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Durrant v Police

Durrant v Police

Case [2019] NZHC 582 26 March 2019

Presumption of Innocence

Criminal Law

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SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [3]–[6] and [30].

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2019-442-2

[2019] NZHC 582

BENJAMIN PHILIP DURRANT

v

NEW ZEALAND POLICE

Hearing: 20 March 2019 (via AVL)

Appearances:

T C Lyall for Appellant

A R Goodison for Respondent

Judgment:

26 March 2019

JUDGMENT OF CLARK J

Summary

[1] The appellant, Mr Durrant, faces two charges of arson under s 267(1)(a) of the Crimes Act 1961.1 When Mr Durrant had his first court appearance on 7 March 2019,
Judge Ruth declined his application for interim name suppression.2

[2] Mr Durrant appeals the Judge’s decision and seeks leave to adduce further evidence on appeal, namely, an affidavit from his mother, Ms Black.

1 Maximum penalty 14 years’ imprisonment.
2 New Zealand Police v Durrant DC Nelson CRI-2019-042-000450, 7 March 2019.

DURRANT v NEW ZEALAND POLICE [2019] NZHC 582 [26 March 2019]

Factual background

[3] While the summary of facts itself is suppressed the following events from that summary have been well publicised.

(a)The Nelson-Tasman District experienced extreme weather conditions over the 2018/2019 summer period with high temperatures and no rain for a significant period of time, leading to a heightened risk of fire and a ban on the use of machinery in the region.

(b)A number of serious fires broke out in the Nelson Bays area in February 2019. The fires resulted in mass evacuation of residents, livestock and businesses to prevent loss of life and damage to property.

(i)On 5 February 2019 a fire started on a rural block of land on Pigeon Valley Road, Wakefield, requiring a nationwide response of emergency services and fire-fighting equipment. A state of emergency lasting several weeks was declared.

(ii)On 6 February a fire broke out on Rabbit Island. A Fire and Emergency New Zealand (FENZ) investigation identified two seats of the fire and declared them to be suspicious.

(iii)On Friday 8 February a fire broke out in Atawhai, Nelson. The blaze narrowly missed residential properties in the area but was quickly brought under control. A FENZ investigation determined the origin of the fire to be suspicious.

(c)These events led to increased anxiety across the Nelson community from the ongoing risk posed by the dry conditions in the region.

[4] The summary of facts alleges that Mr Durrant and an unknown associate left his home address at 1:10 pm on Wednesday 27 February 2019. The defendant was seated in the front passenger seat. As they travelled along Moutere Highway the driver slowed down allowing the defendant to set fire to an area of vegetation on the side of

the road.3 They drove away. Shortly after, a passing motorist discovered the fire and alerted the security guard posted at the top of the hill. By this stage, the fire had spread from the roadside into forestry nearby and continued to spread onto neighbouring properties. The Fire…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Durrant v Police

Details

AGLC: Durrant v Police [2019] NZHC 582
Case: [2019] NZHC 582
Decision Date: 26 March 2019

CaseChat Overview and Summary

The case of Durrant v Police involves an appeal against the Nelson District Court's refusal to grant interim name suppression to Mr. Durrant, who faces charges of arson in relation to two fires that occurred in the Nelson Bays area in February 2019. The Nelson-Tasman District had experienced extreme weather conditions over the 2018/2019 summer period, leading to a heightened risk of fire and a ban on the use of machinery in the region. Several serious fires broke out in the Nelson Bays area in February 2019, resulting in mass evacuations of residents, livestock, and businesses to prevent loss of life and damage to property. The appellant, Mr Durrant, denies all involvement in the fires but later admitted to being in the area and suggested his vehicle exhaust may have caused the fires.

The legal issues in this case revolve around the threshold for granting an interim name suppression order under s 200(4) of the Criminal Procedure Act 2011, the admissibility of new evidence on appeal, and the exercise of discretion under s 200 of the Act.

The court's reasoning is based on the principle of open justice and the high threshold for suppression orders. The court found that Mr Durrant did not demonstrate an "arguable case" that one of the s 200(2) factors was met. The court held that the social media posts reflected a backlash from the Nelson-Tasman community, but this was no more than an expression of "heightened emotions" given the impact of the fires. The court did not regard the posts as containing genuine threats. The court also found that the negative impact on Mr Durrant's brother and mother does not reach the level of extreme hardship, and that the risk to the safety of Mr Durrant's grandfather was speculative without supporting evidence.

The court concluded that the appellant has not demonstrated error on the part of the District Court Judge. Even having regard to the further evidence adduced on appeal, the court is not satisfied the statutory threshold is reached. The appeal is dismissed.

The final orders of the court are that the appeal is dismissed and the judgment is embargoed until 2 pm Wednesday, 27 March 2018, to enable Mr Durrant’s mother to inform her father of the imminent publication of the charges against Mr Durrant.

Orders