2.4The authority and power of the courts to control information in the lead-up to, during and after a criminal trial is fundamental to the integrity of the trial process. Judges have powers to determine what information can be disclosed publicly and at what point before, during and after a trial.118 They also have jurisdiction to punish those who disregard these prohibitions. Courts have inherent authority or implied powers to protect “the fair trial rights of an accused”119 from the point when the laying of charges is “highly likely”.120 From that point onwards, a case is described as sub judice or literally “before the court or judge for determination”.121
2.5Throughout the protected fair trial period, which is generally the period between when a person is arrested and the trial is completed,122 the law of contempt together with statutory and implied suppression powers serve the function of:123
preventing the general public, from whom the jury pool will eventually be drawn, being exposed to information that is prejudicial and that may make it difficult for jurors to approach the trial with open minds;
ensuring the court’s authority to determine what evidence will be admitted at trial is not pre-empted by the publication of information; and
preserving the integrity of evidence including, for example, the reliability of witness statements about matters such as identity.
2.6Contempt in this context is a preventative jurisdiction concerned with protecting the administration of justice. Contempt is expected to have a chilling effect on people publishing material that poses a risk to a fair trial. It is of course also punitive because the Court may impose sanctions, including imprisonment for up to two years, after the event.124
2.7Where a person’s fair trial rights are compromised, the trial judge may have no option but to discharge the jury and abandon the trial. There is a significant cost for the state whenever a trial is abandoned. A retrial is expensive and time consuming. The Ministry of Justice advises that the typical cost incurred during the 2014/15 Financial Year for a District Court jury trial was $8,170 per day or $26,144 per trial. These figures include court costs, juror costs, judicial costs and legal aid costs, but exclude investigation or prosecution costs incurred by other agencies such as the Police, Crown Law, Crown Solicitors or the Department of Corrections. The figures also do not include any private costs incurred by a defendant. The average cost of a High Court trial is likely to be higher because High Court trials are generally longer and the judicial costs will be higher.125 Abandoning a trial also impacts upon complainants and their families who have to endure the stress of a trial all over again. There is also stress and inconvenience for defendants and other witnesses.
2.8Arguably suppression orders protect the integrity of the trial process more effectively than contempt because they prohibit outright the publication of certain information. For this reason, however, suppression orders also restrict freedom of expression more, so courts must use them with caution.
2.9The Commission’s overall approach to reform is to emphasise the importance of certainty in the law. We focus more on temporary suppression orders that prevent information posing a real risk of prejudice to a trial from being published and less on contempt to deter publication. Such an approach reduces the need for people, especially the media, to second guess the courts as to whether a publication may be in contempt. It also avoids the costs and other detriments inevitably involved in an abandoned trial and the costs of contempt proceedings.
The common law strict liability test for publication contempt
2.10The established common law test New Zealand judges apply for publication contempt is whether “there [is] a real risk, as distinct from a remote possibility, [that the publication interferes] with the … [right to] a fair trial”.126 Real risk has been defined as a risk that is “more than speculative. It must be likely that the administration of justice could be prejudiced”.127 The standard of proof is the criminal standard of beyond reasonable doubt.128 Critically, this assessment is not dependent on whether the real risk associated with a publication actually materialises.129 A publication can be in contempt even though a fair trial eventuated.130
2.11Nor does the test require an intention to interfere with the administration of justice. All that is required is that the defendant knowingly published the information. A Full Court of the High Court in Solicitor-General v Radio New Zealand has said “[this] element is satisfied by proof that the defendant knowingly carried out the act or was responsible for the conduct in question”.131
2.12Furthermore, whether any harm to the trial actually eventuated is not relevant. First, it is not permissible to establish empirically whether a jury’s deliberations were improperly influenced by exposure to prejudicial pre-trial publicity because jury deliberations are confidential.132 Second, the purpose of contempt is preventative.
2.13It is not possible to formulate from the common law any bright line as to when it will be contempt to publish.133 Whether a publication meets the threshold and poses a real risk to a trial is highly circumstantial. As the High Court has put it, “what counts is the overall impact”.134 The Court considers both the nature of the information published and the broader context of the particular case when determining whether there is a real risk. The Court recognises that particular circumstances may diminish the degree of prejudice so judgement is important. As already noted,135 the advent of the internet and the consequential durability and potential reach of any publication now pose significant challenges for the Court when applying the “real risk” test. Some internet-based publications and social media posts go viral. Consequently, they have much greater potential impact than those with more limited circulation or dissemination.
Publication of prior criminal convictions or information indicating bad character
2.14Prohibiting the publication of a defendant’s prior convictions or concurrent charges while his or her case is before the court is as close to a bright line as it is possible to have in publication contempt. In what is still regarded as one of New Zealand’s leading contempt cases, Gisborne Herald Co Ltd v Solicitor-General, the Court of Appeal said:136
[T]o publish the criminal record of an accused or comment on the previous bad character of an accused before trial is a prime example of interference with the due administration of justice and, subject to considerations such as time and place, almost invariably is regarded as a serious contempt.
Publication of disputed or crucial evidence
2.15Where publications canvass issues that are likely to be disputed in court, including, for example, questions of identity, they are likely to pose a real risk of interference. Again, this is not a bright line, but publication of the photographs of suspects or an accused may create a risk where identity is in issue.137 Similarly, witness statements published in the media can cause problems if they traverse matters that may prove either critical to the trial or, conversely, are inadmissible as evidence in court.138 Social media, through which people can quickly disseminate photos or videos captured on smartphones, makes it very difficult to stop the publication of what may become disputed eyewitness accounts.
Specific content and overall context are considered
2.16The courts consider the content, its accuracy and tone, as well as the medium and durability of a publication. Sensational aspects of a case may make a publication more enduring.139 While factual errors in reporting can generally be corrected by a subsequent judicial direction, courts consider sensationalism more difficult to eradicate.140 The medium of publication is also relevant when assessing impact. Over 10 years ago in Solicitor-General v Smith, a Full Court of the High Court said “television is widely acknowledged to have a more powerful reach than does radio, or the print media” due to television’s “ability to depict people and places in a way that can manipulate the emotions of viewers”.141 Today pictures and video can be posted on social media and have an even greater reach.
2.17At the same time, however, even sensational and sustained reporting of high-profile cases has not always been held to be contempt. A significant example of this occurred when Fairfax Media published excerpts of intercepted communications which led to the Urewera raids. The raids had generated a substantial amount of publicity and public interest due to the use of roadblocks and the prospect of New Zealand’s first prosecutions under the Terrorism Suppression Act 2002. The intercepted communications were inadmissible due to the Solicitor-General’s decision not to grant consent to prosecution for terrorism charges, and were subject to suppression orders from pre-trial decisions and a statutory prohibition of publication.142 Notwithstanding this, a Full Court of the High Court in Solicitor-General v Fairfax New Zealand Ltd concluded that the Solicitor-General:143
[H]as not proved beyond reasonable doubt that, as a matter of practical reality, the actions of the respondents in publishing the Fairfax articles caused a real risk of interference with the administration of justice by compromising the fair trial rights of the accused.
2.18In part the Court reached that conclusion because it considered the breaches of suppression orders and other unlawful conduct by the respondents should have resulted in their being prosecuted under the relevant statutory provisions rather than for common law contempt.144 As discussed earlier in [1.44], this approach may be contrasted with a recent English decision where a court found two defendants who had covertly photographed court proceedings guilty of contempt even though there was a specific statutory offence that covered the conduct.145
2.19As we discuss later in Chapter 7, we consider it preferable in new legislation to expressly address the question of whether the statutory offences are intended to replace contempt.146
Timing, locality and distribution of publication
2.20In earlier cases the timing of a publication was regarded as one of the most significant factors in determining whether the publication was in contempt. In the Gisborne Herald case, the Court of Appeal in 1995 said that, while “the exact lapse of time is not the touchstone”, a trial that is six to eight months away will make it difficult to justify the conclusion “that the influence of the article would have survived the passage of time”.147 The general tenor of the case law emphasises that time causes memory to fade – known as the fade factor – and reduces the prejudicial effect an offending publication may have.148 Publishing prejudicial information close to or during a trial has historically been much more likely to be in contempt.149
2.21With the internet, the fade factor and concepts of time and place are less relevant today as search technologies mean publishing is a continuous act and content is not easily erasable. The internet challenges the concepts of practical and partial obscurity that were characteristics of earlier times.
2.22The physical radius of distribution of a publication has also historically been considered relevant in assessing whether there is a risk to a fair trial. In the Gisborne Herald case, the Court held articles published in the Gisborne Herald paper, which included information about a defendant’s previous convictions and other charges, not to be in contempt in relation to a trial the accused faced in Napier because the Gisborne paper did not circulate in the Hawke’s Bay. The Court considered it “highly unlikely” that prospective jurors would have read it.150
2.23The courts now have to consider a publication’s potential audience and reach – all factors that may be relevant to the possible impact on a potential juror – differently. In Fairfax, the Court considered how it could accurately assess the prejudicial tendency of the articles published by Fairfax, given what it described as an “avalanche of content” already publicly available in both mainstream and social media. The full affidavit that formed the basis of the articles and had been ruled inadmissible during a pre-trial hearing was available on a number of publicly accessible websites before Fairfax published part of it. The Court commented that managing the risk of jurors accessing the affidavit from websites was “a normal trial risk in today’s electronic environment which would usually be addressed by appropriate jury direction”.151
2.24When assessing the reach or prominence of prejudicial content today, the Court may consider questions such as how high an item is ranked on a Google search and whether the item has been actively sent out to audiences (for example, via a television broadcast) or whether a potential juror would have to search out the material actively. For example, in a recent case concerning take down orders, the Court of Appeal upheld the High Court’s decision that old news articles that related to the original trial and remained online would not pose any real risk of prejudice to a retrial.152 The Court considered the defendant’s name was not in public consciousness and as long as the articles remained only accessible at their original uniform resource locator (URL) a potential juror would have to search the names of the defendant or the complainant actively to uncover the material and there was only a remote possibility of that occurring.153
2.25Publication contempt is less of an issue in judge-alone trials. The traditional approach followed by New Zealand courts is there is no real risk of adverse pre-trial publicity influencing a judge sitting alone.154 In Mwai v Television New Zealand Ltd McGechan J said“I dismiss outright the possibility of effects upon any future trial Judge. There is no possibility”.155 The traditional approach recognises the effectiveness of judicial independence. A publication is unlikely to be held to be in contempt only because of any risk it will influence a judge-alone trial.
2.26Contempt might, however, arise in relation to a judge-alone trial where there is a real risk that a publication might interfere with the evidence of witnesses. There is no recent authority, but in an older case publishing a photo of a person charged with murder was held to be in contempt because the photograph could influence a witness’s evidence on identity and the identity of the perpetrator was in issue in the case.156
Trial by media and maintaining public confidence in the courtsTop
2.27Publications have also been held to be in contempt when they seek to influence the outcome of a trial or usurp the role of the Court by prejudging issues before the Court. This is often referred to colloquially as trial by media. The concern here is not that the courts will be influenced but that perceptions of influence will undermine public confidence in the integrity of the courts.157 In Solicitor-General v Wellington Newspapers, Eichelbaum CJ and Greig J explained the rationale behind this contempt:158
If Joe Public is accused of an offence of which he believes he is innocent he will not wish to be tried in the media. When charges are laid in Court the public must be assured the issues will be decided in the Courts and nowhere else.
The Full Court, however, went on to consider whether the publication “as a matter of practical reality” posed a real risk to the trial,159 rather than whether it undermined public confidence in the courts. The Court held the newspaper guilty of contempt for reporting previous convictions and details concerning bail as well as publishing a prejudicial photograph.160
2.28Notions of trial by media or usurping the role of the courts as contempt come from much earlier cases. In 1939, in Attorney General v Tonks the newspaper The N.Z. Truth published an article calling on the Magistrates Court to impose a lengthy sentence on an offender who had been convicted of indecent assault.161 The then Supreme Court found the publication to have been “calculated to prejudice, obstruct, or interfere with the due administration of justice” and held the editor of The N.Z. Truth, Mr Tonks, in contempt of court.162 Myers CJ said that the public must have confidence that the courts are free from any extraneous influence.163 He considered that “public confidence must necessarily be shaken if there is the least ground for any suspicion of outside interference in the administration of justice”.164
2.29Contempt on this ground is, however, now less certain. There have been no recent New Zealand authorities and there is a question whether Tonks would be followed today. A recent example of a newspaper commenting on how an offender should be sentenced occurred when John Banks MP was before the High Court for sentencing in 2014 after he was found guilty of knowingly filing a false electoral return.165 The New Zealand Herald published an article in print and online under the heading, “Most want Banks to be convicted”.166 The article reported on an opinion poll undertaken by the newspaper as to whether Mr Banks should be discharged without conviction and, if not, what sentence was appropriate. The sentencing judge considered the article raised the possibility of contempt and referred the matter to the Solicitor-General. Contempt proceedings were not, however, taken against the paper.
2.30In our view the current position is probably that older cases like Tonks might not be followed. More recent decisions in the Australian courts take a more robust approach to public confidence in the courts. The Supreme Court of Victoria has said “the media and the public know the courts are not, and must not be, influenced – easily or at all – by extraneous matter”.167
2.31We suggest New Zealand courts would probably take a similar approach. Contempt proceedings were not, for example, taken against the New Zealand Herald in the Banks case discussed above.168 There is a greater tolerance of comment prior to sentencing because sentencing is done by a judge sitting alone.
2.32Contemporary New Zealand also places a high value on freedom of expression and is more tolerant of critical comment and robust discussion. Freedom of the press and other media (including social media) is not lightly interfered with in this context.
2.33The High Court has inherent authority to prevent contempt of court by issuing an injunction to stop a publication of material that poses a risk to a fair trial.169 The Court of Appeal has confirmed the High Court’s inherent jurisdiction to prevent the risk of contempt by issuing an injunction.170
2.34While courts have occasionally granted injunctions,171 they have repeatedly cautioned that prior restraint on freedom of expression will only be appropriate in the clearest of cases.172 Any such prior restraint must pass a high threshold.173 The test for granting an injunction is that it must show there is “a real likelihoodof a publication of material that will seriously prejudice the fairness of the trial”,174 which sets a higher threshold than the real risk test used in contempt proceedings following publication.
2.35When summarising the relevant law in this area, we also briefly mention suppression orders because these are the other key mechanism used to protect the integrity of a fair trial. Courts have a range of statutory and implied suppression powers. Under the Criminal Procedure Act 2011 a trial court may suppress the name and identity of the defendant,175 the identity of witnesses, victims and people connected with the trial (such as relatives and children)176 and evidence and submissions.177 The Act also provides for the automatic suppression of the identity of defendants and the identity of complainants in specified sexual cases,178 and the identity of child complainants and witnesses in any case.179 In addition, the Bail Act 2000 imposes restrictions on the publication of matters dealt with at any bail hearing.180
2.36The majority of the Supreme Court in the second Siemer case confirmed that where there is no statutory power applicable, courts can use their inherent authority or implied powers to make any suppression order necessary to protect or uphold the administration of justice and protect the fair trial rights of an accused.181 The majority said:182
[W]here publication of certain information would give rise to a real risk of prejudice to a fair trial right, freedom of expression may be temporarily limited by a suppression order in order to avoid that risk. In our view, this approach properly recognises the special importance of fair trial rights.
2.37The District Court has jurisdiction to make suppression orders under the Criminal Procedure Act 2011 for the purposes outlined above at [2.35]. Applying the Supreme Court decision in the second Siemer case, it appears the District Court may use its implied powers to make a suppression order prohibiting the publication of other information in situations not covered by the Criminal Procedure Act where that is necessary to protect the fair trial rights of a defendant.183 Exercising implied powers to make non-statutory suppression orders may include making orders requiring prejudicial material to be removed from publicly accessible websites (take down orders).184
2.38The majority of the Supreme Court in the second Siemer case considered that an interim ban, pending trial, on publishing material that gives rise to a real risk of prejudice to a fair trial is a reasonable limit on the right to freedom of expression in section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA).185 It is worth noting that the Court used the same “real risk of prejudice test” that applies to contempt. Suppression and contempt might therefore be viewed as alternative ways of addressing the same issue. We will return later to the role of suppression orders when we consider possible reforms.
118As we discussed at [1.15] the District Court, not having inherent jurisdiction, is not able to punish contempt where a publication interferes with a fair trial.
119Siemer v Solicitor-General  NZSC 68,  3 NZLR 441 at .
120Television New Zealand Ltd v Solicitor-General  1 NZLR 1 (CA) at 3.
121Bryan A Garner (ed) Black’s Law Dictionary (9th ed, Thomson Reuters, Boston, 2009) at 1562.
122Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563 (CA) at 569-571. Discussed below at [2.20].
123For example, the courts have suppression powers under s 19 of the Bail Act 2000 and ss 200, 202 and 205 of the Criminal Procedure Act 2011, and the High Court has authority under its inherent jurisdiction to make orders suppressing publication of its judgments: Siemer v Solicitor-General , above n 119, at .
124The Supreme Court in Siemer v Solicitor-General  NZSC 54,  3 NZLR 767 determined that the maximum penalty allowed by the common law for contempt must be less than that specified in s 24(e) of the New Zealand Bill of Rights Act 1990, which guarantees a person charged with an offence the right to a trial by jury. Since 2013 this has been two years’ imprisonment as a result of an amendment to s 24(e): New Zealand Bill of Rights Amendment Act 2011, s 4.
125In the United Kingdom the Attorney-General’s department estimated that one particular abandoned trial resulted in the waste of approximately £80,000 ($145,000 NZ) of costs to the Court Service and Court Prosecution Service; Attorney General’s Office (UK) “Two jurors found guilty of contempt of court” (press release, 9 June 2016).
126Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 567.
127Solicitor-General v W & H Specialist Publications Ltd  3 NZLR 12 (HC) at  (emphasis added).
128Solicitor-General v Wellington Newspapers Ltd  1 NZLR 45 (HC) at 47.
129See for instance Solicitor-General v TV3 Network Services Ltd HC Christchurch M 520/96, 8 April 1997 at 7 per Eichelbaum CJ.
130Solicitor-General v TV3 Network Services Ltd (1998) 16 CRNZ 401 (HC) at 410. See also Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV-2008-485-705, 10 October 2008 at .
131Solicitor-General v Radio New Zealand Ltd  1 NZLR 48 (HC) at 55–56.
133See Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 567: “… it is not possible to lay down an exhaustive checklist of items which it is contemptuous to publish. Attempts have been made to do so, but are subject to objection for at least two reasons. In the first place, it is impossible for anyone to foresee accurately and with omniscience every type of publication which is capable of creating prejudice. In the second place, it is not just the type of publication which is relevant, but also the circumstances of its publication.” (emphasis in original).
134Solicitor-General v TV3 Network Services Ltd, above n 129, at 10.
136Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 568.
137In one case, N.Z. Truth’s publication of a photo of a person charged with murder was a contempt as it was reasonably clear that identity would be in issue and publication of the photograph could make “a perfectly honest witness feel certain of identity when he might otherwise have felt some doubts”; Attorney-General v Tonks  NZLR 141 (SC) at 153.
138Television New Zealand Ltd v Solicitor-General, above n 120, was an injunction case where TVNZ proposed to broadcast interviews of neighbours and friends of a person that Police were searching for in relation to a murder. The Court of Appeal, in obiter, said the proposed broadcast “verges on a report of interviews with potential witnesses, which may amount to contempt”: per Cooke P at 3.
139See for example Gisborne Herald Co Ltd v Solicitor-General, above n 122, in which the publication detailed an attack on a Police officer by a person on bail at the time. The officer’s wife gave birth on the night of the attack and was sent to the spinal unit where the officer was being treated. The sensational aspect of the facts was relevant to the finding of contempt.
140Solicitor-General v TV3 Network Services Ltd, above n 129, at 9.
141Solicitor-General v Smith  2 NZLR 540 (HC) at .
142Solicitor-General v Fairfax New Zealand Ltd, above n 130, at –, – and .
143Solicitor-General v Fairfax New Zealand Ltd, above n 130, at .
145Solicitor-General v Cox  EWHC 1241 (QB),  2 Cr App R 15.
146See chapter 7 at [7.20]–[7.21]. An example of a statutory provision that expressly addresses the question of replacing contempt is s 3 of the Protection from Harassment Act 1997 (UK). That provision provides that the offence under that section is an alternative and not a replacement for contempt.
147Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 570–571.
148See for example Solicitor-General v Broadcasting Corporation of New Zealand  2 NZLR 100 (HC); Solicitor-General v Fairfax New Zealand Ltd, above n 130; Television New Zealand Ltd v Solicitor-General, above n 120; Mwai v Television New Zealand Ltd HC Auckland CP 630/99, 19 October 1993; Rahimi v Television New Zealand (2000) 6 HRNZ 79 (HC); and Burns v Howling at the Moon Magazines Ltd  1 NZLR 381 (HC); Attorney General v Birmingham Post and Mail Ltd  1 WLR 361 (QB);  4 All ER 49; Attorney General v MGN Ltd and another  EWHC 2074 (QB).
149Solicitor-General v TV3 Network Services Ltd, above n 130, at 409.
150At the same time, the Court found that the article was nevertheless in contempt because there was a real risk of it interfering with a fair trial on different charges in Gisborne: Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 570–571.
151Solicitor-General v Fairfax New Zealand Ltd, above n 130, at . See also chapter 4 at [4.15]‒[4.17].
152L v R  NZCA 279,  2 NZLR 21 at ‒.
154See Hickmott v Television New Zealand Ltd HC Auckland CP 213/93, 31 March 1993 at 5; Mwai v Television New Zealand Ltd, above n 148; and John McGrath QC “Contempt and the Media: Constitutional Safeguard or State Censorship?” (1998) NZ Law Review 371 at 378. In Solicitor-General v Smith, above n 141, the Full Court of the High Court noted at  that there was some English and Irish authority that “Judges, despite their training and experience, are only human and are not ‘entirely aloof from the pressures to which other members of the public are susceptible’”.
155Mwai v Television New Zealand Ltd, above n 148, at 735.
165R v Banks  NZHC 1244,  3 NZLR 256 (reasons for verdict); R v Banks  NZHC 1807 (sentence); conviction quashed and retrial ordered in Banks v R  NZCA 575; judgment recalled and verdict of acquittal entered in Banks v R  NZCA 182. Mr Banks, who had been a candidate for election as Mayor of Auckland, was found guilty and was convicted in the High Court on one charge under s 134(1) of the Local Electoral Act 2001 of being a candidate for election, transmitting a return of electoral expenses, knowing it to be false in one or more material particulars. He successfully appealed against the conviction and the Court of Appeal initially quashed the conviction and ordered a retrial, before subsequently recalling that judgment and entering a verdict of acquittal.
166Derek Chang “Most want Banks to be convicted” The New Zealand Herald (New Zealand, 7 July 2014) at A8.
167R v The Herald and Weekly Times Pty Ltd  VSC 94 at .
168Another example of a situation where the media have commented on a case when it is still before the court is the “March for Moko” campaign. The organisation of the march was started off by an article by Duncan Garner “A little boy is dead – now who will march for Moko?” The Dominion Post (online ed, 7 May 2016). Following the article a Facebook page was set up to gain wider attention. The Court of Appeal in R v Liddell  1 NZLR 538, (1994) 12 CRNZ 458 at 546 noted the potentially counter-productive nature of such campaigns to influence the courts.
169These are known as quia timet (“because he fears”) injunctions. The Crown or defendant in a criminal trial may apply for an injunction. In other contexts, other parties to litigation may also seek quia timet injunctions to prevent other forms of contemptuous publication.
170Television New Zealand Ltd v Solicitor-General, above n 120, at 3.
171For example, in Television New Zealand Ltd v Solicitor-General an ex parte injunction was originally granted restraining Television New Zealand from broadcasting certain material. The injunction was later rescinded on appeal by the Court of Appeal; Television New Zealand Ltd v Solicitor-General, above n 120, at 3. See also Attorney-General v TV3 Network Services Ltd HC Invercargill CP2/96, 8 March 1996, in which an injunction was granted to restrain TV3 from showing a documentary. Later, the High Court declined to extend the injunction in Attorney-General v TV3 Network Services Ltd HC Invercargill CP2/96, 16 August 1996.
172See generally Cheer, above n 133, at 567‒568; and Jesse Wilson “Prior Restraint of the Press”  NZ L Rev 551. See also Beckett v TV3 Network Services (2000) 6 HRNZ 84 (HC) at , in which Robertson J stated that “[a]ny prior restraint of free expression must pass a high threshold”; and the reference to the need for “clear and substantial evidence” for an injunction to prevent contempt in Hickmott v Television New Zealand Ltd, above n 154.
173Bouwer v Allied Press Ltd (2001) 19 CRNZ 119 (CA) at ; and Beckett v TV3 Network Services, above n 172, at .
174Television New Zealand Ltd v Solicitor-General, above n 120, at 3 (emphasis added).