Beshara v R - [2018] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2017
[2018] NZCA 66

BETWEEN	SAMY SALEEB BESHARA Applicant
AND	THE QUEEN Respondent

Court:

Brown, Brewer and Collins JJ

Counsel:

C M Yardley for Applicant
Z A Fuhr for Respondent

Judgment:

(On the papers)

22 March 2018 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Beshara pleaded guilty to one charge of indecent assault and was sentenced to three months’ home detention. He wants his name to be suppressed. The sentencing Judge refused to make a permanent suppression order.[1] Justice Nation upheld the refusal on appeal.[2] Now, Mr Beshara seeks leave to come to this Court for a second appeal.
[1]R v Beshara [2017] NZDC 19440.
[2]SSB v R [2017] NZHC 2590.
To grant leave in this case, we must be satisfied that the appeal involves a matter of general or public importance, such as an issue of “general principle or of general importance in the administration of the criminal law by the Courts”,[3] or that a miscarriage of justice may have occurred.[4]
[3]Keenan v R [2005] NZSC 63 at [5], as quoted in McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
[4]Criminal Procedure Act 2011, s 289(2).
Mr Beshara is a member of the Egyptian Coptic Christian community in New Zealand. His case for name suppression rests on the alleged consequences for his wife and children within that community, particularly in their hometown, if his name were published and the community became aware of his crime. His submission (broadly) is that his family would be shunned. His complaint is that the District Court and the High Court failed to give adequate recognition to that submitted consequence. The issue which he contends raises a matter of general or public importance is:
The matter of whether immigrants to New Zealand should have their differences of religious or cultural practices recognised by the Courts…

Discussion

Mr Beshara says he wants his name suppressed to protect his family. A Court may forbid publication of his name for that reason only if it is satisfied that publication would be likely to cause extreme hardship to his family or any member of it.[5]
[5]Criminal Procedure Act 2011, s 200(2)(a).
Therefore, the first assessment is whether extreme hardship is likely to result if his name is published. If it is, the Court must then exercise its discretion to permit or forbid publication taking into account the competing interests of open justice.[6]
[6]Robertson v Police [2015] NZCA 7 at [46]–[47].
The threshold for extreme hardship is a high one. In Robertson v Police, this Court noted that ‘hardship’ on its own means “severe suffering or privation”, that ‘undue hardship’ (a test used elsewhere in the Criminal Procedure Act) is something more, and that ‘extreme hardship’ is an even more stringent test.[7] The hardship must be something beyond…

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 Beshara v R

Details

AGLC: Beshara v R [2018] NZCA 66
Case: [2018] NZCA 66
Decision Date: 22 March 2018 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant, Samy Saleeb Beshara, sought leave to bring a second appeal against the refusal to grant a permanent suppression order of his name. Beshara had pleaded guilty to a charge of indecent assault and was sentenced to three months' home detention. The primary issue in this case was whether the Court should grant the applicant leave to appeal for a second time against the denial of his name suppression application. The Court had to decide whether the appeal involved a matter of general or public importance, such as an issue of general principle or of general importance in the administration of the criminal law by the Courts, or whether a miscarriage of justice may have occurred.

The Court considered the argument presented by Beshara that his family would be shunned within their Egyptian Coptic Christian community if his name were published, and that this consequence should have been given adequate recognition by the District Court and the High Court. However, the Court held that the issue of whether immigrants to New Zealand should have their differences of religious or cultural practices recognised by the Courts was misconceived, as a Court considers everything of relevance when assessing whether another person would be likely to suffer extreme hardship from the publication of a convicted person's name. The Court found that the District Court and the High Court had carefully considered the evidence of the practices of the Egyptian Coptic Christian community and held that the likely consequences of publication would not amount to extreme hardship.

The Court concluded that there was no matter of general or public importance that would justify a second appeal, and that Beshara simply wanted to repeat his argument for name suppression. There was no indication of a miscarriage of justice. Therefore, the application for leave to bring a second appeal was declined.

The Court's final orders were that the application for leave to bring a second appeal is declined. The Crown Law Office, Wellington, represented the respondent in this case.

Orders