Takedown orders – suppression of trial-related information – Criminal Procedure Act 2011, ss 199C and 199D – Singh v R  NZHC 3019 – principles in Kahia v Police  NZHC 1023 upheld – real risk of prejudice to fair trial rights not established – application declined
R v Benbow  NZHC 1521 per Eaton J.
The defendant, David Benbow, has been charged with murdering Michael McGrath. An eight-week trial, which commenced 13 February 2023, resulted in a hung jury and a retrial date is scheduled for 21 August 2023.
There is significant media interest in the case. Stuff NZ launched a five-part podcast about the trial, using audio of trial evidence interspersed with narrations. Three of the five episodes had been released at the time of this judgment.
After the jury was discharged on 3 April 2023, defence counsel filed an application to take down three of the published episodes and two future episodes, on the basis the detailed reference to trial evidence in the podcast, and the likelihood of jurors being exposed to the podcast, would prejudice Benbow’s fair trial rights in the retrial. The Crown supported the application while Stuff opposed it.
Provisions governing temporary suppression of trial-related information are set out in ss 199C and 199D of the Criminal Procedure Act 2011. A court must first be satisfied that continuing publication of the information is likely to create a real risk of prejudice to a fair trial, taking into consideration the publication’s content and character, medium and accessibility, and judicial directions to jurors not to conduct own research.
And if so satisfied, the court must then consider various principles including open justice, freedom of expression, public interest, the effect of the publication on fair trial rights and victims’ interests, and the efficacy of a takedown order when exercising its discretion.
Grounds advanced in support of the application included the existence of evidential inaccuracies in the podcast, the likelihood that evidence called in a retrial would differ from that recorded in the podcast, and the notoriety of the case (and the enhanced risk of prospective jurors accessing information about it as a result).
Stuff submitted the tone of the podcast was neutral and the content balanced, and the defence had failed to identify any particular information within the podcast that could unfairly prejudice Benbow.
Eaton J, having listened to all three episodes of the podcast, accepted it was generally an accurate, fair and balanced report and any shortcomings did not create a real risk of prejudice to a fair trial.
While accepting there was a risk of jurors acquiring significant knowledge from the podcast, the court did not accept such knowledge would prejudice a fair trial, particularly as the evidence called in a retrial would likely be “substantially the same” as the evidence called at the first trial. In the absence of knowing how the Crown and defence would elect to run a retrial, Eaton J accepted Stuff’s submission that the application was premature.
Held: application is refused. Interim orders remain in force to allow Benbow and Crown opportunity to consider an appeal.