Adam Young

Summary

The Supreme Court overturned the Court of Appeal’s quashing of a takedown order of online reporting of the extensive criminal conviction of Damon Exley (“Appellant”). The substantive trial had already concluded, but this decision significantly expanded the availability of takedown orders for criminal defendants.

Background

The Appellant was a convicted sex offender who escaped from prison and while on the run committed a series of serious crimes. This offending attracted significant public interest and media reporting, including of his previous convictions. The Appellant applied for a takedown order under the Criminal Procedure Act 2011. The High Court granted this application, ordering media coverage of his previous convictions and character to be removed from the internet.

Takedown orders are used by the courts to direct the removal of specific information (such as an online news article) from publication that is deemed prejudicial to a defendant’s right to a fair trial. Often, as in this case, it involves reporting of a defendant’s character or previous convictions that might predispose a juror against the defendant.

NZME successfully appealed the takedown order in the Court of Appeal, which attached greater weight to the propensity evidence to be heard at trial. Propensity evidence shows a person’s character or predisposition to act in a particular way. Because evidence regarding the Appellant’s character and previous convictions would be given at trial regardless, the Court of Appeal considered that reporting outside trial on the Appellant’s previous convictions would do little to prejudice his case. The Court of Appeal also believed that the risk that jurors might ignore judicial directions against undertaking their own inquiries was overstated, pointing to studies that showed that the great majority of jurors understood and complied with their responsibilities.

Despite the substantive trial concluding and the Appellant returning to another lengthy prison sentence, the Supreme Court allowed an appeal on the takedown orders.

The case

The Supreme Court overturned earlier authority which required consideration of the right to free expression when determining takedown order applications. The Court held that the right to a fair trial is absolute; no other considerations, such as the right to free expression as enumerated in section 14 of the Bill of Rights Act, could prevail over the right to a fair trial. Despite the Criminal Procedure Act 2011 requiring an opportunity for the host of a publication to be heard on a takedown application, the Court held this was not legislative recognition that the court had to consider the right to free expression. The Court also noted its view that it did not consider takedown orders to be an unreasonable limit to free expression, as the right is exercised by the initial act of publication and the orders are only temporary in nature.

The Court determined that the test for making a takedown order was whether there was a real risk of prejudice to a fair trial. The reach of the publication could be considered, but if the material in question is highly prejudicial, that would be sufficient to justify a takedown order regardless of reach. The Court did not consider prospects of compliance with the decision, expecting media to adjust their practices to the requirements of the law but it did require that the takedown order should also be no greater in scope than is necessary to ensure a fair trial.

The Supreme Court noted recent law changes to strengthen jury directions, such as a new oath that jurors would not conduct their own research and fines for those who do. While these reforms were meant to reduce juror non-compliance with judicial directives not to self-investigate, the Supreme Court also took them as Parliament recognising jurors could not be trusted not to undertake their own research.

The Court also suggested that the Crown should support takedown orders itself where its test is met, and that prosecutors should even apply for them at times if the defence do not do so. This guidance was based on the duty of prosecutors to uphold the right to fair trial themselves. The Court gave an expectation that the Crown would reconsider an earlier decision not to update the Solicitor-General’s prosecution guidelines regarding takedown orders.

On the issue of whether the High Court should have accepted the Appellant’s application for a takedown order, the Supreme Court took a middle ground between the High Court and the Court of Appeal. It agreed that a takedown order should have been in place, but only for the URLs submitted by the Appellant’s counsel. The Court noted that not all of the Appellant’s criminal history was before the jury, and that the tone of the relevant reporting was inflammatory in prejudicial terms. That the material was highly prejudicial was enough to justify issuing a takedown order, given the isk to the Appellant’s fair trial rights if the material was accessed by a juror.

Result

The Supreme Court allowed the appeal, determining that the Court of Appeal was not correct to quash the High Court’s takedown order, to the extent that it related to the URLs identified in the takedown application. Defendants in high profile cases that attract media attention will now have a lower threshold to achieve takedown orders to limit publication of their alleged crimes and any criminal histories.

This judgement substantially lowered the bar for defendants in criminal trials to have suppression orders granted in their favour. That the right to a fair trial prevails over free expression is not a new development. However, the judgement has left the law in a contradictory position regarding the trust it places in juries. The Court could  have taken an approach that limited the impact on the right to free expression by placing more weight on making juror’s compliance with judicial directions rather than removing access to information for everyone.

The judgment assumed that the takedown orders were necessary to protect the Appellant’s fair trial rights. In doing so it also displaced the presumption that jurors will comply with judicial directions, despite research to show that the vast majority of jurors do in fact understand their obligations. The scope of a takedown order is supposed to only be as extensive as is necessary to protect the right of a fair trial, but without emphasising other means of deterrence as the primary means of protecting fair trial rights, a takedown order will necessarily be more extensive than it otherwise needs to be. ‍

While the new legislative measures to strengthen jury directions recognises the risk that they might undertake their own research, the Court could have also better recognised that they reduced the necessity of takedown orders.

While not central to the judgement’s reasoning (given its view that fair trial rights are paramount) its characterisation of the right to free expression is also concerning. Free expression is not simply exercised by a singular act of speech, but rather is the ongoing ability to impart views and information. That the Court described the right as ‘exercised’ by an initial act of publication is a substantial diminution that might have lead it to treat the impact of a takedown order lighter than it should have.

The right to free expression is not only a right to impart information, but also to seek and receive information. This recognises the right of journalists for example, to publish information but also the general public’s right to access that information. The judgement did not engage with this aspect of the right to free expression.

For further information on this case or similar issues, please contact Director Brigitte Morten.

UPDATE: On 25 November 2025, the Governance and Administration Committee reported back on the Bill, recommending by majority that it be passed with amendments. Among the amendments was a change recommended by Franks Ogilvie that the ‘full council’ (i.e. the council’s governing body) be given oversight of the chief executive in information access decisions. This is a significant win for transparency and accountability in local government, providing democratic oversight to information accessdecisions that would otherwise rest entirely with unelected officials.

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Submission: Local Government (System Improvements) Amendment Bill

Parliament’s Governance and Administration Committee is considering the Local Government (System Improvements) Amendment Bill (“Bill”). Franks Ogilvie submitted on this bill, making suggestions on how the Bill could better promote democratic accountability in local government and reduce wasteful spending.

What the bill does 

An Explainer on the Bill can be found here 

Refocusing councils on core services

The Bill is part of the Government’s push to bring councils “back to basics”; refocussing local authorities on core services to limit rate rises. The Bill removes the four “well-beings” (economic, environmental, social, and cultural) from the Act’s local government purposes section, which the Government argues promotes spending on non-core services. The Bill will also require local authorities to have particular regard to the contributions that core services make to their communities.

Strengthening transparency

The Bill will require local authorities to report on their contractor and consultant expenditure, and will expand the matters that local authorities must report on to better allow the public to assess council performance. The Bill will empower the Secretary for Local Government to issue standardised codes of conduct and standing orders that will be binding on all councils. The Bill also expands access to “reasonably necessary” council information for elected members.

Regulatory relief

The Bill modernises notice requirements, removing the requirement for 6-yearly services delivery reviews, and clarifying chief executive authority and third-party capital contributions. The bill also removes the requirement for councils to consider the relevance of tikanga Māori when appointing directors to council controlled organisations.

Franks Ogilvie’s submission on the Bill

The Bill is an opportunity to make other improvements to the Local Government Act, particularly in re-balancing the relationship between elected members and council officials. Our submission made the following suggestions:

Improve councillor rights to information and oversight of their local authorities

The firm is aware of some situations where council officials withheld information from elected members, limiting democratic governance and oversight of council operations. The current Bill drafting could be strengthened by including a presumption that councillors have access to council documents, other than in specific cases where there was a good reason for withholding them (such as when disclosure would breach another law or individual privacy rights, or where the member seeking the document had a conflict of interest, or had an otherwise improper reason for obtaining the document).  The Bill should also provide a mechanism to council governing bodies to have oversight over information access decision made by officials.

Limit councillor disqualifications from voting on the basis of pre-formed views

The firm knows of instances where council officials have told elected members that they are disqualified from voting on certain matters on the basis that they have pre-conceived views on those matters. Councillors are elected on the basis of these views, and they should not be prevented from voting on matters on that basis. The bill should make this explicit in the Local Government Act, to reflect the common law position that elected officials are allowed to bring views to their political decision-making, provided they retain an open mind.

Clarify the illegality of using council resources for local government electioneering

Use of council resources for electioneering is already unlawful, but as recent examples of Councils using resources on Maori ward positions demonstrate that the law is not sufficiently clear. The illegality of council electioneering be made explicit in the Local Government Act, to make the law clear for local authorities and better enable legal accountability.

To read our full submission, please click here.

 For further information regarding this or similar issues please contact Director, Brigitte Morten

Summary

The High Court dismissed an application for judicial review of the Wellington City Council’s (“Council”) installation and maintenance of the rainbow crossing (“Crossing”). The Court found the Council acted lawfully when it installed the crossing and was permitted to continue its maintenance.

Background

The Council sought advice from the New Zealand Transport Agency (“NZTA”) on the Crossing. NZTA informed the Council it would be unlawful under the Transport Rule on Traffic Control Devices (“TCD Rule”) and threatened enforcement action if it was installed. The Council installed the Crossing in October 2018, but NZTA did not pursue enforcement action.

Over the next few years the Council continued to communicate with NZTA on compliance and possible alternatives to the Crossing. The Council conducted surveys of pedestrian and vehicle use of the intersection, and communicated with NZTA regarding a possible exemption to the TCD Rule. No exemption was granted or declined, though draft NZTA documents from the time indicated an intention to decline an exemption, on safety grounds. During this time NZTA maintained its view that the Crossing was not compliant with the TCD Rule and a subsequent amendment in 2020 (“2020 Amendment”).

The 2020 Amendment permitted road art in lower-risk environments, so long as the art did not resemble other markings intended for traffic control. Following the 2020 Amendment, the Council conducted more surveys which showed that vehicle speeds through the intersection were reasonably low and trending down. These surveys also showed that the Crossing did not influence pedestrian behaviour when crossing the road.

In 2024, three “concerned Wellington ratepayers” applied for judicial review of the Crossing. They sought a declaration that it was contrary to the TCD Rule and a direction for NZTA to reconsider a 2021 determination by the Director of Land Transport that the Crossing did not contravene the TCD Rule.

The case

Applicability of the 2018 TCD Rule and 2020 Amendment

The Court first determined that the Crossing’s lawfulness was to be decided under the TCD Rule at the time of its installation (“2018 Rule”). Neither the 2020 Amendment nor the Land Transport Act provided for retroactive application, so the 2020 Amendment could only apply prospectively to road marking installations.

The Court noted the general principle of administrative law that a statutory power must be exercised for the purpose of that power, but alternative purposes may be pursued provided they do not compromise the power’s primary purpose. The Court determined that expressing LGBT pride was a permitted alternative purpose of the Crossing, provided that it also had a purpose directly connected to the use of the road and did not otherwise compromise the TCD Rule.

Did the Rainbow Crossing comply with the 2018 TCD Rule?

Clause 5.5 of the 2018 Rule prohibited road markings that were advertisements or unconnected with the use of the road. While most pedestrians crossed the street outside the rainbow markings, during busy periods pedestrians fanned out across the Crossing. The Court determined that the Crossing guided pedestrians to where they could cross at the intersection, which was a sufficient connection with the use of the road.

The Court determined that the Crossing did not mislead pedestrians, so the alternative purpose of expressing LGBT pride did not compromise the purpose of road safety. The Crossing had a starkly different design to a pedestrian crossing’s spaced-apart white lines. The Crossing’s traffic signals also distinguished it from a pedestrian crossing, and it did not have the other features required of pedestrian crossings, such as the black and white poles with orange discs or globes.

The applicants  did not present any evidence that the Crossing was compromising pedestrian safety. Surveys of the crossing showed frequent jay-walking, but this was not due to pedestrians believing they had right of way. Pedestrians respected the traffic signals and only crossed on a ‘red’ signal when there were no approaching vehicles.

As the Crossing carried a purpose connected to the use of the road and did not otherwise compromise safety or any other purposes of the TCD Rule, the Court determined that the Crossing complied with the 2018 Rule and was lawfully installed.

Did the Rainbow Crossing comply with the 2020 Amendment? 

The Court formed the view that the Council’s ongoing maintenance of the Crossing did not constitute “installing” it for the purposes of the 2020 Amendment, so regardless of whether the Rainbow Crossing complied with the 2020 Amendment the Council was permitted to maintain it. In case that view was wrong, the Court still gave its opinion that the Crossing complied with the 2020 Amendment.

Clause 5.6 of the 2020 Amendment provided for roadway art in “lower risk” environments that were not similar to other road markings and did not mislead pedestrians. The rule included an example where “a series of long rectangles are painted on the road, parallel to the kerb and perpendicular to oncoming vehicle traffic” that resembled or were similar to a pedestrian crossing as road markings incompliant with rule 5.6.

The applicants argued that the Crossing too closely resembled a pedestrian crossing, but the Court determined that the design was sufficiently different, distinguishing the Crossing from the example given in the 2020 Amendment. The Court also determined that the crossing was a “lower risk environment” owing to speed bumps on either side of the crossing and the low motorist speeds.

As the Crossing was distinct from other road markings and was located within a “lower risk” environment, even if it had to comply with the 2020 Amendment the Crossing was lawful.

Result

The Court dismissed the application for judicial review. The installation of the Crossing was lawful. NZTA and local authorities now have judicial guidance of the circumstances where a rainbow crossing may be lawfully installed.

This case is a reminder of the principle that laws are prospective by default and will not have a retroactive effect unless specified and empowered by Parliament. Changing a rule without retrospective effect will not change the lawfulness of an action already undertaken.

For further information on this or similar cases please contact Director Brigitte Morten.

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