The King v Ian William Dallison
[2022] NZHC 2968
•11 November 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-5239
[2022] NZHC 2968
THE KING v
IAN WILLIAM DALLISON
Hearing: 10 November 2022 Counsel:
G J Burston and M Story for Crown K Beaton KC for Defendant
M van Beynen for Stuff Ltd
Judgment:
11 November 2022
JUDGMENT OF ISAC J
[Application for continuing name suppression]
R v DALLISON [2022] NZHC 2968 [11 November 2022]
Introduction
[1] Mr Dallison is charged with a number of serious offences.1 He seeks continued suppression of the personal details of his partner, a sitting District Court Judge, on the grounds that publication of their relationship would create a risk to his safety while he is in prison.
Procedural history
[2] Mr Dallison has been remanded in custody since his arrest on 4 August 2022. He has entered not guilty pleas to the most serious charges and awaits a trial in early 2024. Initially he was granted interim name suppression in the District Court. At his second appearance before Judge Davidson on 19 August 2022, Mr Dallison did not seek to renew suppression of his own name, but obtained an order “prohibiting publication of the name, address, occupation and any other details that may lead to the identification of Judge Farish as a person connected to the defendant”.2 The Judge concluded:3
Detective Sergeant Holden, the officer in charge of this particular inquiry, reports as follows:
Police do not oppose the application to have her relationship with Dallison suppressed. One of the grounds for that is the risk to Dallison from other prisoners if they find out he is a judge’s partner. The police have grave concerns for his safety if this becomes general knowledge in the prison population.
As is well known, the judge is a full-time judge predominately undertaking criminal work in the Christchurch area. She has been a judge for many years and prior to that, for a similar period, was a Crown prosecutor in Christchurch. It is highly likely, if not inevitable, that during that period she will have interacted with prisoners, some of whom may currently be in custody, and not all of whom may have had what they regard as favourable outcomes.
In my view, the application is entirely appropriate. The requisite grounds of endangering the safety of the defendant are made out.
1 Aggravated burglary under s 232(1)(a) of the Crimes Act 1961, attempted murder under s 173 of the Crimes Act, discharging firearm with intent to do grievous bodily harm (in the alternative) under s 198(1)(a) of the Crimes Act, two charges of wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act, unlawful possession of a pistol (a representative charge) under s 50(1)(a) of the Arms Act 1983, unlawful possession of a restricted weapon (a representative charge) under s 50(1)(b) of the Arms Act, and unlawful possession of a prohibited magazine (a representative charge) under s 50B of the Arms Act.
2 Police v Dallison [2022] NZDC 15879.
3 At [4]–[7].
Accordingly, there is an order under s 202(1)(c) prohibiting publication of the name, address, occupation, and any other details that may lead to the identification of Judge Jane Farish as a person connected to the defendant.
[3] At the conclusion of his oral decision the Judge then confirmed “the orders that I made with respect to Judge Farish”.4 It will be evident that the suppression order does not appear to be subject to any temporal limit, a matter to which I will return later.
[4] The charges were then transferred to the High Court. Mr Dallison applied once more for an order continuing suppression until trial. However, at the first call, on 9 September, I continued the suppression order to a case review hearing on 10 November and made timetabling directions for the filing of evidence and submissions.
[5] Following receipt of submissions from the parties I issued a minute late on 9 November 2022 in these terms:
Section 208(2) of the Criminal Procedure Act 2011 provides that if a suppression order is not subject to a specified term, “it has permanent effect”.
It is not clear from District Court’s decision granting the suppression order that the order is subject to a specified term.5 If that is the case, it raises a question whether this Court has jurisdiction to revoke it in light of s 208(3) of the Act, which provides that a suppression order may be reviewed and varied “by the court at any time”.
Counsel and Mr van Beynan may wish to consider the Court of Appeal’s judgment in Boag v R,6 and address the Court on:
(a)whether the order made by the District Court is permanent;
(b)if it is, whether this Court has jurisdiction to revoke the order; and
(c)if it has, the test that should be applied.
4 At [11].
5 At [7] and [11].
6 Boag v R [2022] NZCA 277. See in particular [39]–[62].
The application and the evidence
[6] Mr Dallison’s application is explicitly not made for the Judge’s benefit. Instead, he originally applied under s 202(1)(c) of the Criminal Procedure Act 2011 on the basis that publication of his relationship with the Judge would be likely to endanger his safety in prison.
[7] Mr Dallison filed an affidavit from the Prison Director of Christchurch Men’s Prison, Ms Joanne Harrex. Its purpose is to outline the potential risk to Mr Dallison while in custody. Ms Harrex explains that the defendant was assessed as requiring separation from the mainstream population because “due to his age, first time in prison and relationship with his partner, a district court Judge, Mr Dallison would be vulnerable to manipulation and potential stand-overs and violence”. She said it is common for vulnerable prisoners to apply for voluntary protective custody under s 59(1)(a) of the Corrections Act 2004.
[8] At present, Mr Dallison is on directed protective custody under s 59(1)(b) to enable a thorough risk assessment to be conducted. He is housed in a small management unit in which his association with other prisoners is controlled by staff. Ms Harrex concludes:
It is my opinion that if Mr Dallison’s personal relationship were to become known by prisoners, it would create a safety and good order risk to the operation of [the prison] and create a significant safety risk, both physical and psychological, to Mr Dallison.
[9] The Crown filed a formal written statement by Detective Constable Leanne Benjamin. The statement records the substance of a telephone conversation she had with Lyndal Miles, the Acting Prison Director at Christchurch Men’s Prison, on 22 September 2022. The notes of the conversation record:
(a)Dallison is no longer in the intensive supervision unit as he is not at risk of self-harm.
(b)He is in directed protective custody until 22 November, he doesn't have contact with anyone, unless they are also under directed protective custody.
(c)There have been no issues to date.
(d)If suppression was lifted there would be no direct threat to Dallison where he is now.
(e)When his custody and risk status on 22 November is reviewed, the Prison will find the most appropriate area for him to be to ensure his safety.
(f)There is also an onus on Dallison to speak up if and or when he feels unsafe at any time.
(g)Options if suppression is lifted, could be to transfer him to lnvercargill Prison. He would need to be assessed as the security classification of the prison is low.
[10] The opinion expressed by Ms Harrex in her affidavit about the risk to Mr Dallison is not easy to reconcile with the position relayed to Police by Mr Miles.
The issues for consideration
[11]By the conclusion of the hearing two broad issues arose for consideration:
(a)First, the procedural pathway by which the question of suppression has come before the Court. This issue arises because on one view of the District Court’s decision, a final suppression order has been made. If that is the case, rather than an application to continue name suppression by Mr Dallison, the question is likely to be whether I should revoke the (apparently) permanent order and, if so, the appropriate test to be applied.
(b)Second, whichever pathway the issue has taken, whether a suppression order ought to continue.
First issue: an application to renew name suppression or an application to revoke a permanent order?
[12] As I noted in my minute of 9 November, s 208(2) of the Criminal Procedure Act provides that if a suppression order is not subject to a specified term, “it has permanent effect”. If the order made by the District Court is permanent, Mr Dallison need not apply to renew it. Instead, the question becomes whether this Court has jurisdiction to review the order under s 208(3), which provides that a suppression order may be reviewed and varied “by the court at any time”.
[13] At the hearing, Ms Beaton KC acknowledged that her understanding of the hearing before the District Court was that the Judge intended to make a temporary suppression order until 9 September 2022, when the matter would come before the High Court for fresh consideration. Ms Beaton’s acknowledgment is also consistent with Mr Dallison’s approach to the order, given that he filed an application to renew the order in the High Court on 6 September.7 Despite this, relying on the Court of Appeal’s decision in Boag v R, Ms Beaton submitted that as the District Court’s judgment does not express any limitation on the duration of the order, the effect of s 208(2) is to make it permanent. Accordingly, she submitted that the Court could only proceed on the basis of a review under s 208(3).
[14] Ms Beaton also responsibly accepted, in keeping with Boag,8 that with the transfer of the charges from the District Court the power of review under s 208(3) is now held by this Court. She also accepted there was no prejudice to Mr Dallison if the hearing proceeded on the basis of a review of a permanent order.
[15] Turning to the applicable test, Ms Beaton acknowledged that while earlier authority had suggested revocation of a permanent order would require exceptional circumstances,9 the Court of Appeal in Boag had concluded that was unlikely where the order is permanent only because the court making it omitted to specify a date on which it came to an end:10
The rule [requiring exceptional circumstances] is one of judicial policy, and no policy consideration requires exceptional circumstances to justify revocation of a suppression order which the original court granted on a provisional basis, envisaging that it might be modified as the proceeding continued to trial and disposition.
7 In a memorandum of 6 September 2022 accompanying the notice of application, counsel recorded: “At the hearing, Judge Davidson indicated to counsel that suppression would continue until this appearance in the High Court on 9 September 2022; however, that date has not been recorded in the decision itself” (emphasis added).
8 Boag v R [2022], above n 6.
9 R v Burns [2002] 1 NZLR 387 (CA) at [24]; Taylor v C [2017] NZCA 372 at [36]–[37]; and NZME
Publishing Ltd v R [2018] NZCA 363 at [18].
10 Boag v R, above n 6, at [47].
[16] Despite this, she argued that it appeared the District Court Judge had intended that the order should subsist as long as the risk to the defendant continued. A material change of circumstances would be required before it could be revoked, and there is no evidence that the risk Mr Dallison faced has altered.
[17] For the Crown, Mr Burston submitted that given both the Crown and defence acknowledged that Judge Davidson’s intention was to make an interim order, to treat it as anything other than interim would be artificial. He also raised an understandable concern in relation to unexpected consequences: name suppression orders in the District Court are routinely made orally in open court, and the written record of the oral order may not adequately reflect the Court’s decision. The higher courts should be cautious before imposing standards that do not reflect the reality of practice in the courts below. On that basis, he submitted I should proceed on the basis that Mr Dallison has the burden of establishing proper grounds for continuation of the order.
Consideration
[18] In Boag, a District Court judge had made a suppression order and in doing so observed the order would be “subject to there being no material change to the factual basis on which it was advanced”. This led the Court of Appeal to conclude that the Judge had envisaged that the factual basis for suppression might change, and contemplated that if it did he might reach a different decision.11 Despite this, the Court of Appeal reached a different view to the High Court on whether the order was permanent:12
Respectfully differing from Venning J, we consider that the order made in this case was permanent for the purposes of s 208. We accept that it would have been otherwise had the order been expressed to continue until an event, such as the end of the trial. In such a case the expiry date would be ascertainable even if it was still to be fixed when the suppression order was made. But nothing in this order limited its temporal duration. That being so, under s 208(2) it was deemed permanent.
11 At [14]–[15].
12 At [42].
[19] Given the terms of Judge Davidson’s oral judgment, I am driven to the same conclusion. The order does not specify a term, and it is not expressed to continue until an event or an ascertainable date. The order is, accordingly, deemed a permanent order in terms of s 208(2).
[20] However, I am also satisfied that the District Court did not intend that the order should be permanent. Accordingly, while a revocation application is not to be treated as the re-exercise of the original suppression power, the test requires consideration of whether there has been a material change of circumstances since the order was made.13 If there has been, the jurisdiction to grant or decline name suppression will be enlivened.
[21] While no application for revocation was advanced by the Crown or Stuff Ltd at the hearing, I do not consider one is required. That is because the power of review in s 208(3) is not expressed to be engaged only on an application by a party or media. Rather, it is the court which may review the order “at any time”.
Second issue: should the suppression order be revoked?
[22] Although I am proceeding on the basis of a review of the District Court’s order, it is useful to begin with a summary of the principles applicable to the grant of suppression orders.
[23] As the Supreme Court held in Erceg v Erceg, the principle of open justice is one of constitutional importance and “fundamental to the common law system of civil and criminal justice”.14 It has been said that:15
… the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.
13 At [49].
14 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
15 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 466. As this passage emphasises, suppression orders are an intrusion into freedom of expression, a right guaranteed under s 14 of the New Zealand Bill of Rights Act 1990. It includes the freedom to seek, receive and impart information and opinions “of any kind in any form”. Only limits on the right that are prescribed by law, reasonable and demonstrably justified are lawful, in keeping with s 5. The question of name suppression requires the balancing of the public interest in a democracy in open justice and freedom of expression with the private interests of those coming before the courts to be protected from undue harm as a result of publication.
[24] Against that backdrop, s 202 of the Criminal Procedure Act empowers a court to suppress the identity of persons connected with a proceeding, but only if one of the threshold criteria in subs 202(2) is met. It relevantly provides:
The court may make an order under subsection (1) only if the court is
satisfied that publication would be likely to—
(a)cause undue hardship to the witness, victim, or connected person; or
…
(c) endanger the safety of any person;
…
(4) An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
(emphasis added).
[25] The words in italics emphasise the important limits on the discretion in s 202(1), consistent with the need to limit the intrusion into the principle of open justice and freedom of expression.
[26] It is also well established that the determination of applications for name suppression under s 202 requires a two-stage process:16
(a)The first stage is a threshold determination in which the court considers whether the consequences in s 200(2) would likely follow publication of the person’s name. “Likely” is a common-sense test that has been held to mean “a real and appreciable possibility”, “real risk that cannot be readily dismissed” or “a real and appreciable possibility that cannot be dismissed or ignored or described as remote or fanciful”.17
16 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [43]; and Ratnam v R [2020] NZCA 92 at [5]–[6], citing DP v R [2015] NZCA 465, [2016] 2 NZLR 306 at [6].
17 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA202.04], citing R v W [1998] 1 NZLR 35 (CA); Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; and Wallis v Police [2015] NZHC 2904 at [22].
(b)At the second stage, if the threshold is crossed, the court considers whether an order should be made as a matter of discretion. The starting point is the principle of open justice, and the circumstances must “clearly favour” suppression for an order to be made. This involves a balancing exercise.
[27] As the Crown submitted, the issue of danger to a person’s safety in s 202(2)(c) must be considered in a factual context. There must be an evidential basis for the belief that the safety of a person is likely to be endangered.18 In assessing safety, the court must consider risks to both the physical and mental health of the person concerned.19 And in K v Inland Revenue Department, Williams J held that “the nature and extent of the danger must be weighed against the importance of open justice”.20
Mr Dallison’s submissions
[28] Ms Beaton submitted name suppression should continue because there had not been a material change in circumstances since the order was made by the District Court. She submitted the affidavit of Ms Harrex confirms there is a real risk to the defendant from other prisoners should the fact of his relationship with a District Court judge become known. The risk is both personal and general. First, there will be prisoners who have been sentenced by Judge Farish who are likely to be aggrieved with the outcome; Mr Dallison would be an obvious target for their retribution. Second, the risk operates at a general level, given the likelihood that Mr Dallison might be seen as a target for intimidation and manipulation by reason of his association with a serving judge.
[29] Ms Beaton emphasised Ms Harrex’s concluding opinion that disclosure of Mr Dallison’s personal relationship would “create a significant safety risk, both physical and psychological, to Mr Dallison”. And while Ms Beaton acknowledged there was no evidence of a specific threat to Mr Dallison’s safety, she submitted that was because other prisoners are not currently aware of Mr Dallison’s relationship, and because he was subject to protective directed segregation. Counsel emphasised the risk
18 Bitossi v R [2014] NZCA 595 at [8].
19 R v B [2020] NZHC 1930 at [32]–[33]; and R v MT [2020] NZHC 1490 at [131].
20 K v Inland Revenue Department [2013] NZHC 2426, (2013) 26 NZTC 21-034 at [55].
of mental harm to Mr Dallison given his current conditions of detention. He is currently on segregation “23 hours a day” and is not receiving any visits.
[30] Relying on the observations of Edwards J in R v T,21 Ms Beaton also submits that the public interest in the present case is in the offending itself, not the identity of the defendant’s partner or her position. Judge Farish had nothing to do with the offending, and her personal details and her role are “irrelevant to the offending”. Interest by the media in the fact Mr Dallison’s partner is a judge is not the same as public interest in open justice.22 Accordingly, I can be satisfied that the risk to Mr Dallison’s safety outweighs any countervailing public interest in publication.
The Crown’s submissions
[31] Mr Burston submits that the evidence demonstrates that the staff at Christchurch Prison are alive to Mr Dallison’s vulnerability and are focussed on ensuring his safety while in custody. He drew the Court’s attention to the decision of MS v R, where the Court of Appeal rejected the proposition that suppression of the name of the offender should be granted on the assumption that the Department of Corrections could not put in place proper measures to safeguard people in their custody.23 On that basis, Mr Burston submits that there is insufficient evidence to conclude that the safety of the defendant is likely to be endangered, and the first stage threshold has not been met.
[32] Mr Burston also argues that publication of Mr Dallison’s relationship with Judge Farish would not prejudice Mr Dallison’s fair trial rights. He submits that continuing suppression in this case may set a precedent preventing the future publication of a defendant’s relationship to police officers, corrections officers, politicians and celebrities. Such a precedent risks undermining public confidence in the justice system, and runs contrary to the policy underpinning ss 200–205. That policy is designed to prevent the perception that there is special treatment for elites in consideration of name suppression by the court; the mere fact of a defendant’s
21 R v T [2022] NZHC 782.
22 At [20].
23 MS (CA405/2016) v R [2016] NZCA 544. See also in Holland v Dept of Corrections [2019] NZHC 2488 at [22].
relationship to a high-profile individual with money or power is not itself grounds for suppression and should not be seen to influence the court when the grounds for suppression have not otherwise been met. Given the premise for the order will inevitably come to an end when Mr Dallison is released from prison, the fact that a member of the judiciary has had their name and identifying particulars suppressed may be perceived as “the system looking after its own”.
Stuff Ltd’s submissions
[33] Mr van Beynen for Stuff also opposes continuing suppression. He submits that the alleged risk to the defendant’s safety in prison is speculative and unsupported by evidence. Mr van Beynen argues that, taking a realistic approach to the flow of information within prisons, the staff at Christchurch Men’s Prison will have to manage Mr Dallison as though his connection to the Judge is already known to the prison population. Further, publication would ensure that any information circulating in the prison is accurate, decreasing the risk to Mr Dallison that might arise from rumours, speculation and inaccurate information.
[34] Mr van Beynen also submits that the integrity of the justice system requires the Court to guard against the impression it is protecting its own. Here, there is a legitimate public interest in knowing that a District Court judge has a partner who, aside from the more serious charges, has pleaded guilty to unlawful possession of restricted firearms. There is also a public interest in knowing that (alleged) crime does not only occur among the poor and disadvantaged, and that even the most elevated in society can have family who offend for whatever reason.
Material change of circumstances?
[35] The first question is whether there has been a material change of circumstances since the District Court made its decision.
[36] Judge Davidson’s decision records that the evidence on which it was based consisted of a report from a Detective Sergeant in charge of Mr Dallison’s case. The officer’s report contained a conclusory statement that police had grave concerns for
Mr Dallison’s safety if his relationship with the Judge became general knowledge in the prison population.
[37] However, both the authors of Adams on Criminal Law and the Court of Appeal have observed that courts generally take the view that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners in the absence of evidence that it is not doing so in respect of a defendant.24 In MS v R, the appellant had been assaulted by his cell mate on the mere suspicion he was the defendant charged with the murder of a child. The assault had occurred even though he was on segregation. He argued that publication of his name would increase the risk of further violence directed at him in prison. The Court of Appeal commented:
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.
[38] I consider that the almost three months Mr Dallison has spent in custody without incident or evidence of any specific threat amounts to a material change of circumstances. I am supported in that conclusion by the evidence provided by Ms Harrex, as well as by the Crown, going to the level of risk Mr Dallison faces. That material, which provides much greater clarity about Mr Dallison’s circumstances, was not available to the District Court at the time it was considering suppression on 19 August 2022.
[39] What is clear is that in the intervening three months no evidence has emerged that Mr Dallison has been targeted by other prisoners or that he has been the subject of any specific threat to his safety. While Ms Beaton put this down to the existence of the suppression order, I consider it is due to the protective measures the prison manager has put in place to ensure his safety. This includes a protective custody segregation direction under s 59(1)(b) of the Corrections Act. According to Ms Harrex, that order was made not only to manage the risk to Mr Dallison given his age and the fact it is his first time in prison, but also due to “his relationship with his partner”. Corrections staff are therefore pro-actively managing Mr Dallison’s safety having
24 Adams on Criminal Law, above n 17, at [CPA 200.02]
already assumed that knowledge of the relationship may become known within the prison notwithstanding the existence of the suppression order.
[40] In light of my conclusion that there has been a material change of circumstances, it is necessary to consider afresh the question of suppression. In doing so, I proceed on the basis of the evidence available to me in light of the well-known two-stage test.
Should the order be revoked?
[41] The first question is whether Mr Dallison has established that publication of his relationship with the Judge is likely to endanger his safety. Having considered the evidence and submissions, I have concluded that Mr Dallison has not met the threshold test. In particular, Ms Harrex’s evidence is insufficient to establish that publication poses a “real and appreciable” risk of harm to Mr Dallison.
[42] The asserted risk is at best speculative and unsupported by any direct evidence of a meaningful threat. Given there has now been some water under the bridge in terms of Mr Dallison’s treatment in custody, the lack of evidence of actual threats to his safety leads me to conclude that the protective measures in place are effective, and that it is appropriate to proceed on the basis that Corrections will continue to comply with its statutory obligations to ensure Mr Dallison’s safe custody and welfare.
[43] As I have noted, in MS v R, the Court of Appeal considered that an assault on MS by his cell mate as a result of suspicion that he was the defendant in that case was insufficient to displace the presumption that Corrections would ensure his safety in the future. A similar view was taken in Holland v Department of Corrections.25 There, Mr Holland sought name suppression on the basis that his safety would be endangered. In support he pointed to two assaults he suffered while in Corrections’ custody some seven years earlier. Edwards J found that the evidence of the assaults did not establish that publication was likely to place Mr Holland’s safety at risk:26
25 Holland v Department of Corrections, above n 23.
26 At [19] (footnotes omitted).
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. 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.
[44] Mr Holland sought to distinguish MS v R on the basis that the decision is based on a presumption that Corrections is capable of protecting at-risk prisoners from assault, but in Mr Holland’s case there was evidence of a second assault after measures were put in place. The Court found the failure of the protective measures to avoid the second assault was not sufficient to displace the normal presumption:27
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.
[45] Unlike the appellant in MS, or Mr Holland, there is no evidence Mr Dallison is likely to be endangered should publication occur. Ms Harrex’s opinion that publication of the relationship would create a significant safety risk is not supported by the established record of three months of remand, or the balance of her evidence. My assessment is also supported by Detective Constable Benjamin’s discussion with the Acting Prison Director in September 2022, that “[t]here have been no issues [for Mr Dallison] to date” and that “[i]f suppression was lifted there would be no direct threat to [Mr] Dallison where he is now”.
[46] While it is unfortunate that the result of the segregation direction is that Mr Dallison’s ability to associate with other prisoners has been limited, that was considered necessary for a number of factors beyond his relationship with the Judge. There is nothing to currently suggest that Mr Dallison will be free of some degree of segregation even if the suppression order is maintained. It is common for vulnerable
27 At [22].
prisoners to be subject to segregation orders that deny, or restrict, their association with other prisoners. Indeed, many are on voluntary segregation under s 59(1)(a) of the Corrections Act. On its own, I would be reluctant to find that the existence of such an order presents a risk to Mr Dallison’s psychological well-being.
[47] Overall, Mr Dallison has not established that there is a real and appreciable risk to his safety should publication occur. I am therefore satisfied that the order of the District Court should be revoked.
[48] In any case, I would not have exercised the discretion in favour of Mr Dallison. Given my findings on the nature and extent of the claimed risk, weighing it against the important constitutional principle of open justice, I would have found that the balance clearly favours the public interest ahead of Mr Dallison’s private interests.
[49] Nor do I readily accept Ms Beaton’s submission that the interests of open justice are so narrow as to favour reporting only of the alleged offence and involvement of the offender. The approach of the higher courts in Boag indicate that the public interest in access to information about cases coming before the courts is not limited to the parties but extends to those who may only be indirectly associated with the proceeding. I would be slow to accept the view that there is no public interest in the fact of Mr Dallison’s relationship with a serving judge of the District Court. While there is absolutely no suggestion that the Judge is in any way involved in the allegations leading to the charges, those exercising public authority are held to a high standard. Rightly or wrongly, when family members of those holding public office find themselves before the courts, publicity surrounding the connection between the defendant and the official goes with the territory.
[50] Finally, a further consideration that would have led me to decline to exercise the discretion in favour of a suppression order is that it could only ever be temporary. The premise on which it was made is Mr Dallison’s continuing incarceration. Should he receive bail or be acquitted, as Mr van Beynen submits, there would be no reason for suppression to continue. The real question then comes down to a matter of timing. Given my findings that the risk is at most speculative, the interests of justice do not support further delay in publication.
Conclusion and result
[51]The suppression order made by the District Court is revoked.
[52] Given Mr Dallison’s indication at the hearing that he wishes to appeal an adverse judgment, I am satisfied that an appeal against my decision is to be filed under s 285 of the Criminal Procedure Act. Accordingly, I must make an interim order to the effect sought by Mr Dallison pursuant to s 286(1). I now do so.
[53] Ms Beaton confirmed that any notice of appeal will be filed within 48 hours of delivery of my judgment. Given the judgment is issuing on Friday afternoon, 11 November 2022, I would not expect a notice of appeal to be filed before 4 pm on Tuesday, 15 November 2022.
[54]Leave to apply is reserved.
Isac J
Solicitors
Crown Solicitor, Wellington for Crown
Walker Street Chambers, Christchurch for Defendant
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