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 in the decision of the Court of Appeal. It is unnecessary to set out further detail in this judgment.

The statutory provisions and the legal principles

[3] R v Pollard DC Waitakere CRI-2011-044-003426, 17 July 2012.

[8] Sections 139 and 140 of the Criminal Justice  Act  1985,  although  now repealed, applied to this case. Section 139 generally prohibits publication of the names of victims of sexual offending and one subsection prevents publication of the name of a person charged with, or convicted of, incest and a related offence under s 131 of the Crimes Act 1961. However, if a victim seeks publication the Court can order publication. Ms Wills requested publication and an order was made.

[9]  Section 140 gives the Court a discretion to prohibit publication of the name and other identifying particulars of a defendant. The appellant’s application was under s 140.

[10] Because ss 139 and 140 are interconnected, having regard to some of the offences, and because both were invoked in this case, it may assist to set out the relevant provisions. They are as follows:

139       Prohibition  against  publication  of  names  in  specified  sexual cases

(1AA)The purpose of this section is to protect persons upon or with whom an offence referred to in subsection (1) or subsection (2) has been, or is alleged to have been, committed.

(1)No person shall publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against

any of sections 128 to 142A of the Crimes Act 1961, or in respect of an offence against section 144A of that Act, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person, unless—

(a)That person is of or over the age of 16 years; and

(b)The court, by order, permits such publication.

(1A)However, the court must make an order referred to in subsection (1)(b), permitting any person to publish the name of a person upon or with whom any offence referred to in subsection (1) has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person, if—

(a)that person—

(i)is aged 16 years or older (whether or not he or she was aged 16 years or older when the offence was, or is alleged to have been, committed); and

(ii)applies to the court for such an order; and

(b)the court is satisfied that that person understands the nature and effect of his or her decision to apply to the court for such an order.

(2)No person shall publish, in any report or account relating to proceedings in respect of an offence against section 130 or section 131 of the Crimes Act 1961, the name of the person accused or convicted of the offence or any name or particulars likely to lead to the person's identification.

(2A)However, a court must order that any person may publish the name of a person convicted of an offence against section 130 or section 131 of the Crimes Act 1961, or any name or particulars likely to lead to the person's identification, if—

(a)the victim (or, if there were 2 or more victims of the offence, each victim) of the offence—

(i)is aged 16 years or older (whether or not he or she was aged 16 years or older when the offence was, or is alleged to have been, committed); and

(ii)applies to the court for such an order; and

(b)the court is satisfied that the victim (or, as the case requires, each victim) of the offence understands the nature and effect of his or her decision to apply to the court for such an order; and

(c)No order or further order has been made under section 140 prohibiting   the   publication   of   the   name,   address,   or

occupation, of the person convicted of the offence, or of any particulars likely to lead to that person's identification.

(2B)An order made under subsection (2A) in respect of the name of a person, or of any name or particulars likely to lead to the identification of a person, ceases to have effect if—

(a)the person applies to a court for an order or further order under section 140 prohibiting the publication of his or her name, address, or occupation, or of any particulars likely to lead to his or her identification; and

(b)the court makes the order or further order under section 140.

…

140Court may prohibit publication of names

(1)Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person's identification.

…

[11] The principles applying under s 140 are well settled. The starting point is open justice and freedom of expression.[4]

[4] R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA); Proctor v R [1997] 1 NZLR 295

(CA); Re Victim X [2003] 3 NZLR 220 (CA); Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).

[12] It is therefore necessary for an applicant for name suppression to persuade the Court that what amounts to a presumption against name suppression should be displaced. The Court of Appeal in one case, Re Victim X, referred to the need for the applicant to establish “compelling reasons” or “very special circumstances” justifying departure from the open justice principle.[5]

[5] Re Victim X, above n 4, at [37].

[13] Different circumstances have been discussed in many cases and there are many different circumstances. It is unnecessary to outline the various factors that have or have not resulted in name suppression. The general principles are the primary guide.

[14] There is one further central consideration on this appeal and which I have already adverted to.  It is a point of importance. This is an appeal against exercise of a discretion by the Judge. Her decision cannot be overturned unless the appellant establishes that there was an error of principle by the Judge, or the Judge failed to consider a relevant matter, or took account of an irrelevant matter, or the decision was plainly wrong. From discussions with Mr Mann in the course of his oral submissions it is apparent that the submission for the appellant is that the Judge was plainly wrong (and, as I will come to, this concerned the way in which the Judge approached what was submitted to be the unique circumstances of this offending).

[15] For an appeal court to find a decision is plainly wrong it is not enough for the appeal Judge to conclude that he or she would have come to a different conclusion. The appeal Judge has to conclude that the original decision was not one reasonably open in the exercise of the discretion. This limit on an appeal against exercise of a discretion is, of course, in marked contrast to a general appeal where the appellate court has to make an original decision on the facts.

The District Court decision

[16] As I have noted, the Judge granted Ms Wills’ application under s 139 for publication of her name. It is unnecessary to consider this part of the decision. One point on appeal in Mr Mann’s written submissions concerned Ms Wills’ motivation for seeking an order permitting publication of her name. However,  Mr  Mann advised that that point was not being pursued. I am satisfied that was a proper and responsible acknowledgement. Ms Wills’ motivation in seeking publication of her name is not relevant, as Mr Francis submitted for the Crown.

[17] Ms Wills’ application, however, is a relevant part of the background summary because of the inter-relationship between ss 139 and 140 for some of the types of offending involved in this case. And the grant of Ms Wills’ application was subject to consideration of the appellant’s application under s 140.

[18] Although Mr Mann’s submissions on appeal were carefully focussed on a small number of primary points – and in particular the submission that the circumstances of the offending are unique – it is appropriate to summarise some of

the main considerations that led to the Judge’s conclusion. It is a careful and comprehensive decision.

[19] One matter carefully considered by the Judge was the impact on the appellant’s family if name suppression was not granted. This is one of the factors raised for the appellant on the appeal. The Judge discussed this in reasonable detail. She referred to relevant observations and conclusions of the Court of Appeal in relation  to  adverse  consequences  for  relations  and  others  associated  with  a

defendant.[6]  She then said:

[21] While I accept that the consequences for the Pollards are going to be distressing, embarrassing, and I think also it will cause them a grave distress, that in my view in itself is not sufficient to displace the presumption of open justice. In particular the Court of Appeal upheld Fisher J’s caution in the Proctor v R case that the Court should not create a special echelon of privileged persons in the community who will enjoy suppression where their less unfortunate compatriots would not. This is not a case  where  the Pollards are trying to allege any privilege, but looking at what the Court of Appeal said, connections to overseas postings and connections with high profile business people do fall into that category, and so therefore I have to say that while I sympathise with the family who have been so supportive and so honest, and who are not responsible for what has happened, their concerns do not in my view displace the presumption of open justice.

[6] Proctor v R [1997] 1 NZLR 295 (CA); Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA); Re Victim X [2003] 3 NZLR 220 (CA).

[20] The Judge then considered concerns in relation to the appellant himself. These included: the impact on his father (who is an incarcerated gang member); the potential risk that the appellant would not be able to see his son in the future because his former partner might cease contact when she discovered the nature of  the charges; the shame to his family and the potential for it to destroy his relationship with them; and impact on the appellant’s rehabilitation. These matters were carefully weighed and found to be insufficient.

[21] There was a psychiatric report on the appellant filed in support of the application. The Judge considered this at length and, again, with care.  She concluded that none of the matters raised by the psychiatrist were sufficient to justify name suppression. Matters raised by the psychiatrist are no longer pursued on this appeal, except to an extent indirectly, and on one specific aspect. The specific aspect is the submission as to the uniqueness of the offending.  It is submitted to be unique

because of, amongst other things, the fact that the victim and the offender are mother and son, circumstances of their relationship over the period of approximately one year, the nature of the charges, the nature of the acquittals, and other features. The Judge said on this and some related matters:

[30] While Dr Cavney [the psychiatrist] says that Mr Pollard has not coped well under the pressure of incarceration it does not seem to be the case at the moment, and Dr Cavney notes he seems to be more adjusted to a prison setting. He is currently engaged in the vocational building restoration programme and that is the reason why he was not at Court today because if he took time off he might lose his place on that programme, and I can understand that. He is concerned that if other inmates find out about this there will be a violent retribution. I am not sure whether that is true or not. I find it difficult to see why there might be retribution if somebody has sex with one’s biological mother, or who has not been a mother figure in someone’s life for a long time, but nonetheless it is possible that there might be a risk of that, but in my view the prison is able to handle threats to the security and lives of prisoners generally in a reasonable way which reduces risk. As Dr Cavney notes at paragraph 52 of his report “his situation is not unknown and other offenders faced with similar offences of rape and male assaults female. While less common are the offences of incest and the fact that the victim of the offending was Mr Pollard’s biological mother.” I accept that the situation is unique and that there is incest plus sexual violation by rape plus violence, those are things it is probably true to say, are not commonly found together. Either there is consensual relationship which offends against s 130 and s 131 in relation to incest, or there is sexual violation by rape and accompanying violence. The combination I accept is somewhat unusual.

[22]  It is apparent from the decision as a whole that the Judge did not consider that an unusual or even unique combination of facts in relation to the offending, which here includes the relationship between victim and offender, of itself justified name suppression. Anticipating the reasons for my own decision on this appeal, I am satisfied that there was no error by the Judge in the exercise of her discretion in that regard. Although I do not have to come to this conclusion I am satisfied that her conclusion was correct.

[23] The Judge then gave further consideration to the authorities binding on her. She noted a range of considerations relevant to the decisions she had to make. These included: the seriousness of the offending; the fact that the appellant was convicted by a jury; her conclusion that the personal circumstances were not out of the ordinary; and the public interest in knowing the appellant’s identity. The essence of her conclusion was as follows:

[39]      I have weighed the public and private interests relevant in this case. I am not satisfied that the balance has come down clearly in favour of suppression to displace the prima facie presumption in favour of open reporting. That prima facie presumption in my view has not been overcome.

Grounds of appeal

[24] The grounds of appeal, recorded in Mr  Mann’s  written  submissions  on appeal, and the grounds pursued at this hearing, are as follows:

In declining to grant permanent name suppression, the District Court decision did not attach sufficient weight to;

(i)         the very unique circumstances relating to the offending; and as a consequence of that did not place sufficient weight on -

(ii)        the effect of publication of the appellant’s name on the appellant’s family members and other related parties; and

(iii)       the adverse effect on the appellant’s prospects of rehabilitation due to his name being published.

[25] As earlier noted a further ground of appeal relating to Ms Wills’ motivation in seeking publication was not pursued.

[26] As I have already indicated Mr Mann submitted, and emphasised, that the circumstances of the offending and other matters, including the relationship between the victim and the offender and the verdicts, both not guilty as well as guilty, make this a unique case or at least a highly unusual case. Mr Mann submitted that this was not properly weighed by the Judge. There were further submissions relating to the effect publication will have on the appellant’s family, particularly because of media interest and Ms Wills’ apparent intention to tell her story. It was submitted that these matters put this case in a category of special circumstances justifying name suppression. There were further submissions relating to the appellant’s own circumstances and particularly his prospects of rehabilitation.

[27] I have taken account of Mr Francis’ submissions, for the respondent, but it is unnecessary to summarise those.

Conclusion

[28] I intend no disrespect to Mr Mann in saying that his submissions, in considerable measure, invite this Court on appeal to consider the application afresh. That is at the least indicated by the summary of the grounds of appeal directed to a failure to give sufficient weight to various matters and in particular the uniqueness of the case. On a general appeal that could be of some importance. However, on an appeal against a discretion matters of weight are unlikely to be matters that can properly be brought into account to allow an appeal. That is not intended to be a definitive statement as to the approach on appeal against exercise of a discretion, but it does apply in this case.

[29] It is not argued for the appellant that there was an error of principle by the Judge or that she took into account irrelevant matters or failed to consider the matters that are relevant. The heart of the submission is that the Judge was wrong in the conclusion she reached in relation to the submission that the case is unique. That conclusion could only be plainly wrong if it was a conclusion that was not reasonably open to the Judge. I am satisfied that it was a conclusion reasonably open to the Judge. Although, as I have already indicated, I am not required to reach my own independent conclusion, I am also satisfied that it was the correct conclusion. The fact that the circumstances of particular offending may be highly unusual or even unique does not of itself provide grounds for departing from the general principle that there should be publication. The uniqueness must be associated in some way with particular and identified harm flowing from that uniqueness which would make the adverse consequences of publication quite out of the ordinary. That second step of the analysis is absent in this case.

[30] Given this conclusion, and Mr Mann’s acknowledgement that the further submissions in large measure flowed from the primary submission about uniqueness, it is not strictly necessary to consider the other factors. However, in fairness to the appellant himself, and to his family, I do record that I am satisfied that there was no relevant error by the Judge in that regard. In particular, there will very often be adverse consequences for family members and even significant distress. A court’s natural sympathy for those circumstances, however, does not justify departing from

the well established principles that these consequences must be at the least out of the ordinary. Sadly, discomfort and even distress for family members is not at all unusual.

[31] There is one other matter that is relevant to note and being a point which also bears on consequences for the family. This is a case where the Judge was in a far better position than a Judge on appeal to assess the impact of certain matters. This is because she presided at the trial and evidence was given by the appellant’s adoptive mother and brother. The Judge recognised the likely impact on them of publicity but was also able to make an assessment, from having heard them and seen them give evidence, as to their strength of character and other good qualities. These were considerations the Judge took into account and are factors that cannot be ignored by a Judge on appeal.

[32] For these various reasons I am satisfied that the appeal should be dismissed and it is dismissed accordingly.

Woodhouse J