Pollard v Police - [2013] NZHC 2442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-138 [2013] NZHC 2442

BETWEEN
ADAM CHARLES POLLARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 September 2013

Counsel:

M Mann for the Appellant

K Francis for the Respondent

Judgment:

18 September 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:
Mr M Mann, Barrister, Warkworth
Mr K Francis, Meredith Connell, Office of the Crown Solicitor, Auckland

POLLARD v POLICE [2013] NZHC 2442 [18 September 2013]

[1] On 26 April 2013, in the District Court, Judge C Ryan declined the appellant’s application for permanent name suppression following his conviction and sentencing for a number of sexual and violent offences.[1] The appellant appeals against this decision.

Conclusion in summary

[1] R v Pollard DC Waitakere, CRI-2011-044-003426, 26 April 2013.

[2] I have concluded that the appeal should be dismissed. The essence of my reasons is that this is an appeal against the exercise of a discretion. The circumstances in which the exercise of a discretion can be overturned on appeal are limited. I will come to those principles in due course. Notwithstanding the careful submissions of Mr Mann, for the appellant, I am not persuaded that there was any appealable error by the Judge.

[3] Because I have concluded the appeal should be dismissed I will use the names of the parties. This includes the name of the victim of the offending, Ms Wills. As I will also explain in a moment Ms Wills applied for an order that her name be published and that order was also made.

Background

[4] Ms Wills is the appellant’s biological mother. She gave birth to him when she was 14 or 15 years old. The appellant was adopted some months after his birth. Ms Wills and her son had minimal contact until the appellant was 28 and Ms Wills was 42. They began living together and the offending began soon after. The offending occurred over the period from May 2010 until May 2011.

[5] The appellant was charged with 35 counts of sexual and violent offending against Ms Wills. The charges went before a jury and Judge Ryan. On 28 May 2012, at the conclusion of the Crown case, the appellant pleaded guilty to one count of injuring with intent to injure. On 31 May he was found guilty on 13 counts: one representative count of rape; nine counts of incest, three of which were representative charges; two representative counts of male assaults female; and one

count of threatening to kill. In July 2012 Judge Ryan sentenced the appellant to imprisonment for 5 years 9 months.

[6] The appellant appealed against his conviction on the rape charge. The appeal was dismissed.[2] Pending determination of the appeal there was interim name suppression and that continued until Judge Ryan’s decision in April of this year.

[2] Pollard v R [2012] NZCA 583.

[7] Further detail in relation to the factual background is set out in the Judge’s sentencing notes,[3] in her decision now under appeal, and…

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 Pollard v Police

Details

AGLC: Pollard v Police [2013] NZHC 2442
Case: [2013] NZHC 2442
Decision Date: 18 September 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Adam Charles Pollard against the decision of the District Court to decline his application for permanent name suppression following his conviction and sentencing for sexual and violent offences. The appeal centred on the exercise of the District Court's discretion under section 140 of the Criminal Justice Act 1985, which allows the Court to prohibit the publication of the name and other identifying particulars of a defendant. The Court was required to decide whether the District Court erred in its exercise of discretion by not granting name suppression, particularly considering the unique circumstances of the case, the potential impact on the appellant's family, and the appellant's prospects for rehabilitation.

The High Court found that the appeal against the exercise of discretion was limited and could only be overturned if there was an error of principle, failure to consider relevant matters, consideration of irrelevant matters, or if the decision was plainly wrong. The Court concluded that the District Court's decision was not plainly wrong as it was reasonably open to the Judge. The High Court noted that while the circumstances of the offending were indeed unique due to the incestuous relationship between the victim and the offender, this alone did not justify name suppression. The Court emphasised that the uniqueness must be associated with particular and identified harm which would make the adverse consequences of publication quite out of the ordinary. In this case, such a step was absent, and therefore, the District Court's decision to not grant name suppression was upheld.

The High Court further found that the District Court had adequately considered the impact on the appellant's family and his prospects for rehabilitation, and concluded that these factors, while distressing, were not sufficient to justify departure from the principle of open justice. The Court dismissed the appeal and confirmed the District Court's decision, thereby allowing the publication of the appellant's name.

Orders