R v Tarapata
[2017] NZHC 3209
•19 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2014-055-001496
[2017] NZHC 3209
THE QUEEN v
ZARN TARAPATA
Hearing: 30 October 2017 Appearances:
Richard Marchant and Kristy Li for the Crown Jonathan Krebs and Julia Spelman for the Applicant
Tania Goatley and Kristin Wilson for the Respondent Media (Fairfax, MediaWorks, TVNZ, NZME, Radio New Zealand, AAP)
Ben Upton and Kent Teague for Google New Zealand Limited
Judgment:
19 December 2017
[REASONS] JUDGMENT OF MOORE J
[Take-down orders]
This judgment was delivered by me on 19 December 2017 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
R v TARAPATA [2017] NZHC 3209 [19 December 2017]
Introduction
[1] In 2015 Mr Tarapata was tried on two charges of murder. His conviction was overturned by the Court of Appeal and a new trial ordered.
[2] The first trial was reported in the media, relatively extensively, and those reports published and retained on the internet.
[3] Shortly before Mr Tarapata’s re-trial his counsel, Mr Krebs, applied for extensive suppression orders, including orders requiring nominated media organisations to forthwith remove from their websites references to Mr Tarapata’s first trial, including all content and electronic links.
[4] He did so on the grounds that if any members of the jury at Mr Tarapata’s second trial undertook an internet search they would discover detail regarding his first trial which was highly prejudicial and would compromise his common law and statutory rights to a fair trial.
[5] Given the imminence of the start of the trial I made without notice interim orders but granted leave to those media organisations which were served (“the respondent media”) to apply to revoke the orders.
[6]The respondent media filed notices of opposition and affidavit evidence.
[7] In the course of the trial I heard oral submissions from all parties. I determined the interim orders should not be continued and rescinded them. My reasons follow.
Background
Facts and issues
[8] Mr Tarapata was charged with the murder of Mr Fanning and Mr Matthews on 19 July 2014.
[9] The essential facts were not in contest. On 19 July 2014 Tarapata entered a pawn shop on Great South Road, Takanini where his partner worked. He attacked his
victims using at least one knife and stabbed both men to death. He then left the address with his partner and drove to the Avondale Race Course where he buried one of the murder weapons and, it is likely, discarded some of his clothing.
[10] After continuing northwest he turned south, driving with his partner to her parents’ home in Papakura where they picked up the couple’s two children before continuing south to Mr Tarapata’s parents’ home in Huntly. Shortly after arriving there Mr Tarapata drove to the Police station where he gave himself up.
[11] At both trials it was accepted Mr Tarapata’s motive for killing the two men was that he believed they were having a sexual relationship with his partner. It was also common ground at both trials that this belief was wholly unfounded and driven by an intense paranoia and jealousy caused by psychosis. Also at both trials Mr Tarapata advanced a defence of insanity under s 23 of the Crimes Act 1961. It was accepted by all that at the time of the killings Mr Tarapata was delusional and psychotic.
First trial
[12] At the first trial the contest between the defence and Crown experts was twofold; first whether he had a disease of the mind and secondly, whether by reason of that disease he did not know that what he was doing was morally wrong. The Crown’s case was that Mr Tarapata’s psychosis was caused by an external influence, his chronic use of methamphetamine. The defence position was somewhat more nuanced; that Mr Tarapata’s use of methamphetamine exacerbated an underlying organic psychiatric illness (schizophrenia) so that at the time of the killings he was suffering from a disease of the mind.
[13] On the question of moral wrongfulness the defence claimed that Mr Tarapata was driven by religiose delusions such that he believed God, as a higher moral authority, had directed him to kill the two men. In contrast, the Crown said that although Mr Tarapata was psychotic and delusional, he knew exactly what he was doing and intended the consequences. The Crown’s case was that he was simply an angry and jealous man, albeit psychotic and delusional.
[14] Mr Tarapata’s first trial was extensively covered in the media with a good deal of emphasis on the evidence relating to his use of methamphetamine.
[15] The jury rejected Mr Tarapata’s defence and found him guilty on both charges. He appealed to the Court of Appeal. The Court of Appeal allowed the appeal and ordered a re-trial. Relevant for present purposes were the Court’s criticisms of the way the psychiatric evidence had been adduced and, in particular, the fact that much of the psychiatric opinion had not been based on primary evidence adduced during the trial and tested by cross-examination. There were also criticisms made in relation to what the Court determined was the unfounded opinion of the Crown’s psychiatric expert on the role and influence of methamphetamine on the question of disease of the mind.
Second trial
[16] In order to avoid repeating the errors of the first trial, counsel for the Crown and the defence (who were not counsel at Mr Tarapata’s first trial) consulted extensively and apparently co-operatively. The Crown instructed a new forensic expert who examined Mr Tarapata and determined, contrary to his predecessor and consistent with the defence experts, that Mr Tarapata was suffering from schizophrenia at the time of the offending. For this reason, and for others which do not need to be traversed for present purposes, the Crown agreed not to lead any evidence relating to Mr Tarapata’s methamphetamine use. Thus both the defence and the Crown agreed that Mr Tarapata was suffering from a disease of the mind at the time of the killings.
[17] For this reason Mr Tarapata’s second trial proceeded on a much narrower basis. The only issue was whether the defence had proved on the balance of probabilities that at the time of the killings Mr Tarapata did not know his acts were morally wrong having regard to the commonly accepted standards of right and wrong.
The procedural background and the present application
[18]Mr Tarapata’s trial was scheduled to commence on 24 October 2017.
[19] Following a pre-trial telephone conference on 13 October 2017 Mr Krebs filed a detailed memorandum in which he drew the Court’s attention to a considerable body of material available online from Mr Tarapata’s first trial including a transcript of the Judge’s full sentencing decision. Mr Krebs submitted it would be in the interests of justice for the online material to be removed to reduce the risk of jury members undertaking internet searches of their own and thereby discovering not only that there had been a previous trial but that Mr Tarapata had been convicted. Mr Krebs sought “take-down” orders for the duration of trial.
[20] On the eve of the trial Mr Krebs filed a further memorandum observing that since the previous telephone conference further investigations had been undertaken by the defence in relation to the media coverage of the first trial. Mr Krebs attached a number of screen shots taken from what he described as a quick and simple search of the internet using Mr Tarapata’s name.
[21] He suggested it would be appropriate for the orders to be made on a without notice basis with directions for service on nominated media organisations and leave reserved for any respondents to oppose their continuation.
[22] The trial commenced the following day. I empanelled the jury after which I commenced my preliminary remarks to them. In the course of those remarks I emphasised the importance of bringing an open mind to the task of judging and directed the jury, in stronger terms than is my usual practice, not to undertake any inquiries of their own. I made special mention of the prohibition on undertaking internet and social media searches. A summary of my directions, which broadly followed the recommendations of the Law Commission (“the Commission”) in its discussion paper, “Reforming the Law of Contempt of Law”1 is set out below:
(a)under no circumstances was any member of the jury to undertake their own inquiries about the case;
1 Law Commission Reforming the Law of Contempt of Court: A Modern Statute (NZLC R140, 2017) at [4.52].
(b)this meant they were not to search the internet or correspond on Facebook, Twitter or any other social medium about the case;
(c)to do so 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;
(d)to disobey or breach such an order would be a contempt of Court which is punishable by penalties including imprisonment;
(e)the reason for the direction was that Mr Tarapata was entitled to a fair trial and a jury verdict based solely on the evidence presented in the Court at his trial. If inquiries were made by jurors behind closed doors without other participants in the trial knowing that would be unfair; and
(f)if any juror discovered any other juror made their own inquiries or undertaken 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.
[23] I then excused the jury for the rest of the day in order to deal with Mr Krebs’ application and other unrelated issues.
[24] After hearing from Mr Krebs and in the absence of any submissions in opposition2 I made interim orders and directed these were to continue until further order of the Court. I also directed that the respondent media organisations whose websites contained references to Mr Tarapata’s 2015 trial, were to remove all content and electronic links relating to Mr Tarapata and his trial. My interim orders are set out in full below:
“[14] I am prepared to make the interim orders sought on a without notice basis. I direct that they are to continue until further order of the Court. Accordingly, I direct as follows:
(a)the listed media outlets below and any other media outlet served with this order forthwith remove from all websites within their direct and indirect control all references to the 2015 trial of the defendant Zarn Tarapata in this matter, including all content and electronic links to related material:
(i)Television New Zealand;
(ii)TV3;
(iii)Radio NZ;
(iv)Maori Television;
(v)Fairfax Media;
(vi)NZME;
(vii)NZ Newswire;
(b)the operators of the search engines known as Google, Yahoo and Bing and any other operator of a search engine served with this order forthwith disable any and every link between a search term using the words “Zarn Tarapata” (individually or in combination) and a website to the effect that users will not be directed to any websites that report any aspect of the defendant’s trial in 2015 in this matter including subsequent sentencing; and
(c)these orders will continue until the conclusion of the trial or such other time as the Court may direct.
[15] If any party wishes to oppose the continuation of the orders it is to file and serve a notice of opposition setting out, in full, the grounds of such opposition. That notice is to be filed and served within 48 hours of the making of these orders.
[16] In the event of opposition it will be necessary to convene a hearing and, if necessary, hear evidence. I emphasise that the present interim orders
2 The Crown adopted a neutral position.
are in order to preserve Mr Tarapata’s fair trial rights in the context of my assessment of the prejudicial material contained in the media reports I have been referred to. Given the limited time within which I have been obliged to deal with this matter, that assessment has not been as full or as considered as I might have wished. It is possible that following any hearing my provisional view may change.
[17] I direct that the orders be served electronically to the email addresses set out above.
…”
[25] Following service of the orders Mr Krebs advised that references to Mr Tarapata and his first trial had been removed from the websites. Google searches using Mr Tarapata’s name led to no links which could be downloaded. This state of affairs reflects the positive view I have formed of the media’s responsible approach to this matter. I am conscious that to comply with orders of this sort requires the application of considerable time and resources.
[26] Notices of opposition were received from each of the media organisations directed. The grounds may be summarised as follows:
(a)there is a high threshold for a defendant to establish that fair trial rights are prejudiced. A defendant needs to show specific prejudice or extreme circumstances from which the Court should infer prejudice;
(b)the jury can, and should, be expected to follow judicial directions;
(c)no real risk of prejudice to a fair trial has been created or demonstrated by the continued availability of the historical articles online;
(d)the take-down orders are not necessary to ensure fair trial rights are preserved;
(e)the defendant is not subject to name suppression;
(f)the media are prejudicially affected by the take-down orders;
(g)the take-down orders were made before the media were given an opportunity to be heard;
(h)the take-down orders are an unreasonable limitation on the media’s right to freedom of expression;
(i)it is not practical, or possible in some circumstances, for the media to comply with the take-down orders;
(j)in the rare occasions when a Court has issued take-down orders such an order has identified specific articles or articles in their original uniform resource locator (“URL”). Without reference to a specific URL it is likely that inadvertent publications may continue;
(k)compliance with the Court’s order is a costly and time consuming exercise for the media requiring key staff to be removed from other tasks in order to assist with compliance;
(l)published articles may have been copied, scraped, shared or commented on by third parties on other websites and on social media; and
(m)various media organisations served have no control over the results which Google, or other search engines, display in response to a particular search.
[27]The notices of opposition were supported by affidavit evidence.
[28] On 30 October 2017, at the beginning of the second week of the trial, I heard full argument from all parties. I rescinded the interim orders, adding I would give my reasons in writing later. My reasons now follow.
Legal principles
[29] The first question is one of jurisdiction. It is well settled that this Court has an inherent jurisdiction to make the orders Mr Krebs seeks. No party attempted to submit otherwise.3
[30] The next question is: what are the principles which govern applications of this kind? This was discussed by the Court of Appeal in R v Lyttleton. Before discussing the principles it is necessary to summarise the factual setting in Lyttleton because that case has some parallels with the present.
[31] Mr Lyttleton pleaded guilty to a number of violent offences. His case attracted considerable media attention. News stories were published in the print media and on corresponding online platforms. Mr Lyttleton successfully appealed his convictions and a re-trial was ordered. Prior to the re-trial Mr Lyttleton, supported by the Crown, applied for orders removing the historic online articles about his case. He did so on the basis that if these articles were available to the jury there would be a real risk of prejudice, particularly prejudice arising from the publication of the fact he originally pleaded guilty. Lang J granted the orders and directed that some 20 specified references be taken down from their respective websites.4 After receiving the order the affected media organisations applied to rescind the orders and sought to be heard. Lang J directed a hearing following which he revoked the orders.5 Mr Lyttleton appealed the revocation.
[32] In confirming that an application of this sort is civil in nature the Court of Appeal commented:6
“The application required a balancing of the right of the media to freedom of expression (including the right to impart and receive information) and the right of Mr Lyttleton to a fair trial. The latter right is fundamental to a defendant facing a criminal trial but it is also part of the proper administration of justice generally.” [Footnotes omitted]
3 Lyttleton v R [2015] NZCA 279, [2016] 2 NZLR 21; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
4 R v Lyttleton HC Auckland CRI-2008-044-9465, 11 March 2015 (Minute of Lang J relating to take-down order).
5 R v Lyttleton [2015] NZHC 763.
6 Lyttleton v R, above n 3, at [36](d).
[33] The Court of Appeal upheld Lang J’s decision. The reasons which led to that conclusion were:
(a)Mr Lyttleton had not shown any real prejudice caused by the online articles remaining accessible because:
(i)the articles were old;
(ii)Mr Lyttleton’s case was not in the public consciousness;
(iii)to access the articles a potential juror needed to actively search his name or that of his victims (a circumstance considered by the Court to be a remote possibility);
(b)it was not a notorious case in the sense that pre-trial publicity was inevitable and simply irredeemable in terms of jury exposure to publish material; and
(c)once the re-trial started if there was any significant media interest the protection of Mr Lyttleton’s fair trial rights could be achieved by the trial Judge giving appropriate directions about not undertaking internet searches and, if such directions were given, jurors could be expected to comply.
[34] I now turn to consider Mr Tarapata’s case and the submissions made on his behalf.
Mr Tarapata’s submissions
[35] Mr Krebs’ submission was that the interim orders should continue until Mr Tarapata’s guilt or otherwise had been determined. He submitted that Mr Tarapata’s trial was truly exceptional and was readily distinguishable from other cases where there had been extensive pre-trial reporting. He claimed that what set the case apart from others was that on Mr Tarapata’s re-trial the “evidential landscape [was] so totally different” when compared to the first trial.
[36]The two primary points of difference Mr Krebs relied on were:
(a)the Crown now accepted that at the relevant time Mr Tarapata was suffering from a disease of the mind; and
(b)there would be no reference in the course of the trial to methamphetamine consumption by Mr Tarapata.
[37] Mr Krebs submitted that if a juror was to undertake a search of the internet they would encounter numerous, detailed accounts of Mr Tarapata’s first trial including extensive reports covering not only his use of methamphetamine but also the defence’s failure to persuade the jury that Mr Tarapata’s psychiatric condition was organic in origin. Mr Krebs also pointed to the fact that the Judge’s sentencing notes were available on the internet in full. These included references by the Judge to the jury plainly not believing the defence.
[38] Mr Krebs thus submitted that because the whole focus of the trial had changed and the highly prejudicial references to methamphetamine would no longer be before the jury, it was essential for fair trial reasons to quarantine the jury from this highly prejudicial, extra-curial evidence.
[39] Mr Krebs observed that despite the strong and “pointed” direction I gave the jury not to undertake researches of their own and, in particular, not to undertake any internet searches, there remained a real risk that an irresponsible and determined juror would ignore my judicial direction.
[40] Mr Krebs placed considerable reliance on Ellis J’s judgment in R v Lyttle.7 There the Judge reviewed the authorities, including Lyttleton, and determined that the historical presumption that jurors obeyed judicial directions had been questioned by the Commission in its Issues Paper Contempt in Modern in New Zealand.8 The Commission referred to a United Kingdom study which found that in high profile cases 26 per cent of jurors said they “saw” information on the internet and 12 per cent said
7 R v Lyttle [2017] NZHC 2426.
8 Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at [5.26].
they “looked”. In standard cases 13 per cent said they “saw” information and 5 per cent said they “looked”.9 In each case this conduct followed judicial directions not to undertake internet inquiries. Commenting on the ubiquity of the internet Ellis J granted the take-down application until one week after verdict.
[41] Mr Krebs submitted that a similar situation existed in the present case. He said there could be no confidence that this jury would be any more obedient than those in the United Kingdom.
Analysis
Threshold – real risk
[42] I agree with Ms Goatley, for the respondent media, that the threshold question in resolving this application requires an assessment of the risk Mr Tarapata’s fair trial rights will be adversely affected in the event the interim orders are lifted. She submitted the risk must be a real one. A fanciful or hypothetical risk is not sufficient.
[43] I agree. I must be satisfied that a real risk exists despite the direction I gave the jury that they were not to undertake any inquiries of their own including internet searches.
[44] This is not a notorious case such as Bain or Lundy. It is unlikely that any members of the jury would bring to their role a residual memory or knowledge of Mr Tarapata or the events in 2014 and the media coverage of his first trial. Thus the issue is whether I should make the orders solely to prevent jurors from undertaking a course which I specifically directed them they must not.
[45] In Lyttleton, had any member of the jury undertaken an internet search, they would have discovered that Mr Lyttleton had pleaded guilty and yet the Court of Appeal upheld Land J’s decision to revoke the take-down orders. In terms of comparable potential prejudice the cases are similar. In fact, the potential for prejudice was arguably greater in Lyttleton where the defendant initially acknowledged his own
9 Cheryl Thomas Are Juries Fair? (Minister of Justice, UK), Research Series 1/10, February 2010 at 43.
guilt by pleading guilty. In the present case a jury found Mr Tarapata guilty. Of course, Mr Krebs accepted that the mere fact that this is a re-trial would not, in itself, justify the orders sought. What he said distinguished the present case was the highly prejudicial effect of methamphetamine use.
[46] However, in my view, that submission is a secondary consideration. As with Lyttleton the primary question here is whether there is a real risk a juror or jurors may ignore my direction. If risk to that level is made out I accept Mr Tarapata’s fair trial rights would be adversely affected for the reasons identified by Mr Krebs.
[47] Thus I return to the primary question which is whether I am satisfied there is a real or substantial risk a determined and irresponsible juror might undertake their own internet inquiries.
[48] On that point I agree with Lang J’s reasoning. The posted stories and articles in question would not be in the public consciousness. To access articles on the internet a juror would have to actively search Mr Tarapata’s name or those of his victims. Given my firm direction I regard that as a remote possibility.
[49] Other factors raised by Ms Goatley support my conclusion that orders of this sort should not be lightly made and had the evidence of the media respondents been before me on the original application I would not have made the orders. These are the likelihood of innocent non-compliance, the oppressive effect of compliance, the alteration of the historical record and the difficulties of securing compliance by search engine providers. I shall discuss each of these in turn.
Likelihood of innocent non-compliance
[50] My orders were broadly expressed. They required the media respondents to remove from all websites within their direct and indirect control all references to the 2015 trial of Zarn Tarapata including all content and electronic links to related material.
[51] As the affidavits filed in opposition revealed, while the media organisations are able to search their content management systems for key terms, such as
Mr Tarapata’s name, this would not necessarily identify every piece of published content which might fall within the scope of the take-down order. For example, TVNZ searched its own website and systems, including its One News Facebook page, using the term “Tarapata”. It also undertook a Google search using the terms “Tarapata and TVNZ”. All links discovered were taken down. While it may be assumed that these searches would have identified most relevant content, Mr Tarapata had name suppression for a period during the earlier proceedings and, as a result, not all articles or stories may have been identified.
[52] Furthermore, TVNZ has no control over the results which Google or other search engines display in response to a particular search. Even when content has been taken down the headline and a sentence or two from that piece may still display within the search engine results due to the way the engine search function operates.
[53] Additionally, there may be situations where a third party has shared TVNZ’s content in a way which means TVNZ no longer has control over that piece. For example, a screen grab or scraped content which is re-posted on another website such as Facebook, will not be independently affected by TVNZ’s take-down command. In those circumstances, even if TVNZ was to take-down all relevant content within its control, the shared content would still be visible on the third party’s page.
[54] And so, while TVNZ and the other media organisations have responsibly done their best to comply they are concerned there is a very real likelihood that material covered by my order will, nonetheless, remain accessible via other search avenues.
Deleting the historical record
[55] Another unintended but unsatisfactory consequence of my order is that even though it is expressed as interim, its practical effect is likely to be permanent. For example, MediaWorks deposed that once historical content of this sort is removed and deleted it would not normally be reinstated unless there was some identifiable value in republishing the content. This is because the time and expense required to delete content and then reverse that process to republish is regarded as outweighing the benefit of reinstatement. Such a consequence is not in the public interest because it
removes from the accessible electronic historical record information which would otherwise be available to the public.
[56] As already discussed, where material ordered to be taken down forms part of a larger news bulletin it is not possible to delete the subject material without deleting the entire news bulletin with the likelihood it will not be reinstated. In other words, not only is it likely that the particular news item would not be restored but all of the other news items included within that news bulletin would not be restored.
[57] Thus the effect of the interim take-down order is not, in a practical sense, likely to be interim. As was earlier observed, if this material is not reinstated there will be a permanent change in the historical record. Mr Tarapata’s first trial is likely to be lost except for the formal Court record. To search the latter is a cumbersome and time consuming process which requires formal applications to be made to the Court.10
Oppression
[58] In order to comply with my orders several media respondents explained that considerable resources were required to be redirected from core business functions.
[59] For example NZME deposed that between three and four key staff members, duty editors and analytical/product manager specialists, are required to be taken off other work, usually urgent given the nature of newsrooms, to undertake the searches, attempt to identify the offending material and delete it. Not only is this time consuming but it is a substantial imposition of cost and inconvenience (which is no doubt why there was evidence from a number of media organisations that the material would probably not be reinstated).
[60] Another example cited by MediaWorks is that there will be stories relating to the 2015 trial which were incorporated in 6pm news bulletins from the time of the original trial. These bulletins cannot be electronically searched to locate particular content because they were posted online as a single piece. To search for any parts of a news bulletin which might breach the order would require a search of all 6pm
10 Senior Courts (Access to Court Documents) Rules 2017.
bulletins, from the first time the case may have been mentioned (possibly at the time of arrest) until the end of the trial and even the appeal. This requires a manual review with the reviewer being required to physically watch each bulletin.
Search engines and URLs
[61] There is a further related point which also persuades me that the orders should not continue. As Mr Upton, for Google New Zealand (“GNZL”), submitted the present interim orders do not identify the content of concern with sufficient specificity to enable a search engine provider, such as Google, to determine what content is required to be removed. A search engine provider requires a full and complete URL in order to prevent the webpages at those URLs from being returned as search results. Without URLs being specified a search engine provider can only speculate as to which particular webpages may be covered by the orders. As they were expressed, the interim orders appeared to require a perpetual review by the search engine provider not only of what was described to me as “the trillions of webpages currently existing on the web” but also those which are subsequently created.
[62] Thus, again, unless the particular URLs are specified it is likely that material intended to be captured by the orders will not be identified or located by search engine providers. In Lyttleton Lang J identified some 20 specific URLs which made the media’s ability to comply somewhat easier and also provided a level of reassurance that the offending material had been captured. That is not the case here.
Compliance issues for GNZL
[63] The final point is that I directed my order be served on GNZL. Evidence filed by GNZL reveals it is a private company incorporated in New Zealand as a wholly- owned subsidiary of Google International LLC (“Google LLC”). GNZL’s business is to provide sales and marketing services to Google LLC which is a separate legal entity incorporated in the United States. GNZL is neither an agent nor an address for service for Google LLC. It does not provide the internet search engine services that are
accessible at the domain’s “google.com” and “google.co.nz”. Thus GNZL has no ability to comply with the interim orders.
[64] Furthermore, GNZL has helpfully filed evidence. This supports the earlier observation that in order to ensure the precise content at issue is identified for removal, an internet search engine provider needs to be able to identify the complete URL of the webpages where the content in question is located. Only once a complete URL has been identified will a search engine provider be able to prevent the webpage at that URL from being returned as a search result. The evidence from GNZL was that the interim orders, as expressed, would be extremely difficult, if not impossible, to comply with.
Conclusion
[65] For these reasons I am satisfied that my interim orders should not continue. 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.
[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.11 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.
11 The KJV assumed some prominence in the trial. The religiose aspects of the defendant’s presentation revealed that he carried the KVJ with him at most times. It was agreed, following consultation with counsel, that I would tell the jury it was a particular edition of the Bible, sometimes to referred to as the “authorised version” because it was authorised by King James for the Church of England.
Result
[68]The interim orders are revoked.
Costs
[69] Ms Goatley advised the media respondents wish to be heard on the question of costs. She submitted there is precedent for an award notwithstanding that Mr Tarapata is legally aided. She observed that the media had been brought into these proceedings as non-parties.
[70] I direct that if the media respondents seek costs they are to file and serve (on Legal Services or any other entity or person who may be liable for costs) a memorandum not exceeding five pages no later than 60 clear working days from the date of this judgment.
[71] Any other party which seeks to be heard on costs is to file and serve a memorandum not exceeding five pages no later than 30 clear working days thereafter.
Moore J
Counsel/Solicitors:
Mr Marchant, Auckland Crown Solicitor, Manukau Mr Krebs, Napier
Ms Spelman, Wellington
Copy to:
Bell Gully, Auckland Simpson Grierson, Auckland
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