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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA206/2015 [2015] NZCA 279

BETWEEN	MARTIN VICTOR LYTTELTON
Appellant	

AND	
THE QUEEN Respondent	

Hearing:	11 June 2015	

Court:	
Stevens, French and Cooper JJ	

Counsel:	
Appellant in Person
M D Downs for Respondent
J B Orpin as Counsel assisting the Court
R K P Stewart for Media Applicants	

Judgment:	
30 June 2015 at 11.30 am	

JUDGMENT OF THE COURT

A        There is a declaration that this Court has jurisdiction to hear this appeal under s 66 of the Judicature Act 1908.

B         The substantive appeal is dismissed subject to the undertakings of the media applicants set out at [61] of the judgment.

C        There is an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly  available  database  until  final  disposition  of  retrial.
Publication in law report or law digest permitted.  Leave to apply.

LYTTELTON V R CA206/2015 [2015] NZCA 279 [30 June 2015]

D	There is no order as to costs.

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

To take down or not to take down?		[1] Background		[6] The offending	[7]
Court of Appeal decision                                                                  [8] The take down order                                                                         [9] Revocation of the order                                                                  [10]
Is there jurisdiction?                                                                                [13] Submissions                                                                                    [16] Our analysis                                                                                   [24]
Substantive appeal                                                                                   [54] The competing arguments                                                              [54] Need for undertakings                                                                    [59] Our evaluation                                                                                [63]
Result                                                                                                         [69]

To take down or not to take down?

[1]       This appeal concerns the balancing of important interests including open justice, fair trial rights and freedom of speech.  The specific context is a retrial of a criminal proceeding some years after the original trial. At issue is whether this Court has appellate jurisdiction in respect of a High Court Judge’s exercise of the inherent power to order media entities to take down historic articles about the case from searchable online platforms (the take down order).1    The appeal is brought by the defendant, Mr Lyttelton, following the subsequent revocation of the take down order.
If jurisdiction exists, we are asked to decide the appeal.

1           The articles had been published in the ordinary course at the conclusion of the original trial, given (as was normal) no publication restrictions were imposed.  Online versions of the articles (prior to the take down order) were available on the websites of the relevant media interests, at various uniform resource locators (URLs). The media entities involved are Fairfax New Zealand Ltd (which owns stuff.co.nz), NZME Publishing Ltd (which owns nzherald.co.nz) and Mediaworks TV Ltd (which owns TV3.co.nz).

[2]       We must first decide the availability of an appeal under s 66 of the Judicature Act 1908 in the somewhat unusual circumstances of the case.   This is the first occasion on which this Court has had to determine the point.   The issue arises because there is apparently no appeal pathway pursuant to which Mr Lyttelton can appeal against Lang J’s decision to make or revoke the take down order under the Crimes Act 1961.   Nor does the Criminal Procedure Act 2011 (CPA) apply to the
proceeding.2

[3]       Mr Lyttelton is facing a criminal retrial.  He was previously convicted of a number of violence charges to which he pleaded guilty and was sentenced to a term of imprisonment.  At the time, media interests covered the case in the usual manner for a story in which the public was interested, publishing articles in print media and the  corresponding  online  platforms.    After  serving  his  sentence,  Mr Lyttelton successfully appealed against his convictions and a retrial has been ordered.3    The judgment of this Court on the appeal included an order prohibiting publication of any part of the proceedings (including the result) in the news media or on the internet, or
other publicly available database until final disposition of the retrial.

[4]       With support from the Crown, Mr Lyttelton applied to the High Court in March 2015 for orders removing the historic online articles about his case.   He alleged the availability of those articles would create a real risk of prejudice at his retrial.  Justice Lang granted the orders and directed the articles in question be taken down from their respective websites.4    Because the media interests were not served with the application, the take down order was made without them being heard.  The media entities concerned are Fairfax New Zealand Ltd, Mediaworks TV Ltd, NZME Publications Ltd and, later, Fourth Estate Holdings (2012) Ltd (together, the media applicants).5   After receiving the order, the media applicants complied with the order
and removed the online articles.  They also applied to Lang J to rescind the order and

2           By virtue of Criminal Procedure Act 2011 [CPA], ss 397(1) and 397(2).  In any event, if the Criminal Procedure Act did apply, it too contains no statutory pathway following which orders made in the exercise of the inherent power of the High Court could be appealed to this Court.
3	Lyttelton v R [2014] NZCA 638.
4           R v Lyttelton HC Auckland CRI-2008-044-9465, 11 March 2015 [Minute of Lang J granting the take down order]. These numbered some 20 articles across the various websites.
5	The media applicants were later joined by Fourth Estate Holdings (2012) Ltd, publisher of the
NBR.

sought to be heard in support.  Lang J directed a hearing should be held, following which he revoked the order in a fully reasoned judgment.6

[5]       Mr Lyttelton seeks to appeal the revocation of the take down order.  We will first address the preliminary question concerning jurisdiction.  Consideration of the substantive appeal will then follow.  We are conscious of the context of this appeal, being the increasing accessibility of news media through online platforms and the ease of research  and  access  the public has  through  various  search  engines.    In resolving the issues before us, care must be taken to balance the differing interests of defendants in criminal cases, the Crown as prosecutor, the media seeking to exercise their right of freedom of expression and the public to receive news in different forms.

Background

[6]       The charges to which Mr Lyttelton pleaded guilty in the High Court in March

2010 comprised one count of attempted murder, one of causing grievous bodily harm with  intent  to  injure  and  one  of  aggravated  burglary.    He  was  convicted  and sentenced to five years and 11 months’ imprisonment.7   He served that sentence and appealed against his conviction two years out of time.

The offending

[7]       The facts are conveniently summarised in the Court of Appeal’s decision:8

[4]        The  convictions  have  their  genesis  in  a  bitter  and  long-running dispute between Mr Lyttelton and his former business partner Richard Ord. The substantive merits of this dispute still exercise Mr Lyttelton, but they do not concern us.  What matters for our purposes is that Mr Lyttelton firmly believed Mr Ord had done him wrong, that the dispute caused him great stress and anxiety, exacerbating an existing tendency towards mental illness, and that as at March 2008, Mr Lyttelton had suffered what he saw as a serious reversal in proceedings against Mr Ord.

[5]        On the morning of 8 April 2008 Mr Lyttelton purchased a .410 gauge shotgun, a box of cartridges and a hunting knife from a gun shop.   The shotgun was a single shot weapon with a hammer.   It had to be broken, loaded and manually cocked before it could be fired.

6	R v Lyttelton [2015] NZHC 763 [judgment revoking the take down order].
7	R v Lyttelton HC Auckland CRI-2008-044-9465, 31 March 2010.
8	Lyttelton v R, above n 3.

[6]        On the same day Mr Lyttelton met a friend, Brian Freestone, for coffee.   He told Mr Freestone that he was feeling suicidal.   Mr Freestone took him to a doctor who prescribed an antidepressant (a generic version of Aropax), and the sleeping tablet Zopiclone, which should not be taken with alcohol.  He was warned against the dangers of an overdose.

[7]        Mr Lyttelton then went home, wrote a suicide note and took a large number of tablets, including all the Aropax and all 14 of the 7.5 mg of Zopiclone tablets he had been prescribed, with alcohol. This was evidently a genuine suicide attempt.  The following day he was woken by his wife, Sally Lyttelton, and later visited by Mr Freestone, but he was groggy and unable to converse.  He then slept until he was woken by his wife at about 7.00 am on Thursday 10 April.

[8]        At about 9.15 am Mr Lyttelton left his home, taking in his car the shotgun, the full box of cartridges and the hunting knife.   He had told his wife that he was going to clear his mail and do some errands.  He drove to the Auckland Domain, apparently intending to commit suicide there, but changed his mind and drove to Mr Ord’s residence on the North Shore.

[9]        At Mr Ord’s home Mr Lyttelton armed himself with the shotgun, six cartridges and the knife.  He entered the house via the garage.  Mr Ord and his  partner,  Colleen  Fenton,  were  in  the  office  upstairs  at  the  time. Ms Fenton saw Mr Lyttelton climbing the staircase towards the office and alerted Mr Ord.   They shut the office door and Ms Fenton leant on it to prevent   Mr Lyttelton   gaining   entry   while   Mr Ord   called   the   police. Mr Lyttelton fired through the door, apparently in an attempt to gain entry. The shot struck Ms Fenton’s leg, causing severe trauma and major damage to her femoral artery.

[10]      Mr Lyttelton reloaded the shotgun and again tried to enter the office. Mr Ord released his grip on the door handle and opened the door, causing Mr Lyttelton to stumble into the room.  Mr Ord seized him from behind and was  able  to  stop  Mr Lyttelton  pointing  the  gun  at  him  or  Ms  Fenton, although Mr Lyttelton did fire a second shot, hitting the wall.   The men wrestled and  eventually tumbled  down  the stairs  into  the  front  hallway. There Mr Ord managed to get the gun away from Mr Lyttelton and used it to force Mr Lyttelton against a doorframe and pin him there.  Mr Lyttelton then reached into his right trouser pocket and pulled out the knife, attempting to stab Mr Ord on three or four occasions in the stomach area.  Mr Ord suffered a number of cuts to his hands.  Eventually the struggle subsided and Mr Ord managed to persuade Mr Lyttelton to relinquish the knife.

[11]    On more than one occasion during the struggle and ensuing conversation, Mr Lyttelton told Mr Ord that he had ruined his life. When the fight ended he said he had to leave now.  He initially remembered little of the incident.  He now says he was in a dissociative state and felt as though he was sleepwalking throughout.

Court of Appeal decision

[8]	This Court concluded Mr Lyttelton had entered his guilty pleas in a mistaken belief that he could deny intent at a sentencing hearing.  The Court also found that

his counsel gave incorrect advice concerning a possible change of plea, capable of establishing a miscarriage. The appeal was allowed and a retrial ordered.

The take down order

[9]       Mr Lyttelton and the Crown prosecutor filed a joint memorandum seeking the take down order, contending the suppression order made by this Court did not extend (and ought to have extended) to coverage of the original proceedings, including the original media coverage.   It referred to a number of articles (most of which were available online) from the websites owned by the media applicants and sought an order, pursuant to the inherent powers of the High Court, prohibiting publication of any  details  of  the  original  prosecution,  including  details  of  the  guilty  pleas. Justice Lang then issued a minute directing relevant media outlets to take down the
articles identified “so they may no longer be viewed online”.9

Revocation of the order

[10]     As  noted,  the  media  applicants  complied  with  the  take  down  order  and removed the articles in question.  Acting through counsel, the media applicants then sought  revocation  of  the  order.    Following  a  hearing,  Lang J  then  delivered  a reserved judgment, in which he found:10

[5]        It is neither possible nor desirable to make a blanket direction of the type the media organisations seek.  The circumstances of criminal cases vary widely, as do the nature and timing of the articles posted on the internet.  For that reason, the procedure followed in one case  may not necessarily be appropriate  in  another.    In  cases  where  there  is  no  particular  urgency, however, the application should be made on notice not only to the opposing party but also to any media organisations affected by the orders sought.

[6]        In some cases, the Crown and/or defence may consider that this would entail delay sufficient to jeopardise fair trial rights.  In such cases, the Court may be prepared to deal with the application without first hearing from affected parties but will be likely to require the applicant to explain why that is necessary.  The Court may also direct the applicant to serve the affected parties immediately so that they have an opportunity to be heard on a “Pickwick” basis.

9	Minute of Lang J granting the take down order, above n 4.
10	R v Lyttelton, above n 6.

[11]	With respect to the articles in question, the Judge made the following further findings, none of which were seriously challenged on appeal:

(a)       The historic nature of the articles meant they did not automatically appear when an internet user went to the homepage of the website of any of the media organisations.   They could only be accessed by searching  the  website  (or  Googling)  for  information  specific  to Mr Lyttelton or his victims.   This was important to the analysis of whether   the   continued   existence   of   the   articles   jeopardised
Mr Lyttelton’s fair trial rights.11

(b)       It is unlikely that members of the prospective jury pool for the trial will have any residual recollection of the media attention the case received in 2009 and 2010.  It is also unlikely members of the public will be tempted to search for the information before the trial begins. The case is not currently a topic of local or national interest.   The suppression orders made by the Court of Appeal will ensure the media do   not   discuss   the   matters   leading   to   his   conviction   being
overturned.12

(c)       The   empanelled   jurors   will   not   know   they   are   serving   on Mr Lyttelton’s case until the case actually begins.  At that point they will receive immediate directions from the trial Judge.13

(d)       The jury will receive firm and clear directions from the Judge to consider the case only on the basis of evidence presented in Court and not to conduct their own research.14

(e)       As the Crown and Mr Lyttelton accepted, the risk to a fair trial will only arise after the jury is selected.   If members of the jury were tempted to use the internet to learn more about the case at that time,
they will already have received the Judge’s initial directions.	The

11	At [15].
12	At [16].
13	At [18].
14	At [20], citing a number of authorities addressing the type of directions to be given including
Weatherston v R [2011] NZCA 276 at [24]; R v Bailey HC Auckland CRI-2007-085-7842,
23 April 2010 at [67] and [71].

Court must proceed on the assumption that jurors will follow those directions and resist the temptation to make their own enquiries on the internet.15

[12]     The  Judge  therefore  revoked  the  take  down  order  previously  made  by consent.  He declined Mr Lyttelton’s request to make further directions.  The Judge ordered that details of his judgment be suppressed until the final disposition of Mr Lyttelton’s retrial.   The media outlets have agreed not to reinstate the articles pending  the  outcome  of  this  appeal.    They  have  also  agreed  that  if  they  are reinstated, they will be returned to the same position on the website they once had as an historic, archived article. We return to this later.

Is there jurisdiction?

[13]     It is common ground the take down order and its subsequent revocation were made in the exercise of the inherent powers of the High Court to make non-statutory suppression orders.16   Counsel also agree, and we accept, the take down orders could not have been made under any statutory provision.17

[14]     The fact an inherent power was used limits the available basis for appellate review.  It is not disputed that for non-statutory suppression orders made by the High Court, there is no statutory appeal pathway.   There is no general right of appeal under s 379A of the Crimes Act 1961, which prescribes the orders on which appeals may be brought before trial and retrial.18   Nor does the Crimes Act provide a specific
right of appeal against non-statutory suppression orders of the kind in question.  The

15	At [21].
16	The inherent power of the High Court to make such orders was not challenged in this case: see
Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [169].   The particular exercise  of  the  inherent  powers  in  question,  non-statutory suppression orders,  denotes  the exercise of the Court of a suppression power going beyond or falling outside of prescribed statutory provisions – hence “non-statutory”.
17	The legislation governing the proceeding and any suppression issues related to it, the Criminal
Justice Act 1985, could not support the take down order made by Lang J.   Section 138, for example, provides the power to clear the court or forbid any publication or account of the evidence adduced or submissions made – suppression under that section would not extend to publication of the substance of judgments or rulings: Siemer v Solicitor-General, above n 16, at [44]–[46] and [139]–[143].
18	Section 379A(1)(ba) applies to ss 138 and 140 of the Criminal Justice Act, which is not capable of supporting the take down order made in this case.

same is true of the provisions providing for appeals against suppression in the CPA.19

Section 282 of the CPA defines a suppression order as “an order made under section

200, 202, or 205”.   Any right of appeal applies only to the statutory suppression orders, enabled under the Act itself.  In neither statute is there an ability to appeal against the take down order.20

[15]     Section 66 of the Judicature Act provides this Court with jurisdiction to “hear and determine appeals from any judgment, decree, or order … of the High Court”. This provision applies only to the exercise of the civil jurisdiction of the High Court.21   Section 2 of the Judicature Act defines “civil proceedings” broadly as “any proceedings in the [High] Court, other than criminal proceedings”.  The availability of s 66 as a source of appellate jurisdiction therefore turns on whether an application to make and/or rescind a take down order in the context of a criminal proceeding may properly be characterised as a civil proceeding.

Submissions

[16]     The burden of advancing this part of the argument fell to Mr Orpin as counsel assisting the Court and we are most grateful to him for his assistance.  Relying on the approach of the majority of the Supreme Court in Mafart v Television New Zealand
Ltd to determine whether an application is civil or criminal for the purposes of s 66,

19	CPA, subpart 7, ss 283 and 289.
20         We have considered and rejected the possibility of broadly construing a pre-trial or retrial application, such that the present appeal could fall within the existing appeal provisions in either ss 379A of the Crimes Act or CPA, s 217.  With respect to s 379A, it is clear the section closely prescribed what could be the subject of a  pre-trial appeal; this is evident from the  cross-
referencing to other statutory provisions. Appeals against orders not expressly provided for in s
379A lack jurisdiction: McGrath v R [2005] NZSC 50; R v Livingston [2001] 1 NZLR 167 (CA) at 175 and R v Coleman [1996] 2 NZLR 525 (CA).   In respect to s 217 (or the appropriate suppression appeal provision relating to the relevant offence, as the case may be), the list of matters that can be appealed is also closely confined.  Each relates to an order made pursuant to a separate provision of the CPA.  Courts may not entertain pre-trial appeals on any other matter: McGrath v R at [4].   There is no scope to interpret any of these provisions in a way that encompasses non-statutory suppression (leaving aside the question of fidelity to legislative intent in confining pre-trial appeals to limited circumstances).
21	Ex parte Bouvy (No 3) (1900) 18 NZLR 608 (CA); Siemer v Solicitor-General, above n 16, at
[186].

Mr Orpin submits an application to rescind a take down order is properly seen as a civil proceeding.22

[17]     Mr Orpin summarises the majority approach in Mafart as holding that where proceedings can result in conviction for a crime or punishment of an offender, the proceedings are clearly criminal.23   Where applications are necessarily linked to the determination of crime or punishment, they are properly regarded as criminal.24    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.25    The underlying
proceedings, which provide the occasion for the application, are not determinative.26

What may be regarded as the correct characterisation of a given proceeding may change over time.27    Consequences of a criminal characterisation that indicate that conclusion may not be appropriate include:28

(a)	the absence of any appeal rights;

(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.

[18]     In the present case, the application has no penal consequences.   Nor is the application necessarily or inextricably linked to determinations of crime or punishment.  In many cases a criminal proceeding will merely provide the occasion for  the  application,  such  that  an  application’s  context  but  not  its  substance  is
criminal.  Moreover, a suppression order (of which a take down order is a particular

22         Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18.   The majority comprised Elias CJ, Blanchard and McGrath JJ.  Tipping and Eichelbaum JJ, although writing separately, agreed with the substance of the majority's decision, and supported the Chief Justice's orders.
23	At [29].
24	At [30].
25	At [31].
26	At [32].
27	At [35].
28	At [36]–[38].

type) is not necessarily a criminal matter, as in substance it may equally be made in civil proceedings.29

[19]     Addressing  these  factors  identified  by  the  majority  in  Mafart,  Mr Orpin submits an examination of the substance of the application to rescind confirms its civil nature.  Substantively, this is a civil case between Mr Lyttelton and the media applicants.   Importantly, there are no penal consequences to this proceeding; the outcome of the dispute is not necessarily linked to the determination of a crime or punishment for a crime.  Finally, Mr Orpin emphasised that it would be anomalous to treat the present application as criminal, which could not be appealed, when the position is otherwise with suppression orders made under the CPA (and previously, under the Crimes Act), and where other analogous orders (such as those made by the District Court, or before charges are laid, or in civil proceedings) could all be the
subject of an appeal.30

[20]     For the Crown, Mr Downs presented the contrary argument.   He accepts a feature in favour of civil characterisation is the absence of penal consequences to the immediate application.31  He also acknowledges the access to justice concerns of
inhibiting a right of appeal in this context.32    However, Mr Downs emphasises that

the underlying proceedings are and remain criminal: the proposed appeal is brought to protect the defendant’s trial rights.  But for the criminal proceedings, there could be no suppression order.  Therefore the application is “necessarily” or “inextricably” linked to criminal proceedings, so as to give it that character.33

[21]     Mr  Downs  contends  the  issue  of  “contextual  legislation”  was  a  relevant feature of the reasoning in Mafart.  He contends both the Crimes Act and the CPA treat suppression orders related to criminal proceedings as being criminal in nature.
He submits the legislative provisions of the Crimes Act and the CPA have been

29	As noted by the majority in Siemer v Solicitor-General, above n 16, at [124].  To similar effect
see Professor John Burrows “Media Law” [2004] NZ L Rev 787 at 798.
30	Suppression  orders  made  in  the  District  Court  under  inherent  (ancilliary)  powers  can  be judicially reviewed to the High Court, following which an appeal to the Court of Appeal (and
Supreme Court) is available.  See also Television New Zealand Ltd v Solicitor-General [1989]
1 NZLR 1 (CA) for the concept of “pre-charge suppression” orders.
31	Citing Mafart, above n 22, at [29].
32	Mafart, above n 22, at [37]–[38].
33	Mafart, above n 22, at [30].

carefully calibrated by Parliament.  The media have standing in certain situations.34

The CPA confers a right of appeal in relation to suppression orders on the applicant, prosecutor and media.35     Second appeals are provided for.36    The trial court may commence and determine a trial notwithstanding the existence of an outstanding suppression order appeal.37

[22]     Mr Downs submits civil characterisation of the present appeal would outflank these statutory regimes by permitting collateral civil proceedings.   Future cases of this kind run the risk of impinging on the prompt dispatch of criminal cases. Accordingly, while he accepts the appeal is arguably civil in nature, its true character is criminal because criminal proceedings underlie the appeal.

[23]     The  media  applicants  abide  the  decision  of  the  Court  in  relation  to jurisdiction.    Mr Lyttelton,  however,  strongly  supported  the  submissions  by  the amicus favouring the existence of appellate jurisdiction.

Our analysis

[24]     We refer first to the important principle that, with limited exceptions, the work of the courts is to take place in public.  Notions of open justice are of great antiquity, as the words of Lord Haldane LC in Scott v Scott illustrate.38   Speaking in the context of a case where the petitioner, in seeking annulment of a marriage, sought to have the case heard in camera,  Lord  Haldane emphasised the “broad principle” that the courts must “administer justice in public”. Any exceptions 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”.  Hence in certain types of case, justice may not be able to be done at all if required to be done in public:39

… As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.  But the burden lies on those seeking to displace its application in the particular

34	For example, CPA, s 210.
35	CPA, s 282.
36	CPA, s 289.
37	CPA, s 288.
38	Scott v Scott [1913] AC 417 (HL).
39	At 437.

case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.

[25]     It is well-recognised that the fair trial rights of a defendant in a criminal trial may form the basis of one type of the exceptions of which Lord Haldane spoke.  The New Zealand Bill of Rights Act 1990 (NZBORA) guarantees a defendant the right to a fair trial.40   It is no doubt for this reason that the Legislature has created statutory bases for suppression orders, which protect not only the interest of the defendant, but also the interests of complainants and victims, and witnesses generally.41

[26]     We have already referred to examples under the Criminal Justice Act (relative to prosecutions under the Crimes Act) and the CPA.  But there is no certainty that statutory suppression powers will be effective to do justice in all cases.  The ability of the High Court to ensure fair trial rights by recourse to inherent powers of the type relied on in this case is critical to the administration of justice.42   The majority of the Supreme Court in Siemer v Solicitor-General has observed that New Zealand courts have, since the 1970s, exercised the power to make non-party suppression orders which go beyond anything provided by statute:43

There is thus a pattern of legislative action and inaction founded on the assumption that the courts have the power to make non-party suppression orders. And the way in which criminal courts deal with pre-trial applications and appeals in part reflects an assumption that non-party suppression orders promote fair trial rights.

[27]     One particular contextual factor relevant to the determination of this appeal is that the take down order and its subsequent revocation were made solely in the

40         New Zealand Bill of Rights Act 1990, s 25(a).  See for example R v Hines [1997] 3 NZLR 529 (CA) at 459 per Richardson P and Keith J, in which this Court held “an assessment of the values underlying the right to a fair trial … must also recognise the public interest in the effective prosecution of criminal charges and the protection of the criminal process and witnesses and their families from intimidation …”.  See further R v Griffin [2001] 3 NZLR 577 (CA) at 591; R v Forbes [2001] All ER 686 (HL) at 697;   Brown v Stott [2001] All ER 97 (PC) at [40]; R v Lyons [1987] 2 SCR 309 at 362 per La Forest J.
41         For a discussion of the evolution of various statutory powers up to and including the Criminal Justice Act, see Siemer v Solicitor-General, above n 16, at [126]–[138].  In relation to the new regime of suppression enacted with the Criminal Procedure Act 2011, see Law Commission Suppressing Names and Evidence (NZLC R109, 2009).
42	As  to  the  nature  of  inherent  powers  of  the  High  Court  see,  for  example,  Taylor  v
Attorney-General [1975] 2 NZLR 675 (CA) at 678 and 682; Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 128 and 134; Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277 at [111] per McGrath J;  Mafart, above n 22, at [16]; and Siemer v Solicitor-General, above n 16, at [114].
43	Siemer v Solicitor-General, above n 16, at [169].

exercise of the inherent power of the High Court, without reference to any statutory powers whatsoever.  We agree with Mr Orpin that this distinguishes the present case from earlier decisions, in which a statutory suppression order was made in a criminal case, following which a non-party (such as a media company or a witness), seeking to appeal against that order, argued the proceeding was civil in nature to circumvent the statutorily prescribed appeal regime.   This was to avoid the limited scope of appeal rights provided by the Summary Proceedings Act 1957 and the Crimes Act (particularly in respect of the standing of the media), neither of which allowed for
appeals by non-parties, or for appeals on particular matters or aspects of the orders.44

[28]     Parliament has, since this time, extended the appeal rights available in respect of statutory suppression orders.  The media now have standing to appeal against a suppression order.45   An applicant for a suppression order also has a right of appeal, indicating a victim or a witness applicant now also has standing to appeal, for example, against the refusal to make a suppression order.

[29]     Such  legislative  changes  demonstrate  Parliament’s  acknowledgment  of changing perceptions of suppression orders generally.   They can fairly be said to engage broader social issues including privacy interests, as well as freedom of expression.  These interests of non-parties, even in a criminal case, are necessarily wider than the underlying criminal contest between the Crown and a defendant.  It is in  this  context  that  statutory  appeal  rights  have  been  extended  to  non-parties,
including the media.46

44         Two examples demonstrate the point.   First, in Re Victim X [2003] 3 NZLR 220 (CA) news media organisations sought to have set aside an order made by a trial judge under s 140 of the Criminal Justice Act, suppressing the identity of the intended victim of an attempted kidnapping. The intended victim had standing to oppose the lifting of the suppression order.  When the order was lifted, the victim sought to appeal to the Court of Appeal.  The Crimes Act provided no jurisdiction to appeal against an order made during the course of trial.  The victim sought to appeal  against  a  statutory  order  (where  appeal  rights  were  already  set  down  in  statute). Secondly, Fairfax New Zealand v C [2008] NZCA 39, [2008] 2 NZLR 368 concerned an interim suppression order also made under s 140.   The available appeal provision only gave parties appeal rights – Fairfax attempted to use s 66 to appeal as a non-party despite this.  There, the Crimes Act did not provide standing to appeal.   In these situations, the legislative context is germane to the determination of characterisation.  That is not so for the present case before the Court.
45	CPA, s 283(2)(c).
46         See Robertson v Police [2015] NZCA 7 at [25].  The discussion by the Law Commission when it recommended  appeal  rights  be  given  to  the  media  is  informative:    Law  Commission Suppressing Names and Evidence, above n 41, at [6.47]–[6.55].

[30]     We   acknowledge   those   expanded   non-party   appeal   rights   have   been introduced under the CPA.   However, this has a limited bearing on whether suppression orders generally are properly characterised as civil or criminal.  While the Legislature has provided a range of appeal rights against determinations made under the CPA, those appeal rights have been grouped together in the legislation for convenience, irrespective of (and irrelevant to) any legal analysis as to whether the issues in dispute are truly criminal or whether the criminal proceeding merely provides the occasion for the application.

[31]     On the issue of characterisation, Lord Hoffman observed in Government of the United States of America v Montgomery that modern criminal legislation often confers powers on criminal courts to make orders that give rise to a claim or dispute that is essentially civil in character.   In that case, the House of Lords considered whether an appeal to the Court of Appeal from a restraining order against third parties in respect of property which was the subject of a confiscation order under the Criminal Justice Act 1988 (UK) was precluded by s 18(1)(a) of the Supreme Court Act 1981 (UK).  That appeal provision is based on a similar civil/criminal distinction
to that in s 66 of the Judicature Act.  Lord Hoffmann stated:47

My Lords, it may be right, and possibly in most cases would be right, to regard orders made by way of enforcement of orders made or to be made in criminal proceedings as part and parcel of those proceedings.   This was certainly the case in R v Steel 2 QBD 37 [a case concerning taxation of the defendant’s costs in a failed prosecution for criminal libel].  But I would not accept what I regard as the extreme proposition of Mr Alun Jones that the nature of the proceedings in which the original order was made will necessarily determine whether the machinery of enforcement through the Courts is a criminal cause or matter.  Modern legislation, of which part VI of the 1988 Act is a good example, confers powers upon criminal Courts to make orders which may affect rights of property, create civil debts or disqualify people from pursuing occupations or holding office.  Such orders may affect the property or obligations not only of the person against whom they are made but of third parties as well. Thus the consequences of an order in criminal proceedings may be a claim or dispute which is essentially civil in character.  There is no reason why the nature of the order which gave rise to the claim or dispute should necessarily determine the nature of the proceedings in which the claim is enforced or the dispute determined.

47	Government of the United States of America v Montgomery [2001] UKHL 3, [2001] 1 WLR 196 at [19], cited with approval in Mafart, above n 22, at [31].

[32]     Two further contextual points require emphasis.  If it were the case that an application to rescind a suppression order made in 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 that the trial miscarried through  publicity.   That is clearly  unsatisfactory  in  a  number  of  respects.     First,  if  it  is  determined post-conviction that the trial has miscarried as a result of prejudicial pre-trial publicity, it becomes extremely difficult for that error to be corrected – and even so, is not corrected until a later time.  By then, it may be difficult for the defendant to
receive a fair retrial.48

[33]     Second, 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.  This may cause difficulties for the parties and risk of prejudice, depending on the outcome of the High Court determination.  As Mafart requires, our assessment of whether an application is criminal or civil should have regard to the consequences of that determination – particularly where other parties are placed in position of anomaly or uneven appeal provisions are created.   Ultimately an application to rescind a take down order (and any appeal therefrom) must either be criminal or civil, regardless of the outcome of the application.

[34]     Bearing these in mind, we turn to address other relevant factors identified in Mafart.49   We have concluded, for the reasons that follow, an application to rescind a take down order made under the High Court’s inherent power (and an appeal therefrom) is properly characterised as a civil proceeding.   The term “civil proceedings” is broadly defined as “any proceedings in the High Court, other than criminal proceedings”.50     As the majority in Mafart stated, unless the particular application (there, an application to search a court file) is a criminal proceeding, s 2 of the Judicature Act makes clear it is a civil proceeding.  In all cases, it is necessary
“to look at the substance of the application and the order sought under it.   The

48	Depending on the type of case prejudicial material will be in the public arena and could have a prejudicial effect on the retrial.
49	Set out above at [17]–[19].
50	Judicature Act 1908, s 2.

underlying  proceedings,  which  provide  the  occasion  for  the  application  are  not

determinative”.51

[35]    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.

[36]     Moreover, a consideration of the substance of the application to rescind the take down order confirms its civil nature:

(a)       The application was made by media applicants rather than the Crown or Mr Lyttelton.

(b)       The application was effectively a dispute between Mr Lyttelton (with the support of the Crown) and media applicants.   The application raised no issue between Mr Lyttelton and the Crown relating to the conduct or outcome of the criminal trial.

(c)       Unlike  a  typical  suppression  order,  which  is  not  directed  to  any particular person, the take down order here was necessarily directed to particular media applicants that have already lawfully published the material  contained  in  the  online  articles.   Accordingly  any media entity subject to the take down order would have individual interests (its right to freedom of expression and speech, as well as commercial) in  the  application  that  extends  beyond  the  general  interest  of  the fourth estate as a representative of the public.  A take down order in this context is analogous to an interim injunction directed to particular media applicants.

(d)       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 Lyttelton to a fair trial.   The latter

51	Mafart, above n 22, at [31].

right is fundamental to a defendant facing criminal trial, but it is also a part of the proper administration of justice generally.52

(e)       It  is  also  relevant  that  the  right  to  a  fair  trial  applies  in  civil proceedings.53   There is an analogy between the present case and the dispute  in  Mafart  where  it  was  observed:  “The  function  of  the Registrar or Judge in determining an application [for access to a court file] is principally to adjudicate between competing civil interests and to take account of any particular interest of justice which may arise equally in civil or criminal cases”.54

(f)	The determination of the application will not affect the conduct of

Mr Lyttelton’s criminal trial.

[37]	Mr Orpin drew our attention to a number of anomalies flowing from treating the application as criminal:

(a)       Where pre-trial statutory suppression orders are available under the CPA, there are pre-trial appeal rights for the applicant, the Crown and the media.  If an order is sought under the inherent power (and such an application were treated as criminal) the Crown and the media
would have no appeal rights.55

(b)       The District Court, like the High Court, possesses powers ancillary to its  statutory  powers  to  enable  it  to  act  effectively  within  its jurisdiction.  These extend to the power to make orders ensuring a fair
trial including orders suppressing information.56	Where take down

52         Siemer v Solicitor-General, above n 16, at [18] per Elias CJ.   McGrath, William Young and Glazebrook JJ saw the right to a fair trial as essential to the administration of criminal justice and the integrity of the courts at [156].
53	Andrew  Butler  and  Petra  Butler  ‘The  New  Zealand  Bill  of  Rights  Act:	A  commentary
(LexisNexis, Wellington, 2005) at [13.11.1].
54         Mafart, above n 22, at [39]. The Supreme Court majority identified further that this adjudication between competing civil interests was an important part of convenient court administration.
55	The potential problems with a post-trial right of appeal have already been mentioned at [32]
above.
56         Attorney-General  v  Otahuhu  District  Court  [2001]  3  NZLR  740  (CA)  at  [16],  citing Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA); Paraha v Police [2008] NZAR 581 (HC) at [38].

orders  are  made  in  the  District  Court  all  three  interested  parties (Mr Lyttelton, the Crown and the media) could seek judicial review in the High Court.  Determination of the review in the High Court could be appealed under s 66, with a further right to seek leave to appeal to the Supreme Court.   If, however, the present application is criminal and is made to the High Court, there will be no right of appeal for media  interests  and  only  a  limited  (and  potentially  ineffectual) post-conviction right of appeal for Mr Lyttelton.  As the majority of the Supreme Court in Mafart observed, such an unevenness is “highly
material” as to whether an application is treated as civil or criminal.57

(c)       Before charges are laid against a suspect in a criminal case, the Court may in its inherent jurisdiction grant an interim injunction prohibiting publication to ensure that if charges are laid the defendant receives a fair trial.58   Such an injunction is essentially a pre-charge suppression order  in  respect  of  which  this  Court  has  entertained  an  appeal (see above at [19]).

(d)     Given that orders suppressing information (or requiring online information to be taken down) can be made under a court’s inherent power in both criminal and civil cases, the majority in Mafart commented there is no reason why an appeal should not be available in respect of an order made in a civil case, but not in a criminal case.59
Tipping J made the same point.60

[38]     Characterising an application to rescind a take down order as civil would avoid all of the above anomalies. Any decision on such an application would then be subject to appellate review regardless of whether made under statute or in the Court’s inherent power; in the District Court or High Court; before or after charges are laid;
or in civil or criminal proceedings.

57	Mafart, above n 22, at [38].
58	Television New Zealand Limited v Solicitor-General, above n 30.
59	Mafart, above n 22, at [39].
60	At [48].

[39]     The   existence   of   such   anomalies   rebuts   Mr Downs’  submission   that categorising a rescission application as civil would “outflank” the regime of appeals provided in the CPA and would permit “collateral civil proceedings”.  We think the anomalies indicate it is unlikely Parliament turned its mind to suppression orders made in the exercise of the court’s inherent power.  As discussed, the CPA is silent on appeals against such orders.   We are satisfied in the circumstances that Parliament’s silence was not intended to exclude appeals in cases of the exercise of the inherent power to make non-statutory suppression orders.

[40]     In further response to Mr Downs’ submission, we do not accept that a right of appeal as a civil proceeding under s 66 would impinge on the timely dispatch of criminal cases.  If delay to the trial were of concern that would be a material factor to be addressed either in the High Court (when considering exercising the inherent power) or on appeal.  While an appeal under s 66 is as of right, this Court may, in the exercise of its discretion, decline to hear the appeal in advance of trial if that is
considered necessary.61   We agree with Mr Orpin that the right to appeal under s 66

is likely to be no more disruptive than the right of appeal provided for under the

CPA, which is also an appeal as of right.62

[41]     Finally, in terms of the New Zealand authorities, we are satisfied that this case is distinguishable from the situation confronting this Court in the Fairfax New Zealand case.  At issue there were appeal rights in relation to a statutory suppression order rather than an order made in the exercise of the inherent powers of the High Court.  Parliament had provided a limited set of statutory appeal rights, the scheme of which would have been thwarted by allowing a civil appeal.   Moreover, the
suppression order in Fairfax was made after resolution of the charges against C.63   It

was therefore linked to the sentencing process and the question whether C would suffer public opprobrium associated with publication of his name was more a matter related to determination of punishment.

[42]     Following Mafart, the Supreme Court has, only in passing, referred to the issue of whether an application to rescind or vary a non-statutory suppression order

61	Mafart, above n 22, at [34]; Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [32].
62	CPA, s 283.
63	Fairfax New Zealand v C, above n 44.

made in a criminal case was open to appeal under s 66.64   As the point did not need to be decided, it was left open.   Whilst the Chief Justice said the issue was “uncertain”,65   the majority (McGrath, William Young and Glazebrook JJ) said that it was “certainly arguable” that s 66 conferred a right of appeal:

[186]    There is no explicit provision in any enactment for rights of appeal in respect of non-statutory suppression orders.   The position is similar in Canada and Canadian courts have held that this means that such orders are not subject to appeal to the Ontario Court of Appeal.  On the other hand, in Victoria, the Court of Appeal has held that such appeals are competent, essentially as civil appeals.  The relevant statutory provisions in issue in the Victoria case have some differences from those in New Zealand but the approach taken by the Court of Appeal is broadly similar to the approach of this Court in Mafart.  Against this background, it is certainly arguable that there is a right of appeal under s 66 of the Judicature Act in respect of non-party suppression orders made in criminal cases.   Whether that is so does not arise for determination in the present case … .

(Footnotes omitted)

[43]     Mr Orpin referred us, helpfully, to a number of overseas authorities.   We mention only three, two Canadian and one Australian.

[44]     In Thomson Newspapers Ltd v R the Canadian trial Judge made suppression orders in a criminal case.66   Media interests appealed to the Ontario Court of Appeal. That Court recorded that it was “long-established jurisprudence … that the right of appeal in criminal proceedings must be found in the Criminal Code”.67    It rejected the argument that the matter before it could be treated as a civil appeal.  The Court reasoned that the suppression orders were made in “a ruling in proceedings in respect of indictable offences” and were therefore criminal in nature.68

[45]     For a number of reasons, we do not find the case of assistance.  First, it is inconsistent with the requirement in Mafart to consider the substance rather than the form of the application.  In that vein, the Supreme Court in Mafart disapproved of similar reasoning previously adopted in Re Victim X.69    Second, the media interests
in question had a right to seek leave to appeal against the suppression order to the

64	Siemer v Solicitor-General, above n 16.
65	At [69].
66	Thomson Newspapers Ltd v R (1994) 121 DLR (4th) 42 (ONCA).
67	At 44.
68	At 46.
69	Re Victim X, above n 44, cited in Mafart, above n 22, at [32].

Supreme Court of Canada directly or by judicial review, as discussed in the Supreme Court decision in Canadian Broadcasting Corp v Dagenais.70    Hence it was not a case where a civil appeal to the Court of Appeal was the only available opportunity for appellate review.

[46]     Elaborating briefly on the discussion of the Supreme Court of Canada in Dagenais, it considered a number of possible avenues to give media interests a right to challenge publication bans, including treating such bans as civil appeals.   The Supreme Court determined that such bans could be challenged by seeking leave to appeal directly to the Supreme Court or by judicial review.  It rejected a civil appeal for a range of reasons, including jurisdictional considerations relevant only within the framework of Canadian federal law.  Some of those reasons were particular to Canada, for example if a publication order was treated as civil provincial court judges would have no power to make such an order because they possessed only
criminal  jurisdiction.71      Such  a  result  was  plainly  untenable.    In  addition,  the

Supreme Court found prohibition bans were criminal because they were made in respect  of  “individuals  charged  (or  at  risk  of  being  charged)  with  criminal offences”.72     This latter approach is not consistent with the approach adopted in Mafart, which recommended a consideration of substance rather than form.

[47]     The majority of the Supreme Court in Siemer v Solicitor-General identified that the approach in News Digital Media Pty Ltd v Mokbel was broadly similar to Mafart and could offer guidance.73   In Mokbel the trial Judge had made a variety of suppression orders exercising the Court’s inherent power.   The relevant appeal provision provided no right of appeal in respect of a determination “made on or in relation to the trial or proposed trial of a person by indictment”.   Citing earlier authority, the Victoria Court of Appeal considered three “pointers” that assisted a court in characterising whether a proceeding was criminal or civil:

(a)	Did the decision affect the conduct of the [criminal] trial?

70	Canadian Broadcasting Corporation v Dagenais [1994] 3 SCR 835.
71	At 864.
72	Ibid.
73	News Digital Media Pty Ltd v Mokbel [2010] VSCA 51, (2010) 30 BR 248; Siemer, above n 16, at [186].

(b)       Is the subject matter of the order an integral part of the trial process?

(c)	Is  the  decision  one  arising  in  issue  between  the  Crown  and  the defendant formulated by the indictment?

[48]     Applying those pointers, the Court held that there was a right to appeal against the suppression orders. Warren CJ and Byrne AJA reasoned that:

[49]      …  [N]one  of  the  [suppression]  orders  …  were  made  ‘on  or  in relation to’ the trial of the accused.  Being concerned with suppression of the publication  of  information  about  the  accused,  matters  that  go  to  his credibility and proceedings involving him, they do not affect the conduct of the trial of the accused; nor do they raise an issue between the Crown and the accused; nor are they an integral part of the trial process as, say, an order to provide legal assistance or a stay of proceedings, would be. … The right to a fair trial may be considered integral to the trial process, however an order whose subject matter is the prohibition of publication of specific material cannot be so considered, even if its purpose is to secure a fair trial for the accused.  Following the reasoning in HWT v A, the required nexus does not exist between the orders the subject of the present appeal and the trial.  The appeal is, therefore, competent.

[49]     These  various  overseas  authorities  are,  admittedly,  of  limited  assistance, given New Zealand’s unique statutory context.   However, the adoption of criteria similar to Mafart by the Victorian Court of Appeal is pertinent and supportive of the Supreme Court’s reasoning.  We are content for the purposes of this appeal to apply the approach of the Supreme Court in Mafart.  Doing so leads us inexorably to the conclusion there is jurisdiction because the present proceeding is civil.

[50]     In  a  sense  this  involves  a  separating  out  of  the  take  down  application proceeding  from  the  underlying  criminal  proceeding.    That  makes  sense  in  the present  circumstances  because  of  the  interests  at  stake.    The  lis  is  between Mr Lyttelton and the media interests: the Crown as prosecutor has but a tangential concern about the outcome of this dispute.

[51]     Having reached the view the proceeding is civil, we do not need to address the alternative argument advanced by Mr Orpin that an application to rescind a take down order is a “civil proceeding” based on an interpretation of that term consistent with  the  NZBORA.    Mr Orpin  advanced  the  position  that  treating  the  present proceeding as criminal creates an inconsistency with the fair trial and freedom of

speech rights in the NZBORA.  That inconsistency is not justified; the absence of jurisdiction would create a lacuna serving no justified end.74    The interpretation of s 66 enabling the present matter to be characterised as civil would be the most rights-consistent interpretation.

[52]     As we are not required to undertake an analysis pursuant to the NZBORA there is therefore no need for us to discuss the earlier decision of this Court in R v B.75   We note in passing that this Court appears to have left open the possibility of the use of s 6 of the NZBORA to apply a liberal interpretation to s 66 of the Judicature Act.76

[53]     For all the above reasons, we conclude the present application is civil.  There is therefore jurisdiction under s 66 of the Judicature Act, enabling Mr Lyttelton to appeal to this Court.   We make a declaration to that effect.   We therefore turn to consider the substantive appeal by Mr Lyttelton.

Substantive appeal

The competing arguments

[54]     On the substantive appeal, Mr Lyttelton invites this Court to set aside the judgment of Lang J, reversing his earlier decision to make the take down order. Mr Lyttelton wishes to have the take down order reinstated.   The media interests seek to uphold the judgment of Lang J; the Crown made no submissions on the substantive appeal.

[55]     Mr  Lyttelton  submits  that  his  right  to  a  fair  trial  will  be  irrevocably prejudiced should these articles remain in the public arena, even if they are restored to their original URLs on the websites in question, rather than being reposted on the
websites as breaking or current news stories.

74         The argument was that it was possible to treat as required by s 6 of the New Zealand Bill of Rights Act  1990  [NZBORA].    This  is  not  a  case  of  the  NZBORA being  used  to  create jurisdiction for an appeal, as discussed by this Court in R v B [1995] 2 NZLR 172 (CA).
75	Above n 74.
76	See R v B, above n 74, at 179 per Cooke P and at 181 per Richardson J.

[56]     Mr Lyttelton expresses concern at apparent factual inaccuracies and material omissions in the reporting of the stories.   He contends further that the take down order  was  not  an  unreasonable  limitation  on  the  media  applicants’ freedom  of expression.

[57]     For the media applicants, Mr Stewart submits:

(a)       There is no sufficient risk to Mr Lyttelton’s right to a fair trial to

warrant reinstating the take down order.

(b)       The reasoning of Lang J summarised earlier is compelling.77

(c)	The principles in May v May apply in suppression cases as to the threshold for interference on appeal with the exercise of discretion.78
The appellant must demonstrate the Judge acted on a wrong principle, that he failed to take into account some relevant matter, or took into account some irrelevant matter, or was plainly wrong.   Mr Lyttelton has not established any of those grounds to overturn Lang J’s judgment.

[58]     The media applicants emphasise that there is no reason to differ from the research  findings  contained  in  the  1999  Law  Commission  paper  on  Juries  in Criminal Trials, which found as follows:79

… jurors were only rarely aware of sufficient details of pre-trial publicity to enable them to form any bias or prejudgment.  When they were, for the most part they reported that they consciously made an effort to put that aside and focus upon the evidence alone; and when they did not, other jurors in the process of collective deliberations generally overrode any individual bias or predetermination.  While some other jurors were more affected by the media coverage during the trial, there is similarly no evidence that any of the collective deliberations of the juries in the sample were ultimately driven or even influenced by this.

77	At [11](a)–(e) above.
78	May v May (1982) 1 NZFLR 165 (CA).
79	Law Commission Juries In Criminal Trials (NZLC PP 37 Vol 2 1999).

Need for undertakings

[59]     At the hearing we discussed with Mr Stewart what would actually happen if his clients were permitted to return the articles to their original URLs.  He explained they would be returned to their original web addresses and would not be presented as “new” material, or in a prominent position on the homepage.   Nor would they introduce the reinstatement by writing a fresh article and referring back to the earlier online  articles.    Mr Stewart  also  indicated  that  steps  could  be  taken  to  remove hyperlinks  between  articles  that  would  assist  readers in  navigating to  and  from articles on the topic of Mr Lyttelton’s case.

[60]     As the above discussion proceeded it became clear that it would be preferable if such protective measures were provided to the Court by way of undertaking from the media applicants concerned.   Mr Stewart agreed to take instructions and put forward the precise form of the undertakings available.

[61]     Subsequently the media applicants have undertaken as follows:

Each of the media applicants and Fourth Estate Holdings (2012) Limited (the publisher of NBR) severally undertake to the Court that:

(a)        any online reinstatement of the historic online articles80  will simply restore those articles to their original uniform resource locator (ie the website address) and will occur without any editorial comment or promotion on the relevant website’s landing page, until final disposition of the trial.

(b)        Their coverage of the trial will not link (whether by reference or hyperlink) to the historic online articles.

[62]     We consider that  the above undertakings  by the media applicants  are  of assistance in protecting the fair trial interests of Mr Lyttelton.

Our evaluation

[63]     We do not consider there is any basis to overturn Lang J’s decision to revoke

the take down order.

80	As defined in the memorandum to the Court dated 16 June 2015.

[64]     First, Mr Lyttelton has not shown any real prejudice caused by the online articles remaining accessible in their original uniform resource locator (URL).  We find the reasoning of Lang J as to why this is so to be persuasive.  In summary, they are old articles, Mr Lyttelton’s case is not in the public consciousness and to access the articles a potential juror would have to actively search Mr Lyttelton’s name or that  of  his  victims.    We  consider  this  is  a  remote  possibility.    Certainly  it  is insufficient to justify the drastic measure of removing all coverage of his previous trial from their respective online platforms.

[65]     Second,  the  submissions  of  both  the  media  applicants  and  Mr Lyttelton considered whether this case is analogous to the media coverage in the Bain/Lundy cases.   There, pretrial publicity was seen as inevitable and simply irremediable in terms of jury exposure to that material.  Like Lang J, we are satisfied there has been no such media interest in the present case. The circumstances are entirely different.

[66]     If once the retrial starts there is any significant media interest, protection of Mr Lyttelton’s fair trial rights can be achieved by appropriate directions and orders by the trial Judge.  Finally in this context we agree with the observations of Lang J that if such directions are given by the trial Judge jurors can be expected to comply with them.  There has been no suggestion in the present case that this is unlikely to occur.

[67]     In the meantime, we consider that there is no reason why the take down order should  be reversed.    Mr Lyttelton’s  fair trial  rights  can  be fully and  effectively preserved by permitting the historic online articles to be restored to their original URL on the relevant website.  The permission of this Court to the media applicants to carry out such restoration is on the basis contained in the undertakings referred to above which we will treat as having been given by the respective media outlets direct to this Court.

[68]     We note, whilst not directly relevant to the issue before us, this appeal takes place in a global, legal context of revision, developing and balancing of the rights and interests between media companies and website owners, and the right of the public to access and impart information, and the rights of private citizens to privacy

and to control over their personal data and information relating to them.81   We have therefore sought to decide the present case with a view to ensuring the appropriate resolution of the competing interests and with an eye to the overall interests of justice.

Result

[69]     This  Court  has  jurisdiction  under  s 66  of  the Judicature Act  to  hear  the appeal.

[70]     The appeal is dismissed subject to the undertakings set out at [61] above.

[71]     For  fair  trial  reasons  we  make  an  order  prohibiting  publication  of  the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.  Leave to apply.

[72]     All parties agreed that costs should lie where they fall.  There is no order as to costs.

Solicitors:
Crown Law Office, Wellington for Respondent
Izard Weston, Auckland for Media Applicants

81         See,  for  example  Google  Spain  v  AEPD  and  Mario  Costeja-Gonzalez  (C-131/12)  Grand Chamber, ECHR 13 May 2014 concerning the issue of balancing of the rights of a private citizen to be “forgotten” from Google’s search algorithm.