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Supreme Court denies Cardinal’s bid to prevent publication of sexual abuse allegation

22 Mar 2024

| Author: Jamie Dierick

Supreme Court – application to restrain publication – publication of allegations of sexual abuse – Criminal Procedure Act 2011, s 205 – inherent jurisdiction to restrain publication – Senior Courts Act 2016, s 74(4) – appeal of an interlocutory order

Dew v Discovery NZ Ltd [2024] NZSC 21 per Glazebrook, Kós and Miller JJ.

 

The respondent, Discovery NZ, is a media organisation that intended to broadcast a program on TV3, airing allegations of sexual abuse in November 1977. At the time, the applicant, Cardinal John Dew, was a priest associated with the St Joseph’s Orphanage in Upper Hutt. The allegations, levelled against Dew and others, were made by alleged victims, siblings Steven and Linda Carvell, who had decided to go public.

Dew denied the allegations of abuse, stating there was independent evidence corroborating his position that the alleged abuse could not have occurred. Accordingly, Dew sought an application to restrain Discovery NZ from airing the program.

Dew’s application was granted by Judge Davidson in the District Court under s 205 of the Criminal Procedure Act 2011, which allows the court to make an order forbidding publication of certain matters in connection with criminal proceedings. To preserve fair trial rights, the court suppressed publication of what it had recounted about the Carvells’ allegations, while granting the siblings’ application permitting publication of their names and identifying details.

On appeal to the High Court, Dew relied on three grounds. First, the court ought to exercise its statutory jurisdiction to suppress publication of certain matters in connection with criminal proceedings. The police were at the time investigating the allegations; no proceedings had begun. Second, in the exercise of the court’s inherent jurisdiction, publication should be restrained to protect the applicant’s fair trial rights. And third, by way of prior restraint of a defamatory publication.

Palmer J in the High Court declined to restrain publication on any of these grounds. The Court of Appeal followed suit, denying the restraint of publication on all three grounds as well as a fourth ground, breach of privacy, which was not pursued in the Supreme Court.

Dew sought leave to appeal the Court of Appeal’s judgment.

The second ground was not pursued on appeal as police had concluded their investigation and stated that no charges would be laid. The remaining first and third grounds were pursued.

Given that Dew’s proposed appeal was brought from an interlocutory order, the application must cross the threshold under s 74(4) of the Senior Courts Act 2016, which provides that leave must not be granted unless it is necessary in the interests of justice to decide the proposed appeal before the proceeding is concluded.

The first ground fell short. The Supreme Court concluded there was no question of public importance as it was not seriously arguable that a court had jurisdiction under s 205 of the Criminal Procedure Act 2011 in circumstances where no charging document had been filed.

On the third ground, a court will restrain publication of defamatory material only for clear and compelling reasons. The Supreme Court was not persuaded this case was appropriate for revisiting the rule. Further, the Supreme Court accepted that Discovery NZ maintained its assurances that it would rely on the defence of truth or responsible communication in the public interest, which should be evaluated at trial.

 

Applicable principles: Name suppression – freedom of the press – sub judice rule – right to privacy – fair trial rights – procedural fairness – statutory jurisdiction – inherent jurisdiction – defamation – whether it is necessary, in the interests of justice, to decide the proposed appeal before the proceeding is concluded – whether a question of general or public importance is raised – whether clear and compelling reasons exist for restraining publication of defamatory material.

Held: The application for leave to appeal was dismissed. John Dew’s name could be published in connection with the allegations.

 

Jamie Dierick is an Employed Criminal Defence Barrister.

 

Dew v Discovery NZ Ltd [2024] NZSC 21.

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