Television New Zealand Ltd v Rogers CA12/06 [2006] NZCA 432; [2007] 1 NZLR 156 (7 August 2006)

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IN THE COURT OF APPEAL OF NEW ZEALAND

_CA12/06

BETWEEN TELEVISION NEW ZEALAND LIMITED

Appellant

AND NOEL CLEMENT ROGERS Respondent

Hearing: 4 May 2006

Court: William Young P, O’Regan and Panckhurst JJ Counsel: W Akel and T J Walker for Appellant

J T Edgar and B L Sellars for Respondent

J G Miles QC as Amicus Curiae

Judgment: 7 August 2006 at 10 am at 10 am

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B The orders made against the appellant in the High Court are set aside. C Leave to apply for costs in this Court is reserved.

REASONS

O’Regan and Panckhurst JJ [1] William Young P [105]

TELEVISION NEW ZEALAND LTD V ROGERS CA CA12/06 7 August 2006

O’REGAN AND PANCKHURST JJ

(Given by Panckhurst J)

_{TABLE OF CONTENTS}

Para No

Introduction [1] The factual background [3] The admissibility decision of this Court [13] Two procedural matters [29] The arguments in this Court [34] Our view [40] Does the videotape contain facts in respect of which there

is a reasonable expectation of privacy? [41]

Discussion [48]

Would publication of the videotape be considered highly

offensive to an objective, reasonable person? [60]

Discussion [66]

Is the defence of legitimate public concern available

in this instance? [70]

Discussion [78] The threshold for prior restraint [91] Discussion [96]

Section 138 of the Criminal Justice Act 1985 [99] Order to deliver up to the Court all copies of the videotape [103] Costs [104]

Introduction

[1] On 22 December 2005 a Full Court of the High Court (Venning and Winkelmann JJ), ordered a permanent injunction restraining Television New Zealand Limited (TVNZ) from broadcasting a videotape which depicted Mr Rogers participating in what he said was a reconstruction of his killing Katherine Sheffield. Such order was made in the aftermath of a high-profile murder trial which culminated in Mr Rogers’ acquittal.

[2] TVNZ challenges the grant of the injunction. It maintains that the fundamental principles of freedom of expression and the open administration of justice dictate that the videotape should be available for public broadcast. Mr Rogers supports the view of the Judges comprising the Full Court that the intended programme would give rise to an unlawful interference with his privacy, as the tort was recognised and defined in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA). The essential issue, therefore, concerns where the line is to be drawn between open justice and personal privacy.

The factual background

[3] Ms Sheffield died at Mangonui in September 1994. Her body was located in a shallow grave on the property of Mr Borrie Lloyd. He was charged with her murder.

[4] In 1995 Mr Lloyd was found not guilty of murder, but guilty of manslaughter, and sentenced to 11 years imprisonment.

[5] On a number of occasions in the period 2001 to 2004 Mr Rogers was re- interviewed by the police in relation to Ms Sheffield’s death. Then, on 30 June

2004, Mr Rogers was arrested and charged with the murder. Mr Rogers is a nephew of Mr Lloyd.

[6] On 12-14 July 2004 Mr Rogers was released from remand custody into the control of police officers, with whom he travelled to Mangonui. On 13 July he participated in the reconstruction at the place of Ms Sheffield’s death on Mr Lloyd’s property. We shall refer to these events in greater detail, shortly.

[7] In late July 2004 a copy of the reconstruction videotape was supplied to

TVNZ by a police officer.

[8] In August 2004, this Court allowed an appeal by Mr Lloyd and his conviction for manslaughter was quashed: R v Lloyd CA70/02 25 August 2004. The Crown consented to the allowing of the appeal.

[9] At a preliminary hearing of the murder charge against Mr Rogers in February

2005 the reconstruction videotape was produced in evidence. However, its admissibility was subsequently challenged. At first instance Cooper J on 2 August

2005 ruled that the tape was admissible. An appeal to this Court followed. This Court allowed the appeal, with the result that the confession and reconstruction evidence was ruled inadmissible: R v Rogers [2005] NZCA 497; [2006] 2 NZLR 156.

[10] Mr Rogers’ trial for the murder of Ms Sheffield was conducted in the High Court at Auckland over about a month, culminating in the not guilty verdict delivered on Friday, 7 December 2005. Two days later TVNZ intended to broadcast a current affairs programme featuring the video.

[11] However, Winkelmann J, the trial Judge, on Sunday 9 December heard an oral application on a Pickwick basis and granted an interim injunction.

[12] On 15 December the Full Court considered the matter afresh, including submissions from Mr J G Miles QC as amicus curiae. Counsel also appeared for the Commissioner of Police, but obtained leave to withdraw. On 22 December 2005 judgment was delivered whereby TVNZ was permanently restrained from broadcasting the videotape, in whole or in part. An order was also made that TVNZ forthwith deliver up to the Court all copies of the videotape.

The admissibility decision of this Court

[13] Because both sides rely on the circumstances and/or fact of the admissibility decision in their respective arguments, it is necessary to refer to the basis of the decision.

[14] On 1 July 2004, the day after Mr Rogers was charged with Ms Sheffield’s murder, counsel acting on his behalf, Mr M J Corry, spoke to Detective Inspector Taare at the Auckland District Court. Mr Corry requested that the police not have any communication with his client (in the nature of an interview), unless he had first been notified.

[15] That afternoon Detective Inspector Taare and Detective Sergeant Scott went to the remand prison to speak to Mr Rogers in relation to a drug-related matter. As they were leaving the prison the two officers encountered Mr Corry who was about to visit Mr Rogers. Subsequently, when the detective inspector was challenged as to the propriety of this interview, he justified it on the basis that it was concerned with unrelated matters, not the murder charge, which he considered to be the subject- matter of Mr Corry’s request.

[16] In any event, on 2 July Mr Corry wrote a letter as follows:

Dear Inspector Taare

As you know the Public Defence Service is instructed to act for Mr Rogers.

I was a little surprised to see you and Detective Sergeant Scott visiting Mr Rogers at the Auckland Remand Prison on the afternoon of the 1^st July particularly as I had spoken to you in the morning requesting that you make no further contact with him.

Once a person is charged and appears in Court for the first time and is given the opportunity of guidance from a lawyer there is a new professional relationship and I expect that any approach to my client against my request would in fairness require notice to me.

I therefore repeat the request that my client not be approached without notice to me and an opportunity to be present. ...

[17] On 4 July 2004 an aunt of Mr Rogers, Mrs Lloyd, spoke to him by telephone. He told her that he had killed Ms Sheffield and that he wanted the police to take him to Northland so that he could assist them with their inquiries. Mrs Lloyd advised Detective Inspector Taare of the conversation.

[18] Subsequently the detective inspector arranged for Mrs Lloyd to visit her nephew in prison. She was asked to wear a listening device, but she declined to do so. After the visit she told the police that Mr Rogers still wished to return home and would assist the police with their inquiries if he was taken to Northland.

[19] On 9 July 2004 Mrs Lloyd made a further visit to Mr Rogers, this time in possession of a consent form which Detective Inspector Taare had arranged and provided to her. The form was intended for Mr Rogers’ signature and read:

I give full consent to being released into police custody to assist with inquiries into the death of Katherine Sheffield.

I understand that I will be in police custody for a period of three days from Monday 12 July 2004 until Wednesday 14 July 2004 and that I will be required to travel to the Kaitaia Police Station.

I understand that whilst in police custody I can withdraw my consent to be with the police at any time, and that I will be returned to the Auckland Central Remand Prison.

Mr Rogers signed the form and his aunt witnessed his signature.

[20] On 12 July Detective Inspector Taare and Detective Sergeant Scott went to the prison. Mr Rogers was cautioned and given his rights. He wrote in the detective sergeant’s notebook “I Noel Rogers consent to going to the Far North with DS Scott and Inspector Taare”. The entry was signed. Mr Rogers also wrote in the notebook “I really realise I do not need my lawyer present”, and initialled this entry. When asked whether he wanted Mr Corry notified, Mr Rogers wrote in the notebook “I have declined to have my lawyer notified”, and signed this entry. He was then taken to Northland.

[21] En route to Auckland Airport Detective Inspector Taare received a telephone call from Mr Corry. Mr Corry asked whether Mr Rogers was with the inspector and whether he could speak to him. Mr Rogers was told that Mr Corry was on the phone and wished to speak to him. However, when offered the phone, Mr Rogers declined to take it saying “Not at this time”. Detective Inspector Taare put the phone back to his ear, but to find that the call had been disconnected.

[22] On 13 July 2004 Mr Rogers was again given his rights and cautioned. He wrote in the detective sergeant’s notebook that he did not wish to have his lawyer present, and signed this entry. At the place where Ms Sheffield was killed, Mr Rogers was further advised of his rights and cautioned, this time recorded on video. A reconstruction of the alleged crime was then filmed, in which Mr Rogers gave an account of the manner in which he had killed Ms Sheffield and disposed of her body.

[23] In overturning the decision of Cooper J and ruling the evidence of the confession and reconstruction inadmissible, the Judges of this Court summarised their conclusion in these terms:

[67] The police by not rejecting Mr Corry’s request to refrain from questioning the applicant without counsel’s presence and by assuring Mr Corry that no discussion had taken place in relation to the murder charge, must be taken to have accepted the request. There was an implied but nevertheless clear arrangement or understanding between the police and the applicant’s counsel which this Court must cause to be honoured.

[68] Each of us is of the clear opinion that the police conduct lulled the defence into a false sense of security and that there was breach of the principles applied in Moresi [(1996) 14 CRNZ 322 (HC)]. That fact accentuated the imbalance inherent in the relative positions of the applicant and of the police.

[69] We are equally satisfied that there was no effective waiver of the applicant’s right to performance of the agreed arrangement. At no stage before the trip north began did the police inform the applicant of their reason for it. The applicant’s motivation was the personal one, probably contributed to by his aunt’s visit, of returning to his family environment. For waiver to occur in such circumstances the prisoner must at the very least be plainly informed of what is proposed and be given adequate opportunity to reflect upon the options and their significance. In this case the applicant never received the clear message analysing the facts and the options that might be said to have placed him in a position to waive his rights:

1. “We have undertaken to your counsel that we would not communicate with you without informing him.

2. You have expressed interest in going north. We would like to do so.

100. But our reason for that is to perform a reconstruction which we will video and show before the jury who are to try you.

4. We are bound by our undertaking to your counsel unless you deliberately release us from it.

5. Take time to think about that and whether you wish to consult your counsel.”

[70] Short of that, and what actually occurred came nowhere near it, there was a breach of the applicant’s rights to silence and counsel, and the evidence must be excluded unless the Crown can rely on the principles of Shaheed [[2002] 2 NZLR 377 (CA)].

[24] Under the heading “Shaheed analysis” the Court recorded the need to look at the “full context”. Various matters were identified, including that Mr Rogers was in custody charged with murder “in the context of a difficult and traumatic family background”, that the police secured his agreement to be put “totally in their hands for three days” and without Mr Rogers being told “what they had in mind and how they intended to use the time”, that in breach of the “implied assurance” the police were “either unwilling or unable” to contact Mr Corry, that in the absence of an informed waiver the failure to advise Mr Corry constituted a fundamental breach of

Mr Rogers’ right to counsel and that, throughout, there was a “power imbalance between a person in custody and experienced police officers”.

[25] The analysis concluded on the note “We are satisfied that evidence obtained in the present circumstances entails such a substantial breach of proper standards that it would be unprincipled to use Shaheed to justify the admission of the evidence” (at [73]), regardless of its importance. Accordingly, exclusion was ordered.

[26] At trial the Crown’s case was based on a number of admissions which Mr Rogers had made to other people, including his aunt, Mrs Lloyd. The defence case was that such admissions were based upon a dream which Mr Rogers had experienced, not on real events in which he had participated. Expert evidence was adduced to the effect that it is possible for people to mistakenly believe that events they have dreamed about actually happened.

[27] With reference to the admissibility decision itself, it must be said that the ruling did not follow from an application of well-settled jurisprudence. The decision was based upon twin propositions: that an implied arrangement existed (that the police would not interview Mr Rogers without first advising counsel of their intention); and that such arrangement was not waived, despite the distance Mr Rogers went in countermanding any need for his counsel to be advised.

[28] This is not the occasion to debate these propositions. It is sufficient to refer to the decision of this Court in R v Ormsby CA493/04 8 April 2005, where it was said at [21] in a broadly similar context and after reference to “two lines of cases”, that:

There are difficulties reconciling the existing decisions of this Court. In due course, this Court (or perhaps the Supreme Court) may be required to give more general guidance as to the circumstances in which the police may continue to question a suspect who has been advised by his lawyer to exercise his or her right of silence.

We mention these matters because they will be relevant to our assessment of the public interest dimension, to which we will turn shortly.

Two procedural matters

[29] Both TVNZ and Mr Rogers applied for leave to adduce further evidence in this Court. The proposed evidence from TVNZ comprised an affidavit to which was annexed newspaper articles and the transcript of a radio broadcast, which were variously published in December 2005. Broadly, the import of the items was that Mr Rogers’ acquittal was secured in the absence of a confession contained in the reconstruction video. The proposed evidence for Mr Rogers was an affidavit from him dated 24 March 2006, in which he described certain problems which he has encountered subsequent to his acquittal, as he has endeavoured to reintegrate back into the community. The affidavit conveyed that, if the reconstruction video was publicly broadcast, the reintegration problems would be exacerbated.

[30] Absent opposition to the reception of the evidence, leave was granted and the affidavits were read.

[31] The second matter concerns the nature of the hearing and the relief granted in the High Court. As noted, Winkelmann J granted an interim injunction on the Sunday after the jury’s verdict. Following extensive argument before the Full Court, a permanent injunction was ordered. Yet, procedurally the Full Court hearing was interim in nature. Mr Rogers had not filed a statement of claim. There was no evidence adduced, nor was there cross-examination upon the affidavits then filed. The proper relief to be sought was a quia timet injunction to restrain an alleged anticipated invasion of personal privacy (if the videotape was broadcast).

[32] Counsel on both sides acknowledged that neither the nature or status of the hearing, nor the appropriateness of the grant of a permanent injunction, were the subject of express focus in the Full Court. Understandably, Mr Rogers was intent upon preventing the current affairs programme being broadcast, while TVNZ wished to have the freedom to do so. However, given that the alleged breach of Mr Rogers’ rights was anticipatory in nature, counsel did focus upon prior restraint, a matter relevant to the new tort which was expressly considered in Hosking v Runting.

[33] Although we consider the Full Court hearing was interim in nature, the fact remains that the practical effect of awarding injunctive relief was to put an end to the case. Where this is so it is settled that the normal principles which inform an interim injunction decision do not apply, since the Court must recognise the reality of, in effect, final judgment without trial. The required approach is to apply the broad principle of what will avoid the risk of injustice to either side: NWL Ltd v Wood [1979] 1 WLR 1294 (HL) at 1306-7 per Lord Diplock and Cayne v Global Natural Resources [1984] 1 All ER 225 (CA). Also in this instance the need to apply the principles relevant to prior restraint further removed the case from the run of interim injunction proceedings.

The arguments in this Court

[34] For TVNZ Mr Akel challenged the judgment under appeal at every turn. He argued that the Full Court erred in concluding that the intended broadcast would give rise to a tortious invasion of privacy because, first, the videotape did not contain private facts. Alternatively, he said there could be no reasonable expectation of privacy in relation to a videotape recorded for use in the criminal trial process.

[35] Even if the privacy element of the tort was met, a reasonable person would not consider disclosure of such facts to be highly offensive. Rather, their disclosure in the context of a programme investigating the unlawful killing of Ms Sheffield, the admissibility ruling of this Court and the trial process in the High Court, was appropriate. Essentially the same factors were also said to support the legitimate public concern defence which is available in relation to this tort.

[36] Mr Akel also challenged the Full Court judgment on the basis that an incorrect legal test for prior restraint was applied, or if not, that the proper test was wrongly applied to the facts of this case. With reference to the indication contained in the judgment that, if need be, a suppression order pursuant to s 138(2)(a) of the Criminal Justice Act 1985 would have been made, counsel submitted that jurisdiction to contemplate the making of such an order did not exist, or if it did, that a decision to that effect would be plainly wrong. Finally, the correctness of the order directing TVNZ to deliver up all copies of the videotape was questioned.

[37] Mr Edgar for the respondent argued that the Full Court was correct in its conclusion that a public broadcast of the videotape would give rise to an invasion of Mr Rogers’ privacy. Submissions were directed to each of the elements of the tort, and to refuting the contention that the defence of legitimate public concern was available in this instance. In substance, Mr Edgar argued that the facts depicted in the videotape were not in the public domain and that a reasonable expectation of privacy was made out, given that the videotape was not admitted in evidence and the criminal trial process was now over.

[38] Equally, the broadcast of the videotape would be highly offensive to an objective reasonable person, because the television programme would inevitably entail a challenge to the jury’s verdict, based on material obtained by the police in fundamental breach of Mr Rogers’ civil rights. This in turn would be humiliating and distressful to Mr Rogers, and would hinder his reintegration into society. For broadly similar reasons the defence of legitimate public concern was said not to avail TVNZ. Finally, counsel made submissions in answer to those of the appellant on prior restraint, suppression under s 138 and the order to deliver up all copies of the videotape.

[39] In his capacity as amicus curiae Mr Miles made submissions strongly supportive of the Full Court decision. By reference to the same heads of argument as were raised on behalf of the appellant, counsel submitted that the decision under appeal correctly stated the relevant law, correctly applied the principles to the facts and, ultimately, struck an appropriate balance in relation to the countervailing principles of freedom of expression and open justice on the one hand, and personal privacy rights on the other.

Our view

[40] While we do not differ from the views of the Full Court concerning the availability of the tort of invasion of privacy, we consider that the defence of legitimate public concern applies in the circumstances of this case. Further, we do not accept that injunctive restraint of the current affairs broadcast was appropriate.

We shall explain these conclusions with reference to the same heads of argument as counsel adopted, and at the same time refer to the reasoning of the Full Court.

Does the videotape contain facts in respect of which there is a reasonable expectation of privacy?

[41] The existence of facts of this nature is the first element of the tort identified in Hosking v Runting. In the High Court, the discussion divided this aspect into two parts: whether there are private facts and, if so, whether they are of a character to give rise to a reasonable expectation of privacy. That seems to us to subdivide unnecessarily the single test enunciated in Hosking v Runting. That test was: Is it a fact in respect of which there is a reasonable expectation of privacy? If so, it is a private fact. We refer in particular to the judgment of Gault P and Blanchard J at [117] and [124] and that of Tipping J at [250]. However, that is the approach that was adopted in the High Court.

[42] Venning and Winkelmann JJ expressed their conclusion on the first aspect in these terms:

[44] We have no hesitation in rejecting the submission that there are no private facts contained within the videotape. There can be no doubt that the video will record more than is encapsulated within two sentences in the Court of Appeal judgment, and in a one word description of the tape in advance publicity for the TVNZ programme. The particular detail of the reconstruction depicted and Mr Rogers’ involvement in it will inevitably reveal facts which are not already in the public domain.

[43] The two sentences in the admissibility judgment of this Court were at [32]:

The applicant was then again advised of his rights and given a caution that was captured on video. There followed a full reconstruction of the events at Mangonui including a detailed account of the manner in which the applicant had killed Ms Sheffield.

The Full Court also recorded in relation to this aspect that there was no evidence of the media having reported the fact of a confession subsequent to the jury’s verdict.

[44] TVNZ’s evidence in this Court was directed to that last observation. The annexures to the affidavit comprise articles published in the New Zealand Herald

and Dominion Post on 12 December 2005, a further Herald article and editorial (headed “Interview that ought to be seen”) of 13 December 2005, and a transcript of a news item televised by TV3 on 30 December 2005. The first three articles each contained information to the effect that a video confession was obtained by the police in breach of Mr Rogers’ right to silence and to a lawyer, with the result that the videotape was not shown to the jury at his trial. The editorial included observations that there may be “perfectly valid grounds for the courts to exclude a confession from proceedings in which a person’s freedom is at stake. But the public has an equally valid interest in more general questions of law enforcement and justice”. The TV3 item was more directed to Mr Rogers’ defence at his trial, that he had only dreamed of his involvement in the killing, about which he, his wife and his sister made brief comments.

[45] The essence of the Full Court’s reasoning in relation to the reasonable expectation aspect was:

[48] The videotape was recorded as part of an evidential process. As such, it would have been Mr Rogers’ reasonable expectation that the videotape was recorded for use in the trial process and further, that the access of the media to that material would be regulated through the Court, and that any reporting of context would have been a part of the reporting of trial. It would not be within the contemplation of any reasonable New Zealander that Police would shortly after obtaining an evidential videotape and before trial, release that tape to the media. As we discuss below, there is good reason why the Police are not permitted to, and do not usually behave in such a manner.

The Judges continued that it was “a weighty matter” that the videotape was obtained in substantial breach of Mr Rogers’ rights to silence and to counsel, so that once the tape was ruled to be inadmissible it could no longer be “seriously contended” that Mr Rogers did not have a reasonable expectation of privacy in relation to it. Observations were also made about police conduct in releasing the videotape to the media, seemingly in breach of the Police Regulations 1992, thereby potentially placing an accused’s fair trial rights at risk and wrongly removing evidence from the overarching control of the Court.

[46] Mr Akel submitted there could be no reasonable expectation of privacy in relation to a confession expressly recorded on the basis that it may subsequently be

used in evidence. Nor was the circumstance that the videotape was ruled inadmissible determinative, because any reasonable expectation of privacy was to be tested at the time the videotape was made, not subsequently. Attention was also drawn to the Criminal Proceedings (Search of Court Records) Rules 1974 (the Search Rules), whereby, even evidence which was not admitted at a criminal trial, may be released into the public domain. In this regard reference was made to the case of David Bain and the decision of this Court in Television New Zealand Ltd v R [1996] 3 NZLR 393. Finally, counsel was critical of the emphasis which the Full Court placed upon police conduct in releasing a copy of the videotape to TVNZ considerably in advance of Mr Rogers’ trial. This action was characterised as “beside the point” in relation to the values ultimately at stake in this case.

[47] Mr Edgar, in supporting the Full Court decision, stressed that Mr Rogers’ consent to participation in the videotaped reconstruction was flawed, as confirmed by this Court in the admissibility decision. Moreover, the making of the confessional statement to the police did not imply that all expectation of privacy was waived. At most an expectation of privacy was lost for the course of the criminal process, but not beyond. The Search Rules confirmed as much. Given the defined purpose for which the videotape was made, and the safeguards which exist in relation to court exhibits, he submitted it was relevant to have regard to the manner in which the videotape had fallen into TVNZ’s hands. There could be no reasonable expectation of this happening and, generally, a privacy right was said to enure in relation to the contents of the videotape, particularly with reference to its public broadcast by television post-acquittal.

Discussion

[48] We consider that the primary fact contained in the reconstruction video is Mr Rogers’ confession that he killed Ms Sheffield. Is this a fact in respect of which there is a reasonable expectation of privacy?

[49] As was pointed out in the majority judgments in Hosking v Runting there is no simple test for what constitutes a private fact. The joint judgment of Gault P and Blanchard J referred to the observations of Gleeson CJ in Australian Broadcasting

Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (HCA), which passage has also been cited with approval in English authorities:

[42] There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measures of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.

[50] We readily accept that the fact of killing another human being is very much an activity which would be meant to be unobserved. But here, the real issue is whether a person’s statement, by way of admission, combined with actions to demonstrate what occurred, is a private fact. We also readily accept that there would be a reasonable expectation of privacy in relation to an admission of this kind, made perhaps to a spouse, a doctor or a priest. Reference to those examples indicates that the circumstances of disclosure are of particular importance, which in turn confirms that the inquiry whether facts are private in nature involves an assessment as to whether there is a reasonable expectation of privacy.

[51] As the submissions of counsel reveal, a difference of view exists as to the point in time a judgment is to be made concerning whether a reasonable expectation of privacy in relation to a given event exists. Mr Akel’s argument involved a focus upon the time when the videotape was made, while Mr Edgar (and Mr Miles) assessed the issue of reasonable expectation at the intended date of the television broadcast.

[52] We are in no doubt that this issue is to be assessed at the time of publication. Gault P and Blanchard J in Hosking v Runting defined the tort at [117]:

In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:

(1) The existence of facts in respect of which there is a reasonable expectation of privacy; and

(2) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

[Emphasis added]

Hence, the gist of the tort is an interference with privacy brought about by publicity. It follows, in our view, that whether facts exist in respect of which there is a reasonable expectation of privacy, must be judged at the time the tort is committed by the publishing of those facts.

[53] Tucker v News Media Ownership Limited [1986] NZHC 216; [1986] 2 NZLR 716 (HC) provides some support for this conclusion. The plaintiff obtained an interim injunction, in part based upon the then emerging tort of interference with privacy, and in relation to publication of the fact of previous convictions entered more than 10 years previously. Although McGechan J discharged the interim injunction, the case remains as some authority for the proposition that what were once public facts may, through the passage of time, become private. As Professor Burrows QC in Law of Torts in New Zealand (4ed 2005) notes at 757, the notion of transition from public to private may well be heightened by the enactment of the Criminal Records (Clean Slate) Act 2004, whereby certain types of convictions are expunged after seven years.

[54] But, it does not follow that whether facts give rise to a reasonable expectation of privacy is to be judged solely at the date of actual, or intended, publication. The circumstances which prevailed when such facts first came into existence, will of course remain relevant. But equally, the passage of time and changed circumstances, may influence the reasonable expectations held in relation to facts. And, the transition may be from public to private, or visa versa. Similarly, facts that are “public” for one purpose (in this case, Court proceedings) are not “public” for all purposes. Although information has been made known to others, a degree of privacy may remain: TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2

NZLR 720 at 731.

[55] Approaching the matter on this basis, we are not persuaded that the Full Court was wrong in concluding that a reasonable expectation of privacy existed in relation to the videotape as at mid-December 2005, following Mr Rogers’ acquittal. We accept that Mr Rogers must have had an understanding and expectation when the videotape was recorded that its contents would be made public in the context of the criminal process. But, as the majority of the Supreme Court of Canada said in Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671, a suspect who participates in a police interview surrenders his privacy rights for the duration of the trial process, but not necessarily for all time.

[56] Three further considerations are relevant to the reasonableness of any expectation of privacy in relation to this videotape. Ordinarily, a videotape of this kind would remain in the safekeeping of the police until tendered to the Court as an exhibit, at which point it would become subject to the control of the Court. Here a copy of the videotape was given to TVNZ, but that was an action which could not be anticipated and which does not impact in relation to any reasonable expectation held with reference to the contents of the tape.

[57] The admissibility ruling based upon findings that Mr Rogers was denied his right to counsel and, potentially, his right to silence, is a further important consideration. Because of that ruling the tape was not played at the criminal trial. As a result there was no need, nor opportunity, for Mr Rogers to meet the contents of the tape. Finally, is the circumstance of the acquittal. Mr Rogers is, thereby, innocent of the killing of Ms Sheffield.

[58] These circumstances afford a basis for the reasonable expectation finding, or at least we are not persuaded to differ from the view reached in the High Court.

[59] It is apparent from this conclusion that we are clear the tort is not confined to facts about private life i.e. inherently private matters. Obviously inherently private facts will ordinarily attract a reasonable expectation of privacy. But so may facts which do not have an inherent quality of privacy. We think that is implicit in the observation of Gleeson CJ in Lenah Game Meats which is reproduced at [48] above. That said, we make the obvious point that the privacy value to be attributed to the

facts in issue in this case is at the low end of the scale and certainly much lower than would be the case for inherently private facts. This has importance for the balancing exercise to which we come later in this judgment.

Would publication of the videotape be considered highly offensive to an objective, reasonable person?

[60] Venning and Winkelmann JJ adopted as their starting-point in relation to this aspect the fact that Mr Rogers had stood trial and been acquitted. If not restrained, TVNZ intended to broadcast at least part of the videotape in a programme which would undoubtedly enjoy a widespread audience. In light of Mr Akel’s submissions the Court knew that the current affairs programme would pose the question whether the videotape captured an actual reconstruction and confession to murder, or a fantasy borne of a dream.

[61] The Court continued:

[58] It is a natural inference to be drawn from the proposed use of this evidence as outlined by Mr Akel that the public is either expressly or implicitly being asked to question whether the jury might have reached a different view if the videotape material had been placed before it. The problematic nature of non-contemporaneous reporting of evidence identified in Vickery is particularly acute in this case because the media will be highlighting the contents of an evidential videotape which Mr Rogers did not deal with as part of his defence case, the videotape having been ruled inadmissible. He therefore has not had the opportunity to “meet” at trial the material contained within the videotape.

[62] After noting that the videotape was obtained by the police in serious breach of Mr Rogers’ rights and that to compound matters a copy of it was released to TVNZ, the Judges expressed themselves satisfied that any broadcast of the videotape would be considered highly offensive to an objective, reasonable person. They observed:

It could, as the court in Vickery described it, amount to the harassment of an innocent man. (at [60]).

Reference was then made to affidavit evidence from a criminal barrister to the effect that if it became commonplace for the police to release videotaped interviews to the media, counsel would feel obliged to advise their clients of this possibility, which

would in turn impact upon the decisions of suspects whether to make a statement or not. However, the Court considered that this evidence raised “public policy or societal reasons” why publication of the videotape should not be permitted, but did not bear directly on Mr Rogers’ right to privacy.

[63] The arguments of counsel were similarly divergent in relation to this aspect. Mr Akel focused upon the extraordinary circumstances of this case. These included the killing of Ms Sheffield, the conviction of Mr Lloyd for manslaughter, the arrest of Mr Rogers in relation to the same homicide, the overturning of Mr Lloyd’s conviction effectively by consent, the obtaining by the police of a confession to and reconstruction of the crime, a ruling of this Court that the videotape was inadmissible, the defence at trial that other inculpatory statements were the product of a dream, and, finally, the acquittal of Mr Rogers, so that no-one stands convicted in relation to Ms Sheffield’s death. These circumstances were said to give rise to a situation in which an objective, reasonable person would consider disclosure of the videotape necessary and appropriate, certainly not highly offensive.

[64] Mr Edgar approached this issue by asking how a reasonable person, placed in Mr Rogers’ shoes (recently acquitted of murder), would assess the disclosure of the videotape by public broadcast on national television. He urged upon us the view that it was highly offensive to contemplate disclosure of material obtained in fundamental breach of Mr Rogers’ rights and when that outcome would be humiliating and distressful for him, so as to interfere with his reintegration into society. Counsel also relied on the circumstance that there had been no opportunity to challenge the content of the videotape in the context of a structured legal hearing. Further, it was suggested the television programme would inevitably be selective, graphic, and could well give rise to the endorsement of wrongful police conduct, and to the harassment of an innocent man.

[65] Mr Miles made the point that the argument for TVNZ was one better directed to the defence of legitimate public concern, not to this element of the tort. Generally, he supported the arguments made on Mr Rogers’ behalf, including the need to approach this issue from the perspective of a reasonable person placed in Mr Rogers’ present position.

Discussion

[66] In Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 (HL) Lord Hope of Craighead said at [99]:

The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.

This must be so. The present case well demonstrates the point.

[67] The ordinary viewer would perhaps be curious about and want to see the videotape. But, placed in Mr Rogers’ shoes, and asked whether they would then consider disclosure of the videotape highly offensive, the answer may well be different. The value which underpins the tort is personal privacy. Its gravamen is publicity which is truly humiliating and distressful or otherwise harmful to the individual concerned: Hosking v Runting at [126]. It follows that whether disclosure would be highly offensive must be tested from the perspective of that person, but subject to an objective overlay. The fragile sensibility of the claimant cannot prevail, so a reasonable person test is introduced to that extent.

[68] In addition, the proposed manner of disclosure is a relevant consideration. As this Court observed in R v Mahanga [2000] NZCA 354; [2001] 1 NZLR 641 at [41], public disclosure in a controlled environment like a courtroom may not be offensive, but transmission of excerpts of the videotape on national television may be. As Gault P and Blanchard J noted in Hosking v Runting at [127], the “highly offensive” test relates to the publicity, and is not part of the test of whether information is private. The Court will not reach the stage of considering the “highly offensive” test unless it has concluded that what has been or will be disclosed is a private fact.

[69] As with the first element of the tort, we are not persuaded that Venning and Winkelmann JJ were wrong in concluding that a reasonable person in Mr Rogers’ position would find disclosure of the police videotape highly offensive. That was a conclusion which was open in light of the matters to which Mr Edgar drew attention. We also agree with the point made by Mr Miles that the argument for TVNZ under

this head was one better directed to the defence of legitimate public concern. We turn, therefore, to a consideration of that aspect.

Is the defence of legitimate public concern available in this instance?

[70] In relation to this, Venning and Winkelmann JJ first identified the open justice argument advanced by TVNZ, and in particular the contention that non- disclosure of the videotape would give rise to the appearance of courts operating in secret, when the public was entitled to know the content of evidence which was the subject of differing judicial opinions.

[71] After observing that the videotape was not played in open court, the Judges continued:

[71] ... we are not satisfied that the principles of open justice dictate that the public should be able to view the evidence ruled inadmissible. This is not a case of the Courts operating in secret as observed by Cory J [in Vickery]. The process has been open and transparent throughout. The decision of the Court of Appeal is now available for discussion and debate. The videotape in issue was ruled inadmissible and so was never part of the evidence led at trial. Mr Akel could point to nothing in the content of the videotape which would add in any way to the debate and scrutiny of the Court of Appeal decision in keeping with the principles of open justice.

[72] As to the second limb of Cory J’s reasoning, we accept Mr Miles’ submission that the reasons for the differing views between the Judge who dealt with the pre-trial and the Court of Appeal are set out clearly in the decisions. Both the decision of Cooper J and the Court of Appeal contain detail of the factual background, the factual findings and reasoning. It is also relevant that the Police conduct leading to the ruling of inadmissibility occurred prior to the events captured on the tape so that a viewing of the videotape will add nothing to an understanding of the diversity of judicial views.

[73] As to the need for media access to the inadmissible evidence to enable proper debate of the admissibility rulings we note the comments of Cooke J in Re Wellington Newspapers Ltd’s Application [1982] 1 NZLR 118 where the Court was asked to review its own order permanently prohibiting publication of evidence ordered inadmissible, where the ruling had led to the quashing of a conviction of murder of the accused, Mr Wilson. Cooke J said at 119:

The judgment in Wilson’s case, like many others of many Courts over many years, is concerned with the problem of balancing competing public interests: endeavouring to ensure both that criminals are brought to justice yet that confessions are not obtained by the police by oppressive methods. The relevant principles are extensively dealt

with in standard textbooks. Obviously they also warrant serious discussion in the media. In this case it is hard to see that discussion of that kind would be helped by publishing details of the inadmissible evidence. So we have some concern that the main result of removal of the order might be opportunities for sensationalism.

[74] In that case the order suppressing publication was quashed. The Court regarded it as decisive that the details of the confession were contained in a book shortly to be published which would be unaffected by the order, and had also been described in the media at the time of the first trial.

[72] Being satisfied that the content of the videotape was not in the public domain, the Court concluded that legitimate public concern did not prevail in this case. What was termed general interest in the content of the tape was deemed insufficient to displace the privacy interest which was at stake.

[73] Earlier (at [63]) we noted the gist of Mr Akel’s argument with reference to whether screening of the videotape would be considered highly offensive to a reasonable person, and (at [69]) we concluded that the matters raised were better considered in the present context. Based on these factual elements, counsel referred to and stressed the underlying principles which must guide the decision.

[74] The starting point was that the videotape had not been played at Mr Rogers’ trial. Accordingly, the open justice principle was not satisfied at trial, as was the case in Vickery and also in R v Mahanga, a case to which we will return shortly. The present situation was likened to that in R v Wilson [1981] 1 NZLR 316 (CA) and TVNZ v R (the Bain case), in both of which evidence suppressed at trial was opened to public scrutiny post-trial, following an acquittal and convictions, respectively.

[75] In essence Mr Akel argued that legitimate public concern outweighed Mr Rogers’ privacy rights. To deny public access to the videotape would be antithetical to the principles of open justice and freedom of expression, particularly when the extraordinary circumstances of this case were brought to account.

[76] Mr Edgar adopted a rather different starting point. He questioned what purpose would be served by the public broadcast of the videotape. The admissibility ruling was based on police conduct which occurred prior to the confession and reconstruction. The contents of the videotape would add nothing to the debate about

the public issues identified by TVNZ. A commercial motivation actuated the appellant, rather than matters of legitimate public concern. Screening the videotape would no doubt add impact to a programme which called in question the jury’s verdict, but this provided no principled basis to override Mr Rogers’ privacy rights.

[77] With reference to public interest factors, Mr Edgar accepted the importance of the two principles upon which TVNZ relied, but argued there were two countervailing factors to be weighed. These were the public interest in the effective investigation of crime and the public interest in Mr Rogers’ successful reintegration into the community, this not being just a private interest. As to the former reliance was placed upon an affidavit sworn by a criminal barrister to which we have already referred (at [62]). Hence, said Mr Edgar, the conclusion which the Full Court reached in relation to the defence of legitimate public concern was supportable and should not be disturbed.

Discussion

[78] We regard this aspect as at the heart of the case. Two of the decisions canvassed in argument are particularly pertinent.

[79] The first is the Canadian case of Vickery. At trial, a man was convicted of murder. However, the Nova Scotia Court of Appeal found that a confession was not voluntary and was obtained in violation of the right to counsel, with the result that the conviction was quashed and an acquittal ordered. Mr Vickery, a journalist, applied for access to a videotape of the confession. The trial Judge granted access. The decision was reversed by the Court of Appeal, prompting a final appeal to the Supreme Court of Canada. The case was argued in the context of the Nova Scotian equivalent to our Search Rules.

[80] A majority of six Judges concluded that the accused’s privacy interests should prevail. They were unpersuaded that unrestricted dissemination of the tapes would facilitate meaningful public discussion on important issues. Further, four significant factors were identified which the majority felt had been overlooked in granting access to the tapes. First, the tapes were a court exhibit and exhibits were

frequently the property of non-parties, who may retain a proprietary interest in them. Secondly, the court as the custodian of exhibits, was bound to inquire into the use which was to be made of them and should act to protect competing interests. The accused had participated in the creation of the tapes, which were obtained in violation of his constitutional rights. Thirdly, the tapes were played in open court at the trial, so that the open justice requirement had been met. Fourthly, the post-trial release of selected exhibits was fraught with the risk of partiality and lack of fairness. Discussion removed from the context of the trial hearing was less likely to be balanced and to expose the arguments on both sides. In this case, the accused having been acquitted, his privacy interests outweighed those of the journalist who sought access to the tapes.

[81] The three Judges in the minority accepted that the issue was to be determined by balancing two principles of fundamental importance. The first was the right to privacy which was an aspect of the basic dignity of the individual. The second was the open administration of justice. Access to the tapes was seen as essential if the community was to continue to support and have confidence in the work of the courts, particularly in a criminal context. The public had a right to know what was excluded by the Court of Appeal and the reason for its exclusion. To deny access to evidence which had been ruled inadmissible, would be to permit the courts to operate in secret. The circumstance that the tapes had been played at the trial rendered the privacy interests of the accused less compelling. For these reasons, the need for openness of the courts was considered to be determinative.

[82] The other case is the decision of this Court in R v Mahanga. Mr Mahanga was convicted of the murder of a child. An aspect of the Crown case against him was a videotaped police interview. TVNZ recorded the interview when it was shown to the jury at the trial, but post-trial sought access to the original videotape (which was of superior quality) for use in a documentary programme on child abuse and child homicide. The trial Judge declined access to the original videotape during the trial. A subsequent application for access pursuant to the Search Rules made to a different Judge also failed. This Court was satisfied that the decision of Anderson J was within discretion and should not be disturbed.

[83] McGrath J, in delivering the judgment of the Court, said at [29]:

Under s 14 of the (New Zealand) Bill of Rights (Act 1990), freedom of expression includes “the freedom to seek, receive, and impart information and opinions of any kind in any form”, but that does not confer any right to acquire information, let alone in the form in which a person wishes to use it. Here the videotape was played in open Court at a trial to which the public was at all times admitted. That satisfies the right to open justice.

[84] It followed that the Search Rules were the starting point for consideration of the issue. These conferred a broad judicial discretion. One value which fell for consideration was the privacy rights of the accused which did not cease to exist simply because the videotape had been played in open court. McGrath J said at [41]:

There is a significant difference in the impact on privacy between playing a videotape of a police interview in open Court, where the media can observe and report what was said, and the playing of it, or excerpts, on national television. Furthermore, during the trial process the privacy interests of the accused will generally be outweighed by the greater interests of the public, and indeed all accused persons, in open justice. But once a criminal trial has concluded there is more room to recognise individual privacy interests in applications such as the present.

Although the Court considered that undue weight was given to the risk of suspects not participating in videotaped interviews (if tapes were subsequently released to the media), there being no evidence adduced in the High Court in support of this argument, this factor did not warrant intervention in relation to the discretionary judgment. The High Court decision was not shown to be plainly wrong.

[85] This of course is not a case to be decided under the Search Rules, but it would have been if the only copy of the videotape had become a Court exhibit and a copy of the videotape had not been released to TVNZ by a police officer. The contextual difference is of significance, but as reference to Vickery and Mahanga demonstrates, in the end it is a close analysis of the circumstances of the particular case which determines the direction in which the balance lies. In essence the Full Court was satisfied that Mr Rogers’ privacy right must prevail because it was unpersuaded that use of the videotape in a current affairs programme would in any way add to public debate and scrutiny of court processes. The admissibility decisions of the High Court and of this Court were fully reasoned and use of the videotape would not add to a public understanding of the different decisions. For

this reason, and because of the potential for significant harm to be caused to

Mr Rogers, his privacy right prevailed.

[86] Unlike the Full Court we consider that the availability of the defence of legitimate public concern is indicated in the circumstances of this case. We see the balancing of the defence of legitimate concern against Mr Rogers’ privacy right as a matter of proportionality. As Tipping J observed in Hosking v Runting at [257], “The greater the invasion of privacy the greater must be the level of public concern to amount to a defence”. Having concluded at [59] that the privacy value of the facts in issue are at the low end of the scale, we see the degree of legitimate public concern necessary to establish a defence to the invasion of privacy as also at the low end of the scale. In our view that is a material element of the analysis that is missing from the evaluation of this issue in the High Court.

[87] Ms Sheffield’s homicide has resulted in two men being charged with her murder. Neither stands convicted. Whether the videotape should have been admitted at trial occasioned a difference of judicial view. As noted earlier, the admissibility ruling of this Court was a decision reached against a background of conflicting lines of authority. This in itself suggests the need for openness, if at all possible, in relation to access to the videotape.

[88] Although there is some substance in the Full Court’s view that the content of the videotape may not add to informed public debate, it must be borne in mind that an evaluation of the reliability of disputed evidence, and of its importance to the prosecution case, is an aspect of the balancing exercise ordinarily required following a finding that evidence was obtained in breach of a suspect’s rights. The Court should be prepared to expose its reasoning process to scrutiny, to avoid perceptions of an attempt to stifle debate about its decision or about the conduct of the police officers whose conduct was under scrutiny in that decision.

[89] While we accept that following his acquittal Mr Rogers has a significant claim to privacy in relation to the videotape, we are unpersuaded by some margin that such claim should prevail over open justice considerations. The trial process is spent. However, given the circumstances of this case, matters of legitimate public

concern remain which should be able to be raised and debated in an open manner. Cory J speaking for the minority in Vickery said at 706:

The public has a right to know what was excluded by the appellate court and the reason for its exclusion. To prohibit access to all evidence which has been ruled inadmissible would permit the courts to operate in secret.

These observations are equally apposite here.

[90] We accept that these are matters of evaluation on which there should be appellate restraint. Ultimately our difference of view on this issue to that of the High Court is not decisive because of the clear view we take on the issue of prior restraint, to which we now turn.

The threshold for prior restraint

[91] Venning and Winkelmann JJ considered that the necessary threshold was met:

[77] Mr Miles noted that the threshold for restraint articulated in the judgment of Gault P and Blanchard J was set higher than the threshold described in the other minority judgment of Tipping J, who preferred the qualifier of a “substantial” level of offence rather than a “high” level of offence. However, we do not need to resolve that difference, as we are satisfied both standards are met in this case.

[78] We accept that in this case damages would not be an adequate remedy. As Mr Miles put it, this is not the same as a defamation case, where damage to reputation by a defamatory publication can be rectified by the vindication of the plaintiff’s character represented by an award of damages. Mr Rogers should not have to be subjected to the unrestricted repetition of a videotape obtained in fundamental breach of his rights.

Then followed reference to Mr Rogers’ affidavit evidence, including his saying that he was currently receiving treatment for depression and that he had already been affected by television coverage to the effect that he was not welcome in his home town where there are “a lot of angry people”.

[92] The reference to a difference in Hosking v Runting concerned the formulations of the test for prior restraint. Gault P and Blanchard J considered that consistency of approach was necessary between defamation and any privacy tort,

because the underlying interest in both was “reputational”. After extensive reference to defamation authorities they summarised their conclusion in these terms:

[158] The general position, then, is that usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.

[93] Tipping J dealt with the issue as follows:

[258] I see the remedy for invasion of privacy as being primarily an award of damages. Prior restraint by injunction, such as is sought in the present case, will be possible but should, in my view, be confined to cases which are both severe in likely effect and clear in likely outcome. Freedom of expression values will ordinarily prevail at the interlocutory stage. I am mindful of the chilling effect which potential claims for damages for invasion of privacy might have on the activities of news media organisations and perhaps others. But against that I am mindful too of the considerable distress which unwarranted invasion of privacy can cause. The right to freedom of expression is sometimes cynically invoked in aid of commercial advantage. Of course the right to freedom of expression exists in the commercial field, but it should not be allowed to become a justification for what may be little more than a desire to boost circulation or ratings when that legitimate commercial objective has a substantial adverse impact on the personal dignity and autonomy of individuals and serves no legitimate public function.

[94] Mr Akel submitted that the Full Court gave “no real consideration to the test for prior restraint”. He argued that the judgment (at [78]) appeared to indicate acceptance of an argument that invasion of privacy (unlike defamation) could not be vindicated by an award of damages and therefore prior injunctive relief should be more readily available.

[95] Mr Miles again articulated the contention that damages were not necessarily an adequate remedy in invasion of privacy cases. As he put it, the sting of invasion of privacy was not that the published facts were untrue, rather that they were true but should never have been published in the first place. Damages for invasion of privacy represented compensation for distress, whereas damages for defamation both confirmed that the published matters were untrue and marked the vindication of the plaintiff’s reputation. This led Mr Miles to the submission that conceptually the two

causes of action are quite different, which may indicate the need for a different threshold for prior restraint.

Discussion

[96] In our view the Full Court’s consideration of this issue focussed only on one aspect: the “high” or “substantial” level of offence resulting from publication. But the Court in Hosking v Runting also referred at [158] to “little legitimate public concern”. For the reasons we have just mentioned, this is a case where the level of public concern is more than “little”. So that element of the Hosking v Runting test for prior restraint is not met in this case. And, while we agree with the High Court that disclosure in this case meets the “highly offensive” threshold, we do not see it as at the high end of highly offensive. In our view the Full Court gave too little weight to the very strong indications in Hosking v Runting that cases of prior restraint of disclosure on the basis of an allegation of invasion of privacy will be rare, given the potential chilling effect on freedom of expression. The test for prior restraint articulated in Hosking v Runting was not met in this case.

[97] Also, at least in cases of the present kind, there may be a close association between the torts of invasion of privacy and defamation. W B v H Bauer Publishing Ltd [2002] EMLR 8 illustrates the point. W B was charged with rape after a DNA sample obtained from the victim was matched against his databank DNA profile. However, the databank profile should not have existed (because W B was acquitted of the charge which led to the requirement to provide the profile sample). At the trial of the rape charge the DNA evidence was ruled inadmissible. W B was acquitted. Subsequently the admissibility ruling was the subject of a reference to the House of Lords on a point of law. Their Lordships held that the trial Judge was wrong to conclude that he did not have a discretion to admit the DNA evidence. An order prohibiting publication of W B’s name was made. This was breached and W B brought a proceeding for breach of confidence and infringement of privacy.

[98] The claim was struck out by Eady J who observed at [44]:

It cannot be right that a person who has been acquitted of a criminal charge, or against whom proceedings have been discontinued by the prosecuting authority, is never to be subjected to a further inquiry (e.g. through investigative journalism) with a view to establishing whether he truly was the culprit. There are remedies in libel if the media, having carried out such investigations, choose to publish allegations which they are unable to prove. It would in my view be a startling restriction upon their freedom of expression if they were also to be restrained by a (judicially imposed) law of privacy even in circumstances where they were willing to mount a defence of justification.

In the present case, should TVNZ screen a programme which impugns Mr Rogers’ acquittal, then a claim in defamation would be available. Hence, at least in this situation, there is an inter-relationship between the two torts, which may indicate the wisdom of a similar or consistent test for prior restraint in relation to both.

Section 138 of the Criminal Justice Act 1985

[99] After concluding that an injunction should issue to permanently restrain publication of the videotape, Venning and Winkelmann JJ considered whether a suppression order pursuant to s 138 was appropriate. They concluded:

[87] If it had been necessary we would have been prepared to make an order under s 138. The videotape was evidence adduced at the admissibility hearing before Cooper J. For the reasons traversed above, its publication would infringe Mr Rogers’ privacy rights and cause considerable damage to him in the form of humiliation, and also to his prospects of reintegration into society following his acquittal. It is material that the evidence was obtained following a serious breach of his rights. As we have held, there is no sufficient justification for the publication. We also see force in Ms Sellars’ submission that TVNZ cannot be characterised as a naïve receiver. TVNZ would have known that evidential videotapes are subject to the strictest control and that such tapes, should not be and are not usually released by the Police to the media prior to trial, and are to be accessed through the Criminal Proceedings (Search of Court Records) Rules.

[100] Mr Akel challenged this conclusion on three grounds. These were that there was no jurisdiction to make a suppression order post-trial and indeed in the context of this civil hearing, that in the exercise of their discretion the Judges failed to take into account freedom of expression and open justice which rendered the decision plainly wrong, and that the reference to the Search Rules indicated reliance upon an irrelevant consideration.

[101] Section 138 is headed “Power to clear court and forbid report of proceedings” and relevantly provides:

(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.

(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:

(a) An order forbidding publication of any report or account of the whole or any part of -

(i) The evidence adduced;

..............

[102] The words of s 138(1) convey that the discretion to order suppression is vested in courts which are dealing with any aspect of an offence, but we do not consider it is necessary to decide this jurisdictional point in the present context. What is plain from the Full Court judgment is that, had it been necessary to do so, a suppression order would have been made to protect Mr Rogers’ privacy interests. Its very basis was the prior conclusion that these privacy interests trumped other relevant considerations, in particular the open administration of justice. That is not a conclusion which we share. It follows we do not consider there is any sufficient basis for a suppression order, even assuming jurisdiction to make one exists.

Order to deliver up to the Court all copies of the videotape

[103] Mr Akel also challenged this order on the basis that it was not a “proportionate response” given the order for a permanent injunction. However, we need not venture down this path since, as counsel also observed, the order for delivery up must fall with the setting aside of the injunction.

Costs

[104] In the event that it succeeded TVNZ sought costs. We are unsure of Mr Rogers’ status, that is whether he was legally aided for the purposes of the appeal. Leave is reserved.

WILLIAM YOUNG P

Introduction

[105] I agree that the appeal should be allowed but my reasons for reaching this conclusion are not identical to those which have been expressed by Panckhurst J.

Is this a prior restraint case?

[106] The expression “prior restraint” is potentially ambiguous. In its primary meaning, it refers to pre-publication restraint but it could also refer to interim orders for restraint prior to final determination of the underlying rights and wrongs associated with a proposed publication. Most of the relevant cases involve restraints which are “prior” in both senses; that is ahead of the publication and likewise ahead of any substantive determination of the underlying rights and wrongs. But in the judgment under appeal, Venning and Winkelmann JJ appear to have determined on a substantive basis that the proposed publication would amount to the tort of breach of privacy. In those circumstances I have wondered whether this case is properly regarded as invoking prior restraint principles.

[107] On the basis of what we were told, it appears that counsel and the Judges proceeded without focusing on whether the hearing was, or should be, the substantive trial of the proceedings. The upshot was that a permanent injunction was issued despite there being a number of loose factual ends, for instance:

(a) No finding was made as to the basis upon which Television New

Zealand came to be in possession of the tape.

(b) The findings made by this Court in the criminal appeal (R v Rogers [2005] NZCA 497; [2006] 2 NZLR 156) appear to have been simply translated across into the civil proceedings as being conclusive.

(c) Mr Rogers was not cross-examined on his affidavit in which he set out his privacy expectations.

(d) Public interest considerations could only be addressed in a cursory and conclusory way.

(e) All of this occurred in a context in which the Court did not know the exact format of the proposed programme.

[108] For those reasons (which overlap those given by Panckhurst J at [31]) I am satisfied that it was inappropriate for the High Court to deal with the case substantively and, in particular, to grant a permanent injunction. In those circumstances, I regard the case as falling fairly and squarely within the “prior restraint” principles and thus as being a case in which injunctive relief ought not to have been granted unless those principles were satisfied.

Prior restraint principles

[109] The test for prior restraint in privacy cases was discussed by Gault P and

Blanchard J in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 in these terms:

[158] The general position, then, is that usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.

The approach of Tipping J was similar:

[258] I see the remedy for invasion of privacy as being primarily an award of damages. Prior restraint by injunction, such as is sought in the present case, will be possible but should, in my view, be confined to cases which are both severe in likely effect and clear in likely outcome. Freedom of expression values will ordinarily prevail at the interlocutory stage.

[110] I agree with this approach which I see as conforming to well-established principle.

[111] There have always been limits on the ability of defamation plaintiffs to obtain interim relief by way of prior restraint: Bonnard v Perryman [1891] 2 Ch 269 (CA). There, Lord Coleridge CJ (speaking for himself, Lord Esher MR and Lindley, Bowen and Lopes LJJ) observed (at 284):

The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publications and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.

Lord Coleridge CJ went on to uphold earlier authority to the effect that interim injunctions ought to be reserved for “the clearest cases”.

[112] In practice, the Bonnard v Perryman principle means that an interim injunction is seldom available to restrain the publication of defamatory material which the defendant claims is true: Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1988] NZCA 173; [1989] 3 NZLR 520.

[113] I see the Bonnard v Perryman principle as being relevant (at least by way of analogy) whenever plaintiffs seek orders by way of prior restraint for reputational reasons in cases which, in substance, are defamation cases in disguise: for instance Service Corporation International v Channel Four Television Corporation [1999] EMLR 83. In particular, I think that the principle is relevant in the present context and particularly so as Television New Zealand has signalled an intention to rely on the public interest defence.

[114] I recognise that there is scope for debate as to the extent to which rights guaranteed by the New Zealand Bill of Rights Act 1990 can or should be enforced horizontally (cf the comment in Hosking at [114] per Gault P and Blanchard J). For myself, however, I think that the case engages the right to freedom of expression

recognised in s 14 of the New Zealand Bill of Rights Act; this is because Mr Rogers is seeking to invoke the coercive powers of the Courts and the Courts are subject to the Act (cf Attorney-General for England and Wales v Television New Zealand Ltd (1998) 44 IPR 123 (CA)). I do not understand the judgments in Hosking to suggest otherwise. In Canada, the Charter provision corresponding to s 14 has been utilised to dismiss claims seeking relief by way of prior restraint: Little Sisters Book and Art Emporium v Canada [2000] 2 SCR 1120.

[115] In all of this I regard the remarks of Hoffmann LJ in R v Central Independent

Television plc [1994] Fam 192 at 202-3 as important:

There are in the law reports many impressive and emphatic statements about the importance of the freedom of speech and the press. But they are often followed by a paragraph which begins with the word “nevertheless.” The judge then goes on to explain that there are other interests which have to be balanced again press freedom. And in deciding upon the importance of press freedom in the particular case, he is likely to distinguish between what he thinks deserves publication in the public interest and things in which the public are merely interested. He may even avert to the commercial motives of the newspaper or television company compared with the damage to the public or individual interest which would be caused by publication.

The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the present particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which the government and judges, however well motivated, think should not be published. It means the right to say things which “right-thinking people” regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.

A little more context

[116] In R v Rogers, this Court found that the police had breached the rights of Mr Rogers under s 23 of New Zealand Bill of Rights Act and gave him a remedy for that breach, namely an order declaring the videotape of his confession and the reconstruction to be inadmissible at his trial for murder. Television New Zealand was necessarily not a party to those proceedings. It is therefore not necessarily

bound by the findings made by the Court. Further, Television New Zealand did not itself breach the rights of Mr Rogers under s 23 and there is no obvious or compelling reason why Mr Rogers should have a remedy against Television New Zealand arising out of what this Court has held was the breach by the police of his rights.

[117] Mr Rogers has been acquitted of murder. This verdict is final for the purposes of the criminal law. It is not, however, a conclusive finding of innocence. So if Television New Zealand wishes to broadcast a programme which conveys the imputation that Mr Rogers murdered Ms Sheffield, it may do so. For reasons already given, Mr Rogers would not be able to obtain a quia timet injunction to prevent Television New Zealand doing so if it signalled an intention to defend any later defamation proceedings on the basis that the imputation was true. Of course, if Television New Zealand does broadcast such a programme Mr Rogers may sue for defamation. If he does so, Television New Zealand may defend the claim on the basis that he indeed did murder Ms Sheffield. In such a civil case, the finding of the jury in a criminal trial would not be decisive. As to all of this, it is sufficient to refer to W B v H Bauer Publishing Limited [2002] EMLR 8, referred to in the judgment of Panckhurst J at [97].

[118] If such proceedings were to come to trial I think that it would probably be open for Television New Zealand to lead evidence of the videotaped confession and reconstruction. I say this because a challenge to its admissibility based on breaches of the New Zealand Bill of Rights Act by the police would involve rather more difficult issues of horizontal enforcement than those referred to at [114].

[119] There are at least four possible reasons why the actions of the police and Television New Zealand might be thought to be objectionable. First, the motives of the police in making the videotape available to Television New Zealand are not clear and may well not be consistent with an orthodox approach to the proper role of the police. Secondly, if the police make a habit of acting in this way, this might (to some extent at least) discourage participation by suspects in video interviews. Thirdly, if Television New Zealand wins the case the result will be that a tape made for one purpose will be used for another. Fourthly, if the tape is broadcast, this

might be thought to impugn the verdict of the jury. The first two of these reasons have comparatively little to do with privacy. And given that the purpose for which the tape was made (namely its production in evidence at trial) would have attracted so much publicity had it been able to be effected, I think that the same is largely true of the third reason, a point which I will develop later. The fourth reason, which I suspect is of most relevance to Mr Rogers, does not seem to engage privacy considerations at all.

[120] I think it clear that the primary purpose of Mr Rogers in bringing these proceedings is to protect his reputation. Because he could not hope to obtain an injunction ahead of publication if he sued in defamation, he has been required to come up with a claim based on the tort of breach of privacy. But in attempting to fit his case within the confines of this tort, he is trying to put a square peg into a round hole.

Is this the sort of strong case which might warrant orders by way of prior restraint?

The tort of breach of privacy and s 14 of the New Zealand Bill of Rights Act

[121] In Hosking there was much debate on the question whether the emerging tort of breach of privacy is a reasonable limit on the s 14 right which is prescribed by law and can be demonstrably justified in a free and democratic society for the purposes of s 5. By a majority this Court answered this question in the affirmative but nonetheless recognised that s 14 was of critical importance both in delimiting the metes and bounds of the new tort and as to remedy, particularly in prior restraint cases.

The test for breach of privacy

[122] The two requirements which must be satisfied for a successful claim are first that there is a reasonable expectation of privacy in respect of the facts in question and secondly that publicity given to those facts would be regarded as highly

objectionable to an objective reasonable person. These two elements are interconnected. In most cases it will be the defeating of a reasonable expectation of privacy which makes publication objectionable, and likewise if publicity could fairly be seen as objectionable that might well suggest that there was a reasonable expectation of privacy in relation to the information in question. For present purposes, however, I propose to focus on the first of these two requirements.

[123] On the basis of the authorities, I am prepared to accept that the tort of breach of privacy is not necessarily confined to facts which are directly associated with the private life of the plaintiff. For instance there are passages in Hosking which could suggest that “public facts” about a plaintiff might become “private” by reason of the effluxion of time (see for instance the discussion at [69] and [105]). Further, I accept that expectations of privacy may have a conditional quality so that certain types of publicity may be expected but not other types. But given that this is a prior restraint case, I think it appropriate to concentrate not on marginal possibilities but rather on the realities that the primary focus of the tort (not to mention its principal justification under s 5 of the New Zealand Bill of Rights Act) is on disclosure of information that is private in the sense of being personal to the plaintiff and in respect of which the plaintiff legitimately expected that there would be no substantial publicity.

[124] In this context, I doubt whether an on-the-record confession to murder is sufficiently private or sufficiently personal to Mr Rogers to be legitimately within the scope of the tort. Further, I have major difficulty with the argument that there was a legitimate expectation of privacy. I acknowledge that the publicity which Mr Rogers might have expected in relation to the videotape and reconstruction would have been related to its use in evidence at trial and subsequent news media coverage (including on television). I likewise acknowledge that it is therefore possible to argue that Mr Rogers expected confidentiality to be maintained in relation to the videotape and reconstruction except in relation to possible use at trial and downstream reporting. However, I see this argument as forced. When Mr Rogers confessed on video and engaged in a reconstruction exercise, all involved would have assumed that the video would be shown in public (ie in the Courtroom at trial). They could also fairly have assumed that there would be wide publicity

associated with this (including perhaps a replaying on television either as part of coverage of the trial or after the trial). Given the significant scope of the publicity which must have been anticipated, it is unreal now to focus on what Mr Rogers might have anticipated in the unlikely event of him having turned his mind to the possibility that a Court would hold that the evidence was inadmissible.

[125] I accept that on this issue there is scope for more than one view. But, that being so, I regard s 14 of the New Zealand Bill of Rights Act as being relevant. In cases of genuine doubt, s 14 should tip the balance in favour of freedom of expression and this is especially so in a prior restraint context.

The public interest

[126] The more important issue in the case relates to the public interest defence and, on this aspect of the case, my views are substantially in accord with those of Panckhurst J.

[127] I agree with Panckhurst J that the decision of this Court in the earlier appeal to exclude the evidence of the taped confession and reconstruction did “not follow from the application of well settled jurisprudence”. For instance, the Court excluded the evidence without a detailed assessment of its importance in the overall context of the case. This approach perhaps deviated from the approach recommended in R v Shaheed [2002] 2 NZLR 377 at [151]. Would the videotaped confession and reconstruction have cast a shadow over the “it was just a dream” defence? I do not know (because we have not seen the video) but I suspect that it may have done so (as otherwise there would have been no point in challenging its admissibility). Whether the Shaheed balancing exercise should be applied to confessions is open to question but it is certainly arguable that it does apply. On the other hand, many judges and commentators are of the view that the Shaheed balancing test should be replaced by an approach which is more rights centred and more likely to result in the exclusion of evidence obtained in breach of the New Zealand Bill of Rights Act. These (and indeed other) issues associated with the earlier judgment of this Court are legitimate topics for public discussion and involve important issues of policy – issues of policy which are of concern not only to judges and lawyers but also to the wider public.

[128] I agree that the underlying issues can be debated without the videotape being shown on national television. But experience shows that arguments are usually more easily understood where they are contextualised. An esoteric argument about the way the New Zealand Bill of Rights Act is applied by the Courts becomes far more accessible to the public if the implications can be assessed by reference to the concrete facts of a particular case. In that context, to prohibit the proposed broadcast of the videotaped confession and reconstruction would necessarily have the tendency to limit legitimate public discussion on questions of genuine public interest.

[129] The point just made is associated with another concern I have with the injunction. The death of Ms Sheffield and the subsequent prosecutions of Messrs Lloyd and Rogers have attracted much public interest and there may be some public scepticism about the way the criminal justice system as a whole has dealt with the case. In that context, it is very damaging to the judiciary if the Courts are perceived, or can be portrayed, as seeking to shut down discussion about what happened.

[130] In this context it is important to emphasise that Venning and Winkelmann JJ did not know the exact form that the programme was going to take. Given this, their conclusion that the programme could not serve the public interest strikes me as extremely bold, indeed far too bold given orthodox prior restraint principles.

Conclusion

[131] For the reasons given, I am satisfied that an interim injunction ought not to have been granted. Further, I am well satisfied that there was no basis for making a permanent injunction. Accordingly I would allow the appeal with the consequences proposed by Panckhurst J.

Solicitors:

Simpson Grierson, Auckland for Appellant

Public Defence Office, Auckland for Respondent