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…

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.

Continue reading R v Benbow

Details

AGLC: R v Benbow [2023] NZHC 1521
Case: [2023] NZHC 1521
Decision Date: 19 June 2023

CaseChat Overview and Summary

The case of R v Benbow involved a defendant, David Benbow, charged with the murder of Michael McGrath. After an initial trial that lasted eight weeks, the jury was unable to reach a verdict, leading to a discharge and a subsequent retrial scheduled for August 21, 2023. Amidst significant media coverage, Stuff Ltd released a podcast series titled "The Trial" detailing the proceedings of Benbow's trial. This podcast, which was released while the trial was ongoing, drew the attention of Benbow's legal team, who filed an application for a takedown order of the podcast episodes. They argued that the detailed coverage of trial evidence within the podcast could prejudice Benbow's right to a fair trial in the upcoming retrial. The Crown supported the application, while Stuff Ltd opposed it, asserting the public interest in reporting and the podcast's balanced approach.

The legal issues before the court were whether the continued publication of the podcast posed a real risk of prejudice to Benbow's fair trial rights and, if so, whether a takedown order would be a reasonable limitation on the right to freedom of expression. The court considered the likelihood of jurors accessing the podcast, the content and character of the podcast, and the balance between fair trial rights and freedom of expression. The court found that while the podcast was a detailed and accessible account of the trial, the content did not create a real risk of prejudice to a fair trial. The podcast was neutral in tone and balanced in its presentation of evidence. Furthermore, the court noted that the case was not notorious, and Benbow had not been found guilty in the first trial. The court concluded that the grounds for a takedown order had not been met under the statutory threshold, and the application was refused.

In conclusion, the court denied the takedown application, holding that the podcast did not pose a significant risk of prejudice to Benbow's right to a fair trial. The interim orders in place to prevent further publication of the podcast episodes would remain until June 21, 2023, to allow for any potential appeal.

Orders