Holland v Department of Corrections [2019] NZHC 2488 (1 October 2019)

Last Updated: 24 October 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-1019-404-000415 [2019] NZHC 2488

IN THE MATTER OF	an appeal against refusal to grant name suppression
BETWEEN	GLENN HOLLAND Appellant
AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	1 October 2019
Counsel:	C G Wright for the Appellant B M Finn for the Respondent
Judgment:	1 October 2019

(ORAL) JUDGMENT OF EDWARDS J

Solicitors: Ministry of Justice (Public Defence Service), Auckland Meredith Connell (Office of the Crown Solicitor), Auckland

HOLLAND v DEPARTMENT OF CORRECTIONS [2019] NZHC 2488 [1 October 2019]

[1] Mr Holland appeals a District Court decision declining to grant him name suppression.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-alone trial. 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 hands of other prisoners while on remand. He also sought to prevent publication of photographs identifying him as a convicted child sex offender. Mr Holland was assaulted in 2012 while on remand and he relies on those prior assaults in support of his application.

Alleged offending

[3] Mr Holland has a history of sexual offending and convictions for the possession of child pornography. He was made subject to an ESO on 18 February 2016. Conditions of that ESO prohibited Mr Holland from engaging in a business venture and accessing the internet or possessing or using any device capable of accessing 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 letter which stated that he had been in contact with a mother and her 11 year old child with the intention of setting up a teen girl pop music group and video. The Department of Corrections says that Mr Holland had been using a nearby print shop to send and receive email correspondence from an associate in Russia regarding the girl band and music video.

[5] Police obtained copies of Mr Holland’s other correspondence in which he is alleged 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 December 2018, the police found three mobile phones capable of accessing the internet and taking 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 the New 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 in this activity.

District Court decision

[8] The trial proceeded by way of Judge-alone trial before Judge D F Clarkson. It commenced 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 to have been prompted by a media application made on 3 September 2019 to film and to photograph the rest of the trial.

[10] In support of the application for name suppression, and in opposition to the media application, Mr Holland placed reliance on an alleged assault on 30 March 2012 when he was held on remand. The respondent, the Department of Corrections, initially advised that it had no record of this assault and that was the position when the Judge issued 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 in s 200 of the Criminal Procedure Act 2011 and referred to the two-stage enquiry which must be undertaken under this section. As to the first stage, the Judge found that Mr Holland had not made out the grounds in either s 200(2)(a) or (e) to the requisite standard.² She further observed that if found to be wrong about that, then she would have nevertheless declined to grant name suppression in the exercise of her discretion at the second stage.³

[12] The Judge said that there was a genuine public interest in understanding how ESOs work and how alleged breaches are dealt with.⁴ The Judge also agreed with the prosecution that it was important for the public to be aware of the evidence of the

² At [11].

³ At [15].

⁴ At [15]–[17].

alleged business venture given that the allegation was to create opportunities for the defendant to have contact with, and control over young girls and create music videos in which those young girls would remove their clothing.⁵ The application was accordingly dismissed.

[13] On 18 September 2019, the Department of Corrections filed a memorandum concerning two assaults on both 16 February and 30 March 2012. Mr Holland sought to 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 made no difference to her decision.

[14] The District Court Judge granted interim name suppression to allow this appeal to proceed and directed that any photographs and notes of the hearing were not to be published while name suppression was in place.

The law

[15] Name suppression for the defendant is governed by s 200 of the Criminal Procedure 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 convicted or acquitted of, an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

...

(e) endanger the safety of any person; or

...

⁵ At [18]–[19].

[16] Section 200 requires a two-stage enquiry. First, the Court must decide whether publication is “likely” to have one of the effects set out in s 200(2). If that threshold is met, then the Court must go on to consider the second stage, that is, whether to exercise a discretion to grant name suppression.

[17] An appeal from an order declining to grant name suppression proceeds under s 283 of the Criminal Procedure Act 2011. The first stage of the two-stage test is a matter requiring judicial assessment and therefore ordinary appellate principles apply. The second stage, however, involves the exercise of a discretion. Accordingly, an appellant must establish that the Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter, or was plainly wrong. 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 give adequate weight to the prior assaults. He submits that this evidence provides a sufficient basis for saying that it is likely that Mr Holland will suffer harm if his name is published.

[19] I do not consider that the evidence of prior assaults in 2012 suggests that publication 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 speculation about the possible consequences.⁶ Just because Mr Holland was assaulted some seven years ago does not establish that it was as a result of publication at the time. More importantly, it does not give rise to a risk that publication of the alleged offences this time round will also result in Mr Holland suffering further assaults. There is insufficient evidence to suggest a causal link between publication and the risk of harm in this case.

[20] The Court of Appeal decision in MS v R also poses some difficulties for Mr Holland.⁷ One of the grounds for suppression put forward in that case was that the

⁶ 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 the defendant in that case. The Court of Appeal rejected this ground of appeal, noting the following:

[11] MS placed reliance upon the Judge’s statement that it would “set a very unfortunate precedent if a Judge were to suppress details of identity and alleged offending on the assumption that the Prison Service cannot put in place proper measures to safeguard people in their custody”. We see nothing wrong in this observation. The courts proceed on the basis that the Department of Corrections will comply with its statutory obligations to ensure the safe custody 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 ensure that does not happen again. There is no evidence the Department will not do that.

(footnotes omitted)

[21] Counsel for Mr Holland seeks to distinguish this decision on the grounds that the above paragraph is premised on the presumption that the Department of Corrections is capable of protecting prisoners from assaults. He says that the evidence of two prior assaults in 2012 rebuts that presumption in this case. The fact that the second assault occurred after measures were put in place following the first assault suggests, in counsel’s submission, that the Department of Corrections is not able to protect Mr Holland effectively.

[22] I do not consider this to be a sufficient basis to distinguish the Court of Appeal decision. Even if an inference that the Department of Corrections failed to protect Mr Holland from the second assault could be drawn, it does not follow that the Department of Corrections will fail to take the necessary measures to ensure Mr Holland is protected this time, some seven years later. As the Court of Appeal observed in MS, the Department is obliged to ensure that such assaults will not happen and there is no evidence that it is incapable of putting in place the necessary protections.

[23] Counsel for Mr Holland has put forward the best possible case on appeal for his client, but it follows from my reasoning that I am not satisfied that the District Court Judge erred in finding that threshold had not been met in this case. In the circumstances, the Judge was right to decline the application for name suppression.

Result

[24] The appeal is dismissed.








Edwards J