KAHIA v NEW ZEALAND POLICE [2018] NZHC 2684

KAHIA v NEW ZEALAND POLICE [2018] NZHC 2684 [17 October 2018]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2013-069-001200[2018] NZHC 2684BETWEEN HENDRIX JOHN KAHIAApplicantAND NEW ZEALAND POLICERespondentHearing: (On the papers)Counsel: Elizabeth Hall for the ApplicantSean Casey for the RespondentTania Goatley for the Respondent MediaJudgment: 17 October 2018[COSTS] JUDGMENT OF MOORE JThis judgment was delivered by me on 17 October 2018 at 3:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] On 11 May 2018 I declined to make orders suppressing and removing allprevious online reporting of various matters including Mr Kahia's arrest, first trial,conviction, and sentencing.1 Various members of the media2 were represented at thehearing. Having successfully opposed the application for take-down orders, they nowseek costs.[2] This judgment resolves deals with that application.Background[3] Mr Kahia was convicted of murder in December 2014. He successfullyappealed his conviction on the basis fresh evidence gave rise to a miscarriage ofjustice.3 A retrial was ordered.[4] In advance of the retrial Mr Kahia's counsel, Ms Hall, applied for take-downorders removing all online coverage of the first trial and Mr Kahia's subsequentconviction and sentencing. She argued that despite any judicial direction warningjurors not to search online for material concerning Mr Kahia, there would remain areal risk to Mr Kahia's fair trial rights because the possibility of disobedience was notremote, and aspects of the earlier reporting would prejudice jurors against Mr Kahia.[5] I disagreed, finding that an appropriately tailored direction would operate tosufficiently mitigate the risk of a disobedient juror undertaking their own internetinquiries.4 I also found that even if a disobedient juror undertook a Google search andfound the online material which was put before me, there was no risk of prejudice toMr Kahia's fair trial rights arising from the content or nature of the material.51 Kahia v Police [2018] NZHC 1023.2 Stuff Ltd, NZME Publishing Ltd, Television New Zealand Ltd and Radio New Zealand Ltd, herein"the Media".3 Kahia v R [2016] NZCA 601.4 Kahia v Police, above n 1, at [36].5 At [37]-[48].The Media's costs application[6] Ms Goatley, joint counsel for the Media, has filed a memorandum seekingindemnity costs of $7,455.92 arising from the Media's successful opposition to theapplication for take-down orders.[7] The Crown has taken a neutral stance on the costs application, though MrMacklin does note Mr Kahia is legally aided.[8] Ms Hall, Mr Kahia's counsel, has not filed submissions. However, in an emailsent to Registry she has advised the application is opposed, noting Mr Kahia is legallyaided and that the retrial is yet to commence.[9] While Mr Kahia is criminally legally aided, it appears he did not obtain civillegal aid for the take-down order application, which Ms Goatley submits falls withinthe court's civil jurisdiction.Analysis[10] It is possible to deal with this application relatively briefly. In a judgment Iissued recently, R v Tarapata, I addressed an identical issue.6 In determining thatapplication for costs I had the benefit of more comprehensive submissions from MsGoatley for the Media and defence counsel. I found:(a) The Court of Appeal's decision in Lyttelton v R is binding on this courton the question of whether take-down orders are made in the civil orcriminal jurisdiction.7 Take-down orders are made in the civiljurisdiction.(b) It is in the public interest for defendants to be able to bring reasonableapplications for take-down orders in order to guard against a perceivedrisk to their fair trial rights without the prospect of a costs award beingmade against them in the event of failure.8 Accordingly, unless it can6 R v Tarapata [2018] NZHC 2680.7 Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21.8 At [34].be shown the application is unreasonable, the Media is unlikely to besuccessful in seeking costs.[11] While Mr Kahia was unsuccessful in his application for take-down orders, itwas not an unreasonable application. As in R v Tarapata, I consider an order for costsin this context would have an unjustifiable chilling effect on defendants seeking toprotect their fair trial rights.[12] I have thus arrived at the conclusion, as I did in R v Tarapata, that costs shouldlie where they fall. That is not a reflection of the way the Media conducted themselvesthroughout the proceeding. Their behaviour and approach to the application wasentirely responsible. Rather, it reflects my firm view that this is a context where fairtrial considerations must trump the principle of open justice.Result[13] Costs shall lie where they fall.Moore JSolicitors/Counsel:Ms Hall, WellingtonCrown Solicitor, RotoruaBell Gully, Auckland