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

1. 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.

2. 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).

3. 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

1. 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).

2. 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].

3. 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 the ordinary associated consequences of offending.[8]

   [7]At [48].

   [8]At [49].

4. Mr Beshara’s stated matter of general public importance is misconceived.  In assessing whether another person would be likely to suffer extreme hardship from publication of a convicted person’s name, a Court considers everything of relevance to that assessment.  A person’s religious and cultural background, the characteristics of their community and their place within it, will all be included in the assessment to the extent they are relevant.

5. In Mr Beshara’s case, the District Court and the High Court assessed the likely consequences of publication of his name for his family in the context of their membership of the Egyptian Coptic Christian community.  They held, after careful consideration of the evidence of the practices of that community, that the likely consequences – although hard – would not amount to extreme hardship.  In other words, the District Court, and the High Court on appeal, took into account the religious and cultural practices relevant to the issue of name suppression.  The decisions they made were open to them to make.

Decision

1. There is no matter of general or public importance that would justify a second appeal.  Mr Beshara simply wants to repeat his argument for name suppression.  There is no indication of a miscarriage of justice.

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

Solicitors:
Crown Law Office, Wellington, for Respondent