Krishnan v Police

[2023] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000260

[2023] NZHC 2498

YUVARAJ KRISHNAN

v

NEW ZEALAND POLICE

Hearing:

14 August 2023

Appearances:

S Tait for Appellant

L P Radich, S Arnerich for Respondent

Judgment:

7 September 2023

JUDGMENT OF WHATA J

Solicitors:

Kayes Fletcher Walker, Crown Solicitor, Manukau S Tait, Auckland

KRISHNAN v NEW ZEALAND POLICE [2023] NZHC 2498 [7 September 2023]

[1]    This matter came before me by way of an appeal against sentence for among other things perjury. It so happens I was the Judge in the proceedings in which the perjury occurred, namely an appeal against a refusal to grant a discharge without conviction (“the perjury”). In that  case,  relying  on  documentation  produced  by Mr Krishnan, without opposition from the Crown, I allowed the appeal on the basis that conviction would have, in short, the effect of depriving Mr Krishan of the ability to advance his medical qualifications.

[2]    It also just so happens, the first instance Judge in the original proceedings also happens to be the sentencing Judge in the present matter. Following entry of guilty pleas, the Judge sentenced Mr Krishan to three years and seven months imprisonment on multiple charges including forgery, dishonest use of a document, using a forged document, altering a document with intent to deceive, using an altered document with intent to deceive and the perjury.

[3]    Mr Tait for Mr Krishnan contends that I should recuse myself given my prior involvement.

[4]    Given the seriousness of this matter I was not content to address it without proper submissions and citation  of  authority.  Those  submissions  were  filed.  They helpfully traversed the applicable principles of recusal to which I will now turn. It transpires however for reasons that I will shortly explain, the law of contempt provides a useful framework of reference.

Guiding principles

[5]    The recusal principles of general application are now captured by the High Court Recusal Guidelines dated 12 June 2017. Most relevantly:

(a)A judge should recuse him or herself if, in the circumstances, a fair minded fully informed observer would have a reasonable apprehension the judge may not bring an impartial mind to the resolution to the question the judge is required to decide.1

1      Justice G J Venning (Chief High Court Judge — Te Kaiwhakawa Matua) “High Court recusal guidelines” (12 June 2017) Courts of New Zealand < at 1.2.

(b)The standard for recusal is one of “real and not remote possibility”, rather than probability.2

(c)The test is a two-stage test — a judge must consider:3

(i)what is it that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and

(ii)whether there is a “logical and sufficient connection” between those circumstances and that apprehension.

(d)A judge should apply the above principles firmly and not accede too readily to suggestions of bias.4

(e)A judge is not required to recuse him or herself merely because the issues involved in a case are in some indirect way related to the judge’s personal experience or that the judge has previously dealt with the case.5

(f)If, after considering all relevant circumstances, there is doubt about whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in that case.6

(g)The apprehension of bias is case dependent. The fact that a particular relationship falls outside the examples in the guidelines does not automatically mean that there cannot be a reasonable apprehension of bias in the circumstances of the case at hand.

[6]As the Court of Appeal stated in Hartley v R:7

2      At 1.3.

3      At 1.4.

4      At 1.5.1.

5      At 1.5.3.

6      At 1.5.5.

7      Hartley v R [2014] NZCA 162 at [121].

To begin with, the fair minded lay observer must be taken to understand something of the workings of the judicial system and would understand that both before and during trial judges may be exposed to information unhelpful to a defendant. They may have to decide questions of admissibility of evidence, for example, or bail, and they will know of the defendant’s criminal history. The fair minded observer would recognise that judges possess independence and detachment and are accustomed to determining what information is relevant to any particular decision then deciding the case based only on that information.

[7]    The following statement from the Supreme Court in Jessop v R provides an illustration of the operation of general principle relating to recusal of some relevance to the present case:8

[6] …The decision of the Court of Appeal to set aside the conviction and sentence was by consent, effectively at the request of both the Crown and the applicant. Even if the appeal is properly characterised as a subsequent stage of the same earlier proceeding (a characterisation we think doubtful), a Judge is not normally disqualified because he or she has sat on an appeal at an earlier stage of a proceeding. It is necessary for there to be some real ground for doubting the ability of the judge to bring an objective judgment to bear. Here there is no ground upon which it can properly be suggested that the Chief Justice should not have sat in determining any appeal from the conviction and sentence on retrial. The Chief Justice is accordingly part of the present panel constituted under s 27(2) of the Supreme Court Act 2003 to determine the application for reconsideration of the decision of  27  March  2006. (footnotes omitted)

Submissions

[8]    Mr Tait submits, in short, that as I was the Judge effectively deceived by the perjury, I am effectively the complainant and should recuse myself for apparent bias. Ms Arnerich submits, again in short, that the present situation is unique but that there is no absolute bar for judges sitting in matters that they had a prior involvement in.9

Assessment

[9]    Ordinarily, no issue of recusal for apparent bias arises in cases of contempt of which perjury is one form.10 Indeed, that prospect fundamentally misunderstands the

8      Jessop v R [2007] NZSC 96 at [6].

9      Citing various cases, including Jessop above n 8; and R v Bublitz [2017] NZHC 752.

10 Historically it was a form of common law criminal contempt but is now governed by the Crimes Act 1961, ss 108 and 109. See discussion in Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at [1.18].

role of the judge in such cases. As Elias CJ and McGrath J explained in Siemer:11

[27]   The law of contempt does not, of course, exist to protect the dignity   of judges but to protect the public interest in the due administration of justice by an impartial court.

(footnotes omitted)

[10]   Moreover, it is well understood that the judge must act to protect the processes of the Court even though the judge in that case may be said to be the “complainant”.

As Lang J observed in McAllister v Solicitor-General:12

[44] Acts that potentially amount to contempt can occur in many different ways. For that reason, it is not possible to definitively prescribe the procedure to be followed in determining whether a person is in contempt, and if so, the appropriate penalty to be imposed. It has been accepted, however, that in determining whether a person is in contempt the Judge is entitled to use a summary procedure that is quite different to the formal process used when a person is charged with a criminal offence. There is, for example, no formal charge and no formal plea. This reflects the fact that contempt allegations are generally dealt with quickly, and with a minimum of formality. This may place the Judge in a difficult position, however, because he or she is required to simultaneously the role of complainant, witness, prosecutor and Judge. The authorities make it clear that a Judge when determining an allegation of contempt should therefore act with considerable caution, particularly when a person’s liberty may be at stake.

[11]    It follows that the fair-minded fully informed observer would not expect a “complainant” judge in contempt cases to recuse themselves on grounds of apparent bias alone. Though as Lang J says, judges must act with considerable caution in such cases.

[12]   However, perjury is governed by the Crimes Act 1961. The maximum sentence for perjury is seven years. Rights to trial by jury and minimum standards of criminal procedure are therefore fully engaged.13 The evident policy of the law therefore is that the “complainant” judge will not deal with perjury in their court.14   A curious feature of this case is that Mr Krishnan has pleaded guilty to the perjury

11   Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767. While the minority in that case, this basic proposition was not doubted by the majority.

12 McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708 at [44].

13 See Siemer v Solicitor General, above n 11.  See also New Zealand Bill of Rights Act 1991,  s  24(e) affirming the right to trial by jury and s 25 affirming the right to minimum standards of criminal procedure.

14 Siemer v Solicitor-General, above n 11.

thus foregoing trial  by  jury.  The  “complainant”  Judge  engaged  in  sentencing  Mr Krishnan is therefore doing no more than they have always done when dealing with a contemnor. But I accept that given this policy, underpinned by the New Zealand Bill of Rights Act 1990, full vent must be given to Mr Krishnan’s right to fair criminal process, including in sentencing. That leans heavily against the “complainant” Judge dealing with sentence.

[13]   I therefore direct that this appeal be set down before another judge on the first available date suitable to counsel and the Court.

[14]   For completeness, in assigning this appeal to another judge, I should not be taken to have made any adverse findings about the involvement of Judge Dawson. That issue was not argued before me.

Whata J