New Zealand’s Supreme Court last week re-affirmed the absolute right to a fair trial. In the process it denied citizens another fundamental right in an attempt to hide the past from jurors.
The court handed down its decision in an appeal over a takedown order that required Herald publisher NZME and other media to remove all stories relating to the previous convictions and character of a man now serving his second open-ended sentence of preventive detention.
The takedown is now moot because Damon John Exley (pictured above) has already been convicted and sentenced in the case during which the take-down order was made and then successfully appealed by NZME. Exley (also known as John Douglas Willis) was granted leave to take the matter to the Supreme Court, which elected to continue the appeal because it “raised a point of public importance”.
That process meant a takedown order remained in force during his trial on charges of rape, assault with a weapon, and abduction while an escapee from Rimutaka Prison where he was already serving a term of preventive detention. However, the jury was aware of some of his past convictions because the Crown had been given leave to introduce a list in what is known as propensity evidence.
Last week the Supreme Court found in Exley’s favour and said the Court of Appeal had been wrong to quash the takedown order. It found that the was “a real risk to Mr Exley’s fair trial rights if the material was accessed by a juror”.
The judgement has far-reaching effects because it found the right to a fair trial is absolute and the test to be applied “does not involve the balancing of the right to a fair trial against other rights, including freedom of expression”. It overturns the previous two-step test that first assessed whether continued publication represented a real risk of prejudice to a fair trail, but which then asked whether a takedown order would be a reasonable limitation – set out in Section 5 of the Bill of Rights Act – on the right to freedom of expression. That limitation requires that it be “demonstrably justified in a free and democratic society”.
The new decision sweeps aside the second step. Free speech now plays no part in takedown decisions.
The Supreme Court’s assessment included a curious justification:
In any event, the limits on freedom of expression involved in a takedown order are not unreasonable. The right to freedom of expression has already been exercised when the original articles were published, via the act of initial publication itself.
That justification does not take account of the other elements of the Bill of Rights Act provision that guarantee freedom of expression. The full Section 14 reads: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” So, the journalist’s right to impart information might already have been satisfied, but the recipient’s rights of access have been impaired – even if only temporarily.
I use the phrase “even if” because there are no guarantees that once the takedown order expires, media outlets will move to restore all of the material they had been forced to suppress. When I did a Google search on Exley’s name at the weekend, none of the material written prior to his trial was listed.
If takedown orders do not erase history, they certainly throw a cloak over it. They are a manifestation of our time, with online platforms and search engines providing easy access to past reports. Takedown orders are designed to prevent that access.
However, the sheer breadth, depth and opacity of the digital environment means that cloak fails to cover everything. And its international scope places some of its platforms beyond our judicial reach.
Last year, Newsroom reported the results of an Official Information Act request that showed that in 2023 seven of the eight takedown orders issued by the Department of Internal Affairs relating to harmful content had been ignored. None of those subject to the order was New Zealand based. And during the Grace Mullane murder trial the UK Dail Mail published the suppressed name of the accused on its readily accessible website, while search engine Google sent an automated email to Google Trend subscribers, also naming Jesse Kempson.
The assiduous searcher will always find relevant history in the dark recesses that court orders fail to see. Mind you, it’s not hard: The search on Exley’s name and his alias Willis had not revealed his past offending, so I looked for “Rimutaka prison escaper”. I found a story about his past published on a news aggregator site in 2022 and a post on social media that stated “Willis (Exley) has been in prison for more than 10 years, with a criminal history that includes assault with intent to commit rape, abduction for sex, and kidnapping”.
Meanwhile, it was clear that responsible New Zealand news media had followed the order of the court and done their level best to suppress what had previously been in the public domain. They stopped short (thank goodness) of going around every library in the country armed with a craft knife to cut stories out of filed newspapers. Those newspaper files, of course, are available to any curious researchers – including jurors. Or should the public be denied access to those, too, for the duration of any takedown order?
The appeal hinged on the possibility that jurors might see material, written in sometimes lurid terms, about Exley’s past offending. A post-trial Stuff backgrounder noted that Exley had once been described as “a one-man crime wave” and had spent much of the past four decades behind bars. He has more than 200 convictions including a number for sexual violence.
Yet this was not really about Exley at all. And the Supreme Court admitted as much in stating that, although the jury had seen propensity evidence and Exley had already been found guilty before it considered the appeal, he had raised a matter of public importance. This was an opportunity for the court to stamp its own mark on the issue of takedown orders and jurors’ access to information.
Not only did it remove any freedom of expression consideration, but it also ruled that judges should not apply a presumption that jurors will follow directions not to undertake their own research.
I fully support the court’s determination to guarantee fair trials but, in the approach it has now taken, it has firmly grasped the wrong end of the stick.
Information is increasingly being spread informally through social media and does not rely on the inclusion of links to professional news outlets. And the assumption that the spread is through Facebook, Instagram and X (formerly Twitter) is wrong. There is a plethora of platforms, many of them below judicial radar and many with little regard for judicial jurisdiction. Ordering takedown of specific news-linked URLs does not remove the risk.
I am dismayed at the court’s total dismissal of Sections 5 and 14 of the Bill of Rights Act, particularly in relation to the public’s right of access to information from the past. The factual record of the past should remain extant, not subject to meddling by judges (even with the best of intentions).
The Supreme Court spent some time examining the possibility of jurors seeking information about the defendant on whom they would sit in judgement. It clearly saw knowledge of an extensive criminal record and antisocial character traits as a risk to a fair trial and that is hard to deny. It is why the jury oath was amended to include “that you will not undertake your own inquiries but will give your verdict according to the evidence given in court”. The Contempt of Court Act was amended to provide a fine not exceeding $5000 for breaching that undertaking.
The issue is about those twelve good men (and women). The right end of the stick would have been to strike fear into the hearts of potential jurors over the consequences if they failed in that duty, not in reinforcing the power of the court to impose takedown orders that affect everyone.
It was within the power of the Supreme Court to say that the Contempt of Court provision was wholly inadequate. If the Crimes Act allows for a seven year prison sentence for perjury (14 years in extreme cases), why doesn’t a juror prejudicing a fair trial face a potential prison sentence? It would send a very clear message about seriousness and consequence.
Why did the court not empower judges to order empanelled jurors to refrain from all use of the Internet for the duration of the trial and only supervised access to email. There are existing precedents for denial of Internet access to certain offenders. In extreme circumstances where fair trials rights are in jeopardy, such a temporary order may be justified. And judges already have the power to sequester a jury.
In other words, the focus should be on the jurors. Give judges the power to tell them in no uncertain terms that the consequences of breaching their oath will be dire, and back it with punitive powers to match. In extreme cases hide the jurors away, not the facts of the past.
The stupidity – for that is what it is – of a few jurors should not be sufficient cause to deny the many access to the past for a minute, let alone for the protracted period of trial and potential appeal that can extend for months or even years.
A thorough examination of an important development. Your analysis matches those from a profession that is often at odds with our worthy “trade”. Let’s hope they study it with the same precision they no doubr think they applied to this extraordinary case.
An excellent analysis. You raise issues that can now be dealt with only by legislation or, possibly, an inquiry followed by legislation. An approach to the Law Commission might be useful.