HOLLAND v DEPARTMENT OF CORRECTIONS [2019] NZHC 2488

HOLLAND v DEPARTMENT OF CORRECTIONS [2019] NZHC 2488 [1 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-1019-404-000415[2019] NZHC 2488IN THE MATTER OF an appeal against refusal to grant namesuppressionBETWEEN GLENN HOLLANDAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 1 October 2019Counsel: C G Wright for the AppellantB M Finn for the RespondentJudgment: 1 October 2019(ORAL) JUDGMENT OF EDWARDS JSolicitors: Ministry of Justice (Public Defence Service), AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] Mr Holland appeals a District Court decision declining to grant him namesuppression.1 Mr Holland faces charges of breaching his extended supervision order(ESO). He pleaded guilty to one of those charges at the conclusion of a Judge-alonetrial. The District Court Judge has reserved her decision on the other three charges.[2] Mr Holland sought name suppression on the basis of a fear of harm at the handsof other prisoners while on remand. He also sought to prevent publication ofphotographs identifying him as a convicted child sex offender. Mr Holland wasassaulted in 2012 while on remand and he relies on those prior assaults in support ofhis application.Alleged offending[3] Mr Holland has a history of sexual offending and convictions for thepossession of child pornography. He was made subject to an ESO on 18 February2016. Conditions of that ESO prohibited Mr Holland from engaging in a businessventure and accessing the internet or possessing or using any device capable ofaccessing the internet and/or capturing, storing, accessing or distributing images,without the prior written approval of a probation officer.[4] In November 2018, Mr Holland's probation officer was provided with a letterwhich stated that he had been in contact with a mother and her 11 year old child withthe intention of setting up a teen girl pop music group and video. The Department ofCorrections says that Mr Holland had been using a nearby print shop to send andreceive email correspondence from an associate in Russia regarding the girl band andmusic video.[5] Police obtained copies of Mr Holland's other correspondence in which he isalleged to have detailed plans for the girls to be filmed naked on the beach in the water.[6] While conducting a search warrant of Mr Holland's room on 18 December2018, the police found three mobile phones capable of accessing the internet andtaking and storing digital photographs. They also found folders (titled "Rag Doll")1 Department of Corrections v Holland [2019] NZDC 18177.relating to this music project and allege that Mr Holland ran an advertisement in theNew Zealand Herald in relation to an investment opportunity in the music industry.[7] Mr Holland did not have permission from his probation officer to engage inthis activity.District Court decision[8] The trial proceeded by way of Judge-alone trial before Judge D F Clarkson. Itcommenced on 14 June 2019 but was adjourned part-heard to 18 September 2019.[9] An application for name suppression was not made at the outset but appears tohave been prompted by a media application made on 3 September 2019 to film and tophotograph the rest of the trial.[10] In support of the application for name suppression, and in opposition to themedia application, Mr Holland placed reliance on an alleged assault on 30 March 2012when he was held on remand. The respondent, the Department of Corrections, initiallyadvised that it had no record of this assault and that was the position when the Judgeissued her decision (which is the subject of this appeal) on 17 September 2019.[11] In that decision, the Judge referred to the grounds relied on by Mr Holland ins 200 of the Criminal Procedure Act 2011 and referred to the two-stage enquiry whichmust be undertaken under this section. As to the first stage, the Judge found thatMr Holland had not made out the grounds in either s 200(2)(a) or (e) to the requisitestandard.2 She further observed that if found to be wrong about that, then she wouldhave nevertheless declined to grant name suppression in the exercise of her discretionat the second stage.3[12] The Judge said that there was a genuine public interest in understanding howESOs work and how alleged breaches are dealt with.4 The Judge also agreed with theprosecution that it was important for the public to be aware of the evidence of the2 At [11].3 At [15].4 At [15]–[17].alleged business venture given that the allegation was to create opportunities for thedefendant to have contact with, and control over young girls and create music videosin which those young girls would remove their clothing.5 The application wasaccordingly dismissed.[13] On 18 September 2019, the Department of Corrections filed a memorandumconcerning two assaults on both 16 February and 30 March 2012. Mr Holland soughtto revisit the decision in reliance on the earlier assault of 16 February 2012. However,the Judge refused that application indicating that the evidence of the two assaults madeno difference to her decision.[14] The District Court Judge granted interim name suppression to allow this appealto proceed and directed that any photographs and notes of the hearing were not to bepublished while name suppression was in place.The law[15] Name suppression for the defendant is governed by s 200 of the CriminalProcedure Act 2011, the relevant parts of which provide:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(e) endanger the safety of any person; or5 At [18]–[19].[16] Section 200 requires a two-stage enquiry. First, the Court must decide whetherpublication is "likely" to have one of the effects set out in s 200(2). If that thresholdis met, then the Court must go on to consider the second stage, that is, whether toexercise a discretion to grant name suppression.[17] An appeal from an order declining to grant name suppression proceeds unders 283 of the Criminal Procedure Act 2011. The first stage of the two-stage test is amatter requiring judicial assessment and therefore ordinary appellate principles apply.The second stage, however, involves the exercise of a discretion. Accordingly, anappellant must establish that the Judge acted on a wrong principle, failed to take intoaccount some relevant matter, took into account some irrelevant matter, or was plainlywrong. The present appeal relates primarily to the first-stage enquiry.Should the appeal be allowed?[18] Counsel for Mr Holland submits that the Judge erred by failing to giveadequate weight to the prior assaults. He submits that this evidence provides asufficient basis for saying that it is likely that Mr Holland will suffer harm if his nameis published.[19] I do not consider that the evidence of prior assaults in 2012 suggests thatpublication is likely to cause Mr Holland extreme hardship or place his safety at risk.The word "likely" means more than a mere possibility, and more than mere speculationabout the possible consequences.6 Just because Mr Holland was assaulted some sevenyears ago does not establish that it was as a result of publication at the time. Moreimportantly, it does not give rise to a risk that publication of the alleged offences thistime round will also result in Mr Holland suffering further assaults. There isinsufficient evidence to suggest a causal link between publication and the risk of harmin this case.[20] The Court of Appeal decision in MS v R also poses some difficulties forMr Holland.7 One of the grounds for suppression put forward in that case was that the6 Huang v Serious Fraud Office [2017] NZCA 187 at [9]–[10].7 MS v R [2016] NZCA 544.defendant had been assaulted by his cellmate on the mere suspicion that he was thedefendant in that case. The Court of Appeal rejected this ground of appeal, noting thefollowing:[11] MS placed reliance upon the Judge's statement that it would "set avery unfortunate precedent if a Judge were to suppress details of identity andalleged offending on the assumption that the Prison Service cannot put in placeproper measures to safeguard people in their custody". We see nothing wrongin this observation. The courts proceed on the basis that the Department ofCorrections will comply with its statutory obligations to ensure the safecustody and welfare of prisoners, absent evidence that it is failing to do so.MS has been assaulted and the Department is obliged to take steps to ensurethat does not happen again. There is no evidence the Department will not dothat.(footnotes omitted)[21] Counsel for Mr Holland seeks to distinguish this decision on the grounds thatthe above paragraph is premised on the presumption that the Department ofCorrections is capable of protecting prisoners from assaults. He says that the evidenceof two prior assaults in 2012 rebuts that presumption in this case. The fact that thesecond assault occurred after measures were put in place following the first assaultsuggests, in counsel's submission, that the Department of Corrections is not able toprotect Mr Holland effectively.[22] I do not consider this to be a sufficient basis to distinguish the Court of Appealdecision. Even if an inference that the Department of Corrections failed to protectMr Holland from the second assault could be drawn, it does not follow that theDepartment of Corrections will fail to take the necessary measures to ensureMr Holland is protected this time, some seven years later. As the Court of Appealobserved in MS, the Department is obliged to ensure that such assaults will not happenand there is no evidence that it is incapable of putting in place the necessaryprotections.[23] Counsel for Mr Holland has put forward the best possible case on appeal forhis client, but it follows from my reasoning that I am not satisfied that theDistrict Court Judge erred in finding that threshold had not been met in this case. Inthe circumstances, the Judge was right to decline the application for name suppression.Result[24] The appeal is dismissed.___________________Edwards J