Dallison v R - [2023] NZCA 282
Date of Judgment
11 June 2024
Media releases
Decision
Summary
Reissue date: 11 June 2024
CRIMINAL LAW – Practice and procedure – Suppression
Appeal dismissed. Judge Farish’s applications under s 202 and 205 of the Criminal Procedure Act 2011 are declined. The existing suppression orders apply until noon on 17 July 2023 and shall then expire.
This judgment has been reissued in a redacted form in light of the Supreme Court’s judgment allowing the appeal of Judge Jane Farish against the part of the decision dismissing Judge Farish’s application under s 205 of the Criminal Procedure Act 2011.
The appellant, Mr Dallison, pleaded guilty to charges of attempted murder and wounding with intent to injure, and three representative charges of possession of pistols, restricted weapons, and magazines. On 28 April 2023, he was sentenced to an effective term of six years and ten months’ imprisonment by Isac J in the High Court at Christchurch.
Prior to sentencing, Mr Dallison had appealed against a judgment of Isac J that revoked a suppression order originally made in the District Court that prohibited publication of the name, address, occupation and any other details that might lead to the identification of his partner Judge Jane Farish as a person connected to him. Mr Dallison had contended publication of the connected person’s name and occupation would endanger his safety while in custody.
Mr Dallison appealed against the revocation of suppression to this Court. This Court also heard two further applications for suppression made successively by Judge Farish under ss 202 and 205 of the Criminal Procedure Act 2011. These applications were made to this Court as the first instance court.
The Appeal Issue 1: Was a material change in circumstances required, under s 208 of the Criminal Procedure Act, for Isac J to revisit the District Court suppression order? Held: No
Counsel for the appellant submitted that the High Court only had jurisdiction to review a suppression order where there has been a material change in circumstances. The Court held there was nothing to prevent the High Court from revisiting the issue of suppression under s 208 of the Criminal Procedure Act. Once the prosecution had been transferred to the High Court, that Court became the court with the original jurisdiction in respect of any review of suppression under s 208(3). Following this transfer, it would have been possible for Isac J to consider suppression afresh under the power given by s 208(3). The application did not require consideration of whether there had been a change of circumstances, as had been required in Boag v R [2022] NZCA 277.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
Counsel for the appellant submitted that the High Court had erred in finding that the threshold ground in s 202(2)(c) of the Criminal Procedure Act had not been met and that publication of Mr Dallison’s relationship with Judge Farish would not create a real, appreciable, and ongoing risk to his safety. It was alleged that this risk would arise through Mr Dallison’s connection with Judge Farish making him a target for retribution at the hands of aggrieved prisoners, or intimidation or manipulation more generally.
This Court was not satisfied that the argument put forward met the statutory requirement that publication of Judge Farish’s name would be likely to endanger Mr Dallison’s safety. All that had been proffered was the argument that there will be a risk that some fellow prisoners will take action against Mr Dallison because of his relationship with a judge. This was not sufficient to rebut the presumption that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners.
This Court held the threshold test was not met in these circumstances, and that Mr Dallison’s appeal must be dismissed. The Court further noted that in any event that it would not have exercised its discretion in favour of ordering suppression due to the strength of public interest.
Judge Farish’s Applications
Issue 1: Does this Court have jurisdiction to hear these applications at first instance? Held: Yes
The Court held it had jurisdiction to deal with both of Judge Farish’s applications as the first instance court.
The Court held there is jurisdiction to consider the application under s 205. The application made under s 205 was directed to evidence and written submissions in respect of Mr Dallison’s appeal. It would be impractical for an application to suppress those matters initiated in the trial court.
The Court also held that a reading of s 202 which gave the Court jurisdiction was appropriate to meet the interests of justice as they arise. Jurisdiction arose because the application was advanced in the context of Mr Dallison’s appeal.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
In respect of the application made pursuant to s 205, counsel for Judge Farish sought suppression of facts in the submissions and evidence.
After considering evidence on the risk to safety, the Court held that the statutory threshold had not been met. The Court further recorded that it would not have exercised its discretion in favour of suppression due to the strong public interest surrounding the offending and all surrounding circumstances.
CRIMINAL LAW – Practice and procedure – Suppression
Appeal dismissed. Judge Farish’s applications under s 202 and 205 of the Criminal Procedure Act 2011 are declined. The existing suppression orders apply until noon on 17 July 2023 and shall then expire.
This judgment has been reissued in a redacted form in light of the Supreme Court’s judgment allowing the appeal of Judge Jane Farish against the part of the decision dismissing Judge Farish’s application under s 205 of the Criminal Procedure Act 2011.
The appellant, Mr Dallison, pleaded guilty to charges of attempted murder and wounding with intent to injure, and three representative charges of possession of pistols, restricted weapons, and magazines. On 28 April 2023, he was sentenced to an effective term of six years and ten months’ imprisonment by Isac J in the High Court at Christchurch.
Prior to sentencing, Mr Dallison had appealed against a judgment of Isac J that revoked a suppression order originally made in the District Court that prohibited publication of the name, address, occupation and any other details that might lead to the identification of his partner Judge Jane Farish as a person connected to him. Mr Dallison had contended publication of the connected person’s name and occupation would endanger his safety while in custody.
Mr Dallison appealed against the revocation of suppression to this Court. This Court also heard two further applications for suppression made successively by Judge Farish under ss 202 and 205 of the Criminal Procedure Act 2011. These applications were made to this Court as the first instance court.
The Appeal Issue 1: Was a material change in circumstances required, under s 208 of the Criminal Procedure Act, for Isac J to revisit the District Court suppression order? Held: No
Counsel for the appellant submitted that the High Court only had jurisdiction to review a suppression order where there has been a material change in circumstances. The Court held there was nothing to prevent the High Court from revisiting the issue of suppression under s 208 of the Criminal Procedure Act. Once the prosecution had been transferred to the High Court, that Court became the court with the original jurisdiction in respect of any review of suppression under s 208(3). Following this transfer, it would have been possible for Isac J to consider suppression afresh under the power given by s 208(3). The application did not require consideration of whether there had been a change of circumstances, as had been required in Boag v R [2022] NZCA 277.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
Counsel for the appellant submitted that the High Court had erred in finding that the threshold ground in s 202(2)(c) of the Criminal Procedure Act had not been met and that publication of Mr Dallison’s relationship with Judge Farish would not create a real, appreciable, and ongoing risk to his safety. It was alleged that this risk would arise through Mr Dallison’s connection with Judge Farish making him a target for retribution at the hands of aggrieved prisoners, or intimidation or manipulation more generally.
This Court was not satisfied that the argument put forward met the statutory requirement that publication of Judge Farish’s name would be likely to endanger Mr Dallison’s safety. All that had been proffered was the argument that there will be a risk that some fellow prisoners will take action against Mr Dallison because of his relationship with a judge. This was not sufficient to rebut the presumption that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners.
This Court held the threshold test was not met in these circumstances, and that Mr Dallison’s appeal must be dismissed. The Court further noted that in any event that it would not have exercised its discretion in favour of ordering suppression due to the strength of public interest.
Judge Farish’s Applications
Issue 1: Does this Court have jurisdiction to hear these applications at first instance? Held: Yes
The Court held it had jurisdiction to deal with both of Judge Farish’s applications as the first instance court.
The Court held there is jurisdiction to consider the application under s 205. The application made under s 205 was directed to evidence and written submissions in respect of Mr Dallison’s appeal. It would be impractical for an application to suppress those matters initiated in the trial court.
The Court also held that a reading of s 202 which gave the Court jurisdiction was appropriate to meet the interests of justice as they arise. Jurisdiction arose because the application was advanced in the context of Mr Dallison’s appeal.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
In respect of the application made pursuant to s 205, counsel for Judge Farish sought suppression of facts in the submissions and evidence.
After considering evidence on the risk to safety, the Court held that the statutory threshold had not been met. The Court further recorded that it would not have exercised its discretion in favour of suppression due to the strong public interest surrounding the offending and all surrounding circumstances.