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JACKSON v R [2005] NZCA 99 (9 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/04

BETWEEN CRAIG BRUCE JACKSON
Appellant

AND CANWEST TVWORKS LIMITED (FORMERLY TV3 NETWORK SERVICES LIMITED)
First Respondent

AND THE QUEEN
Second Respondent

Hearing: 9 May 2005 (by telephone)

Court: William Young, O'Regan and Robertson JJ

Counsel: G C Gotlieb and J Smith for Appellant
T J G Allan for First Respondent
N M Crutchley for Second Respondent

Judgment: 9 May 2005

Reasons: 11 May 2005

JUDGMENT OF THE COURT

The application for stay is declined.

REASONS

(Given by O’Regan J)

Introduction

[1] On 4 May 2005 this Court issued a judgment dismissing an appeal from a decision of Nicholson J, in which he determined that TV3 would be permitted to copy a videotape of a Police interview with Mr Jackson and include it in a television documentary to be broadcast by TV3.
[2] On 9 May 2005, counsel for Mr Jackson sent a letter to the Court, indicating that:

(a) The television documentary was to be screened on 9 May 2005;
(b) The promotional material for the programme screened by TV3 had caused Mr Jackson to become distressed;
(c) The promotional material indicated that the programme would contain the suggestion that Mr Jackson had faked his insanity;
(d) He had instructions to appeal to the Supreme Court;
(e) He sought a stay of the broadcast planned for the evening of 9 May 2005.

[3] We organised an urgent telephone conference and heard from counsel by telephone at 4 pm on 9 May 2005. At the end of that telephone conference we declined the application for stay, and indicated that we would issue our reasons later. These are those reasons.
[4] Mr Gotlieb said the psychiatric staff treating Mr Jackson were concerned about the distress caused by the promotional material for the programme. He said that it was important to maintain the status quo so that he could seek leave to appeal to the Supreme Court, and said that the issues before the Supreme Court would be ones which would be matters of public interest justifying the grant of leave.
[5] On behalf of the Crown Ms Crutchley took a neutral position.
[6] On behalf of TV3 Mr Allan said that TV3 had access to a copy of the videotaped interview which it received from the Police, so that a stay of the decision of Nicholson J (as upheld by this Court) would not have the effect of preventing the screening of the documentary by TV3. Rather, he said that Mr Gotlieb appeared to be seeking an interim injunction from this Court, and that this Court had no originating jurisdiction. In any event, he said that an injunction should not be issued because of the high standard required for an injunction which amounted to a prior restraint of the publication of material in the public interest.
[7] Mr Allan said it was questionable whether there was a right of appeal to this Court from Nicholson J’s decision, and therefore real doubt that Mr Jackson had a right of appeal to the Supreme Court. Even if there were such a right, he said there was no point of law at issue which would justify leave being given by the Supreme Court.
[8] When pressed by the Court, Mr Gotlieb accepted that, in order to maintain the status quo, an injunction was required. He said this is what Mr Jackson now sought.
[9] We are satisfied that this Court has no originating jurisdiction, and that there is therefore no basis on which this Court could issue an injunction in the present circumstances. In any event, we do not accept Mr Gotlieb’s submission that a stay of any kind would be justified in this case. The decision of Nicholson J to permit the copying of the videotape and the use of it for the television documentary was a decision made in the exercise of his discretion, and in our substantive judgment we determined that there was no basis for this Court to interfere with that exercise of discretion. TV3 has been restrained from acting on the decision of Nicholson J for almost a year, and we can see no justification for any further delay.

Solicitors:
Bergseng & Co, Auckland for Appellant
Grove, Darlow & Partners, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent

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[1]	On 4 May 2005 this Court issued a judgment dismissing an appeal from a decision of Nicholson J, in which he determined that TV3 would be permitted to copy a videotape of a Police interview with Mr Jackson and include it in a television documentary to be broadcast by TV3.
[2]	On 9 May 2005, counsel for Mr Jackson sent a letter to the Court, indicating that:

[3]	We organised an urgent telephone conference and heard from counsel by telephone at 4 pm on 9 May 2005. At the end of that telephone conference we declined the application for stay, and indicated that we would issue our reasons later. These are those reasons.
[4]	Mr Gotlieb said the psychiatric staff treating Mr Jackson were concerned about the distress caused by the promotional material for the programme. He said that it was important to maintain the status quo so that he could seek leave to appeal to the Supreme Court, and said that the issues before the Supreme Court would be ones which would be matters of public interest justifying the grant of leave.
[5]	On behalf of the Crown Ms Crutchley took a neutral position.
[6]	On behalf of TV3 Mr Allan said that TV3 had access to a copy of the videotaped interview which it received from the Police, so that a stay of the decision of Nicholson J (as upheld by this Court) would not have the effect of preventing the screening of the documentary by TV3. Rather, he said that Mr Gotlieb appeared to be seeking an interim injunction from this Court, and that this Court had no originating jurisdiction. In any event, he said that an injunction should not be issued because of the high standard required for an injunction which amounted to a prior restraint of the publication of material in the public interest.
[7]	Mr Allan said it was questionable whether there was a right of appeal to this Court from Nicholson J’s decision, and therefore real doubt that Mr Jackson had a right of appeal to the Supreme Court. Even if there were such a right, he said there was no point of law at issue which would justify leave being given by the Supreme Court.
[8]	When pressed by the Court, Mr Gotlieb accepted that, in order to maintain the status quo, an injunction was required. He said this is what Mr Jackson now sought.
[9]	We are satisfied that this Court has no originating jurisdiction, and that there is therefore no basis on which this Court could issue an injunction in the present circumstances. In any event, we do not accept Mr Gotlieb’s submission that a stay of any kind would be justified in this case. The decision of Nicholson J to permit the copying of the videotape and the use of it for the television documentary was a decision made in the exercise of his discretion, and in our substantive judgment we determined that there was no basis for this Court to interfere with that exercise of discretion. TV3 has been restrained from acting on the decision of Nicholson J for almost a year, and we can see no justification for any further delay.