Carruthers v Police [2018] NZHC 187 (19 February 2018)

Last Updated: 2 August 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-77 [2018] NZHC 187

BETWEEN	SIMON DAVID CARRUTHERS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 February 2018
Counsel:	Appellant in person T Needham for Respondent
Judgment:	19 February 2018

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 19 February 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Crown Solicitors, Hamilton

CARRUTHERS v POLICE [2018] NZHC 187 [19 February 2018]

[1] Mr Carruthers pleaded guilty to one charge of unlawfully taking a child with intent to deprive a parent of a child and one charge of breaching a parenting order. He sought discharge without conviction pursuant to s106 of the Sentencing Act 2002. Judge Simon Menzies declined the application, entered the convictions, and made an order committing Mr Carruthers as a patient under s34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act). Mr Carruthers appeals the decision refusing the s106 discharge. Mr Carruthers was late filing his notice of appeal. However, the Police have raised no issues with this. Accordingly, leave to appeal is granted.

[2] The central issue on appeal is whether fresh evidence of Mr Carruthers mental health condition both at the time of the offending and now means that he should have been discharged without conviction.

Background

[3] Judge Menzies succinctly sets out the background, which I adopt:¹

[3] The background circumstances as set out in the summary of facts describe events stemming from the making of a parenting order in October 2016 in the Wellington District Court. On Wednesday 8 December the conditions of the parenting order were varied to allow the defendant supervised contact with an approved provider with the victim.

[4] The summary describes that on Saturday 29 April 2017 at 2.00 pm the defendant was at an address on Vista Grove, Lower Hutt. This is the agreed address for supervised visits. During the visit the supervisor left the room to go to the bathroom. This left the victim alone with Mr Carruthers. At that point Mr Carruthers has taken the victim without approval and left the address. Numerous attempts were made to contact and locate both Mr Carruthers and the victim. Mr Carruthers made no attempt to contact any persons or return the victim.

[5] On 1 May 2017 Mr Carruthers and the victim were located in the rural outskirts of Whakatane. He was taken to the nearest police station by a member of the public who had concerns for his mental state and the reason for being in that location with the victim. Local police became involved and the defendant was arrested.

[6] Prior to the entry of pleas, a report was directed under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to determine whether Mr Carruthers was fit to stand trial or whether he was insane within the meaning of the Crimes Act 1961. A report dated 24 May 2017 determined

¹ Police v Carruthers [2017] NZDC 14649 at [3]-[6].

that Mr Carruthers had a significant past history of mental illness but was fit to stand trial and was not insane. A further report was requested under s 35 Criminal Procedure (Mentally Impaired Persons) Act 2003 subsequent to the entry of the pleas seeking guidance as to disposition. As a result a report dated 16 June 2017 is now available with various options identified as to disposition depending on whether the offences attract a custodial sentence or a non- custodial sentence.

[4] The key issue at sentencing was whether Mr Carruthers should be discharged without conviction. Judge Menzies carefully laid out the framework for assessment, The Judge considered the evidence favouring discharge, including the possible impact of convictions on Mr Carruthers employment as a teacher of English as a second language, including in China and Hong Kong. He balanced this risk against the gravity of the offending, noting it was not an isolated incident and comparatively serious, involving a breach of trust and a three-day abduction. He however accepted the mental health issues provide context and some mitigation, noting diagnoses [redacted], abnormal state of mind, poor insight [redacted]. Judge Menzies found the evidence of the consequences in relation to entry to China was not compelling referring to Edwards v R.² He also identified inconsistencies between the evidence and submissions as to the importance of overseas travel to Mr Carruthers. The Judge then links the inconsistencies to Mr Carruthers’ mental health issues, and the potential sentencing options available under the CP (MIP) Act.

[5] Judge Menzies concluded:³

[27] Approaching this matter overall the conclusion that I have come to is that the evidence does not persuade me that the conviction would be out of all proportion to the gravity of the offence. There certainly are a number of consequences that are signalled. They are not however established to the required standard as I read the requirements particularly as reflected in Edwards v R. I cannot therefore say to the required standard that the consequences of conviction are out of all proportion to the gravity of the offending.

[28] I am not therefore prepared to grant the application. I am reinforced in that view that the outcome that I consider most appropriate is the one that is signalled in the medical report for an order under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act. That is my view as to the most appropriate path to follow. It is clear that Mr Carruthers requires ongoing assistance. He has indicated to Mr Sutcliffe he is willing to do that on a voluntary basis but that intention of course could change. I consider it is

² Edwards v R [2015] NZCA 583 at [23]-27.

³ Police v Carruthers, above n 1, at [27] and [28].

appropriate that there should be some structure around that and therefore I propose to approach matters on the basis that I am declining the application for discharge under s 106 and I am proposing to make an order under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act.

Mental health issues

[6] Given the significance of Mr Carruthers’ mental health issues to conviction and sentence, it is necessary to briefly summarise the opinions expressed in the CP(MIP) report tabled before Judge Menzies and in the decision of the Mental Health Review Tribunal now available to me.

[7] The CP (MIP) report was prepared by Dr Kadhem Majeed, a consultant forensic psychiatrist. He observed:

Mr Carruthers’ plans for the future are based on poor reality testing and driven by impaired judgment. [redacted]

He appears to suffer from poor insight [redacted].

[8] Dr Majeed suggests that Mr Carruthers suffers from chronic mental illness, highly likely to be that [redacted]. In his opinion, Mr Carruthers suffers from [redacted] and an abnormal state of mind to such a degree that he is incapable of adequately caring for himself and poses a risk of safety to others.

Mental Health Review Tribunal decision: admissible fresh evidence?

[9] Mr Carruthers’s was committed to treatment pursuant to the Compulsory Community Treatment Order (CCTO) imposed by Judge Menzies. Mr Carruthers applied for review of the CCTO pursuant to s79(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992. The criteria for the review is whether the applicant is “fit to be released from compulsory status”; that is, no longer mentally disordered. Mental disorder is defined to mean:⁴

An abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition, or cognition, of such a degree, that it:

⁴ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2, definition of “mental disorder”.

(a) Poses a serious danger to the health and safety of that person or of others; or

(b) Seriously diminishes the capacity of that person to take care of himself or herself.

[10] The Mental Health Review Tribunal in a decision dated 11 September 2017, released Mr Carruthers from the CCTO. The admissibility of this decision as admissible fresh evidence is not challenged. Had it been, I am satisfied it that it is expedient and just for the decision to be produced for this appeal. The decision is fresh, credible and cogent evidence on mental health at the time of the offending and now, that was not available to the parties at the time of sentencing. While evidence of this kind (Dr Majeed’s report) was in fact before the Judge, and so “available” in that sense, the Tribunal was clearly better placed than Dr Majeed to assess the significance of Mr Carruthers mental health condition to his offending and in terms of his risk to the public.

[11] In this regard the Tribunal had the benefit of the evidence of Dr Fisher, a responsible clinician under the Act, who assessed Mr Carruthers during his time under compulsory treatment. He described Mr Carruthers as “a very intelligent and articulate gentleman”. He also said that he could not identify any serious danger to self or others beyond the “psychological harm to the applicant of not having contact with his son for 5 months and the possible psychological harm to the boy”. It is also noted Mr Carruthers had been well without medication for about 5 years before early 2017, and that the issue might be illness education, that is identification of early warning signs. The Tribunal also records the following observation made by Dr Fisher: “whilst the intention to take his son was undoubtedly not one of malicious origins, I do not at all believe such decision would have been made if [Mr Carruthers] had been mentally well at the time.” A second health worker (who did not appear at the hearing) was not able to assess for any [redacted] phenomena or risk presented by Mr Carruthers should his mental health deteriorate, but supported continuing the CCTO.

The Tribunal’s findings

[12] The Tribunal found there is clear evidence Mr Carruthers has an abnormal state of mind, characterised by [redacted]. But it also found “there is no evidence that any
such abnormal state of mind is of such a degree that it poses a serious danger to the mental health and safety of the applicant or others or seriously diminishes his capacity to take care of himself.”

[13] Relevantly the Tribunal commented on the importance of early identification of warning signs and that Mr Carruthers had, in fact, self-referred to his GP on or about 19 April 2017. The GP noted he had experienced the on-set of [redacted] symptoms and despite a referral from the GP, an appointment with a mental health professional was not scheduled for a full month, that is until 19 May 2017.

Jurisdiction

[14] An appeal against refusal to discharge a defendant without conviction is properly characterised as an appeal against conviction and sentence. As the Court of Appeal explained in Jackson v R:⁵

While it may be seen as straining the statutory definition of a miscarriage of justice, we are satisfied that the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction [...] Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.

[15] The s107 framework is reasonably well settled.⁶ A court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.⁷ This requires a three-step process: first, identify the gravity of the offence, second, identify the direct and indirect consequences of a conviction, and third, determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.⁸ This proportionality test is not a matter of discretion, but rather

5. Jackson v R [2016] NZCA 627 at [12]. See also Gaunt v Police [2017] NZCA 590 at [9]- [10].
6. There remains some debate as to the relevance of personal characteristics to the assessment of gravity – compare Z v R [2012] NZCA 599 at [21]-[28] and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [8]- [13]. For my part gravity includes personal circumstances that aggravate or mitigate moral culpability – see Shailer v R at [45].

⁷ Sentencing Act 2002, s 107.

⁸ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].

of judicial assessment.⁹ The court may decide whether to exercise its discretion under s 106 only if the s 107 test is met. It remains open to the court to decline to exercise its discretion to grant a discharge.¹⁰

Grounds of Appeal

[16] Mr Carruthers was self-represented at the appeal hearing. His central submission is that the convictions are out of all proportion to his offending given:

(a) The offending was not as serious as the Judge assumed, referring to among other things, the immediate context of the offending, noting consent had been given to the travel and the order requiring supervised contact was obtained without notice.

(b) The Judge misinterpreted the mental health report references to Mr Carruthers suitability to teach – he says that was simply a reference to his personal disquiet about teaching in New Zealand having spent so many years teaching in China.

(c) He is well qualified to teach, and is in the process of completing his Masters’ degree at Massey University – which may be a futile endeavour if the convictions are not lifted.

(d) The convictions also preclude him from fully establishing his Hebrew/Jewish/Israeli cultural identity, as he may not be able to migrate there. This also impacts, he says on his son’s cultural identity.

(e) His improved mental health condition – the CTO has been lifted a month early and he continues to remain voluntarily engaged;

⁹ H (CA680/11) v R [2012] NZCA 198 at [30].

¹⁰ R v Hughes, above n 8, at [10] and [22].

(f) The progress he has made with his family since the offending, referring to, among other things, an oral judgment of Judge Black on 20 December 2017 indicating shared care is desirable.

(g) The financial impact of the convictions – he has had no work for more than seven months and is nearly insolvent.

(h) Fresh evidence of his ineligibility to teach second languages, referring to a letter from the New Zealand Languages Centre (NZLC), which states that “we cannot take on the risk associated with a charge that sounds so serious, despite what you have told us actually occurred”. It says further, “[i]f you are successful in your appeal to have your conviction removed ... then we would be very interested in hearing from you again...”.

[17] The New Zealand Police oppose the appeal, noting;

(a) The Judge made no error in his assessment of gravity or consequences of conviction, having carefully considered the full circumstances of the offending, Mr Carruthers’ mental health issues and the evidence of the potential impact on him of the convictions;

(b) The NZLC letter is weak evidence of the potential consequences of the conviction. The full context of the letter is not explained and it represents the view of one organisation only.

(c) The risk presented by Mr Carruthers is a matter properly considered by prospective employers, including primary schools.

(d) There is insufficient proof that overseas travel will be barred to Mr Carruthers.

Assessment

[18] Judge Menzies did not err based on the information then available to him. On the contrary, he applied the correct legal framework, considered all relevant factors and came to a conclusion that was plainly available to him. The decision to direct Mr Carruthers down the mental health route was also plainly correct given the medical report. Fresh evidence however, in my view, fundamentally changes the landscape and therefore the result. Based on the information now available to me, I am satisfied Mr Carruthers was suffering from an abnormal state of mind at the time of the offending, but does not present an ongoing risk of serious harm to others. As I will explain, these factors bear on the gravity of the offending and the proportionality assessment. The consequences of conviction are out of all proportion to the offending.

[19] First, the prima facie gravity of the offending is high. Abduction of a child with intent to deprive a parent of her child for three days, and in breach of a parenting order is plainly a serious matter, attracting a maximum sentence of 7 years. The fact the child’s mother previously consented to travel and the order requiring supervised access only was obtained without notice does not diminish the seriousness of the offending. The offending involved a clear breach of trust and Court Orders laid down for the protection of the child.

[20] However, Mr Carruthers mental health issues, if causative of the offending,¹¹ are a mitigating factor bearing on his personal culpability.¹² As the Court of Appeal noted in Nelson v R:¹³

“... mental disorder falling short of exculpating insanity may mitigate culpability, and hence sentence. If causative of the offending, it moderates the offender's culpability. It may also render less appropriate, or more subjectively punitive, a sentence of imprisonment. It may be relevant because of a combination of those reasons. Sentencing does have an essentially moral base. As such, mental disorder may mitigate moral fault and, accordingly, criminal culpability. But, at the same time and as the Crown submitted, care has to be taken when assessing the causative impact and mitigating effect of mental illness on offending.”

¹¹ Shailer v R [2017] NZCA 38 at [50].

¹² See Shailer v R at [45]-[48]; Krishna v Police [2014] NZHC 3337 at [39]; Jordan v Police HC Auckland CRI-2009-404-207, 2 October 2009 at [18]-[19]; Hartley v Police HC Wellington CRI- 2006-485-102, 20 February 2007 at [9].

¹³ Nelson v R [2014] NZCA 121 at [22].

[21] In April 2017, Mr Carruthers self-referred to his doctor for treatment. The GP identified the onset of [redacted] symptoms and recommended specialist help. This unfortunately was not scheduled until the end of May. In the interim the present offending took place. Relevantly, Judge Menzies noted on 1 May 2017 Mr Carruthers and the victim were found in the rural outskirts of Whakatane and he was taken to the nearest police station by a member of the public who had concerns for his mental state and the reason for being in that location with the victim. Dr Fisher was in no doubt that Mr Carruthers mental health affected him at the time of the offending.

[22] I am satisfied therefore Mr Carruthers was suffering an abnormal state of mind at the time of the offending that was causative, at least in part, of the offending. While the extent of the impairment caused by his abnormal state of mind is a matter of speculation, this is clearly not a case of egregious breach of Court Orders or of familial trust. This is a significant mitigating factor in terms of his moral culpability. Furthermore, as the Tribunal noted, with ongoing management, the risk Mr Carruthers presents to his family and society generally is low. Notably, his offending was context specific – an episode of mental health breakdown (following a 5-year period of wellness) and a family custody dispute, with no evidence of actual harm to the child. The prospect of this reoccurring is now low, with Mr Carruthers fully and properly engaged in the Family Court process. In this regard, I have seen a recent minute of the Family Court signalling that Mr Carruthers will likely be allowed unsupervised contact with his son.

[23] Second, there is cogent evidence the convictions may preclude Mr Carruthers’ ability to teach in New Zealand in his preferred area of employment. While not in affidavit form, the truthfulness of letter from NZLC was not challenged by the Police. It records two important points. First, Mr Carruthers is well qualified to teach English as a second language in adult schools. Second, his convictions are a significant barrier to his taking employments in those schools. While, as I noted to Mr Carruthers, he may be able to teach privately, a real and appreciable effect of the convictions is that he is not likely not be able to undertake his usual full time work for which he is clearly qualified.
[24] I acknowledge the nature and gravity of the offending are matters of legitimate, public interest, particularly as it relates to teaching professionals. There must be very good reason to deprive employers of teaching professionals of information that bears on their suitability to teach, particularly, for example, in primary schools.¹⁴ Here, the potential employment consequences for Mr Carruthers therefore appear at first blush to correlate to the legitimate significance of the convictions to his prospective employers.¹⁵ But, as I have said, Mr Carruthers’ offending was context specific – triggered by a combination of his mental health issues and his particular personal circumstances, at the time of the offending. There is nothing to suggest Mr Carruthers presents a general ongoing risk to school children, let alone adults. This in my view is a strong factor to be weighed in the proportionality assessment.

[25] Third, and for completeness, it is well settled there must be cogent, not speculative, evidence showing a conviction will impede travel.¹⁶ In the present case, there is no clear independent evidence of the effect of the convictions on travel to or reside overseas, including in China or Israel. At best, Mr Carruthers has attached what appear to be published materials stipulating that persons wishing to reside in China or Hong Kong must have no criminal record. While I accept, at an intuitive level, convictions of the present type will not be well received by overseas immigration authorities, I am unable on the evidence before me to find there is a real and appreciable prospect of overseas travel to these or other countries will be denied to Mr Carruthers.

[26] Overall, with the benefit of the new information available to me, including the Mental Health Review Tribunal decision, I am satisfied that the consequences of the convictions are out of all proportion to the gravity of the offending. It was an isolated incident,¹⁷ in circumstances where Mr Carruthers (a) was suffering under a mental health condition and (b) presents no ongoing risk to the public. I have also considered

¹⁴ This factor distinguishes the present case from the cases cited by Mr Sutcliffe in the

District Court, Haukinima v Police HC Auckland CRI-2006-404-344, 11 July 2007, Huang v Police HC Auckland CRI-2010-404-211, 16 November 2010, and BC v Police HC Wellington CRI-2003-485-101, 2 June 2004.

¹⁵ See Maraj v Police [2016] NZCA 279 at [28].

¹⁶ Brunton v Police [2012] NZHC 1197 at [16]; see also Edwards v R, above n 2, at [23]-[26].

¹⁷ There was evidence of a prior incident of the non-compliance with a Court Order. Relevantly it was not at the time considered sufficiently significant to be formally recorded. It is not sufficient to suggest a propensity to disregard Court Orders.

whether I should exercise a residual discretion to decline discharge. I do not exercise that discretion. Most significantly in my view, the Courts must be able to provide for persons with manageable mental health issues causative of the offending, who do not present an ongoing risk to the community and, without the convictions, are able to obtain full time gainful employment to support their families.

Result

[27] Judge Menzies did not err on the information available to him. However, I have had the benefit of reading the Mental Health Review Tribunal report which includes the following key observations:

(a) Mr Carruthers would not have offended if not for his mental health issues.

(b) Mr Carruthers does not pose a serious danger to the health and safety of himself or others; to the contrary, Mr Carruthers was concerned about his symptoms prior to his offending and self-reported them to his GP.

[28] With the benefit of this fresh information bearing directly on Mr Carruthers’ culpability and the risk (or absence thereof) presented by him to the public, I am satisfied discharge without conviction is appropriate in terms of s 107. The offending while serious was context specific and does not in my view demand conviction in the public interest.

[29] I raised the possibility of referring this matter back to the District Court with the Police so that it could have an opportunity to test the findings of the Tribunal if it wished to do so. Ms Needlam advised, properly in my view, that the Tribunal’s findings were unlikely to be able to cogently challenged. The Police therefore did not seek the matter be referred back to the District Court Judge.

[30] One final comment; as Ms Needlam correctly pointed out, without the CCTO, Mr Carruthers would not have received the treatment he needed. Nothing in this
judgment should be seen to be criticising the course adopted by Judge Menzies on the information then available to him or bear on the legality of that order. The paradoxical effect of this judgment arises from the fact that, until the full mental health assessment was complete via the CCTO process, the true level of Mr Carruthers’ culpability and the ongoing risk presented by him to the public could not be fully assessed. The alternatives to this process were not addressed in argument. There is scope for pre- sentencing mental health assessment, but the power to detain for such purpose is limited to 30 days.¹⁸

[31] Understandably conviction is a prerequisite to any greater period of detention. The procedural solution is therefore not immediately obvious. Section 25 of the Sentencing Act 2002 enables adjournment for various pre-sentence processes to be completed. Mental health assessment is not expressly one of those processes (though it might be argued that it could form part of a rehabilitative process by consent). I note Mr Carruthers advised he was always prepared to submit voluntarily to treatment. In any event, substantive justice is paramount. Reversal on appeal in terms of a s 107 discharge in appropriate cases should not be, in my view, precluded by this procedural quandary.

[32] The appeal is allowed, the conviction is set aside and Mr Carruthers’ is discharged without conviction.

Addendum (delivered after the appeal judgment)

[33] Mr Carruthers has sought that his name be suppressed. He contends the publication of his name will cause him and/or the victim qualifying hardship for the purposes of s 200(a) and (c).

[34] He notes that:

(a) Publication may exacerbate his mental health conditions.

¹⁸ Criminal Procedure (Mentally Impaired Persons) Act, s 35.

(b) Future employers may not properly understand references in the judgment to his symptoms, including “[redacted] symptoms” which could then prejudice his employment opportunities.

(c) This may, in turn, lead to financial hardship if he is not able to obtain employment or pursue his studies.

(d) Since his successful appeal, his contact with his son has increased further to unsupervised days from the morning to the evening on both Saturday and Sunday.

(e) He is able to work in his profession of teaching and therefore provide financially to his son.

(f) In respect to any potential impairment of future employment, publication will have consequential effects for his son.

(g) His son’s identity could be revealed as a consequence of publication.

[35] Ms Needham helpfully provided detailed submissions as to the treatment of suppression in the context of discharges without conviction. She identifies that the relevant threshold test is one of “extreme hardship” to Mr Carruthers. Ms Needham submits that the principle of open justice supports the ability to publicise in circumstances where the courts have been able to provide for personal hardship in a principled manner such as what has occurred in this case.

[36] Ms Needham also notes that, as a suppression order had not been previously sought or made, publication of the appellant’s details in connection with the offending could have already been in the public arena. She says there is no suggestion that this has per se resulted in an impact to Mr Carruthers’ mental health. It is noted, in fact, that his mental health has improved in the intervening period.
[37] As to employment opportunities or impact on them, it is noted, relying on the decision of Bailey v New Zealand Police¹⁹ that, despite financial consequences for the appellant having been a significant factor in a discharge without conviction, the threshold of extreme hardship for name suppression was not reached.

Assessment

[38] I am not satisfied that publication will result in extreme hardship to Mr Carruthers or undue hardship to the victim. Firstly, there is no evidence before me to suggest that publication of Mr Carruthers’ name will have a significant impact on his mental health. For the reasons set out in my judgment, Mr Carruthers is able to manage his mental health difficulties and I see no obvious connection between publication of his name and the exacerbation of those difficulties. There may be increased anxiety but, as Ms Needham has pointed out, the risk of publication and the prospect of publication since the first decision was always there and, if anything, in the interim Mr Carruthers’ health has improved.

[39] As to potential impact on his employment prospects, the evidence tabled before me at the trial was that it was the fact of a conviction, rather than knowledge of the events, that affected his employment prospects. I am not therefore satisfied that the consequences of mere publication will result in a material effect on him or his son.

[40] I am prepared, however, to redact those parts of the judgment which specifically refer to the detail of Mr Carruthers’ mental health issues. I agree with him that these may be misunderstood by the general public and it is sufficient for the purposes of the public interest in transparency, that the general reference to mental health issues be referred to without the specific detail being published.

[41] To that extent only, I am prepared to suppress the details of the judgment and will do so accordingly, in terms of the published version of this judgment.

¹⁹ Bailey v New Zealand Police [2015] NZHC 3051.