R v BENBOW [2023] NZHC 1521

R v BENBOW [2023] NZHC 1521

The published episodes, assessed on content and character, did not meet the statutory threshold in s199C(1) CPA of creating a real and appreciable risk of prejudice to a fair retrial; the podcast was generally neutral, accurate and educational, and although accessible, its existence alone did not justify a takedown;...

Source-derived case information.

Citation
[2023] NZHC 1521
Parties
Crown: The King; Defendant: David Charles Benbow; Publisher: Stuff Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 June 2023
Procedural Posture
Criminal (murder) / Post Trial Takedown/suppression Application Prior to Retrial (interlocutory)
Outcome
Application refused
Legal Topics
Takedown Orders, Fair Trial Rights, Freedom of Expression, Open Justice, Jury Prejudice, Criminal Procedure Act S199 C
Criminal Law Media Law Constitutional Law Takedown Orders Fair Trial Rights Freedom of Expression Open Justice Jury Prejudice +1 more

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Parties

The King

Crown

David Charles Benbow

Defendant

Stuff Ltd

Publisher

Procedural Posture

Criminal (murder) / Post Trial Takedown/suppression Application Prior to Retrial (interlocutory)

Legal Issues

  1. 1 Whether continuing publication of a podcast creates a real risk of prejudice to a fair retrial under s199C CPA
  2. 2 Likelihood that jurors will access and be influenced by podcast material
  3. 3 Whether a takedown order would be a reasonable and proportionate limitation on freedom of expression

Ratio Decidendi

The published episodes, assessed on content and character, did not meet the statutory threshold in s199C(1) CPA of creating a real and appreciable risk of prejudice to a fair retrial; the podcast was generally neutral, accurate and educational, and although accessible, its existence alone did not justify a takedown; accordingly the takedown application was refused.

Court Disposition

Application refused

Orders

  • Application for takedown refused
  • Interim takedown orders to remain in force until 5 pm on 21 June 2023 to permit consideration of appeal