Christopher Luxon answers a question on the resignation of the Police Deputy Commissioner
A court will today hear arguments on whether to allow details of alleged objectionable material on Jevon McSkimming’s computer to be published.
McSkimming, the former deputy police commissioner, is seeking the continuation of an injunction to keep the information under wraps.
The injunction is opposed by NZME, Radio New Zealand and Stuff, which are jointly represented by Robert Stewart KC.
A fight for the right to reveal the nature of alleged objectionable material found on former top cop Jevon McSkimming’s computer is happening in court today.
The ex-deputy police commissioner was earlier granted a “super injunction” to stop media organisations from publishing new details about the criminal investigation he faces- or even that the injunction existed at all.
The rare legal step was made by his lawyer, Linda Clark, who sought an urgent High Court order last month to prevent publication of the nature of the alleged objectionable material found on his work computer, which ultimately led to his resignation.
McSkimming had been suspended on full pay since December while under a separate criminal investigation - the nature of which also cannot be reported currently for legal reasons - following a complaint by a member of the public.
It is understood that the material found on his devices is being assessed as to whether or not it could be classified as objectionable, which could lead to criminal charges.
Clark’s application for an injunction was not opposed by lawyers for the New Zealand Police, and was granted on an interim basis by Justice Karen Grau.
Deputy Police Commissioner Jevon McSkimming. Photo / Mark Mitchell
The battle over the main injunction is to be held in the Wellington High Court today, where it is opposed by NZME, Radio New Zealand and Stuff, which are jointly represented by Robert Stewart KC.
An interim injunction, where a court makes an order restraining someone from doing something, is a legal procedure providing options to plaintiffs who say they will suffer irreparable harm from the respondent’s actual or threatened conduct, said barrister Kevin Glover.
Glover, who has extensive experience with injunction applications, said rules about how discretion for such applications should be exercised have been developed in case law over time.
Unlike something such as name suppression, for which there is clear threshold that should be met for an application to be granted, the tests for the court to consider when deciding whether to grant an injunction application are not set out in legislation.
However, “the principles governing whether or not an injunction should be issued are very well established. The principles are more important than precedents because interim injunctions will often have quite unique facts,” Glover said.
“The court is concerned with putting in place a fair and reasonable holding pattern which will enable the future trial judge to do justice to the parties.
“The court looks at the overall justice of the case, and in doing so has regard to whether there is a serious question to be tried, and the balance of convenience.
“Serious question” is about assessing whether there are tenable legal claims which will need to be decided at trial, he said.
“It is not about the court working out who will win at trial, as interim injunctions are decided on the basis of less material than will be before the court at trial.”
Most interim injunctions are decided based on the balance of convenience, meaning the judge will look at the relative impact on the parties ahead of trial if the injunction were to be granted or declined.
“The overall justice of the case requires the court to consider in the round what the fairest option is. The serious question and balance of convenience elements help to work through what the overall interests of justice are, which also takes into account the conduct of the parties and delay.”
- Additional reporting by Jared Savage
Jared Savage covers crime and justice issues, with a particular interest in organised crime. He joined the Herald in 2006 and has won a dozen journalism awards in that time, including twice being named Reporter of the Year. He is also the author of Gangland, Gangster’s Paradise and Underworld.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice, and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
