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…

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 Krishnan v Police

Details

AGLC: Krishnan v Police [2023] NZHC 2498
Case: [2023] NZHC 2498
Decision Date: 7 September 2023

CaseChat Overview and Summary

In Krishnan v Police, Yuvaraj Krishnan appealed against his sentence for perjury, forgery, and other related offences. The case involved significant issues of judicial recusal and the appropriate role of a judge in contempt cases, particularly perjury. The appeal was heard before Whata J, who had previously been the judge in the case where the perjury occurred and had allowed an appeal on the basis of documentation provided by Krishnan.

The central legal issue was whether Whata J should recuse themselves from sentencing Krishnan due to their prior involvement in the case and being the perceived "complainant" in the perjury matter. The court examined the principles of judicial recusal and the unique context of contempt cases, particularly perjury, where the judge traditionally acts in multiple roles, including that of a complainant. The appeal hinged on whether the precedent and policy considerations supporting the separation of the roles of complainant and adjudicator in perjury cases outweighed the general principles of recusal.

The court concluded that while the general principle of recusal required a judge to step aside if there was a reasonable apprehension of bias, the law of contempt provided a relevant framework. It was noted that the role of the judge in contempt cases, including perjury, is to protect the administration of justice and not to act as a complainant. However, the court also recognised the policy of the New Zealand Bill of Rights Act 1990, which requires that a "complainant" judge should not deal with the sentencing of a contemnor, particularly when significant rights such as trial by jury and fair criminal process are at stake. Therefore, Whata J directed that the appeal be set down before another judge to ensure Krishnan's right to a fair sentencing process was fully upheld.

In conclusion, the court decided that Whata J should not proceed with the sentencing due to the potential conflict of interest and the need to adhere to the policy of separating the roles of complainant and adjudicator in cases of perjury. The appeal was to be reassigned to another judge for further proceedings.

Orders