Abdi v Police

[2013] NZHC 2355

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0055 [2013] NZHC 2355

BETWEEN  KEYSE AWIL ABDI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   10 September 2013

Appearances:           J A Hope for Appellant

J M O'Sullivan for Respondent

Judgment:                10 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 10 September 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Almao Douch, Crown Solicitor, Hamilton

Counsel:            J A Hope, Hamilton

ABDI v POLICE [2013] NZHC 2355 [10 September 2013]

[1]      This is an appeal against a decision of Judge R G Marshall dated 19 June

2013,  refusing  to  grant  interim  suppression  of  the Appellant’s  name  and  other

particulars pending trial.1  The appeal is opposed.

[2]      The  Appellant’s  application  was  made  pursuant  to  s 200(1)  Criminal

Procedure Act 2011 (“Act”).

[3]      Section 200(2) provides that the Court may only make an order pursuant to s 200(1) if satisfied that publication would be likely to result in one or more of the consequences listed in s 200(2).  The Appellant’s case was that publication would be likely to cause extreme hardship to a person connected with the Appellant.2

[4]      Judge  Marshall  was  not  satisfied  that  any  of  the  grounds  on  which  the Appellant relied were made out.   In particular the Judge was not satisfied that the hardship publication was likely to cause the “extreme” hardship required to the affected parties.

Approach to appeal

[5]      It is common ground that an appeal against a refusal of name suppression proceeds as an appeal against the exercise of discretion and that the principles in B v Police (No. 2) and May v May apply.3    Accordingly, it is for the Appellant to establish that the Judge’s decision was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.

Background

[6]      The Appellant faces four charges of sexual violation.  The charges arise on the allegations of one complainant and are all alleged to have been committed on

14 June 2013.  The Appellant is Somali and at the time of the alleged offending was working as a taxi driver.   The Appellant also has young children who are being

educated in Hamilton.  In support of the application for suppression, a member of the

1 Police v Abdi DC Hamilton CRI-2013-019-3230, 19 June 2013.

2 Criminal Procedure Act 2011, s 200(2)(a).

3 B v Police (No. 2) [2000] 1 NZLR 31 (CA); and May v May (1982) 1 NZFLR 165 (CA).

Somali community, Mr S M Hassan, affirmed an affidavit on 18 June 2013.  Counsel for the Appellant explained that at the relevant time the Appellant was remanded in custody and that Mr Hassan’s affidavit was the best that could be achieved in the circumstances.

[7]      The application to the Judge was made on three grounds, only two of which are pursued on appeal.  They are that publication would cause extreme hardship to other Somali taxi drivers in Hamilton and to the Appellant’s children, particularly those at school.

[8]      The Judge accepted that publication would potentially have a severe impact on other Somali taxi drivers.  He also accepted that the child of any parent facing charges of the nature brought against the Appellant would suffer from publication and that publication would cause tension and hardship.

[9]      The Judge was not satisfied, however, that the consequences of publication would be likely to amount to extreme hardship, as required by the Act, whether for the Appellant’s colleagues of for his school aged children.

[10]     Counsel for the Appellant submits that the Court erred in this conclusion because it did not consider all of the issues which arose and so did not carry out a proper evaluation of the matters required to be considered under s 200 of the Act.  In particular, counsel submits that the Judge did not take account of the fact that matters are at an early stage in the criminal proceedings, the Appellant’s age (he is in his

40s), that he is entitled to the presumption of innocence, has no previous convictions, and that he is from a small and readily identifiable ethnic minority.

[11]     With respect to the Appellant, however, these matters do not demonstrate that either group is likely to encounter the necessary degree of hardship.  The hardship is required to be extreme and the Judge’s assessment on the evidence before him was that the likelihood of extreme hardship was not made out.  That is a conclusion with which I agree, given the paucity of evidence before the Judge and before me.

[12]     I am not persuaded that there is any ground for intervening in the Judge’s

decision and I decline this appeal accordingly.

..................................................................

M Peters J