Dhankhar v The King

[2023] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dhankhar v R [2023] NSWCCA 67

Hearing dates:

07 March 2023

Date of orders:

07 March 2023

Decision date:

29 March 2023

Before:

Payne JA at [1]
Garling J at [5]
Yehia J at [56]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIMINAL PROCEDURE — suppression and non-publication orders — appeal against decision not to make non-publication order — where applicant is alleged to have committed a series of offences — where applicant applied for suppression and non-publication orders in relation to his name and his wife’s name — where applicant claimed that the orders were necessary to protect his safety, his wife’s safety and the safety of family members — where applicant relied on evidence in relation to his and his wife’s cultural background and circumstances — where applicant and his wife belonged to the Jat community originating from the Indian subcontinent — where persons whose safety was said to be at risk were located in Australia and India — whether orders “necessary to protect the safety of any person” — “calculus of risk” approach — appeal dismissed

Legislation Cited:

Crimes Act 1900

Court Suppression and Non-publication Orders Act 2010

Cases Cited:

AB v R (No 3) (2019) 276 A Crim R 443; [2019] NSWCCA 1046

Burrell v R [2008] NSWCCA 276

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52

John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

Nagi v DPP (NSW) [2009] NSWCCA 197

R v A1 (No 1) [2019] NSWSC 611

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Balesh Dhankhar (Applicant)
The Crown (Respondent)

Representation:

Counsel:
L Fernandez (Applicant)
G A Newton SC with J Styles (Respondent)

Solicitors:
Nyman Gibson Miralis (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00323697

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 February 2023

Before:

Huggett DCJ

File Number(s):

2018/00323697

JUDGMENT

1. PAYNE JA: On 7 March 2023 I joined in orders made by the Court on that day. My reasons for doing so are encapsulated in the reasons of Garling J, with which I agree.

2. I join with his Honour in expressing regret about the inability of the parties to identify the order apparently made in his case or its terms. It is critical that orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) are clear and understood by all, not least the media who have an important role in facilitating open justice. As Leeming JA said in DRJ v Commissioner of Victims Rights [2020] NSWCA 136:

“[42] An applicant for an order under the Court Suppression and Non-Publication Orders Act needs to identify the paragraph or paragraphs in s 8 on which he or she relies, the terms of the order sought, and its duration. That is important, not least, because the order is required explicitly to specify each of those matters. The ground is required to be specified by s 8(2). The information to which the order applies is required to be specified by s 9(5). The order’s duration is required to be specified by s 12(1).”

3. The requirements of an order made under the Court Suppression and Non‑Publication Orders Act also include a geographic limitation:

“11   Where an order applies

(1)     A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.

(2)     A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.

(3)     However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.”

4. The geographic limits of any order made under the Court Suppression and Non‑Publication Orders Act 2010 provide an additional reason why I was not persuaded that it was necessary that the orders sought be made in this case.

5. GARLING J: The applicant, Mr Balesh Dhankhar, is presently standing trial before King SC DCJ in the District Court of New South Wales. He is alleged to have committed a series of offences in 2018, being:

1. 14 counts of sexual intercourse without consent (s 61I of the Crimes Act 1900) (Crimes Act);

2. 4 counts of indecent assault (s 61L of the Crimes Act);

3. 16 counts of record intimate image without consent (s 91P(1) of the Crimes Act); and

4. 6 counts of using intoxicating substance to commit an indictable offence (s 38(a) of the Crimes Act).

6. The prosecution case alleges that the applicant posted job advertisements for Korean and Japanese interpreters on the Gumtree website. He would then arrange face-to-face meetings with female respondents to those advertisements. Eventually, the applicant would entice each complainant to his apartment before giving them, or attempting to give them, alcohol to which a sedative had been added. Then, when the complainant was in a state of unconsciousness, the applicant would sexually assault the complainant and would film parts of that sexual assault. The applicant has pleaded not guilty to all offences.

7. The applicant sought leave to appeal against a decision of Huggett DCJ dated 9 February 2023. In that decision, her Honour refused an application by the applicant for pseudonym and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (“CSNPO Act”).

8. At the conclusion of the argument, the Court determined the application for leave to appeal. It indicated that it would provide its reasons in due course. These are my reasons for joining in with the orders of the Court determining the application.

Background

9. Between 30 May 2019 and the date of her Honour’s decision, various pseudonym, and non-publication orders under the CSNPO Act were made in the course of this proceeding. On 30 May 2019, Chief Magistrate Henson in the Local Court of New South Wales made the first such order on an interim basis. After that time, the Local Court and then the District Court made orders effectively continuing the operation of that interim order until the first day of the applicant’s trial, which was originally scheduled for late 2020. After a fresh indictment was filed on 3 July 2020, the applicant’s trial was rescheduled to early 2023. The applicant’s trial in the District Court before King DCJ commenced on 15 February 2023.

10. The orders made previously under the CSNPO Act were made with the consent of the Crown until 11 October 2019, at which time the Crown’s position changed to one opposing the orders.

11. The parties were unable to provide to this Court (or to Huggett DCJ in the District Court) the terms of the orders which were previously made. Counsel for both the applicant and the respondent advised this Court that the parties had made efforts to find the terms of the orders but had been unsuccessful.

12. It is regrettable that the Court was placed in this position. It is essential that whenever any court makes a suppression or non-publication order under the CSNPO Act, the terms of the order are precisely formulated, and clearly recorded, certainly in the court file, and preferably on a central register, which, if it does not exist, should be created.

13. Nevertheless, for present purposes it is sufficient to state that the orders that applied previously to this proceeding were essentially pseudonym and non-publication orders in relation to the applicant’s name and his wife’s name which were to the effect of orders (1)-(4) sought on this application (which I outline at [18] below).

Decision under Appeal

14. As I noted above, the applicant sought leave to appeal against a decision of Huggett DCJ dated 9 February 2023. The subject of that decision was an application made by the applicant which was heard on 17 November 2022. The applicant in that application reagitated before his trial the pseudonym and non‑publication orders issue. He sought orders pursuant to s 8(1)(c) of the CSNPO Act identical in effect to those sought in the present application. At that hearing, the applicant’s wife gave evidence in support of his application, as well as Dr Devleena Ghosh, a Professor in Social and Political Studies at the University of Technology Sydney. The applicant did not give evidence.

15. Her Honour reserved her decision. On 9 February 2023, her Honour dismissed the application, revoking the prevailing interim order and declining to make a further order in favour of the applicant. The applicant appeals against that decision pursuant to s 14 of the CSNPO Act.

16. Since 9 February 2023, the District Court and then this Court have made orders to temporarily stay Huggett DCJ’s decision in order to preserve the applicant’s appeal rights. As a consequence of the Court’s order of 7 March 2023, these interlocutory orders have come to an end.

Jurisdiction and nature of the appeal

17. The applicant appeals under s 14 of the CSNPO Act. Section 14 of the CSNPO Act relevantly provides:

“14    Appeals

(1)    With leave of the appellate court, an appeal lies against—

(a)    a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or

(b)    a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2)    The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

…

(4)    On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.

(5)    An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

…”

18. The Court of Criminal Appeal has jurisdiction to hear an appeal of a decision to make or not to make an order under the CSNPO Act only in circumstances in which it is the court to which appeals lie against final judgments or orders of the original court: CSNPO Act s 14(2). The impugned orders in this case were interlocutory orders made in the District Court in the exercise of its criminal jurisdiction. Therefore, the Court of Criminal Appeal is the court to which appeals lie against those orders: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [17] (Whealy JA, Bathurst CJ and Basten JA agreeing).

19. Consequently, this Court has jurisdiction to hear the present application.

20. An appeal pursuant to s 14 of the CSNPO Act is an appeal by way of rehearing: s 14(5). Therefore, new evidence may be given.

Orders sought by the applicant

21. The applicant sought the following orders pursuant to ss 7 and 8(1)(c) of the CSNPO Act:

1. The applicant is to be referred to by the pseudonym “BS” and his wife is to be referred to as “HD”.

2. There is to be no publication of BS’s name, or of any information tending to identify him.

3. There is to be no publication of HD’s name, or of any information tending to identify her.

4. The orders shall apply throughout the Commonwealth of Australia.

5. The orders shall expire two (2) years from the date of being made.

22. Section 7 of the CSNPO Act relevantly provides:

“7    Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

…”

23. Section 8 of the CSNPO Act relevantly provides:

“8    Grounds for making an order

(1)     A court may make a suppression order or non-publication order on one or more of the following grounds—

…

(c)    the order is necessary to protect the safety of any person,

…

…”

Evidence before this Court

24. The applicant before this Court gave evidence in support of his application. As I mentioned above, in the application before Huggett DCJ, he had not done so.

25. The applicant also relied on new evidence from his wife. He also relied on the same evidence from Dr Ghosh upon which he had relied before Huggett DCJ. He also put some other material before the Court, to which I will refer below, such as certain media articles in the Indian press.

Relevant factual matters

26. The applicant seeks the orders because, he asserts, they are necessary to protect his safety and the safety of his wife, his immediate family in India and his wife’s immediate family in India.

27. The applicant and his wife were born in India. The applicant has lived in Australia since 2006. His wife joined him in Australia in 2009. They have one child together.

28. The applicant and his wife belong to the Jat community, which is a group originating from the Indian subcontinent. Evidence suggests that the Jat community is patriarchal and has strict social rules and customs grounded in beliefs about caste and gender purity. According to these social rules, inter‑caste marriages are prohibited, as are pre-marital or extra-marital affairs. Divorce is considered taboo. Breaches of the social rules and customs bring dishonour and shame to the transgressor and his or her immediate family. Breaches are punished extra-judicially by and within the Jat community, particularly by the extended family of the transgressor. Such punishments may be violent and may include torturing or murdering the transgressor or members of their immediate family. In the evidence, there are various reports and examples of violence, including honour killings, which have taken place amongst the Jat community in India.

29. In Haryana State, the region in India in which the families of the applicant and his wife are based, the social rules and customs in the Jat community are enforced by a ruling body called the Khap Panchayat. The applicant and his wife assert that the Khap Panchayat has the power to inflict punishments, including violent punishments, on members of the community who breach the rules. Members of the community can approach the Khap Panchayat and seek intervention if they believe that someone has transgressed the rules.

30. In this cultural context, the applicant and his wife gave evidence of their belief that if the allegations against the applicant are published in the media, members of the Jat community in India and Australia would become aware of the allegations and might take violent action. The applicant’s concerns of media coverage are aggravated, he suggests, because he has a public profile amongst the Indian expatriate community in Australia. In 2013, he started an organisation called the Overseas Friends of the Bhartiya Janata Party, a group which supports one of the major political parties in India. He asserts that he has political adversaries. The applicant referred to two articles in the Indian press which report on his criminal charge. Both were published online in a publication called “The Indian Sub-continent Times” and were dated 24 May 2019 and 6 June 2019 respectively. The articles made reference the fact that the applicant was facing criminal charges, but without specificity as to the nature or subject of those charges.

31. By reason of the above matters, the applicant and his wife assert a fear of violence to themselves or their immediate family if they are identified with respect to the allegations against the applicant.

32. The applicant specifically asserts a fear of violence against his parents in India, which might be perpetrated by his extended family or his wife’s extended family. He and his wife also have a fear of violence against themselves and their daughter in Australia. This is because of the Jat diaspora in Australia, which they assert is an active community. The applicant asserts that he has been the subject of threats already.

33. The applicant’s wife asserts that the applicant’s charges would bring shame and dishonour to her extended family if they became aware of them. She fears that her extended family would take revenge on the applicant and his immediate family. In addition, she fears that the fact of the proceeding against the applicant would bring dishonour to her personally. This is because some members of the Jat community would blame her for her husband’s infidelity the subject of his charges. As a consequence, she fears violence against herself and her immediate family. The applicant’s wife also asserts that she would fear for her personal safety in India if she had to return there.

34. The applicant asserts that the only persons in India who know about the allegations against him are his father and brother, and his wife’s mother, sister and sister-in law.

35. The orders sought by the applicant would apply for a limited duration of two years. The applicant and his wife assert that this period of time is appropriate to allow the applicant, his wife and their immediate families to make arrangements for their safety.

Parties’ submissions

36. The applicant submitted that the ground for a suppression order in s 8(1)(c) was made out. The applicant submitted that applying the “calculus of risk” approach – endorsed by this Court in AB v R (No 3) (2019) 276 A Crim R 443; [2019] NSWCCA 1046 – the order was necessary to protect the safety of the applicant, his wife and their immediate families.

37. The applicant principally submitted that if the orders are not made there is a real possibility of serious violence against him, and against his wife and other family members who do not have any connection with the alleged offences. Further, he submitted that the harm may be imminent and may continue for some time, so that there was an unacceptable detriment to his and his wife’s immediate and extended family. Finally, it was submitted that in the particular circumstances of the case, the public interest in open justice was of less weight when balanced with protecting the safety to the applicant and his wife’s immediate and extended family.

38. The applicant referred to R v A1 (No 1) [2019] NSWSC 611. In that case, Johnson J made pseudonym orders which applied to the accused, his wife, his siblings, and the deceased. The case, it was submitted, was similar to the present because it concerned an application under s 8(1)(c) for pseudonym orders grounded in safety concerns arising within a particular cultural context.

39. The Crown submitted that the application should be dismissed. First, the Crown referred to the fact that the first pseudonym and non-publication orders were not made in this proceeding until 30 May 2019, some seven months after the accused was charged. Secondly, the Crown referred to the articles in The Indian Sub-continent Times and submitted that despite this publicity, there is no clear evidence of any reprisals or threats since. Thirdly, the Crown submitted that there is no threat to the safety of the applicant and his family in Australia, as there is no evidence that violence exists amongst the Jat community here. Fourthly, it was submitted that the proposed orders may not offer any protection given that members of the applicant’s family and his wife’s family already know about the applicant’s charges. Fifthly, the Crown submitted that the proposed orders would lack utility given the proposed orders could only apply only to suppress or restrict publication in Australia. Sixthly, it was submitted that mere offence, or shunning, was not a sufficient ground for the proposed orders. Seventhly, the Crown submitted that there is no reliable evidence of threats. Finally, it was submitted that publication of the details of the alleged offending was in the public interest.

Relevant principles

40. Under s 8(1)(c) of the CSNPO Act, the relevant question is whether the orders are “necessary to protect the safety of any person”.

41. Numerous decisions of this Court and the Court of Appeal have considered and applied the test of necessity: see e.g. John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476–477; John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324 at [35]-[36]; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [39]–[48]; Burrell v R [2008] NSWCCA 276 at [17]; Nagi v DPP (NSW) [2009] NSWCCA 197 at [30]–[31].

42. In the present circumstances, it is sufficient to refer to Basten JA’s remarks in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [46] (Bathurst CJ agreeing at [8], Whealy JA agreeing):

“The meaning of “necessary” depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word “necessary” is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In par (a), the purpose of the order will be “to prevent prejudice to the proper administration of justice”. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered “necessary” in particular circumstances.”

43. As the parties observed, in determining an application made under s 8(1)(c) specifically, the court applies a “calculus of risk” approach. The court considers the nature, imminence, and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, the court may more readily conclude that the order is necessary, even if the risk does not rise beyond a mere possibility: AB at [56]–[58]. The burden of establishing that the order is necessary rests with the person seeking it.

44. In deciding whether to make an order under s 7 of the CSNPO Act, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6. Generally, there is a very strong public interest in full and proper reporting of criminal trials, and public scrutiny of the courts is a proper and necessary part of a democratic society: Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159 at [52].

Discernment

45. For the following reasons, and after carefully considering the material before the Court, I was not satisfied that the applicant had demonstrated sufficient grounds for the Court to make the proposed orders.

46. First, I am not persuaded that the applicant, his wife and daughter are at any risk of harm in Australia. There was no evidence from the applicant, his wife or Dr Ghosh that culturally motivated violence exists in the Jat community in Sydney or in Australia generally. There was no evidence that the circumstances of the applicant and his wife were particularly novel so as to suggest that they may nevertheless be the subject of such violence here. I do not consider that the applicant’s high profile and political connections compel that conclusion.

47. Secondly, I do not consider that the evidence of the risk of harm to persons in India is such that it would be “necessary” to make the proposed orders. The asserted fears of the applicant and his wife are insufficient. Although I accept that there is evidence of retributive violence amongst the Jat community in India, there is no clear or demonstrated threat to any specific persons in India in the present case. This is despite the fact that there are several members of the applicant’s family and his wife’s family in India who are aware of his charges and the nature of them. As well, there are no doubt others in India who are aware that he is facing charges, as a result of the articles in The Indian Sub‑continent Times, and as a result of the seven-month period between the applicant’s charges and the first interim non-publication order made in the Local Court. There is likewise no evidence that any of those persons have approached the Khap Panchayat seeking intervention in the present case or have otherwise shown an intention to take retributive action.

48. Counsel for the applicant submitted that the fact that there is no clear evidence of threats made against the applicant or his family illustrates that the previous interim orders have worked. In light of the publicity in India, that is a conclusion that cannot be reached. The absence of evidence of threats, in fact, diminishes the likelihood of violence being perpetrated.

49. In addition, the expert evidence on the risk of harm to persons in India is not of any weight in the applicant’s favour. I agree with Huggett DCJ’s decision below that the expert evidence of Dr Ghosh is of little, if any, weight. In relation to Dr Ghosh’s evidence about violence within the Jat community in India:

1. Dr Ghosh prepared her evidence on the basis of very limited information about the applicant, his wife and their families, and, in particular, on the basis of no information at all about their extended families (who are, it is claimed, the most likely perpetrators of any violence against the relevant persons); and

2. the examples of Jat community violence in India that Dr Ghosh provides are not sufficient to support a view that violent retribution in India may occur in the specific circumstances of this case.

50. Consequently, I am not persuaded that the proposed orders are necessary for the safety of persons in India.

51. Thirdly, I do not consider that the proposed orders will have any practical effect on the safety of the applicant and his wife’s families in India. The proposed orders have no application to India. The Indian press are not subject to the orders. This is demonstrated by the fact that at least one article identifying the applicant has been published in the Indian press since the interim orders were first imposed. Whilst I accept that news of the applicant’s charges will more readily spread to India if there is media coverage of them in Australia, that is not something that this Court can prevent. Therefore, the utility of the proposed orders is limited.

52. Fourthly, A1 is an authority which arises from very particular cultural circumstances in NSW. There are factors which distinguish A1 from the present case. In A1, it was the prosecution’s case that the accused believed that the deceased dishonoured the accused and his family and, as a consequence, murdered the deceased. The prosecution was the applicant for the pseudonym orders. It proposed to call the accused’s wife and the police held concerns for her safety as a result of the nature of the murder and the ethnic and cultural background of the accused. Furthermore, given it was the Crown case that the accused believed that the deceased had dishonoured the accused and his family, the particulars of alleged crime actually involved the cultural context at hand.

53. Fifthly, the principle of open justice applies to this case and the legislation compels a court to take it into account as a primary objective of the administration of justice: s 6. The principle should not be diluted unless there is a particularly compelling reason to do so: Liu at [52]. I consider that making the proposed orders would be to the detriment of the public interest in open justice, particularly in circumstances in which the applicant, by his own assertions, has a public profile in the Indian expatriate community in Australia.

54. In the circumstances, applying the “calculus of risk” approach, I was not persuaded that the proposed orders were “necessary to protect the safety of any person”.

55. The matters raised by the applicant were of importance to him and his wife and their extended family. Having heard full argument and considered the factual matters raised, it was appropriate for the Court to grant leave to the applicant to appeal.

56. For these reasons, I joined in with the Court’s orders which were:

1. Leave to appeal granted.

2. Appeal dismissed.

57. YEHIA J: On 7 March 2023 I agreed with the Court’s orders granting leave to appeal and dismissing the appeal. I agree with the reasons provided by Garling J. I also share his Honour’s views expressed at [9]. It is necessary that whenever a court makes a nonpublication or suppression order under the CSNPO Act, the terms of the order should be, at the very least, recorded in the court file. The terms of the order should specify the precise formulation of the order and the grounds upon which the order is made.

**********

Decision last updated: 01 May 2023