Jolly v Department of Corrections
[2024] NZHC 1489
•6 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000018
[2024] NZHC 1489
BETWEEN DARREN ALBERT JOLLY
Appellant
AND
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 24 May 2024 Counsel:
L A Caris for Appellant
R G Buckman for Respondent
Judgment:
6 June 2024
JUDGMENT OF LA HOOD J
Introduction
[1] Darren Jolly was convicted of breaching an extended supervision order (ESO)1 by Judge Nicholls in the Hutt Valley District Court on 14 February 2024.2 This involved a breach of a special condition not to possess or control a device capable of storing images without approval of a probation officer.
[2] Mr Jolly appeals against the conviction on the grounds that Judge Nicholls misapplied the standard of beyond reasonable doubt in making findings about the special condition of the ESO that applied at the relevant time; and whether the item in question was “a device capable of storing images”. The appellant submits that these errors have resulted in a miscarriage of justice. The respondent opposes the appeal on the basis there was no error in the Judge’s reasoning.
1 Parole Act 2002, s 107T; maximum penalty two years’ imprisonment.
2 Department of Corrections v Jolly [2024] NZDC 5976 [Decision under appeal].
JOLLY v DEPARTMENT OF CORRECTIONS [2024] NZHC 1489 [6 June 2024]
Background
[3] Mr Jolly, aged 58, has been subject to an ESO for a term of ten years effective from 19 April 2012.3 The ESO is due to expire on 1 February 2028 due to the time Mr Jolly has spent in custody (which has the effect of suspending the order).
[4] The conditions of the ESO were varied by the New Zealand Parole Board on 22 October 2019 to include the following special condition:
Not to possess or use computers or electronic equipment or device capable of accessing the internet, or any device capable of capturing and/or storing images, unless supervised by an approved adult who has been approved in writing by the Probation Officer for each and every instance where the use of such a device has been requested for approval.
[5] A letter from the Department of Corrections (Corrections) dated 11 March 2022 records that approval is given for the use of four USB storage devices, pictured in the letter, noting that the condition varied by the Parole Board on 22 October 2019 reads:
Not to use computers or electronic equipment or devices capable of accessing the internet, or any device capable of capturing and/or storing images except content [publicly] broadcast in New Zealand, unless supervised by an approved adult who has been approved in writing by a probation officer for each and every instance where the use of such a device has been requested for approval, or unless you have the prior written approval of a probation officer.
[6] On 14 March 2022, upon his release from custody, Mr Jolly was “re-inducted” to the special condition set out at [4] above and signed a copy confirming his understanding of the requirement.
[7] Mr Jolly appeared before the Parole Board on 28 April 2023. The decision confirms the condition set out at [4] above applied to Mr Jolly. However, Corrections did not produce this document in the Judge-alone trial.
[8] Mr Jolly was re-inducted onto his ESO on 13 June 2023 after a period in custody by his Probation Officer, Ben Deakin.
3 The ESO was imposed in the Hamilton District Court on 9 December 2011, for a term of ten years effective 19 April 2012.
[9] On 10 August 2023, Mr Deakin sent Mr Jolly a reminder letter of the special condition, reflecting the wording as set out at [4] above.
[10] On 6 September 2023, New Zealand Police executed a search warrant of Mr Jolly’s car and residence at Te Korowai. Detective Sarah Fergusson, Mr Jolly’s case manager at the Child Sex Offender Registry team, was responsible for the search. Detective Fergusson located two USB sticks in Mr Jolly’s car, in the glove box and radio, and a micro SD card in his bedroom wardrobe. Therefore, it was alleged that he breached a condition of his ESO in that he had devices capable of storing images in his possession without prior written approval of a probation officer. Mr Jolly offered no explanation for his alleged non-compliance.
[11] Mr Jolly was charged for breaching a special condition of his ESO on the basis all three devices were capable of storing images.
The Judge-alone trial
[12] At the Judge-alone trial on 14 February 2024, both Detective Fergusson and Mr Deakin gave evidence. A statement was read by consent from Julia Woods, a Probation Officer who attended the 22 October 2019 Parole Board hearing.
[13] At the outset of Judge Nicholls’ decision, he reminded himself of the burden and standard of proof.4 The Judge framed the issues for determination as:5
(a)Am I sure about the rules that you had to observe?
(b)Am I sure that the devices found in the search had not been approved?
(c)Am I sure that any unapproved devices were found in your possession?
(d)Am I sure that any such devices were capable of storing images?
4 Decision under appeal, above n 2, at [4].
5 At [5].
[14] The Judge answered all issues in the affirmative, finding the charge proven beyond reasonable doubt. His findings on issues (a) and (d) are challenged on appeal.
[15] In regard to issue (a), the Judge noted that three Corrections documents stated the ESO order included the special condition imposed in 2019 and set out at [4] above. In response to Mr Jolly’s argument that the Court could not be satisfied that the condition had not been removed since 2019, the Judge said:
[9] You have argued that because the Parole Board conducts two yearly reviews of these conditions, I cannot be sure that in a meeting since 2019 the Parole Board didn’t remove this obligation. I disagree. The department keeps a system to record Parole Board decisions and Mr Deacon and Ms Woods have used that system to access the most recent record of your conditions.
[10] It is pure speculation to suggest that for a man in your position, with your background and your extended supervision order, the Parole Board might have removed the regulation of your possession of devices capable of holding images, and your probation officer and the police officer dedicated to high risk offending and who knows you well, did not hear of it.
[16] The Judge went on to compare the approved devices pictured in the 11 March 2022 Corrections letter with those located by police. The Judge stated that he could not be sure that the SD card and one of the USB sticks (black, found in the glove box) were not those approved and pictured in the letter.6 However, the USB stick found in his car radio was “clearly not one of the devices approved in the 11 March 2022 approval letter” and so the remainder of the judgment focused on that device.7 The Judge considered that as Mr Jolly “had possession and use of the car and when it was found at [his] place locked with the keys in [his] possession it had a USB stick visibly sticking out of the radio in the car dashboard” he was sure that the unapproved device was found in his possession.8
[17]In regard to issue (d) the Judge stated:
[22] Your lawyer Ms Caris queried my ability to take judicial notice of the ability of USB sticks to store images. I agree with Ms Caris that judges should be careful before holding themselves out as technical experts without evidence. However, that is not what is being asked of me here. USB sticks are a part of every day school, work and leisure life, and it requires no assertion of technical skill to be sure that a USB stick is capable of holding images.
6 At [14]–[15].
7 At [16].
8 At [14]–[15].
[23] There is no indication that this particular USB stick was in some way damaged that would put me on notice that that was an avenue to explore and in fact quite the opposite, it was found inserted into the radio of the car, indicating that it was operative and being used. So, I am sure that this unapproved USB stick was capable of storing images.
[18] The Judge concluded that the charges were proved and entered a conviction on this charge of possessing a device capable of storing images in contravention of the ESO.9
Approach on appeal
[19] This appeal is brought under s 229 of the Criminal Procedure Act 2011. Pursuant to s 232(2) of the Criminal Procedure Act, a first appeal court must allow a first appeal if satisfied that,––
...
(b)in the case of a Judge-alone trial, the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[20]The Court must dismiss the appeal in any other case.10
[21] Where an appellant argues that a Judge erred in their assessment of the evidence, the appeal court is required to form its own view of the facts.11 As such, if the appeal court comes to a different view than the trial judge on the evidence, it follows that the trial judge has erred and the appeal must be allowed.12 Nevertheless, the onus is on the appellant to show that an error has been made, and in assessing the evidence the appellate court must recognise any benefits that the trial judge may have had. Particularly, where a challenge is made to the credibility of findings based on contested oral evidence, the appellate court must exercise caution.13
9 At [18]–[20].
10 Criminal Procedure Act 2011, s 232(3).
11 Sena v R [2019] NZSC 55 at [26]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
12 Sena v R, above n 11, at [38].
13 At [38]–[40].
[22] A “miscarriage of justice” is defined as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.”14 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.15 A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.16
Assessment of arguments and decision
[23] Ms Caris, for Mr Jolly, submits that the Judge erred in two respects in finding the charge proven beyond reasonable doubt on the evidence, namely:
(a)in finding that the special condition allegedly breached applied to Mr Jolly at the relevant time; and
(b)in finding that the item in question was a device capable of storing images.
[24] Before dealing with each of those issues in turn, I address a preliminary point. Ms Buckman, for Corrections, submits that neither issue raised on appeal was mentioned at the pre-trial hearing on 15 January 2024 where the issues in dispute were discussed for the purposes of a joinder application.17 I do not accept that pre-trial submissions in this specific context amount to a concession that Corrections was relieved of its obligation to prove all the elements of the charge at trial.
The applicable special condition
[25] Ms Caris submits that there was evidence as to varying versions of the alleged special condition which Mr Jolly was said to have breached, and proof of the source of the special conditions applicable to Mr Jolly was entirely unsatisfactory. Ms Caris
14 Criminal Procedure Act, s 232(4).
15 Matenga v R [2009] NZSC 18 at [30].
16 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
17 Department of Corrections v Jolly [2024] NZDC 479 at [14].
submits that the Judge consequently erred in failing to properly apply the standard of beyond reasonable doubt with respect to proof of all elements of the offence. It was inappropriate to rely on inferences as to the applicable special conditions given there was readily obtainable direct evidence Corrections ought to have put before the Court.
[26] I have no hesitation in accepting Ms Caris’s submission that the evidence on this issue should have been better. Corrections could have produced the most recent Parole Board decision of 28 April 2023 confirming the current conditions included this condition. However, the issue is not whether there was better evidence to establish this element of the offence but rather whether the evidence that was adduced proved the matter beyond reasonable doubt.
[27] I consider that there was sufficient evidence to prove beyond reasonable doubt that Mr Jolly was subject to the special condition in issue, namely:
(a)Mr Deakin gave evidence that he sent Mr Jolly a reminder letter (which he produced) dated 10 August 2023, which set out the special condition:
Not to possess or use computers or electronic equipment or device capable of accessing the internet, or any device capable of capturing and/or storing images, unless supervised by an approved adult who has been approved in writing by the Probation Officer for each and every instance where the use of such a device has been requested for approval.
(b)Mr Jolly signed the 10 August 2023 reminder letter, which included the condition, and confirmed that he “read and fully understand and agree[d]” to it.
(c)Mr Deakin gave evidence that he inducted Mr Jolly into this condition on 13 June 2023 following a period of custody.
(d)Mr Deakin accepted he did not take the condition directly from the 2019 Parole Board decision, nor the most recent Parole Board decision (which was not before the Court). Instead, Mr Deakin said he retrieved the condition from the Integrated Offender Management System (IOMS), which is Corrections’ electronic case management system
used to record the conditions received from the Parole Board. Mr Deakin gave evidence that IOMS is immediately updated upon receipt of any varied or updated condition in accordance with the outcome of a Parole Board decision.
[28] I consider that this combination of evidence was sufficient to prove beyond reasonable doubt that Mr Jolly was subject to the special condition. There was and is no evidence to suggest that the special condition had been removed or changed by the Parole Board, or that there was some breakdown in the system of recording current conditions in IOMS. While there was undoubtedly more direct evidence that could have been adduced (the Parole Board’s April 2023 decision), the failure to do so does not amount to an appealable error in circumstances where there is other evidence sufficient to establish the element beyond reasonable doubt.
USB capability
[29] Ms Caris submits that Judge Nicholls erred in finding that he could infer that the device located in the vehicle was a device capable of storing images and dispensing with the need for direct evidence on the point. It is submitted the Judge should not have ruled out the possibility that the device might have been damaged or otherwise incapable of storing images.
[30] I accept Ms Buckman’s submission that the Judge was entitled to take judicial notice, pursuant to s 128(1) of the Evidence Act 2006, of the fact that USBs are common devices generally capable of storing images.
[31] Ms Buckman submits that without raising any evidential foundation to suggest it was broken, or damaged, the Judge was correct to reject the defence submission that there was a reasonable possibility that it could have been.
[32] Again, I accept without hesitation Ms Caris’s submission that this issue should have been the subject of direct evidence from Corrections that the USB had been checked to confirm it was capable of storing images. Ms Buckman’s submits that it is highly likely that this was done but accepts there is no evidence to confirm it. Again, however, Corrections’ failure to adduce direct evidence on this matter is a separate
issue to whether the evidence that was adduced proved this element of the charge beyond reasonable doubt.
[33] The issue is whether this particular device, seized from the car radio of Mr Jolly’s car, was capable of storing images. The principal contention is that it may have been damaged. The circumstantial evidence, upon which the Court is invited to infer that it is so capable, comprises the following:
(a)USBs are generally capable of storing data, which includes images;
(b)there was no sign of any external damage to the USB;
(c)the USB was plugged into Mr Jolly’s car radio;
(d)Mr Jolly has always been very proud of his cars and would frequently discuss them with Detective Fergusson (including installing stereo systems); and
(e)this was Mr Jolly’s car and he used it despite it being registered in someone else’s name.
[34] On the basis of the combination of this evidence, I consider the logical inference is that the device was capable of storing images. However, as this is an element of the offence, this inference cannot be drawn if there is a reasonable possibility that the USB was damaged to the point where it was incapable of storing any material. While I cannot discount that possibility altogether, I do not consider it a reasonable possibility given the USB was inserted into the car stereo, that Mr Jolly took pride in his cars (including installing car stereo systems), and the lack of any evidence of visible damage to the USB. I consider it fanciful to suggest that Mr Jolly would have a USB incapable of storing data inserted into his car stereo in these circumstances.18
18 Ms Caris suggested that the fact that the USB was plugged into the stereo indicated it may have sound files stored on it but not images. However, the issue is whether it was capable of storing images and I consider judicial notice can be taken of the fact that USBs store digital data, including images.
Conclusion
[35] I therefore conclude that the Judge did not err in his assessment of the evidence and the appeal is dismissed.
La Hood J
Solicitors:
Crown Solicitor, Wellington for Respondent
0
3
0