R v Benbow

[2023] NZHC 1521

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-8869

[2023] NZHC 1521

THE KING

v

DAVID CHARLES BENBOW

Hearing:	27 April 2023
Appearances:	B Hawes and C J Boshier for Crown K J Gray and K J Basire for Defendant E D Nilsson for Stuff Ltd
Judgment:	19 June 2023

JUDGMENT OF EATON J

As to Takedown Application and Suppression Orders

This judgment was delivered by me on 19 June 2023 at 11:20 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

R v BENBOW [2023] NZHC 1521 [19 June 2023]

Introduction

[1]    David Benbow is charged with murdering Michael McGrath. He faced an eight-week trial that commenced 13 February 2023. After lengthy deliberations, the jury was unable to agree a unanimous or majority verdict and was discharged. The retrial date is 21 August 2023.

[2]    There was significant media interest following Mr McGrath’s disappearance in 2017 and Mr Benbow’s subsequent arrest in September 2019. An order was made pre- trial allowing filming of the trial. On 24 March, following the conclusion of defence evidence, Stuff Ltd released a trailer for a podcast entitled “The Trial”. In what Stuff described as a first, the podcast was launched as the trial was still unfolding. The first two episodes were released on 29 March, the day the jury began deliberations. The third episode was released on 31 March. The podcast was promoted as a true crime podcast offering in-depth coverage of the trial of Mr Benbow.

[3]    Shortly after the jury was discharged  on  3 April,  Ms Gray,  on  behalf  of Mr Benbow, drew the Court’s attention to the podcast and advised that a formal application would be filed to take down the three episodes. A media representative of Stuff confirmed that two further episodes were to be released. An interim order prohibiting publication of those two episodes was made. On 3 April, Ms Gray filed a formal application seeking a takedown order in relation to the three published episodes and the two further episodes.

[4]    Ms Gray submits the detailed reference to trial evidence within the podcast, coupled with the likelihood of jurors being exposed to the podcast, will, absent a takedown order, prejudice Mr Benbow’s fair trial rights. The application is supported by the Crown. Stuff Ltd, the publishers of the podcast, oppose the application.

Factual background

[5]    Michael McGrath went missing from the Christchurch suburb of Halswell on 22 May 2017. He has not been seen or heard from since. Mr Benbow was not charged with Mr McGrath’s murder until September 2019.

[6]    Mr McGrath and Mr Benbow were close friends. Both were long-term residents of Halswell. Mr Benbow had been in a relationship with Joanna Green. They had two children together. Their relationship broke down, and Ms Green moved out of the family home on 3 March 2017 with the children. Thereafter, a relationship developed between Ms Green and Mr McGrath. Mr Benbow learnt of that relationship.

[7]    It is the Crown case that, in the week prior to 22 May 2017, Mr Benbow initiated contact with Mr McGrath and arranged for them to meet at Mr Benbow’s Candys Road address at 9.00 am on 22 May. The Crown case is that Mr McGrath arrived at Candys Road as planned and has never been seen since. The Crown allege Mr Benbow murdered Mr McGrath at that address using his .22 calibre rifle, which has never been recovered, and disposed of incriminating evidence and Mr McGrath’s body.

[8]    Mr Benbow has consistently denied any involvement in Mr McGrath’s disappearance. He says Mr McGrath did not arrive at his address on the morning of 22 May.

[9]    The case against Mr Benbow is entirely circumstantial. Mr McGrath’s body has not been found, no crime scene has been identified by forensic evidence and no weapon located.

[10]   The Crown offered evidence said to establish motive and opportunity. About 130 witnesses gave evidence for the Crown. Expert evidence featured in relation to many of the issues in dispute including power usage, CCTV analysis, car batteries and missing persons investigations. The live issues at trial were whether Mr McGrath was deceased and the possibility of accidental death or suicide. The ultimate issue was whether the Crown could prove Mr Benbow murdered Mr McGrath.

[11]   The Crown opened the case alleging the power usage evidence would establish that Mr McGrath had left his home before 9 am on 22 May. A significant development during the course of the trial was the Crown recalling its power usage expert to confirm

an error in her original evidence relevant to that issue. In closing the Crown case,  Mr Hawes invited the jury to put the power usage evidence to one side.

[12]The jury deliberated for three and half days before being discharged.

Suppression — fair trial

[13]   Mr Benbow’s application for takedown orders was initially advanced in reliance on the inherent jurisdiction of the High Court to order internet material to be taken down for fair trial reasons.

[14]   When enacting the Contempt  of Court Act  2019, Parliament also  enacted  ss 199C and 199D of the Criminal Procedure Act 2011 (the CPA). Ms Gray acknowledges that the present application is to be considered under those provisions. The law has been helpfully summarised by Palmer J as follows:1

…

(a)First, the Court must decide whether it is satisfied that the continuing publication of the information is likely to create a real risk of prejudice to a fair trial. “Likely” means “a real and appreciable possibility”. Its assessment involves assessing the likelihood that jurors will see the information and the likelihood that, if they do, the information will cause prejudice to a fair trial. That should take into account:

(i)the content and character, including language and tone, of the publication and its effect as a whole;

(ii)the medium of publication and likelihood of it being accessed by jurors, having regard to current social science evidence as well as the particular circumstances of the information at issue; and

(iii)the routine use of juror oaths by, and judicial directions to, jurors not to do their own research and the availability of fines against jurors who do.

(b)Second, in exercising its discretion, the Court must assess whether, in the circumstances, a take-down order would be a reasonable limitation upon the right to freedom of expression as can be demonstrably justified in a free and democratic society, having particular regard to the impact on fair trial rights of continuing publication. The relevant considerations include:

1      Singh v R [2021] NZHC 3019, [2022] 2 NZLR 400 at [21].

(i)the principle of open justice, the right to freedom of expression, the public interest in knowing the published information, the compliance costs on the publishers of the information and any effect on its permanent public availability;

(ii)the right to a fair trial, the effects of publication on those rights, and the interests of victims and other affected persons; and

(iii)the likely efficacy of a take-down order.

(c)For a Court to issue a take-down order, the balance must clearly favour suppression. The terms of any take-down order, and in particular its duration, must be only those necessary to protect the right to a fair trial. The decision will, of course, depend on the context.

(footnotes omitted)

Submissions

[15]   Ms Gray submits the continuing publication of the podcast is likely to create a real risk of prejudice to a fair trial. She says there are evidential inaccuracies within the podcast, some of the evidence detailed in the podcast may not be called at a retrial, and it is possible the admissibility of evidence referred to in the podcast will be challenged prior to a retrial. Ms Gray refers particularly to the evidence of the Crown’s missing persons expert, Professor Harrison, as evidence that was likely to be the subject of a pretrial admissibility challenge. Generally, Ms Gray submits that the “safest course” was to takedown the podcast.

[16]   Mr Hawes, on behalf of the Crown, supports the application. He agrees the final shape of the retrial is yet to be settled and that the witness list will likely differ. Mr Hawes submits that it is the medium of publication, namely a podcast, which sets it apart from other coverage. He submits that the podcast records a detailed examination of the evidence, including replaying audio evidence given at trial, and includes editorial comment.

[17]   Mr Hawes does not criticise the podcast itself but submits it has the potential to influence prospective jurors. He highlights the risk of potential jurors innocently listening to the podcast and deriving detailed knowledge of evidence given at the first trial which could not be derived by a prospective juror following other media

coverage. Further, he submits that when jurors are summoned, their interest in the case could be piqued, leading them to the podcast.

[18]   Finally, he points to the risk of irresponsible jurors ignoring jury directions and accessing the podcast during the course of the retrial. Mr Hawes submits a takedown order is a reasonable limitation as it would not be permanent.

[19]Mr Nilsson, on behalf of Stuff Ltd, submits:

(a)there is no real and appreciable risk that a potential juror would access the podcast during the retrial or otherwise recall its content in detail;

(b)the podcast contains no information which creates a real risk of prejudice to the defendant’s fair trial rights; and

(c)the public interest in publication significantly outweighs any risk posed by publication.

[20]   Mr Nilsson confirms that the podcast is a series in five parts, three of which are presently available online. He describes it as a report on the trial as opposed to an investigative podcast. He contends its purpose is to provide a fair and accurate report of a criminal trial using audio from the trial (both evidence and submissions) and explaining, through narration, the competing case theories and various procedural aspects of the trial. He submits the tone of the podcast is neutral and the content balanced. He says the audience is regularly reminded as to the onus of proof and presumption of innocence, and that the narrator does not draw any conclusions about the evidence, submissions, or Mr Benbow’s guilt or innocence.

[21]   Mr Nilsson submits that Mr Benbow’s case is not notorious in the sense of Bain or Lundy, and therefore not the type of case jurors will recall or approach with a preconceived idea of guilt or innocence. It is significant, Mr Nilsson submits, that  Mr Benbow was not found guilty at the first trial.

[22]   Mr Nilsson refers to the somewhat conflicting approach of judges as to whether jurors might undertake their own research in direct contravention of judicial directions.

He submits the appropriate approach is to reject the general assumption of such risk. Mr Nilsson submits that even if a disobedient juror were to access the podcast, there is no risk of unfair prejudice to Mr Benbow. He submits the defence have failed to identify any particular information within the podcast said to be unfairly prejudicial to Mr Benbow. Mr Nilsson submits the Court ought not entertain the general assertion that the podcast contains either an inaccurate analysis of evidence or evidence that may not be called at the retrial. He submits something more than prior reporting is required in order to establish a real risk of prejudice.

[23]   Mr Nilsson does not accept that the level of detail included within a podcast gives rise to prejudice, and the level of detail reduces the risk of prejudice because it is more likely to have achieved balanced reporting.

[24]   If the Court were to find the threshold test had been met, Mr Nilsson submits the podcast seeks to increase public understanding of the workings of a criminal trial. There is a strong public interest in achieving that object. He submits that even if the Court were to find a risk of prejudice, it would be low-level and not sufficient to reasonably justify a limitation on Stuff’s right to freedom of expression.

The podcast

[25]   I have taken up the invitation of all counsel to listen to the three episodes of the podcast released to date. Each episode lasts about 35 minutes.

[26]   Unlike other crime podcasts, “The Trial” does not set out to investigate a high profile criminal case. The podcast is focussed on the trial of Mr Benbow. Taking advantage of in-court audio recordings, the podcast exposes the listener to the workings of a criminal trial. The podcast incorporates extensive recordings of both evidence and submissions from the trial. The narrator explains basic trial procedure2 and fundamental principles.3

2      For example, the nature of opening addresses and statements, and the process for the examination of a witness.

3      Listeners are regularly reminded of the onus of proof and the presumption of innocence.

[27]   I consider the general tone of the podcast to be neutral. I accept it strives to present a balanced account of the key issues in dispute and the competing evidence. Rather than drawing conclusions on the particular issues, the narrator refers to the evidence given at trial and explains how that evidence fits the competing case theories. Mr Nilsson assures the Court the final two episodes adopt the same style.

Analysis

[28]I agree with the observation of Moore J in Kahia v Police:4

[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.

[29]   In this case, Crown counsel refer to the further risk of a summonsed juror accessing information about the case pre-trial, motivated simply by interest in the case.

Likelihood of a juror accessing the podcast

[30]   This appears to be the first takedown application in relation to a podcast. There is an element of the unknown that has no doubt led counsel to take a cautious approach. That approach is captured by the submission of Ms Gray that a takedown order was the safest course of action. There may be merit in that submission, but I must consider the application under the applicable statutory framework.

[31]   Mr Hawes, supported by Ms Gray, submits the podcast is an easily accessible source of information about the case.

[32]   No evidence has been offered as to the popularity either of this particular podcast or of podcasts generally. There are likely to be regular podcast listeners, and within that group, those who are interested in true crime stories. I accept the podcast is a form of entertainment and will therefore attract an audience beyond those searching for information about the case. No doubt there are many potential jurors who do not listen to podcasts.

4      Kahia v Police [2018] NZHC 1023.

[33]   “The Trial” is a convenient and easily accessible source of information about the proceedings for someone who is interested in the Benbow case. It collates and packages, in a user-friendly format, a fulsome account of the trial. To have so much information collated in a single source avoids the need to review multiple published articles. The podcast has been, and will no doubt continue to be, advertised by Stuff, enhancing the likelihood of it engaging an interested juror. Further, the alleged jealousy motive, coupled with the absence of a body, a weapon, or a crime scene has sparked considerable public interest in Christchurch over several years. The notoriety of this case does give rise to an enhanced risk of prospective jurors being summoned for jury service with prior knowledge of the case, and of sitting jurors accessing information about the case. The podcast is a convenient and accessible resource to learn about the case.

[34]   A person receiving a jury summons is not told the name of the trial in which they may sit as a juror. However, because the summons will record that the person summonsed may be required to sit as a juror for up to eight weeks, and because of the likely publicity surrounding the retrial, I think it inevitable some prospective jurors will deduce that they have been summonsed for this retrial.

[35]   There is a likelihood, therefore, that some persons summonsed might seek information about the case and learn about “The Trial” podcast. The risk of prejudice that then arises will need to be addressed by way of directions.

[36]   In this case, pre-empanelling directions will appropriately be tailored to address the fact that the case is a retrial of a heavily publicised trial. The trial judge will inevitably direct the jury panel that if they have engaged in any research into the case, including accessing the podcast, and cannot put those matters to one side, they ought not to be sitting as a juror.

[37]   Once a jury is empanelled, each juror will have taken an oath and be bound by further directions given by the trial judge. The jury will be specifically directed not to access any information about the case on the internet or elsewhere.

[38]   I accept there is always risk an irresponsible juror might disregard directions given by the trial judge and access the podcast during the course of the retrial.

[39]   In Singh, Palmer J reviewed the authorities and recent research addressing the risk that jurors will not comply with directions and make their own enquiries or seek to access information outside of the courtroom.5

[40]   Because of the view I have reached as regards the risk of prejudice arising having regard to the content and character of the podcast, it is not necessary that I address this issue other than to acknowledge there will always be a risk of a disobedient juror. I am confident that in the event a juror was to infringe, that breach would inevitably be made known to other jurors who would comply with a direction to report that juror.

[41]   Finally, in relation to a podcast as the medium of publication, I do not accept that the essential nature of a podcast justifies a takedown order. Counsel submits that a podcast exposes a prospective juror to significantly more detail than other forms of reporting. I agree that a podcast can, and in this case does, engage in a review of the evidence and the competing cases in considerably greater detail than other forms of reporting. I accept that the detail available via the podcast does engage a risk that a juror might acquire significant knowledge about the case. But counsel could not articulate why a detailed account of the evidence might prejudice a fair trial other than the risk a listener might be so swamped or immersed in detail they could not then differentiate between evidence heard at the retrial and that heard in the podcast. I agree this factor might give rise to a risk of prejudice if the evidence at a retrial was not likely to be substantially the same. The evidence at Mr Benbow’s retrial is likely to be substantially the same, and any differences will be addressed by the Crown in an opening address.

[42]   Having listened to the podcast, I am satisfied the detailed account of evidence and submissions enhances the accuracy, fairness and balance of the reporting. The inclusion of recordings or re-enactment of evidence given by witnesses similarly ensures a high level of accuracy.

5      Singh v R, above n 1, at [4]–[7].

Other online material

[43]   Accepting that a juror might be exposed to the podcast beforehand and/or disobey a direction not to listen to the podcast, that juror will, in any event have easy access to a wealth of material beyond the podcast, both in relation to the original investigation into the disappearance of Michael McGrath and to the trial itself. No application has been made by either the Crown or defence to take down any of that material. Taking down the podcast does not remove the potential for a juror to undertake their own inquiry into the case.

Content and character

[44]   In considering the likelihood of the podcast creating a real risk of prejudice to a fair trial, I have considered the content and character of the podcast. In my view this assessment determines the takedown application.

[45]   The inaccuracies or omissions particularised by Ms Gray are the narrator’s reference to Mr McGrath being “famously reliable” and to Mr Benbow having been “free on bail”. I do not accept that submission. The evidence of several witnesses addressed Mr McGrath’s reputation for reliability and, following a lengthy custodial remand, Mr Benbow was on bail throughout the trial.

[46]   Generally, I am satisfied the podcast is accurate in summarising the evidence. I have, however, identified comments made by the narrator that, in my view, do not fully and fairly reflect the evidence. I refer to two examples.

[47]   First, in episode three, the narrator concludes that the upshot of the shifts in expert opinion as regards the electricity evidence was that the evidence was neutral. The podcast omits reference to the opinions of both the Crown and defence experts that there were two power surges after 9 am on 21 May, and that only one of those could reflect a hot water cylinder recharge, meaning the other was consistent with an occupant within the house, using electricity. This was an issue highlighted in closing addresses.

[48]   Second, in summarising the competing CCTV evidence, the narrator does not refer to the evidence of the defence expert, Mr Horsburgh, who said the blue Subaru, seen in the relevant CCTV footage shortly before 9 am on 22 May 2017, could not be Mr McGrath’s vehicle because the “black dot” in the centre of the wheels of the McGrath vehicle is not visible in the footage.

[49]   It is possible the unreleased episodes might address those issues. Given the final episode may well focus on the closing addresses, I think that is likely. Regardless, I do not consider the shortcomings I have identified create a real risk of prejudice to a fair trial. The podcast does not offer an opinion as to the credibility or reliability of the electricity and CCTV witnesses. Both issues were presented neutrally for the listeners. I do not consider the defence case to be misrepresented or presented unfairly.

[50]   The primary concern expressed by Ms Gray is that it is yet to be determined how a retrial might be recast. She submits, supported by Mr Hawes, there may be several witnesses called at the first trial who will not be called at a retrial and, similarly, there may be additional witnesses called. The defence have informally advised that an objection will be taken to aspects of the evidence given by the Crown expert, Professor Harrison. No formal application has been filed. Further investigations into the power usage evidence and the number of Subaru cars similar to that owned by Mr McGrath are ongoing. It is submitted that until the Crown and defence have settled on the evidence to be called at the retrial, the podcast should be taken down to preserve the position.

[51]   Mr Nilsson submits the defence position is really an acknowledgment that the current application is premature. Mr Nilsson submits it is for the applicant to point to elements of the podcast which will risk prejudicing a fair trial, and it is not enough to submit that it could do so depending on how the Crown and defence elect to run a retrial.

[52]   I agree. As matters stand, I am not persuaded the content and character of the published episodes of the podcast give rise to fair trial prejudice to either Mr Benbow or the Crown. Whether the proposed further episodes might do so is speculative.

[53]   I have been referred to a number of cases dealing with applications to take down material published on the internet.6 I recognise a risk of prejudice to a fair trial might arise from prior reporting of a finding of guilt, a plea of guilty, or prior convictions, references to charges that have been the subject of a trial but that would not be the subject of a retrial, to illegal conduct such as drug use that will not feature at a retrial, or to significant evidence that was ruled inadmissible at a retrial. None of those factors arise in this case.

[54]   I consider it to be of particular significance that Mr Benbow was not found guilty. Any prospective juror who has followed the case, whether in the mainstream media or via the podcast, will be aware that the jury at the first trial were unable to agree on a verdict. The particular risk of prejudice which might flow from prior knowledge of a guilty verdict or other indicator of bad character, does not arise.

[55]   I am not satisfied that a juror’s exposure to the podcast is likely to create a real risk of prejudice to a fair trial.

Conclusion

[56]   Whilst I understand counsel’s discomfort around a podcast publishing, in some detail, the evidence, competing cases, and process involved in a high-profile trial shortly prior to a retrial, I am not satisfied, having regard to the statutory threshold, that the grounds for a takedown order have been made out. Mr Benbow has not met the threshold of s 199C(1) of the CPA. Had I been satisfied the threshold had been met, I would have concluded that a takedown order and prohibition on publication of further episodes was appropriate, notwithstanding the principle of open justice. The fact the orders would be temporary would, in my view, have amounted to a reasonable limitation on the media’s right to freedom of expression, particularly in circumstances where other articles on the matter would remain unaffected.

6 R v Tarapata [2017] NZHC 3209; Kahia v Police, above n 4; Parangi v R [2018] NZHC 3123; Madsen v R [2020] NZHC 263; R v Hoggart [2020] NZHC 3155; and Sweeney v Discovery NZ Ltd [2022] NZHC 1354.

Result

[57]The application is refused.

[58]   The interim orders will remain in force until 5 pm on 21 June 2023 to allow Mr Benbow and the Crown the opportunity to consider an appeal.

...................................................

Eaton J

Solicitors:

Crown Solicitor’s Office, Christchurch Lee Salmon Long, Auckland

Copies to:

Katherine Basire, Barrister, Christchurch Kirsten Gray, Barrister, Christchurch

Kristopher Bucher, Barrister, Christchurch