R v Tarapata
[2018] NZHC 2680
•17 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2014-055-001496
[2018] NZHC 2680
THE QUEEN v
ZARN TARAPATA
Hearing: (On the papers) Counsel:
Richard Marchant and Kristy Li for the Crown
Jonathan Krebs and Julia Spelman for the Defendant Tania Goatley and Kristin Wilson for the Media (Fairfax, MediaWorks, TVNZ, NZME, Radio New Zealand, AAP)
Judgment:
17 October 2018
[COSTS] JUDGMENT OF MOORE J
This judgment was delivered by me on 17 October 2018 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
R v TARAPATA [2018] NZHC 2680 [17 October 2018]
Introduction
[1] On 30 October 2017 I rescinded interim orders I had earlier made requiring the removal of all online content published by various media organisations1 making reference to Mr Tarapata’s 2015 trial. I delivered my reasons on 19 December 2017.2
[2] At the hearing Ms Goatley, for the media respondents (“the Media”), advised she wished to be heard on the question of costs. She has since filed an application.
[3]This judgment addresses that costs application.
The background to this application
[4] I presided over Mr Tarapata’s retrial. He was originally tried on two charges of murder in 2015 and convicted. That conviction was overturned by the Court of Appeal.3 At the retrial, Mr Tarapata was found not guilty by reason of insanity. Earlier this year, I ordered that he be detained as a special patient in terms of s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
[5] Shortly before the commencement of the retrial on 24 October 2017, Mr Tarapata’s counsel Mr Krebs drew my attention to a considerable body of material available online concerning Mr Tarapata’s first trial. He sought take-down orders; orders that the Media remove all online content concerning Mr Tarapata and his trial. He also sought that the order require search engine providers to disable any link using the words “Zarn Tarapata”. I granted the orders on an interim basis on the first day of trial, and called for the filing of notices of opposition. Service was effected and references removed.
[6] Notices of opposition were subsequently received from each of the media organisations I directed be served. I heard full argument on 30 October 2017, at the beginning of the second week of the trial, and subsequently rescinded the interim orders. I did so for the following reasons:
1 Fairfax Media Ltd, NZME Publishing Ltd, Television New Zealand Ltd, Radio New Zealand Ltd, MediaWorks NZ Ltd and AAP NZ Pty Ltd, herein “the Media”.
2 R v Tarapata [2017] NZHC 3209.
3 Tarapata v R [2016] NZCA 500, (2016) 28 CRNZ 126.
(a)I was not satisfied there was a real risk Mr Tarapata’s fair trial rights would be adversely affected given the firm direction I gave the jury that they were not to undertake any inquiries of their own including internet searches. The articles would not be in the public consciousness, so to access any material a juror would have to actively search Mr Tarapata’s name despite my firm direction. I regarded that as a remote possibility.
(b)There were numerous other reasons which supported that primary conclusion: the likelihood of innocent non-compliance, the oppressive effect of compliance, the alteration of the historical record, and difficulties in securing compliance by search engine providers.
The position of the parties
[7] The Media seek indemnity costs of $9,837.50. In comprehensive and helpful submissions, Ms Goatley contends that applications for take-down orders fall within the civil jurisdiction of the High Court. As a consequence the issue of costs should be determined in accordance with Part 14 of the High Court Rules 2016 (“the Rules”). Because the Media were not party to Mr Tarapata’s criminal proceeding, and acted reasonably once they were joined, Ms Goatley submits indemnity costs are appropriate.
[8] She notes Mr Tarapata is not legally aided for the purposes of the application, and that his liability for costs should be determined without regard to the fact he is in receipt of criminal legal aid.
[9]A number of alternative submissions are also advanced:
(a)If I was to find Mr Tarapata is liable to pay costs but not indemnity costs, either increased or 2B costs should be awarded.
(b)If Mr Tarapata is in fact in receipt of civil legal aid, under s 45 of the Legal Services Act 2011, there are exceptional circumstances justifying an award of costs in this case. If I was to determine it is not appropriate for costs to be awarded directly against Mr Tarapata, I should specify
the amount of costs that would have been ordered had Mr Tarapata not been legally aided in accordance with s 45(4) and (5). This is to enable the Media to apply to the Legal Services Commissioner (“the Commissioner”) for compensation in accordance with s 46.
[10] Mr Tarapata opposes the Media’s application. On his behalf, Mr Krebs submits:
(a)the application for a take-down order should be considered as within the Court’s criminal jurisdiction, despite the decision in Lyttelton v R;4 and
(b)if the application falls within the Court’s civil jurisdiction, public policy interests mean costs should not be awarded against a defendant who brings an unsuccessful, but reasonable, take-down application.
The issues for resolution
[11]The issues which arise in this application are two:
(a)For the purposes of costs should take-down orders be considered as within the Court’s criminal or civil jurisdiction?
(b)If within the Court’s civil jurisdiction, what award of costs, if any, should be made?
The wider context
[12] Before turning to address each of the issues, I pause to outline the wider context to this costs application.
[13] If, as Ms Goatley submits, the application falls within the Court’s civil jurisdiction, costs presumptively follow the event.5 As Mr Tarapata has not received
4 Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21.
5 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
a grant of civil legal aid, he will be personally liable to pay any costs awarded. However, if the application falls within the Court’s criminal jurisdiction, as Mr Krebs submits, it is governed by the Costs in Criminal Cases Act 1967, under which the Media do not have standing to seek costs. Moreover, Mr Tarapata has been granted criminal legal aid.
[14] At first blush, the matters for determination in this decision are of some general importance. However, in reality, they are more confined than that. The reason it is only Mr Tarapata who has criminal legal aid is that all parties had been proceeding on the assumption the application was criminal in nature. A specialist adviser within the Commissioner’s officer has considered funding requests on three or four occasions for take-down applications and advises that to his knowledge, these have all been dealt with in the criminal jurisdiction of the Court. He advises that the question of whether the jurisdiction is civil in nature has not previously arisen. One of the reasons contributing to the Commissioner’s belief these matters are criminal is because CRI numbers have been used by the Court Registries which, I assume, have not turned their minds to whether that reflects the correct classification.
[15] In a letter filed by Mr Krebs, the Commissioner has advised that had they been made aware take-down applications are civil in nature, and a civil legal aid application made, legal aid would probably have been granted.
[16] This means that, regardless of my decision on the jurisdictional question, the Commissioner is likely to provide legal aid to defendants who apply for take-down orders in future cases. Moreover, the Media should be able to apply for compensation from the Commissioner in accordance with s 46 of the Legal Services Act in those cases. The only practical effect my decision will have beyond its immediate relevance is therefore on whether it is necessary for defence counsel to apply for a grant of civil legal aid whenever their clients seek take-down orders.6
6 In that scenario, these comments will also be relevant where defence counsel fail to make applications for civil legal aid, and in respect of other take-down application make prior to the Commissioner’s change of practice.
Civil or criminal jurisdiction?
[17] Ms Goatley submits this issue was settled in Lyttelton v R; that applications for take-down orders are made within this Court’s civil jurisdiction.7 There the Court of Appeal considered an appeal against a decision of Lang J rescinding an interim take- down order. Strictly, the Court was considering an application for rescission, but it is clear from the judgment the Court’s findings apply generally to take-down order applications.
[18] Mr Krebs submits Lyttelton is distinguishable; that the fundamental question before the Court of Appeal was whether an appeal lay against Lang J’s determination, which under s 66 of the Judicature Act 1908 turned on whether the application was properly classified as a civil or criminal proceeding. By contrast, he submits the issue in the present case is whether any costs arising from the proceeding should be considering as incurred in the civil or criminal jurisdiction.
[19] I have carefully reviewed the Court of Appeal’s decision in Lyttelton. It drew heavily on Mafart v Television New Zealand Ltd, where the Supreme Court confirmed that s 66 of the Judicature Act provides only for appeals from the exercise of the civil jurisdiction of the High Court.8 The Supreme Court also set out the criteria to be considered in determining whether proceedings are criminal or civil, summarised in Lyttelton as follows:9
“… where proceedings can result in conviction for a crime or punishment of an offender, the proceedings are clearly criminal. Where applications are necessarily linked to the determination of crime or punishment, they are properly regarded as criminal. In all cases, however, the Court must look to the substance of the application and the order sought under it to accurately characterise the proceeding. The underlying proceedings, which provide the occasion for the application, are not determinative. What may be regarded as the correct characterisation of a given proceeding may change over time. Consequences of a criminal characterisation that indicate that conclusion may not be appropriate include:
(a)the absence of any appeal rights;
7 Lyttelton v R, above n 4, at [34], [53]
8 Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18.
9 Lyttelton v R, above n 4, at [17] citing Mafart v Television New Zealand Ltd, above n 8, at [29]- [38].
(b)the creation of an anomaly for non-parties in the general scheme of appeal rights; and
(c)uneven rights of appeal or review within the judicial hierarchy.”
[20] The Court of Appeal concluded that take-down applications are in the Court’s civil jurisdiction, because:10
“The present application is not one with penal consequences. Nor is it inextricably or even necessarily linked to a determination of crime or punishment. We agree with Mr Orpin that the underlying criminal proceeding simply provides the occasion for the application.”
[21]A number of factors buttressed this conclusion. They included that:
(a)If it were the case that an application to rescind a suppression order made under the Court’s inherent power is criminal in nature, the only appeal right for a defendant would be the right to appeal post- conviction on the basis the trial miscarried through publicity, an outcome the Court viewed as unsatisfactory.11
(b)If an application to rescind a non-statutory order is criminal, there will also be no appeal rights for the Crown, media or other non-parties.12
(c)The substance of the application confirmed its civil nature. The application was made by media applications and was effectively a dispute between Mr Lyttelton and the media. Resolution required balancing the media’s right to freedom of expression with Mr Lyttelton’s right to a fair trial (which the Court observed is not a consideration arising exclusively in criminal proceedings), and because determination of the application would not affect the conduct of Mr Lyttelton’s trial.13
(d)When enacting the Criminal Procedure Act 2011 Parliament’s silence in respect of suppression orders made pursuant to the Court’s inherent
10 At [35].
11 At [32].
12 At [33].
13 At [36].
powers was not intended to exclude appeals in cases involving the exercise of the inherent power to make non-statutory suppression orders.14
[22] I disagree with Mr Krebs that Lyttelton is distinguishable on the basis the Court only determined the nature of take-down applications so far as appeals are concerned. While in Mafart and Lyttelton the issue of jurisdiction arose because of s 66, the appeal provision in the Judicature Act, the Mafart criteria applied in Lyttelton respond to “the essential question … [of] whether the application … is a criminal proceeding”.15 Equally the Court of Appeal’s own conclusion concerned the nature of the “application”, not the nature of the appeal.16
[23] I thus conclude that Lyttelton remains binding on this Court. It is for the Court of Appeal to revisit its conclusion if it deems such a course necessary.17
[24] Having reached that conclusion, I accept there remain some reasons why take- down applications may better be considered criminal in nature, as Mr Krebs submitted:
(a)here the application was motivated by a concern there was significant publication about Mr Tarapata’s methamphetamine use, a fact which the parties had agreed was inadmissible at the retrial. Moreover, in ultimately rescinding the interim orders the Court had to consider whether judicial directions would be sufficient; a consideration which arises almost exclusively in criminal trials. These are two features which reflect the criminal context of the application;
(b)while fair trial rights are relevant in both civil and criminal proceedings, the nature of the threat to fair trial rights in criminal proceedings where take-down orders are sought is unique, and not readily comparable to the considerations which arise in civil proceedings;
14 At [39].
15 Mafart v Television New Zealand Ltd, above n 8, at [28].
16 Lyttelton v R, above n 4, at [52].
17 It has subsequently stated it arrived at this conclusion “by the barest of margins”: Taylor v C [2017] NZCA 372 at [30].
(c)the application for a take-down order was not made in a civil process by originating application or statement of claim, but by memorandum in the criminal proceeding; and
(d)the potentially perverse costs consequences of classifying such applications as civil; exposing legally aided defendants who are not aware of the need to make an application for civil legal aid to large costs awards.
[25] A key factor influencing the Court of Appeal’s conclusion was the effect criminal classification would have on appeal rights, given the civil jurisdiction of s 66 of the Judicature Act. There is a possible argument that s 56 of the Senior Courts Act 2016 justifies a change in approach. In Mafart, the Supreme Court emphasised the historical separation of the civil and criminal jurisdiction of the Court of Appeal.18 That has changed somewhat by s 56(1), which provides for both appeals “from a judgment, decree, or order of the High Court”, and appeals “under the Criminal Procedure Act 2011” as follows:
“56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
(b)under the Criminal Procedure Act 2011:
(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.”
[26] The learned authors of Sim’s Court Practice do not consider this has substantially altered the approach that was taken under s 66:19
“Under s 56(1)(b), the Court may hear and determine appeals under the Criminal Procedure Act 2011. Nevertheless, the earlier jurisprudence that s 66 only applied to civil proceedings and habeas corpus applications is still relevant when the Criminal Procedure Act 2011 does not apply.”
18 Mafart v Television New Zealand Ltd, above n 8, at [8]-[12].
19 Peter Twist Sim’s Court Practice (online looseleaf ed, LexisNexis, 2017) at [SEN56.7].
[27] I make no final comment on the proper interpretation of s 56. I have not heard argument on this point. And, for reasons I address below, it is not necessary to do so to resolve this application. However, I record that if, contrary to the interpretation favoured in Sim’s Court Practice, s 56(1)(a) applies to criminal proceedings not specified covered by the Criminal Procedure Act, some of the awkwardness of the conclusion in Lyttelton could be overcome.
What award of costs should be made?
[28] Having determined that the take-down application must be treated as made in this Court’s civil jurisdiction, the question of costs falls to be determined.
[29] Ms Goatley submits that having been wholly successful in opposing the application, costs should follow in accordance with r 14.2(a). As noted, she submits indemnity costs are appropriate as in accordance with r 14.6(4)(d).
[30] Ms Goatley says that such an outcome strikes an appropriate balance between fair trial rights and public interest, and that the Media should not be expected to bear the significant expense of complying with and then opposing interim take-down orders, where such orders prove unnecessary. She also submits it is in the interests of justice for the Media, who are non-parties but nonetheless comply with and then successfully oppose take-down orders, to receive costs in respect of their responsible participation, particularly where the take-down orders are sought on an ex-parte basis. She contends that failure to ensure the Media are compensated in such circumstances threatens the right to freedom expression, and ultimately undermines the public’s access to open justice and confidence in the judicial system.
[31] I accept the Media have acted as model litigants throughout this proceeding. As Ms Goatley emphasises, they promptly complied with my ex-parte interim orders. They instructed joint counsel to urgently file a notice of opposition and six affidavits.
[32] Nevertheless, I hold grave concerns about making an award of costs against a legally aided litigant who, by virtue of uncertainty about the civil nature of a relatively novel application reasonably brought to protect his fair trial rights, cannot benefit from the grant of legal aid.
[33] To the extent reference to a specific rule is necessary, I see analogy with r 14.7(e), which provides that the Court may refuse to make an order for costs where the proceeding concerns a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceedings. I agree with Mr Krebs that it is important that defendants accused of crimes should not be deterred from bringing any aspect of their trial or their circumstances surrounding it to the attention of the Court for consideration against their fair trial rights. It is well established that the principle of open justice it is an important one, but subject to exceptions which “are the outcome of a yet more fundamental principle, namely that the ‘chief object of Courts of justice must be to secure that justice is done.’”20 The fair trial rights of a defendant in a criminal trial may form the basis of such an exception; a matter enshrined in s 25(a) of the New Zealand Bill of Rights Act 1990.21
[34] The relationship between the principles of open justice and fair trial rights is instructive in this context. I accept there is a real risk in making a costs order against a defendant who brings a reasonable application for take-down orders to guard against a perceived threat to their fair trial rights is likely to have a chilling effect on future applications. That risk is a graver one than the risk the Media will be deterred from opposing such applications.
[35] Put simply awarding costs is not consonant with the need to protect fair trial rights. It is in the public interest for defendants whether legally aided or not to be able to bring reasonable applications for take-down orders in order to guard against a perceived risk to their fair trial rights without the prospect of a costs award being made against them in the event of failure.
[36] Mr Tarapata’s application was neither frivolous nor vexatious. Through his counsel he conducted himself reasonably in the circumstances. Although the interim orders were made on a without notice basis, that reflected the imminence of the start of the trial. The fact that evidence of methamphetamine use was no longer relevant arose at a late stage. It provided the impetus for the application. And, as Mr Krebs
20 Lyttelton v R, above n 4, at [24], citing Scott v Scott [1913] AC 417 (HL) at 437 per Lord Haldane.
21 At [25].
advises, the memorandum seeking take-down orders included suggestions for service in accordance with Pickwick procedures.
[37] Additionally, I disagree that analogy with non-parties brought into proceedings is available. The Media elected to oppose the application for take-down orders, and in doing so advanced a public interest argument and assisted the Court. They were not compelled to appear.
[38] For these reasons I exercise my discretion to refuse to award the Media costs on Mr Tarapata’s unsuccessful application for take-down orders.
Result
[39]Costs shall lie where they fall.
Moore J
Solicitors/Counsel:
Mr Marchant, Auckland Crown Solicitor, Manukau Mr Krebs, Napier
Ms Spelman, Wellington Bell Gully, Auckland
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