Former Deputy Commissioner Jevon McSkimming. Photo: Getty Images
A High Court judge has reserved her decision on whether the media should be allowed to report the nature of the allegedly objectionable material found on former deputy commissioner Jevon McSkimming's work computer.
McSkimming resigned as the country's second most powerful cop last month amid a four-month investigation by the Independent Police Conduct Authority and police.
His resignation came after Police Minister Mark Mitchell said he was recently informed of allegations of a "very serious nature", separate to the investigation that led to him being suspended.
RNZ earlier revealed pornography found on McSkimming's work computer is being investigated as alleged objectionable material. He declined to comment on the allegations through his lawyer.
His lawyer Linda Clark was earlier granted a rare "superinjunction" by Justice Grau that prohibited reporting the nature of the allegedly objectionable material, as well as the existence of the injunction itself.
A teleconference was then held by Justice Gwyn from the High Court at Wellington to discuss the injunction with Clark, the police, and legal counsel for RNZ, Stuff and NZME.
Following the conference, the order prohibiting publication of the nature of the allegedly objectionable material was continued, but the order prohibiting the existence of the injunction was not continued, meaning RNZ could report the fact of McSkimming's application and the interim result.
On Tuesday, a hearing was held in the High Court at Wellington before Justice Karen Grau in relation to the injunction. RNZ, NZME and Stuff were jointly represented by Robert Stewart KC.
McSkimming's lawyer, Linda Clark, began proceedings by telling the court she was seeking orders extending the current interim orders prohibiting media from disclosing the nature of the allegedly objectionable material reportedly found on his work device or devices.
The order was sought until further orders of the court.
Clark alleged information deemed "essential" to the investigation had been leaked to the media who were intending to publish the information.
She said the orders sought were necessary to protect the rights of someone who is subject of an ongoing police investigation and who may yet be charged with a criminal offence.
The information gathered during the police investigation was "confidential", she said.
In relation to public interest, she said there was already information in the media about McSkimming. She said the public interest would be served in the event he was charged and stood trial.
McSkimming was on notice that the police investigation was into material purportedly found on his devices. He had been told he would be invited to a formal interview, however, no request has been received to date.
A police document, classified as "confidential", would be "the centrepiece of any criminal prosecution," Clark said.
"It's on the basis of that information that the police can decide whether to continue the investigation, whether to look further and whether to charge, and what to charge."
She said there was also an issue in terms of privacy, and said a person under criminal investigation, prior to being charged, has a reasonable expectation of privacy in respect of information relating to the investigation.
Clark said she was trying to "preserve Mr McSkimming's rights to engage the Criminal Procedure act if and when he's charged".
She said that every time police had provided some substantive piece of information to McSkimming it had appeared within the media "in a day or two days without exception".
Clark said there was public interest in McSkimming's situation. She said public interest had been served to date.
"If he is charged... there will be further opportunity for media to publish more information on charges themselves and during and after any trial," she said.
"But publication now of any more information about the nature of the objectionable material found on his computer will cause serious and irreversible harm."
It would harm his reputation, curtail his ordinary rights under the Criminal Procedure Act, and in the event he was charged and elected trial by trial, it could impact his chance of trial by jury.
"At this time he's still an innocent man who is entitled to all of the protections of a fair trial and the right to seek suppression orders."
Stewart KC said a memorandum from police said they were still investigating, and no charging decision had been made.
He said there was two sorts of harm that could be considered, one of which was harm to the police investigation. He said the police had no concern that further disclosure of the material would impact their investigation, or impact their decision whether or not to charge.
In relation to right to a fair jury trial, Stewart KC said juries can be trusted to obey judicial directions about only dealing with the charges based solely on the evidence and to ignore pre-trial publicity.
In relation to privacy, Stewart KC said McSkimming was "quite clearly" a public figure.
"There is a huge public interest in these investigations into Mr McSkimming's abrupt resignation from office, first working day after he had been provided with the material by the Public Service Commission."
Stewart KC said his clients submitted that if the interim restraint should be continued, then "matters should be left to take their course, if there is to be any restraining at all, it should be as limited as possible for as short as possible."
Crown prosecutor Stephanie Bishop, appearing for police, told the court that police did not oppose the application.
