Tapaitau v Kenny [1979] CKHC 7 (13 March 1979)

IN THE HIGH COURT OF THE COOK ISLANDS
AT RAROTONGA

IN THE MATTER of a request by the COOK ISLANDS for
the Extradition of FINBAR KENNY of New York, Director,
from the United States of America

BETWEEN

TEPURE TAPAITAU of Rarotonga, Inspector of Police
INFORMANT

AND

FINBAR KENNY of New York, Director
DEFENDANT

Counsel: D.S. Morris for informant, with S.B.W. Grieve
R.L. MacLaren for the defendant

Hearing: 13 March 1979

RULING OF BEATTIE J

New Zealand counsel for Mr. Finbar Kenny, a citizen of the United States of America, has requested that this court orders non-publication of the evidence gathered in support of the application for extradition of Kenny.

Leaving aside the question of any right of appearance for Kenny at the stage of matters (this being an ex parte proceeding) the Court was invited to suppress publication on the grounds that irreparable harm might be done to Kenny in his own country where, I was informed, no publicity has yet occurred.

It was suggested that the Court could grant the application pursuant to s. 408 of the Cook Islands Crimes Act 1969. Section (1) thereof reads:

"(1) Where on any trial the Court is of opinion that the interests of justice or of public morality or of the reputation of any victim of any alleged sexual crime or crime of extortion require that all or any persons should be excluded from the Court for the whole or any part of the proceedings, the Court that those persons be excluded accordingly:

Provided that the power conferred by this subsection shall not be exercised for the purpose of excluding the prosecutor or the accused, or his agent or any barrister or solicitor, or any accredited newspaper reporter."

It will be apparent that this power is relevant to an actual trial; this matter is not at that stage and I doubt if the section is applicable. But having again read the 31 affidavits in support of the application for extradition and having regards to the wide publicity that this total case has had especially here and in New Zealand, I am of the opinion that the public interest demands that the right of publication be not suppressed. Indeed, Mr. Kenny and his advisers, as well as Mr. Little and his lawyers, have prepared comprehensive statements which they furnished to senior Cook Islands Police Officers variously in Los Angeles, Rarotonga, and Auckland. To that extent Mr. Kenny and Mr. Little cannot claim they have been taken unaware of what is involved, and have had a fair opportunity of putting their side of the matter. It is better that what has been the subject of much conjecture should receive accurate reporting.

In allowing publication, I direct the Press and other branches of the media to refrain from publishing extracts from personal diaries. That part of this ruling will be reviewed on the Court reconvening on 18^th June 1979.

Dated at Rarotonga this 13^th day of March 1979.