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Why the High Court and Court of Appeal refused name suppression for a judge

27 Jun 2024

| Author: Sonia Pinto

This matter follows Isac J’s decision in the High Court that the suppression order made by the District Court should be revoked (R v Dallison [2022] NZHC 2968.) The judge’s reasoning was based on the principle of open justice which he summarised as one of constitutional importance and fundamental to the common law system of civil and criminal justice.

Ian Dallison’s application for continued name suppression had to be assessed under s 202 of the Criminal Procedure Act, Isac J said. This section relates to the court being able to suppress the identity of witnesses, victims and connected persons. The application related to Jane Farish, a District Court judge, who was a connected person because she was in a romantic relationship with Dallison at the time of the offending (although she was not involved in the offending and knew nothing about it).

Isac J noted that under s 202, an order for suppression could be made only in limited circumstances and there was a two-step process involved. The first step was a threshold determination that considered whether the consequences listed in 202(2) of the CPA would be likely to flow from publication; the second step was whether the making of an order should be guided by the principle of open justice.

The judge found there was insufficient evidence to establish that the publication would pose a “real and appreciable risk” of harm to Dallison.

Dallison then went to the Court of Appeal, which considered the High Court decision, along with applications made under ss 202 and 205 of the CPA by Farish herself.

It was noted that the initial suppression in the District Court was intended to apply on an interim basis, given that the file was then transferred to the High Court for trial. The Court of Appeal agreed with counsel for the respondent who cited Boag v R which found there was nothing to prevent the High Court from re-visiting the issue of suppression under s 208 of the Criminal Procedure Act, especially once the matter had been transferred to the High Court. From there, the High Court became the court with original jurisdiction in respect to any review of a suppression order.

The Court of Appeal found that Isac J was correct in his assessment in the two-step process for determining a suppression application.  The threshold test was not met in terms of the risk to Dallison’s safety if his relationship with a judge was made public.  It was not necessary to go into detail about the discretionary considerations of step two of the test as the first step had not been met. The court found it was sufficient to record its view that there would be strong reasons not to order suppression because of the strength of the public interest surrounding the commission of a violent crime.

At this appeal hearing, Farish also made an applications for suppression, the first under s 205 and the second under s 202. These applications turned on an apprehended threat to the judge’s safety which was not the issue raised by Dallison’s appeal, although Farish’s applications were made to the court in the context of Dallison’s appeal. The court addressed the issue of jurisdiction and it was found that there was jurisdiction.

For the application under s 205, the genesis of the application was in the context of written submissions made in relation to Dallison’s appeal to the court. It was directed to the submissions and evidence referred to in them. It was found that the Court of Appeal did have the power to act under s 205(1).

The second application under s 202 was more complicated because the power to supress under s 202(1) is given to “[a] court that is hearing a proceeding in respect of an offence”. The language appears to consider only a suppression order connected to an ongoing trial. This contrasts with the retrospective language used in s 205(1), referring to evidence and submissions already made. However, it was decided that a reading of s 202 which gave the court jurisdiction was appropriate in the interest of justice.

When it came to assessing the applications themselves, the court found that the statutory threshold in relation to Farish’s connection with Dallison and its likelihood of endangering her safety had not been met.

The Court of Appeal said the risks to Farish were not within the relevant statutory provisions. The court said it understood why publishing personal information would be objectional to a connected person, but this usually applied to all those connected to persons convicted of serious crimes. The chance of unwanted media attention could not be avoided unless one of the relevant grounds for suppression was made out.

As a result, Dallison’s appeal was dismissed and Farish’s applications under ss 202 and 205 of the CPA were declined.

 

Dallison 2023-NZCA-282-2 dallison

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