of and adherence to my orders.
(Citations omitted)
[69]In Kahia, Moore J similarly stated:
[16] There is conflicting High Court authority on the question of whether, in assessing the real risk a jury member may undertake their inquiries, the Court should consider empirical evidence. Ellis J in Lyttle v R, while observing there is a presumption jurors will obey judicial directions, accepted there is empirical evidence which suggests this is not always the case in relation to internet searches such that the presumption is not absolute. By contrast, in Tarapata, adopting the Court of Appeal's approach in Lyttleton, I concluded that it must be expected a juror would adhere to the very firm and tailored directions I gave at the beginning of that trial, a fundamental principle on which the criminal justice process is founded. While accepting that a disobedient juror or jurors might undertake their own inquiries despite a judicial direction to the contrary, I was satisfied in that case the real risk threshold had not be made out. I declined to make the orders sought.
[17] It is inevitable pre-trial publicity carries with it the risk of prejudice to a defendant's fair trial rights …
(Citations omitted)
[70]The Judge then concluded:
[29] … The traditional and orthodox view, as I have already discussed, is that a fair trial remains achievable if appropriate steps are taken with the jury pool, and with proper directions given to the jury. This was the view taken by the Court of Appeal in Lyttleton, although I accept Ms Hall's submission that it would appear the more recent empirical research she relies on was not brought to the attention of that Court.
[30] Despite the proliferation of this research, I remain in agreement with the reasoning in Lyttleton. I appreciate that such a conclusion conflicts with Lyttle, although I would make two observations in that regard. First, the take- down order in that case required the removal of just one posted article. As a consequence, the logistical problems that take-down order posed for the media, and the complexities of making it (matters I discussed in Tarapata) were correspondingly modest. Secondly, the article in question disclosed fraud convictions admitted in evidence at the first trial but ruled inadmissible at the second. Thus a disobedient juror who located the story would discover highly prejudicial material, expressly excluded for that very reason. This is plainly different from the present scenario.
[31] In concluding that the real risk test is not made out here, I do not overlook that there are other instances in the criminal justice system where
evidence which presents a risk of influencing a juror in some improper way may be excluded, for example under s 8 of the Evidence Act 2006. Judges regularly exclude evidence in such circumstances. The operation of that section, implicitly at least, is recognition of the fact that jurors will at times fail to comply with a clear direction from the Court. Another example is visual identification evidence, which is regularly prohibited from going to a jury despite the obligatory judicial warning under s 126 of the Evidence Act whenever visual identification evidence is admitted.
…
[33] The recent changes in the judicial approach to directions of this sort are also relevant. Modern Judges are much more inclined to tailor their directions to the particular circumstances of the trial. For example, if there has been little or no pre-trial publicity, the standard direction that jurors must not undertake inquiries of their own, including internet inquiries, may well be sufficient. However, where there has been extensive pre-trial publicity, either because the case has excited media interest or is a re-trial (or both), it may be necessary to give a more focused and tailored direction …
…
[36] While the exact wording of the appropriate direction will be a matter for the trial Judge, I am satisfied that an appropriately tailored direction will operate to sufficiently mitigate the risk of a disobedient juror undertaking their own internet inquiries.
Analysis
[71]I agree with Moore J’s comment in Kahia on the purpose of take down orders:
[32] … The purpose of a take-down order is to remove the potential for a disobedient juror (or jurors) to deliberately ignore a Judge’s direction and undertake an extra-curial inquiry of their own. It assumes a much more explicit contravention of judicial direction will occur.
[72] The traditional or orthodox view that jurors will obey judicial directions is based on the experience of judges. There is clearly real value in that view, based as it is, not on wishful thinking, but actual experience.39 But, on the other hand, there is research which indicates that certain jurors do undertake their own independent research.
39 R v Bailey, above n 28, at [67].
[73] Notably, Cheryl Thomas’ research, which was commissioned by the United Kingdom Ministry of Justice, illustrated the following:40
(a)In standard cases – five per cent of all jurors “looked” for information about the case they were involved in;
(b)In high profile cases – 12 per cent of all jurors admitted to doing so;
(c)In standard cases – 13 per cent of all jurors admitted to “seeing” media reports regarding the trial; and
(d)In high profile cases – 26 per cent of all jurors admitted to “seeing” media reports regarding the trial.
[74] The research was conducted with 668 jurors in the United Kingdom who served on 62 trials at courts in three different locations (London, Nottingham and Winchester).41 As Thomas also commented:42
… it should be borne in mind that [the jurors] were being asked to admit to doing something they may have remembered being told not to do by the judge. As a result the … figures may reflect the minimum number of jurors who looked for information on the internet during cases.
[75] I note that there has been similar research undertaken in the United States, where approximately 10 per cent of the respondents to the survey reported personal knowledge of a juror conducting internet research.43 The respondents in that survey were federal judges, prosecutors and public defenders.
[76] In New Zealand, the Law Commission has recognised that its 1998 findings, relied on in Lyttelton, “probably under-represent the extent to which jurors in New Zealand now turn to the Internet to find information during a trial”, because the research is now over 15 years old and the use of the internet is far more entrenched
40 Thomas, above n 33, at viii and 43. Standard cases were those that lasted less than two weeks with little media coverage, while high profile cases were those that lasted two weeks or more with substantial pre-trial and in-trial media coverage.
41 At 40.
42 At 43.
43 Thaddeus Hoffmeister “Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age” (2012) 83 U Colo L Rev 409 at 414.
and prevalent than it was in 1998.44 It also referred to follow-up work by Thomas in 2013, which had found that 23 per cent of jurors questioned were “confused about the rule on Internet use”.45
[77] In my view, the traditional view does not take into account the changing nature of research in the internet age, and the ease with which substantial quantities of information can be accessed. As former District Court Judge David Harvey stated, “[t]he Internet has dramatically changed the way in which people obtain, use, share and relate to information”.46
[78]In Lyttelton, Lang J commented on the nature of research in the internet age:47
[12] It is now well recognised that the ability to access digitally stored information presents significant challenges to the criminal jury trial process. Most jurors now have access to the internet through cellphones, tablets and personal computers. It is a very simple matter for anybody to use such devices to gain instant access to detailed information about any topic or person. The challenge for the courts has been to ensure that jurors continue to decide cases based solely on the evidence given in the courtroom. Adherence to that principle remains fundamentally important to the trial process.
[79] In Norsworthy v Police, Collins J also recognised the changing nature of research in the internet age:48
[16] I accept, however, that the ability to access newspaper reports through the internet means that articles that have been published a long time before trial may still be able to be easily accessed by jurors. Accordingly, the lapse of time between publication and trial may no longer be as decisive a factor as it was in cases that pre-dated the internet …
[80] I agree with Ellis J’s observation in Lyttle, namely that, “there is simply no meaningful comparison to be drawn between internet use in 1998 and its ubiquity now”.49 Significantly, people do not physically need to go anywhere anymore to access information. It is all immediately available on mobile phones or computers,
44 Law Commission, above n 33, at [5.26].
45 At [5.27]; citing Cheryl Thomas “Avoiding the Perfect Storm of Juror Contempt” [2013] Crim LR 483 at 491.
46 David Harvey “Diluting Prejudice” (4 August 2018) SSRN < at 1.
47 R v Lyttelton, above n 30.
48 Norsworthy v Police [2013] NZHC 2550.
49 R v Lyttle, above n 11, at [17].
and from within the privacy of one’s own home. Even if people do not actively seek such information, they may use social media websites which provide news updates.
[81] Baragwanath J, in the minority decision in R v B (CA459/06), showed awareness that “[t]he advent of the internet has shown there are limits to the extent to which the courts have power effectively to control the information”.50
[82] There have also been examples in New Zealand where jurors have obtained or received information from outside the court, despite judicial directions. An example was R v Harris, where printouts containing American definitions of the terms “burden of proof” and “beyond reasonable doubt” were found in the jury room.51
[83] I further note that even in its findings in 1998, the Law Commission observed that there were instances of jurors defying judicial instructions:52
7.43… jurors not infrequently attempted to obtain additional information on the law, particularly during the trial itself – for example, by looking up definitions of key terminology in the dictionary or taking a legal textbook on fraud into the jury room. The jury gave no indication in any of these cases that they thought their investigations were improper.
7.45 Thus, while the directions not to conduct external inquiries were adhered to in a majority of cases, there was no evidence that the directions themselves made a difference to the actions of juries in this respect. By and large, juries simply did not seem to appreciate the importance, or did not understand the logic, of restricting themselves to the information presented by the parties and the judge.
[84] I ask the question whether strong directions, going beyond the standard directions, will remove or at least reduce the risk. For example, in Tarapata, Moore J added the following directions:53
(c)to do so [search the internet or correspond on social media] would be a breach of a Court order and would likely require the trial to be aborted, the jury discharged and a new trial scheduled with all the cost, inconvenience and unfairness such a course would necessarily attract;
50 R v B (CA459/06), above n 25, at [50].
51 R v Harris CA121/06, 27 September 2006. See also Law Commission, above n 33, at [5.4].
52 Law Commission, above n 31.
53 R v Tarapata, above n 11, at [22].
(d)to disobey or breach such an order would be a contempt of Court which is punishable by penalties including imprisonment;
…
(f) if any juror discovered any other juror made their own inquiries or [undertook] their own research it was the duty of every juror to bring that fact to the attention of the Court which would have to decide what to do with the trial and the juror.
[85] In my view, there is real value in such directions, particularly in the direction at (f) which draws on the collective strength of the jury to ensure that judicial directions are complied with. The Law Commission also acknowledged the importance of tailored directions:54
5.38 … Judicial directions must be approached as one of a range of measures. Further, the effectiveness of judicial directions depends on their form, content and timing. Directions need to present the rules as reasonable logical restrictions and provide jurors with a clear explanation of why their decision must be based only on the evidence presented in court. Some trial judges … have developed their own tailored directions to jurors not to conduct their own research, explaining fully the reasons why they must not do this.
[86] If one accepts there is collective strength in the jury as a whole, in terms of ensuring compliance, then any disobedience by a juror would likely be brought to the attention of the Court during the trial. It would then be in the hands of the trial judge as to whether the trial could continue.
[87] I accept, as did the Law Commission, that we do not have a “very clear picture as to how prevalent the problem of jurors accessing extraneous material really is at present in New Zealand”.55 But, having regard to the empirical evidence that is available, I consider there is a real or substantial risk that a determined and irresponsible juror might undertake internet inquiries, despite a judicial direction to the contrary. In reaching this conclusion, I acknowledge the Law Commission’s comment in its 2014 findings, namely that, “we think it is important not to place too much reliance on “do not research” directions”.56 I note that this conclusion is also
54 Law Commission, above n 33.
55 Law Commission, above n 33, at [5.25].
56 At [5.38].
consistent with the following comments of former District Court Judge David Harvey:57
There is a real and significant risk that a juror may carry out Internet research notwithstanding clear judicial directions.
In summary the argument is this. First, Internet use by New Zealanders is very widespread indeed and the likelihood of a juror or jurors having access to the Internet during trial is high. Secondly, overseas studies in both England and the United States have confirmed that jurors access the Internet during the course of a trial and carry out their own enquiries. Thirdly, the possibility of Internet access by jurors in the face of clear directions by the trial judge is recognised by New Zealand Courts and as earlier discussion evidences, take- down orders may be made.
[88] Given my conclusion, I will proceed on the basis that there is a real risk that a juror may disobey a direction not to search the internet. However, although I proceed on this basis, this will not assist Ms Parangi’s case because of the view I have reached on the issue of prejudice, to which I now turn.
Analysis - prejudice
[89]Ms Gray’s argument as to prejudice can be distilled into three parts as follows:
(a)She accepts that the reporting of the first trial was not inaccurate in terms of the evidence in the first trial. But she says having regard to the new evidence from Dr Garavan as to cause of death, the reports lack balance as they present only one side of the picture (the Crown case) that will be before the jury in the retrial;
(b)There is prejudicial content regarding reports to CYF and a reference to the Nia Glassie case, which was not part of the trial evidence and which will not be part of the evidence in the retrial; and
(c)There is emotive content in the published material.
[90] In the circumstances of this case, I am not satisfied that there is a real risk of prejudice so as to impact on Ms Parangi’s fair trial rights even if a disobedient juror
57 Harvey, above n 45, at 19.
were to undertake an internet search and locate the material identified in Ms Krebs’ affidavit. I say that for the following reasons:
(a)Unlike Lyttle, this is not a case where the articles contain content that has been ruled inadmissible in the retrial;
(b)Nor is it a case like Tarapata, where the Crown case at the first trial that methamphetamine use may have triggered the defendant’s psychosis, was not pursued at the retrial. There was extensive online reporting of Mr Tarapata’s methamphetamine use at the time of the first trial. In this case, the Crown case and Crown evidence will be the same in the retrial (on certain issues, the form in which the evidence is adduced will be different but the content will effectively be the same);
(c)That leads me to Ms Gray’s complaint about lack of balance in the media reports, having regard to the new evidence that the defence will call which was not called in the first trial. I do not accept that this will give rise to prejudice. The jury will hear the competing evidence as to the cause of death. It will be before them in the retrial;
(d)As to online emotive content, the Crown case will again be that Isaiah died from hyperthermia as a result of being left in a car with the doors and windows closed, while Ms Parangi smoked synthetic cannabis. That will all be before the jury. There is thus the potential for strong emotions to be aroused during the trial in any event. The trial judge will give the usual sympathy and prejudice direction. As to emotive content on Facebook, it would be apparent to a reader that this is not informed journalism from someone present at the trial;
(e)I acknowledge Ms Gray’s point that there is online content about complaints to CYF and a reference to a relative’s concern that the older siblings might be the next Nia Glassie. But, in my view, that is not so prejudicial to Ms Parangi as the grandmother so as to warrant a take down order; and
(f)I give little weight to the fact that this is a retrial. Even if a juror researched Ms Parangi and found out that she was convicted, this would not necessarily mean that any speculation would prejudice Ms Parangi. As Moore J said in Kahia, “[t]he very fact that a new trial is taking place necessarily infers that something went wrong with the first trial.
This could operate in [the defendant]’s favour”.58
[91]This is therefore not a case where take down orders should be made.
Other factors
[92] Finally, I address some of the matters raised by the two media organisations. These are secondary considerations to the primary issue of Ms Parangi’s fair trial rights. But they add weight to my conclusion that take down orders should not be made.
[93] There is the issue of the ‘futility’ of take down orders. It is apparent that even if take down orders were made, a juror could find similar content on other sites, which would not be subject to the orders. Mr Stewart provided some examples. Additionally, any Facebook comments (which are not linked to the Facebook pages of any media organisations which would be removed by the order) would remain unaffected.
[94] While a degree of effort would be required to comply with any take down order, Mr Stewart (correctly in my view) did not argue that it would be oppressive to do so. That is because specific URLs have been identified. However, it might be said that oppression arises in another way. In this case, if the orders were made then the publishers of the articles identified by Ms Parangi would have their right to freedom of expression limited, whereas other publishers who use social media or whose content was not captured by Ms Krebs’ searches would not.
[95] Finally, although the media organisations have the ability to restore the deleted content, in practice, because of all the steps required to do so, the items may remain permanently deleted. As a result, part of the permanent public record would be lost.
58 Kahia v Police, above n 11, at [39].
Result
[96]The application for take down orders is refused.
Gordon J
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