Teacher v Stuff Limited

[2019] NZHC 1170

ORDER SUPPRESSING THE IDENTITY OF THE APPLICANT, OR ANY DETAILS LEADING TO IDENTIFICATION.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000272

[2019] NZHC 1170

BETWEEN

TEACHER

Applicant

AND

STUFF LIMITED

First Respondent

AND

NEW ZEALAND POLICE

Second Respondent

Teleconference:

24 May 2019

Appearances:

J H M Eaton QC for Applicant

R K P Stewart for First Respondent J M Webber for Second Respondent

Judgment:

27 May 2019

JUDGMENT OF COOKE J

[1]                 By application dated 24 May 2019 Stuff Ltd (Stuff) applies to revoke interim orders made by the Court on an ex-parte basis on the evening of 22 May 2019.1 The orders made at that date were orders preventing Stuff from identifying the applicant, or publishing details likely to lead to identification, as the person subject to the investigation at Marlborough Boys College.2 That order was to remain in place pending further order of the Court, with leave granted to the respondents to apply for variation or discharge on short notice. Such an application has now been made.

1      The applicant’s name is not provided in order to protect his/her identity.

2      Teacher v Stuff Ltd [2019] NZHC 1132.

TEACHER v STUFF LIMITED [2019] NZHC 1170 [27 May 2019]

[2]                 I convened a telephone conference on the morning of 24 May 2019 to consider Stuff’s application which was attended by Mr Stewart for Stuff, and Mr Eaton QC for the applicant. Mr Webber for the Police did not appear at that conference, but subsequently filed a memorandum dated 24 May 2019 advising that the Police supported the continuation of the injunction in order to preserve the applicant’s fair trial rights, and the right to seek name suppression in the event of charges.

Background

[3]                 There have been a number of media reports of allegations that a teacher at Marlborough Boys College has engaged in inappropriate sexual conduct with students. The College duly referred the matter to the Police, and the allegations are subject to active investigation. That investigation is being conducted by Detective Sergeant Woodley as the investigator in charge.

[4]                 The allegations encompass conduct involving potential offending, and accordingly criminal charges. At the hearing on 22 May Mr Eaton for the applicant indicated that the Police were not in a position to confirm whether charges would be laid, but that there was a distinct prospect that this would occur.

[5]                 The media organisations that have reported on these allegations includes Stuff, who have posted stories about the matter. Mr Stewart for Stuff explained that other media organisations had also run stories, including the New Zealand Herald and Radio New Zealand. He also indicated that the identity of the applicant was widely known amongst the local community. He indicated that a Christchurch Press journalist had been in contact with the Police who had indicated that the Police were not in a position to indicate one way or another whether charges would arise. The journalist also made contact with the lawyer acting for the applicant seeking comment. As a consequence on Tuesday 21 May at 5.32 pm Mr Eaton sent an email in the following terms to that reporter:

…

This matter is the subject of an ongoing police investigation. It is quite inappropriate and potentially a contempt of Court for the case to be discussed publicly. I suggest it would be most unwise and unfair to be publishing any allegations at this delicate stage of the inquiry.

Rob has been given an undertaking by Ms Hayman that Stuff Ltd will not be publishing our clients name or any details that might identify [him/her]. In my view [t]he level of detail in today’s articles breached the spirit of that undertaking. Can you please ask Ms Hayman or your counsel Robert Stewart to provide written communication by return email that Stuff Ltd will continue to honour the undertaking not to publish name in advance of the first call of any criminal charges.

I have spoken with the registrar of the High Court to arrange for a judge to be available to grant injunctive relief this evening if your position has changed.

…

[6]                 A reply was received from the Editor, Press-Stuff Canterbury, Ms Kamala Hayman later that evening stating:

…

You are correct that I spoke to your colleague Rob Harrison yesterday. I confirmed that we would not be naming his client, last night. I made no further undertaking.

As far as we are aware your client does not currently face any criminal charges and we are not aware of any pending.

…

[7]                 The following day Mr Eaton received confirmation from the Police as to the likely nature of the charges, and in a further email to Ms Hayman Mr Eaton said:

…

As I said yesterday, publishing name at this stage will deny the right to seek interim name suppression and jeopardise the fair trial right. I know this concerns the police. That gives rise to contempt of court concerns. I can assure you that there are personal circumstances that you will likely be aware of that are highly relevant to the issue of suppression.

I therefore do seek your undertaking that Stuff Limited will not publish [Teacher’s] name or details that might identify [him/her] prior to a court appearance on criminal charges. If you will not give that undertaking, I will have no option but to seek injunctive relief. In every other case I had had to do so, the court has granted the relief sought (most recently in [another case] when charges had not been laid). I am confident the police will support injunctive relief if that became necessary. I sincerely hope it will not be.

…

[8]                 There was no reply to this email request. Mr Stewart confirms that Mr Eaton followed up with a text message, but there was again no response.

[9]                 It was in those circumstances that the applicant made the urgent oral ex-parte application to the High Court that evening. I convened a hearing of the Court at

5.30 pm and subsequently granted the interim orders in the terms outlined in my judgment following a short hearing attended by Mr Eaton.

Stuff’s application

[10]              Mr Stewart now applies for orders that the injunction be discharged. He argues that there is no real likelihood that publication of material would amount to a contempt or serious prejudice of the fairness of any trial meeting the test set out by the Court of Appeal in Television New Zealand Ltd v Solicitor-General.3 He indicated in his submissions that Stuff’s information was that criminal charges were not likely, and accordingly that the order was not necessary. He also indicated that the approach taken by Stuff was consistent with the approach taken by other mainstream media organisations which is to make an assessment on the facts and circumstances. In the present case Stuff had not identified the applicant in its material to date because of those circumstances.

[11]              Mr Stewart also indicated that the fact that the applicant had not filed any formal documents was a reason why Stuff had made the application to discharge the order. In addition, the order was open ended in terms of time period, and contrary to Stuff’s and the public’s right to freedom of expression. He also pointed out that the order was only against Stuff, and not against any other media organisations.

[12]              In response Mr Eaton explained that the particular nature of the application only arose because of the approach that Stuff had taken, and that this approach contrasted with other mainstream media organisations who had all indicated that they would not be publishing the applicant’s name. Mr Eaton submitted that in his experience it was only Stuff who took the stance that it reserved the right to publish the name of the alleged offender in these types of circumstances. Other mainstream media organisations did not do so. Mr Eaton was able to provide the Court with

3      Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1 (CA).

examples of other applications that had been made to the Court.4 He indicated that other media organisations were at least able to give the applicant an opportunity to approach the Court to obtain orders prior to an intended publication by the media organisation.

[13]              Mr Eaton also indicated that the Police had confirmed that criminal charges were a real prospect, and accordingly it was necessary for the orders to remain in place until the District Court was able to deal with name suppression issues once any charges had been laid.

Analysis

[14]              As indicated in my earlier judgment, it is important to be clear about the jurisdiction that is exercised by the Court in this kind of case. In particular, the Court is being asked to suppress the identity of a person who is not yet the subject of any criminal charges, but where there is a distinct prospect that criminal charges will be laid. In Television New Zealand Ltd v Solicitor-General Cooke P held for the Court:5

Counsel for Television New Zealand contends that the Court has no jurisdiction to protect a fair trial of proceedings while they are merely potential, whether imminent or not, citing the decision of the High Court of Australia in James v Robinson (1963) 109 CLR 593. But the decision of the English Queen’s Bench Division in Attorney-General v News Group Newspapers Ltd [1988] 2 All ER 906 is to the effect that the circumstances in which a criminal contempt of Court at common law can be committed by pre- trial media publications are not confined to cases in which proceedings are either pending or imminent. Compare R v Beaverbrook Newspapers Ltd [1962] NI 15. In our opinion the law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not lightly to be interfered with and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial.

4      A v Fairfax Media Ltd & MPI [2018] NZHC 1639; H v Fairfax NZ Ltd [2017] NZHC 42; W v Fairfax Media Ltd, CIV-2015-409-000250, HC Christchurch, 2 May 2015; and C v Wilson & Horton Ltd CP765/92, HC Auckland, 27 May 1992.

5      Television New Zealand Ltd v Solicitor-General, above n 3, at 3.

[15]              In R v Burns (Travis) the Court of Appeal referred to the assessment of the relevant considerations by reference to the earlier decision of Gisborne Herald Co Ltd v Solicitor-General.6 Thomas J for the Court held:7

The relationship of the public’s right to receive information with the right for an accused to receive a fair trial has at times been referred to as a “balancing exercise”. To take an example, this Court in Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563; (1995) 2 HRNZ 142 (CA) considered whether the publisher of the Gisborne Herald should be found guilty of contempt of Court for printing details, including the criminal record, of the main suspect in a highly publicised attack on a police constable. The Court stated [at p 571; P 151]:

“The common law of contempt is based on public policy. It requires the balancing of public interest factors. Freedom of the press as a vehicle for comment on public issues is basic to our democratic system. The assurance of a fair trial by an impartial Court is essential for the preservation of an effective system of justice. Both values have been affirmed by the Bill of Rights. The public interest in the functioning of the Courts invokes both these values ... Full recognition of both these indispensable elements can present difficult problems for the Courts to resolve. The issue is how best those values can be accommodated under the New Zealand Bill of Rights Act 1990.”

[16]              This approach means that any suppression orders would have to be demonstrably justified in a free and democratic society in the manner articulated in s 5 of the New Zealand Bill of Rights Act 1990. That is the approach I adopt.

[17]              Because the Court is exercising its inherent jurisdiction and not implied powers, it is only the High Court that can grant such orders. The District Court cannot do so.8 But the High Court can exercise this power to protect the anticipated criminal proceedings in the District Court.9

[18]              Mr Stewart on behalf of Stuff did not dispute that the Court had jurisdiction. But he disputed that the relevant circumstances here justified the making the order, and contended that it should now be discharged. Mr Stewart argued that in the present circumstances criminal charges could not be said to be highly likely in the manner contemplated in Television New Zealand Limited v Solicitor-General. The

6      Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA).

7      R v Burns (Travis) [2002] 1 NZLR 387 (CA) at [8].

8      The Transport Accident Investigation Commission v The District Court [2008] NZAR 595 (HC).

9      At [44] and [51].

memorandum from counsel for the Police subsequently filed advises that “the investigation is ongoing but the real potential exists that charges will be laid”.

[19]              I accept the circumstances were different in Television New Zealand. There a victim had been shot in the head at close range which suggested that criminal charges were highly likely. But I do not apprehend that the Court was articulating a strict standard to be applied before the inherent jurisdiction can be appropriately applied. Here there may well be uncertainty as to whether criminal charges will be laid. But that is not the end of the enquiry to ascertain whether orders are necessary to protect the criminal justice processes. All the circumstances should be considered, including not only the likelihood of charges, but the potential harm arising from the proposed publication, and precisely what is sought to be supressed. In the present case, only the applicant’s identity is sought to be supressed. The nature of the possible offending here is such that name suppression orders would be likely if charges were laid. That is the case not only because the possible offending would involve sexual offending involving young persons, but also because of circumstances concerning the applicant which I mentioned in my earlier judgment, and which need not be elaborated upon here. The naming of the applicant in the media in those circumstances would significantly undermine the ability of the Court to make suppression orders under Part 5 of the Criminal Procedure Act 2011 (or otherwise) should charges be laid. This would undermine the ability of the Court to take steps usually taken in criminal justice processes in this kind of case. In my view for the media to cut across those processes by naming the person would be inappropriate, and potentially a contempt of Court.

[20]              I also see little substance in Mr Stewart’s criticism that the initial ex-parte application was made orally and without supporting documentation. The reality is that the stance adopted by Stuff put the applicant in a position where it had very little option but to approach the Court urgently, and in the way that counsel had expressly forewarned. When the applicant’s counsel sought a continuation of the undertaking from Stuff by email there was no response. Neither was there a response to a follow up text. The earlier email from the Editor said no other undertaking had been offered. In those circumstances a threat of publication was reasonably inferred. I understood Mr Stewart to accept that Stuff’s communications were possibly less than desirable.

But those circumstances not only put the applicant in a difficult position, but also the Court as well. It is very difficult for the Court to properly assess any countervailing considerations that could be advanced by a media organisation in favour of publication, or assess the policies applied by the organisation in such cases, if they have not been articulated even when the organisation knows that the Court is likely to be approached.

[21]              There is also a more general point which I discussed with both Mr Stewart and Mr Eaton at the telephone conference. There does not appear to be a well-established set of guidelines or principles to be applied in this situation — that is, guidelines governing the appropriateness of the identification of alleged offenders in the period leading up to the potential laying of charges. Mr Eaton said that Stuff’s stance was different from all other  mainstream media organisations on this matter generally.  Mr Stewart denied this, and said that Stuff acted no differently. It is difficult for me to know what the true position on that difference of view is. But at the telephone conference I asked Mr Stewart to articulate what Stuff’s policy was, including by asking him to indicate whether Stuff wished to identify the applicant in  this  case. Mr Stewart indicated that Stuff did not intend to identify the applicant, but might wish to do so if circumstances changed. When I asked what such changed circumstances might be, Mr Stewart was only able to identify a situation where another media organisation named the applicant. Another theoretical possibility discussed involved a situation where other potential victims might not know of the alleged offending, such that there was a public interest in the offender being publicly identified. That is not suggested in the present case, however. Ultimately Mr Stewart submitted that it all depended on the facts and circumstances of the case, and that media organisations such as Stuff would exercise their role responsibly, and with an awareness of the expectations, including those arising from the Press Council Guidelines.

[22]              I asked Mr Stewart at the conference whether he was in a position to offer an undertaking on behalf of Stuff that it would not publish the applicant’s name unless there was a change of circumstances. He said that he was not instructed to do so. Indeed he confirmed he was not in a position to offer any undertaking at the conference. Given the exchange he asked, however, for leave to take instructions and file a subsequent memoranda. In a memorandum dated 24 May 2019 then filed, he

offered no undertaking, but it elaborated on the general approach described in [21] above.

[23]              With respect I do not consider that this approach is satisfactory. The role of the media needs to be properly respected by the Court. But equally the Court expects the media to act responsibly in light of the criminal justice process. The Court has on previous occasions been required to issue warnings about the potential for media coverage jeopardising criminal proceedings because of the pre-charging identification of alleged offenders.10 The Police operate with such guidelines. It is a little surprising there are not clearer media guidelines. As a general proposition I would have thought the media would refrain from identifying a person as an alleged offender in the period leading up to the potential laying of charges given that suppression orders may then be considered. I accept that could only be regarded as a general proposition which would depend on the circumstances of the case. If publication is nevertheless contemplated I would also have thought it appropriate for the media organisation to make enquiries of the Police as to whether charges were in prospect, and also attempt to make contact with the alleged offender (or his or her lawyer) to give them an opportunity to seek orders from the Court prior to a proposed publication if publication is intended.

[24]              Most of those steps were followed by Stuff here, but it did not respond to the applicant’s request for an extension of an undertaking. Moreover I am now advised that Stuff does not presently intend to publish the applicant’s name, but it reserves the right to do so without clearly articulating when it believes that would be appropriate. That does not seem to me to be fully consistent with the mutual respect that should operate between the media and the Court in this type of situation. If it were clear that no publication will take place, then orders would no longer be necessary. But that is not the situation. Orders were plainly necessary when Stuff was declining to respond further on the question of an undertaking, and it now seeks that the order be discharged without any clear indication that it will not publish.

10     See R v Coghill [1995] 3 NZLR 651 (CA) at 660–662.

[25]              In terms of Mr Stewart’s point that only Stuff has been restrained by the current orders, this seems to me to be answered by Mr Eaton’s advice that he had been in contact with the other mainstream media organisations, including after the initial orders had been made. The other media organisations had advised they would not publish the applicant’s name in the circumstances. That means that the reason why only Stuff is restrained is that it is the only organisation whose stance has necessitated an application to the Court for orders. It would not be appropriate for the Court to make orders wider than is strictly necessary to protect the integrity of the criminal justice process. There is accordingly no justification for making orders against other such organisations. They are not suggesting that they may engage in what may be a potential contempt. Again that is consistent with the mutual respect referred to above.

[26]              In terms of the length of the orders, which are presently in place pending further order of the Court, I accept  that  some  further  adjustment  may  be  appropriate.  Mr Stewart asked that they be altered so that the orders are only in place until charges are laid. Upon discussion it seemed to me that they should be a little broader, namely that they remain in place until the District Court has made a decision on any suppression orders. That variation appears appropriate. I do not at this point vary the orders to address the circumstance where a decision is made not to lay charges. That can be addressed by retaining the leave to the respondents to apply to discharge the order on short notice in that kind of eventuality, or any other change in circumstances.

[27]              For these reasons I dismiss Stuff’s application to discharge the orders, but I vary the orders in terms expressed in [26] above. If there are further applications, I would now expect them to involve affidavit evidence from both parties so that the position is clear.

Cooke J