Chand v Internal Affairs Department
[2016] NZHC 3112
•16 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000412
CRI-2016-404-000415
CRI-2016-404-000417
CRI-2016-404-000418
CRI-2016-404-000419 [2016] NZHC 3112
BETWEEN RAKESH CHAND
VIJENDRA PRASAD BINESH PRATAP PRADEEP CHAND
SHREE SANATAN PRATANIDHI DHARAM SABHA MANUKAU BRANCH INCOPORATED Appellants
AND
INTERNAL AFFAIRS DEPARTMENT Respondent
Hearing: 16 December 2016 Appearances:
S Lack on instructions from R Mansfield for R Chand
J Hunter and Z Malkawi for V Prasad
S Sharma for B Pratap, P Chand and Sabha
K Hogan and I Ko for RespondentJudgment:
16 December 2016
ORAL JUDGMENT OF VENNING J
Solicitors: Kayes Fletcher Walker, Auckland Wynyard Wood Lawyers, Auckland Sanjay Sharma, Auckland
Copy to: R Mansfield, Auckland
S Lack, Auckland
J Hunter, Auckland
Z Malkawi, Clendon
Fairfax Media
PRASAD & ORS v INTERNAL AFFAIRS DEPARTMENT [2016] NZHC 3112 [16 December 2016]
[1] The appellants face a number of dishonesty charges in the District Court at Manukau. In a decision delivered on 24 November 2016 Judge C S Blackie declined to continue the interim suppression of the appellants’ names.1 They appeal from that decision.
[2] The Crown has assumed responsibility for the prosecution of the case and has laid the following charges against the appellants:
(a) Rakesh Chand
(i) seven counts of theft by a person in a special relationship; (ii) one of obstructing a gambling inspector;
(iii) using a forged document; and
(iv) four charges of dishonestly using a document; (b) Vijendra Prasad
(i) three charges of theft by a person in a special relationship; (c) Binesh Pratap
(i) one charge of theft by a person in a special relationship; (d) Pradeep Chand
(i) two charges of theft by a person in a special relationship; and
(ii) one of obstructing a gambling inspector;
(e) Shree Sanatan Pratanidhi Dharam Sabha Manukau Branch Inc
(Sabha).
1 Department of Internal Affairs v Sabha [2016] NZDC 23503.
(i) three charges of theft by a person in a special relationship; and
(ii) four charges of using a document.
[3] A number of other parties are charged on the same prosecution notice. They were also parties to the decision declining continuation of interim suppression, namely Richard Kumar, Ashok Kumar, Anup Kumar, Mohammed Feroz Hassan, and the Mangere United Social Club Inc. No appeals have been lodged by those parties.
[4] The charges arise from allegations of the misuse of grant funding received from gambling corporate societies by four incorporated societies, including Sabha. All are associated with the Fijian Indian community.
[5] Mr Sharma who acts for Binesh Pratap, Pradeep Chand and Sabha initially proposed to withdraw the appeals by those parties as he had filed a second application with the District Court for a further interim suppression order. After a conference Mr Sharma was instructed to pursue this appeal.
[6] Although counsel thought the Judge had invited such an application I do not read the Judge’s comments that way. Further, as the Court of Appeal confirmed in Young v District Court at Hamilton, in the absence of new factual circumstances, repeated applications for suppression can amount to an abuse of process.2 As this Court is seized of the matter by way of appeal an attempt to seek a further order in the District Court would also be seen as an abuse as there would be two proceedings before the Court addressing the same issue. As the notice of appeal was filed within time the interim order has continued in force until the hearing of this appeal and
determination of it.
The District Court judgment
[7] In his judgment Judge Blackie noted the basis for the various applications for name suppression but did not directly make findings in relation to extreme hardship in relation to each defendant, but rather determined that the case had reached a stage
where the public interest and presumption of open justice outweighed the distress,
2 Young v District Court at Hamilton [2015] NZCA 584.
embarrassment and adverse personal and financial consequences identified by the appellants. He considered that the stage had been reached where the pendulum swung in favour of open justice and he declined to extend the interim order for suppression any further. He directed it lapse. I note here that the appellants obtained interim suppression when first before the Court on 21 January 2016. The argument before the Judge was heard on 17 February but the judgment was not delivered until
24 November. With this appeal the appellants have now had interim name suppression for 11 months.
The basis for the appeal
[8] Mr Chand argues the Judge erred by:
(a) considering the application “across the board” and in relation to all
defendants;
(b)applying the wrong test for suppression, in particular, considering whether permanent name suppression would be granted and in concluding the public had the right to know because of the nature of the charges;
(c) determining that Mr Chand and his associated businesses would not suffer extreme hardship;
(d)determining the associated community organisations and those involved in them would not suffer extreme hardship.
[9] Mr Prasad argues that the Judge:
(a) acted on wrong principle in giving inadequate consideration to the
“unique circumstances of Mr Prasad”; and
(b)erred in giving too much weight to the number of charges and defendants and insufficient weight to the differences in the nature of the charges and gravity of the alleged offending and otherwise took
into account irrelevant matters not specified or failed to adequately take into account relevant matters not specified;
(c) assumed the level of offending was similar across the defendants. [10] For the other three appellants Mr Sharma argued that:
(a) the Judge gave insufficient weight to the adverse effects of publication to the other members and volunteers in Sabha;
(b)was wrong in concluding the involvement of the appellants in the affairs of different organisations meant the charges the appellants face were inter-related;
(c) took into account an irrelevant consideration, namely a permanent suppression order was unlikely in the event of conviction; and
(d)failed to give proper weight to the not guilty pleas and presumption of innocence.
[11] In the particular case of Mr Pratap he said:
(a) the Judge was wrong to conclude the appellant’s parents’ health was
not sufficient grounds for extreme hardship; and
(b)the Judge was wrong to conclude that the charges the appellants face were inter-related.
[12] In the case of Mr Pradeep Chand he submitted:
(a) the Judge was wrong to conclude the appellant’s parents’ health, especially his father’s health was not sufficient to amount to extreme hardship; and
(b)new information has come to light in respect of the appellant’s position in an international charitable organisation with the potential effects of publication on that organisation of its respected and reputed trustees.
The law
[13] All counsel referred to a number of cases which predated the Criminal Procedure Act 2011 (CPA). While those cases are of some assistance on the issue of the exercise of the discretion in particular, the CPA led to a change to the approach to applications for suppression.
[14] The law surrounding the making of suppression orders as provided for in the CPA is now settled. In Fagan v Serious Fraud Office the Court of Appeal confirmed that s 200 of the CPA contemplates a two-stage analysis.3 The Court must first be satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made. It is only if satisfied that one of the threshold grounds is established, that the Court must then go on to determine whether in the exercise of its discretion, it should forbid publication of the defendant’s name. The section thus involves both threshold and discretionary elements.
[15] In enacting s 200 of the CPA Parliament intended a change in approach. When a person first appears before the Court, the Court may make an interim order if the defendant advances an “arguable case” that one of the grounds in subs (2) of
200 applies. However, s 200(5) confirms that such an interim order is to expire at the defendant’s next Court appearance and may only be continued if at that stage the Court is satisfied that one of the grounds in subs (2) applies. The arguable case threshold only applies at first appearance. Thereafter, the Court must be satisfied that the publication is likely to have the effect argued for. The applicant for
suppression carries the evidential onus.
3 Fagan v Serious Fraud Office [2013] NZCA 367.
[16] In this context, “likely to” has been construed as an appreciable risk or a real
risk that cannot be readily discounted.4
Decision
[17] I agree with counsel for the appellants to the extent that I accept the District Court Judge did not directly address the issue he was required to address in each individual case, namely whether the circumstances relied on by the individual appellants satisfied the threshold requirement under s 200(2). In making that observation I of course acknowledge that there were 10 parties before the Judge and it was necessary for him to deal with the matter in a practical way. The focus of the judgment appears to have been on the discretionary aspect. The Judge appears to have conflated his consideration of the hardship alleged with the exercise of the discretion.
[18] As is apparent from the Court of Appeal authority I have referred to, a two- stage exercise is required. In the present case all appellants rely on s 200(2)(a) and argue that publication will cause extreme hardship to them or persons connected with them. Mr Chand, Sabha and Mr Pratap also rely on s 200(2)(b) and say that publication of their names would be likely to cast suspicion on other persons and cause undue hardship to those persons.
[19] The extreme hardship relied on is as follows.
Mr Chand
[20] Mr Chand is a local businessman in Papatoetoe and Manukau. He is the sole director of Autobiz, a panel and paint shop. He is also now the sole director and shareholder of Viti Curries Café which was incorporated in July 2016. His businesses have been built up through his strong link with the Fijian Indian community. He receives referrals for his panel and paint business from insurers. It is said that his business success is based on his good reputation which would be
irreparably destroyed if his name was published leading to consequential loss to him
4 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; and H v R [2015] NZHC 1501 at
[17]–[18].
and his family. Mr Chand is also concerned his family will face “difficulties” if he is
named. His family has a history of heart disease and stroke and his brother who is
67 years old is at particular risk. He also says his son has just started high school. He is a sensitive child and will face hardship at school if his father’s name is published.
[21] In addition Mr Chand refers to a nephew he has care of who suffers from an eye disorder. Mr Chand is involved in fundraising for expenses to enable him to travel overseas for treatment.
[22] The difficulty for Mr Chand is that the submission about the impact of publication of his name on his businesses is made without any direct evidence to support it. It is speculative.
[23] In Robertson v New Zealand Police the Court of Appeal confirmed that it was
clear beyond argument that “extreme hardship”:5
connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)[(a)] indicates something more again.
[24] The Court went on to note that the assessment of whether the contended hardship is extreme is self evidently contextual and:6
must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.
[25] As noted the matters that Mr Chand raises are general in the extreme. They go no further than providing examples of the sort of hardship that might be expected when a person charged with dishonesty offending has their name published. What Mr Chand describes is likely to lead at the most to some personal suffering and financial loss. The normal consequences of publication in his care are that people
may question Mr Chand and his actions. It will be known he has pleaded not guilty.
5 Robertson v New Zealand Police [2015] NZCA 7, at [48].
6 At [49].
But even if there was some loss of business to him that is a normal consequence of publicity.
[26] As the Court of Appeal noted in D v Police:7
[11] Under the thresholds in paras 200(2)(a), (c) and (d) the court must decide whether publication will cause “extreme“ or “undue“ hardship, or a “real risk“ of prejudice. The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. This is an important principle. …
(footnote omitted).
These comments were made in the context of an application for suppression pre-trial. None of the matters Mr Chand raises, either business or personal, amount to undue hardship let alone the extreme hardship required by s 200(2)(a).
[27] I do not overlook the submission made on behalf of a number of the appellants, including Mr Chand, that a trial will likely not be held until later next year and perhaps towards the end of next year. That may be so but as noted the appellants have had the benefit of name suppression for almost 11 months so far. A wait of 12 months or so for trial is not exceptional in the District Court in a trial involving a number of defendants such as this. The factors that Mr Chand has identified are no more than the usual factors of distress, embarrassment and adverse personal and financial consequences that attend criminal proceedings. They are not out of the ordinary.
[28] Mr Chand also argues that publication will have an adverse effect on the community organisations he holds positions of responsibility and leadership within. It is said publication would be “detrimental” to those organisations.
[29] He is President of the New Zealand Fiji Football Association Incorporated.
As President Mr Chand’s role is to find sponsorship for tournaments. Mr Chand says that if named as facing the charges the organisation, its members and sister
7 ` D v Police [2015] NZCA 541.
organisations will face difficulty obtaining ongoing sponsorship and will lose standing in the community. NZFFA is not involved in any of the charges before the Court but he says there is a real risk that naming Mr Chand would cast suspicion on it.
[30] Next he notes he holds the role of Vice President of the Sabha and is a New Zealand representative and organising chairman of a World Convention. I suspect that by now that Convention has been held in New Zealand. He is also a patron of the Jai Ho Cultural Group.
[31] However, there is no evidence that publication will cast suspicion on those organisations. Sabha itself is of course before the Court. It is Mr Chand that faces the relevant charges. There is no reason for publication of Mr Chand’s name to cast suspicion on the organisations he is a member of that are not before the Court to the extent they are not involved in the events alleged by the prosecution. There is no evidence of likely undue hardship to them. An organisation such as the NZFFA will have an executive that will operate other than Mr Chand. He could resign if that was thought necessary. Again the potential hardship to those groups associated with Mr Chand fall well short of establishing undue hardship.
Vijendra Prasad
[32] Mr Vijendra Prasad is a self employed immigration adviser and accountant/bookkeeper working with a diverse client base from all works of life. He says he is solely dependent on the income derived from that work and would, in his opinion, face extreme hardship if current and prospective clients were to leave his business and move away. Ms Hunter also submitted that the clients themselves would suffer extreme hardship if they had to seek advice from another consultant.
[33] Mr Prasad is a Justice of the Peace and is involved in a number of other clubs and organisations, both local and international. It is submitted on his behalf that publication of his name will “affect or identify those organisations directly or indirectly”.
[34] With respect to Mr Prasad’s opinion again at most publication may affect his business and cause him and the organisation he is involved in some embarrassment. I accept that given the nature of his business there might be some adverse effect on that business through publication. But it falls well short of the extreme hardship required by the Act.
[35] Mr Prasad’s licence was renewed in May 2016. He says he has been advised that it may not be renewed if his name is published. Two points arise from that. First, Mr Prasad’s statement is not independently verified by direct evidence from the relevant authority. Secondly, it would seem to be a particularly unprincipled approach by any licensing authority. The relevant factor must surely be that Mr Prasad faces charges rather than whether or not his name is published.
[36] As noted Ms Hunter made the point that his clients may be inconvenienced but such inconvenience does not in my opinion amount to extreme hardship. Again the matters argued for on behalf of Mr Prasad regrettably amount to no more than potential adverse personal and financial consequences. That may at most amount to undue hardship but they fall short of the extreme hardship which Parliament has determined is required under s 200(2)(a). Nor can there be any sensible suggestion that publication of his name would cast suspicion on the national and international organisations he is involved in.
Binesh Pratap
[37] Mr Binesh Pratap faces one charge relating to a grant of $22,000 but his involvement is said to be limited to signing a cheque which was made out for
$1,886.00. He also refers to the fact he is self-employed running Discount Panel and Paint Limited with his wife. His mother has serious health problems including hypertensive disease and has been admitted to hospital. It is argued to be “highly likely” his business will suffer.
[38] Again the matters raised by Mr Pratap amount to no more than personal embarrassment and the potential for some difficulty for his business and even perhaps loss but the likely consequences fall well short of the extreme hardship
discussed above. There is no evidence to support the submission there would be extreme hardship to his elderly mother.
[39] Mr Sharma emphasised that it is said Mr Prasad is only alleged to have been involved in the fraud of $1,886. That is correct, but it is in the context of his involvement in an application for a grant of substantially more than $34,000 and the application of the proceeds of the ultimate grant of $22,000.
Pradeep Chand
[40] Mr Pradeep Chand says his 92 year old father is terminally ill, weak and emotionally unstable and publication of the charges would have an adverse effect on his health. Neither his father nor mother know of the charges as yet.
[41] In addition he has now provided further evidence by way of an affidavit confirming he is a trustee of a further organisation, Education First Trust, aimed at supporting children in poverty. Mr Ko formally objected to that evidence being admitted given that it was not fresh evidence but for present purposes I am prepared to accept the affidavit. Mr Chand says that if his name is not suppressed that would impact on his ability to continue that charitable work. It is said the publication would “very likely cast suspicion on the other trustees of the charitable trust” and he makes the point that his wife works with him and may be affected.
[42] I have to observe that Mr Chand has had ample time to advise his parents of the charges he faces. The information he relies upon to support suppression is general in the extreme and does not meet the test for extreme hardship. There are other trustees of the charitable trust and it cannot be said that the trust itself would suffer extreme hardship if Mr Chand’s name was published.
Sabha
[43] The Sabha organisation is a religious organisation with over 1,000 followers. In its notice of appeal it submitted it would suffer irreparable damage with extreme financial repercussions if its name is published in association with the charges. If name suppression was not granted it is said that “regrettably it would mean that all
these projects will possibly come to a halt”. That would lead to a loss of services to the community, loss of social engagements with peers and wider community and a loss of cultural and religious connection, which would amount to extreme hardship.
[44] In his written submissions Mr Sharma went further and submitted that Sabha would suffer “a huge loss” of financial support which will inevitably lead to its collapse and ultimate demise.
[45] There is no direct evidence to support these very general and sweeping submissions.
[46] Mr Deo Chandra has filed an affidavit to support Sabha’s case. Mr Sharma made the point that Sabha has several other executive members who may be affected.
[47] But the point Mr Chandra makes in his affidavit about suspicion falling on other “innocent members” of the executive (I understand seven of the 12 are not before the Court) actually supports publication of the parties’ names who are charged and before the Court.
[48] Otherwise with respect the submissions on behalf of Sabha are general and lack any detailed evidence to support them and fall well short of making out the submission that publication is likely to lead to extreme hardship. There may be consequences that follow publication but they do not amount to extreme hardship of the nature discussed by the Court of Appeal.
[49] Mr Sharma also made the point that there will be a severance application in relation to certain of the defendants. While severance may be relevant to name suppression, that is generally where one accused faces multiple charges and severance is sought for fair trial reasons. No such fair trial issues are engaged in the present case where the severance sought is to avoid trial with other defendants. There is no real risk of prejudice to a fair trial and the publication of the defendants’ names before the severance application is heard and determined.
[50] As the appellants have in each case failed to satisfy the threshold requirement for name suppression it is strictly unnecessary to consider the second aspect, namely the discretionary aspect.
[51] However, even if the threshold requirement were satisfied in this case, the public interest in open justice, particularly in a case such as this involving fund raising and community groups is particularly relevant. The scales are heavily weighted in favour of publication rather than suppression. The Court of Appeal have made it clear that in determining the exercise of the discretion the balance must clearly favour suppression for an order to be made: D (CA443/15) v Police; Lewis v
Wilson & Horton Ltd.8
[52] Counsel raise in support that the defendants are entitled to presumption of innocence. That is of course correct but as Proctor v R confirmed it is a factor but not a determinative factor.9 As noted D v Police involved an application pre-trial when the presumption of innocence applied. There are also other factors present in this case, namely that there are other parties who have not pursued appeals from the decision. Next, the local community will know others face charges. A number of people have been interviewed. If suppression were continued for the current defendants it could well lead to others in the community being suspected of the offending.10 A further relevant factor is the nature of the alleged dishonesty offending which, as I have noted, involves alleged dishonesty in relation to money raised for community groups.
[53] The potential effect on community groups associated with the appellants particularly on their ability to raise sponsorship was raised by the appellants. But I agree with the Crown submission that sponsors have an interest in making informed decisions regarding to where the sponsorship is directed. In making that observation I acknowledge Mr Lack’s submission that the NZFFA is in a fundamentally different
position in the way it operates and seeks sponsorship. Nevertheless while it may
8 D (CA443/15) v Police [2015] NZCA 541 at [12]; Lewis v Wilson & Horton Ltd [2000] 3 NZLR
546, (2000) 18 CRNZ 55 (CA) at [43].
9 Proctor v R [1997] 1 NZLR 295.
10 H v Police (1989) 4 CRNZ 215 (HC) at 217.
have different procedures it is still a community organisation which seeks to raise money from the public and Mr Chand is currently associated with it.
[54] Even if the appellants could have made out extreme hardship, which for the reasons I have given they are not able to do so, in the exercise of the Court’s discretion, having regard to each of the individual appellants’ individual cases the balance still comes down strongly in favour of publication.
Result
[55] For the above reasons, the appeals are dismissed.
Venning J
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