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Court

Cardinal John Dew fails in Supreme Court bid to block Newshub reporting sex abuse claim against him

Warning: This story contains content some may find confronting.

New Zealand's highest-ranked Catholic priest has failed in a Supreme Court bid to block Newshub reporting on child sex abuse accusations made against him.

Cardinal John Dew, who delivered the church's public apology to victims of clergy abuse in 2021, took Newshub's owner Discovery NZ Ltd to the Supreme Court to stop the broadcast.

The Supreme Court judgement said the story recounts allegations of alleged victim Steven Carvell who was 7-years-old when he stayed at St Joseph's Orphanage in Upper Hutt in 1977.

Police investigated a complaint made by Steve Carvell but have closed the case and decided not to lay charges. 

Carvell asked a District Court judge to waive his automatic right to name suppression and signed a sworn affidavit so Newshub could tell his story.

Dew, who strenuously denies the allegation, was the leader of the Catholic Church in New Zealand until he retired in May.

Newshub had planned to publish Carvell's claims in August but Dew sought an urgent injunction against Newshub in the High Court.

Justice Matthew Palmer declined Dew's application for an urgent injunction, saying in a written decision the allegations "are a matter of public interest" but allowed him time to appeal.

Former Attorney-General and National MP Christopher Finlayson KC acted on behalf of two nuns who joined the legal action to block the story.

The appeal was dismissed but Dew sought leave to appeal to the Supreme Court.

In a judgment made public on Thursday, Supreme Court Justices Stephen Kós and Forest Miller dismissed the application to hear the appeal - clearing the way for publication of the story.

The Supreme Court said this was not an appropriate case to revisit the existing rule that a court will only restrain publication of defamatory material for clear and compelling reasons.

They concluded Newshub's defences of truth and it is a responsible communication on a matter of public interest could be tested at a potential future trial.  

In a statement, Dew said he found out about the allegation on May 6 last year - a day after announcing his reitrement.

"I stated immediately, and state again now, that there have never been any instances of improper or abusive behaviour in my 48 years of priesthood," he said. "I learned that the complaint made against me had been submitted to the Royal Commission of Inquiry into Abuse, the Church's National Office for Professional Standards and the police. I followed church protocols and stepped aside from any ministry while the police were investigating this.

"Thirty weeks later I was interviewed by the New Zealand Police in the presence of my lawyer.

"From the moment, I was told of this alleged behaviour I have strenuously denied that the events described ever happened."

Dew said the matter was thoroughly investigated by the police.

"The police have informed me that this investigation has now been concluded, their file has been closed and no charges will be laid against me.

"From the time that I became a Bishop, I have lived by my Episcopal motto, 'Peace through integrity.' Integrity has always meant a great deal to me and the words of that motto have guided my life. 

"I do not know the person making the allegations and have never met him.

"The allegation against me is false, it may come from a well of anguish and grief arising from other reasons.

"I am acutely aware of how distressing this is for many; survivors who have put their trust in me, our church community and my family and friends."

All incidents of abuse were wrong, he concluded.

"I restate that these alleged events never happened," Dew said. "I have nothing further to add."

The High Court arguments

Cardinal Dew's High Court application for an injunction to stop publication stated that "the allegations are false."

His barrister Peter McKnight argued there was no public interest or importance in publicising the allegation which he said "would be a mere act of gossip and titillation."

"The source of the allegations, one person's memories of events some 46 years ago, is not reliable," said McKnight in his court filing.

In an affidavit, Dew said the sex abuse "allegation is entirely untrue".

He said that publication would be a breach of his privacy and would "forever damage me and those whom I love and look to me for support."

"I do not know why TV3 deem it so important to publish this now," said Dew.

"I have been at the forefront of the Church response to abuse allegations and know better than most the suffering of victims.

"I fear that this person, who I do not know, may well have been a victim suffering trauma from some source and, that he too may be victimised by the broadcast TV3 are planning," he wrote.

Justin Graham, the lawyer acting for Newshub, told the court there was "compelling public interest" in the police investigation because Dew had been the leader of the church and had delivered the church's public apology.

"The reporting, based on two months of careful investigation with corroboration of crucial details, is responsible," said Graham in his submission.

"Discovery is a responsible media organisation which does not publish gossip or titillation and nor does it publish recklessly," he said.

"To suggest it does is disrespectful of the victims who are trying to have their stories told."

Justice Palmer agreed the allegations were a matter of public interest due to Cardinal Dew's former role as Archbishop of Wellington and the apology he delivered to victims on the church's behalf at the Royal Commission.

"The very existence of the Royal Commission demonstrates the public interest in historic abuse in the care of faith-based institutions," said Justice Palmer.

"The allegations invite public attention and can be expected to be of substantial concern to the public," he said

"I do not consider that the Court stepping in now to prevent publication by issuing an interim injunction would be a reasonable limit on the right to freedom of expression that can be demonstrably justified in a free and democratic society.

"Neither do I consider it would be in the overall interests of justice."

"In my view, the interests of the right of the complainant, Newshub, and the public to freedom of expression about a matter of public interest outweigh the reputational interests of the applicant not to be exposed to adverse publicity," he said.

The High Court hearing took place on August 7 2023, the day Newshub planned to air the story.

Justice Palmer declined Dew's application for an injunction but did grant his legal team time to appeal.

Two nuns then sought to join his appeal proceedings and hired a legal team that included high-profile Wellington barrister Christopher Finlayson KC - who served as Attorney-General under the Key government.

The Court of Appeal initially denied the nuns request to join the proceedings, but they were later allowed to after going to the High Court and also failing in a bid to seek urgent injunctions against Newshub.

Cardinal Dew's appeal

Cardinal Dew's legal team told the Court of Appeal that reporting the allegations could compromise his fair trial rights and undermine his right to seek name suppression, if he were to be charged.

But Newshub's lawyer, Davey Salmon KC said that freedom of expression should not yield to claims of prejudice to fair trial rights.

The panel of three judges decided that said "we do not think it can be assumed that a fair jury trial could not take place."

They declined the name suppression argument too, saying that preventing the broadcast "would be to guard against an eventuality that might never occur and that is not an appropriate course having regard to the importance of the principle of freedom of speech."

Dew's team also argued that a person under criminal investigation should have a reasonable right to privacy.

Newshub said it wasn't the fact of a police investigation Dew wanted to conceal, but the allegations themselves.

The panel found Steve Carvell's right to tell his story outweighed Dew's claim to privacy.

"If the allegations are true, given their nature, we consider Mr Carvell's right to speak would clearly outweigh any privacy interest attaching to the conduct," they said.

Dew's lawyers claimed the District Court judge has suppressed details of the offending, but the judges supported Newshub's submission that the judge was merely suppressing a paragraph in his own judgement.

Their final ground for appeal claimed that Newshub's defences of truth and responsible public interest communication did not have a reasonable possibility of success, if a defamation trial were to be held.

Newshub said it has not been shown the defence would fail and that the evidence - which outlined the steps of Newshub's investigation - showed it had acted responsibly.

The judges said they could not properly reach a conclusion on this point and said that was "further reason for denying interim injunction relief."

Cardinal Dew's appeal was dismissed.

The sisters' appeal

The two nuns who joined the proceedings did so on the grounds they might be identified and defamed by the news story.

Steve Carvell alleges a nun was involved in a game of tag in the male dormitory with himself and Dew that became sexual in nature.

Newshub had already chosen not to name that nun in its broadcast, as it could not independently verify her presence at St Joseph's orphanage in Upper Hutt 1977 - when Carvell said the abuse occurred.

The Sisters of Mercy, which ran the now-defunct orphanage, refused Newshub's request to access its records of staff at St Joseph's in 1977, citing privacy grounds.

In their court filing, the nuns asked the court to prevent Newshub from making any reference to a nun, or Sister of Mercy.

They also sought to block the naming of St Joseph's Orphanage as the location of any alleged abuse in 1977.

In the High Court, Justice Palmer found on the balance of convenience neither of the women would be defamed and denied the nun's bid for an injunction to block the story.

In their Court of Appeal submissions, the two nuns said that even if not named there was a risk they would be identified by association and that there would be an inference that the sisters in charge at the time must have at least turned a blind eye to abuse.

Newshub said the news story would make no suggestion that other sisters were involved.

The Court of Appeal judges agreed the two nuns would not be defamed as they were not being named.

Their lawyer Mary Hubble argued that, Justice Palmer had failed to give sufficient weight to evidence they had submitted and challenged his ruling that the broadcast was in the public interest.

Hubble said that on the facts before the court, Steve Carvell's allegation of sexual abuse against a nun did not occur.

In a series of affidavits, the Sisters of Mercy congregation leader Sue France said the allegation against the nun are "demonstrably untrue".

Sister France said in the year the abuse was said to have occurred, the nun Carvell named was living and working full time in Palmerston North - not at St Joseph's Upper Hutt.

Newshub's lawyer said her residing elsewhere did not rule out the possibility she may have visited St Josephs at the time of the offending.

Sister France said it would be "virtually impossible" that she would've been able to take leave from the Palmerston North convent to visit Upper Hutt.

They also challenged Steve Carvell's claim that a game of tag took place in the dormitory.

A nun who worked at the Orphanage in the 1970s provided a statement to the court saying there was no soundproofing between the boys cubicles.

The court was also provided with an affidivit from Michael Ellis, who stayed at the orphanage as a child at the same time as Carvell.

Ellis didn't remember Carvell and had no recollection of the game of tag.

"It would not be possible for a game of tag to have been played in the dormitory in the middle to the night without waking us all", said Ellis.

The judges noted that "there are aspects of Mr Carvell's complaint which might be difficult to sustain" and that "there are difficulties too with the scenario in which the abuse evolved from a game that apparently involved vigorous movement around the dormitory."

They said providing the story made clear that Carvell accused only one sister of abuse, and made clear that unnamed sister did not reside at St Jospehs at the relevant time, then the two nuns would not be defamed.

The appeal judges dismissed the nuns appeal saying they could not conclude that there was no reasonable possibility Newshub could mount a successful defence at a potential future defamation trial.

The Supreme Court said this was not an appropriate case to revisit the existing rule that a court will only restrain publication of defamatory material for clear and compelling reasons.

They concluded that Newshub's defences of truth and that it is a responsible communication on a matter of public interest could be tested at a potential future trial.

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