Dew & Ors v Discovery NZ Ltd (dated 23 November 2023) (also below Media Release dated 8 March 2024 - [2023] NZCA 589
Media releases
Decision
Summary
The appeals are dismissed.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.