R v Tarapata - [2018] NZHC 2680

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[1] On 30 October 2017 I rescinded interim orders I had earlier made requiring the removal of all online content published by various media organisations1 making reference to Mr Tarapata’s 2015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 I heard full argument on 30 October 2017, at the beginning of the second week of the trial, and subsequently rescinded the interim orders.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,…

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 Tarapata

Details

AGLC: R v Tarapata [2018] NZHC 2680
Case: [2018] NZHC 2680
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Tarapata involved a dispute concerning the jurisdiction over take-down orders and the associated costs. The central issue was whether take-down orders should be classified within the criminal or civil jurisdiction of the Court and, if civil, what costs, if any, should be awarded. The media respondents sought indemnity costs, arguing that the application for take-down orders fell within the Court's civil jurisdiction. In contrast, the defendant argued that the application should be considered within the criminal jurisdiction or, alternatively, that public policy considerations should preclude costs being awarded against a defendant who brings a reasonable, albeit unsuccessful, take-down application.

The Court concluded that the take-down application must be treated as within the civil jurisdiction, following the Court of Appeal's decision in Lyttelton v R. However, the Court exercised its discretion under r 14.7(e) of the High Court Rules not to award costs against the defendant. The Court found that awarding costs against a legally aided litigant who reasonably brought an application to protect their fair trial rights could deter future applications, which is not in the public interest. The Court emphasised the importance of protecting fair trial rights and the principle of open justice, concluding that the risk of a chilling effect on future applications outweighed the Media's interest in being compensated for their participation in opposing the take-down orders. Consequently, costs were to lie where they fall.

This decision highlights the Court's careful balancing of fair trial rights, open justice, and the need to encourage defendants to bring reasonable applications to protect their rights without fear of incurring costs in the event of failure. It also underscores the importance of considering the broader implications of costs awards in proceedings that may not have been anticipated as falling within the civil jurisdiction.

Orders