Bangera v The the King - [2022] NZCA 451

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA299/2022
[2022] NZCA 451

BETWEEN	SHEAL HERMAN BANGERA Appellant
AND	THE KING Respondent

Hearing:	22 August 2022
Court:	Goddard, Brewer and Edwards JJ
Counsel:	S D Cassidy for Appellant M K Regan for Respondent
Judgment:	23 September 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Bangera appeals the refusal of Campbell J to grant him permanent name suppression.[1]
[1]R v Bangera [2022] NZHC 1366 [High Court judgment].
At the commencement of his judgment Campbell J sets out succinctly the background to Mr Bangera’s case and the issues the Judge had to adjudicate:
[1]       Mr Sheal Bangera killed his parents and attempted to kill a family friend. As a result, Mr Bangera faced two charges of murder and a charge of attempted murder.
[2]       On 23 March 2022, Fitzgerald J said she was satisfied, on the basis of expert evidence, that Mr Bangera was insane[2] at the time of the offending. Accordingly, her Honour found, under s 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act), Mr Bangera not guilty of the charges on account of insanity.[3]
[3]       The not guilty finding gave rise to an inquiry under s 23 of the CP(MIP) Act. That inquiry has come before me. In short, I have to determine whether Mr Bangera should be detained in hospital as a special patient or whether there is some more suitable method of dealing with him.
[4]       In addition, I have to determine whether to grant an application that Mr Bangera has made for permanent name suppression.
[2]Within the meaning of s 23 of the Crimes Act 1961.
[3]R v Bangera HC Auckland CRI-2020-004-2185, 23 March 2022.
Campbell J ruled that Mr Bangera be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. That ruling is accepted by Mr Bangera. However, Mr Bangera sought permanent name suppression (he had interim suppression) on the ground that publication would likely cause him extreme hardship by hindering his rehabilitation and reintegration into the community.
Campbell J held that the consequences to Mr Bangera if his name were published would constitute hardship, but not extreme hardship. The Judge also said that even if extreme hardship was likely he would not grant permanent name suppression because the circumstances, including the principle of open justice, would not “clearly favour” suppression.[4]

The appeal

[4]High Court judgment, above n 1, at [54]–[56].

The principal ground of appeal is that the Judge erred in his assessment of the gravity of the likely consequences for Mr Bangera if his name were to be published. Mr Cassidy, for Mr Bangera, submits that the likely consequences are so grave that they satisfy the test for what constitutes extreme hardship.
Mr Cassidy submits further that the Judge erred in expressing the view that if extreme…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bangera v The the King

Details

AGLC: Bangera v The the King [2022] NZCA 451
Case: [2022] NZCA 451
Decision Date: 23 September 2022 at 11.00 am

CaseChat Overview and Summary

In this case, Sheal Herman Bangera appealed the decision of Campbell J, who had refused to grant him permanent name suppression. Bangera was acquitted of murder charges on the grounds of insanity. He sought permanent name suppression on the basis that publication would likely cause him extreme hardship by hindering his rehabilitation and reintegration into the community. The Court of Appeal was required to decide whether the likely consequences for Bangera if his name were published constituted extreme hardship, and if so, whether the balance of relevant considerations clearly favoured suppression.

The Court of Appeal held that the threshold of "extreme hardship" under s 200(2) of the Criminal Procedure Act 2011 was a very high one. The court found that the likely consequences of publication on Bangera amounted to hardship, but not extreme hardship. The court agreed with Campbell J that the public interest in open justice should prevail unless the balance clearly favoured suppression. The court also noted that Bangera was a special patient, and had a lengthy period of treatment ahead of him before he would be eligible to move back into the community. Even if there were permanent name suppression, Bangera would still have to deal with people in the community who know about his background.

The appeal was dismissed, and Bangera was not granted permanent name suppression. The court did not extend interim name suppression, as it believed that Bangera should deal with the reality of his background while he was in expert care and had time to prepare for his reintegration with the community.

Orders