R v Joshi

[2015] NZHC 2523

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-9003 [2015] NZHC 2523

THE QUEEN

v

SANJAY KUMAR JOSHI

Hearing:	On the Papers
Counsel:	Z R Hamill for the Applicant for Name Suppression
Judgment:	14 October 2015

JUDGMENT OF GILBERT J [Name Suppression]

This judgment was delivered by Justice Gilbert on

14 October 2015 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

R v JOSHI [2015] NZHC 2523 [14 October 2015]

Introduction

[1]      On 15 September 2015, Mr Joshi was sentenced to a term of six  years’ imprisonment having pleaded guilty to 29 offences involving dishonesty involving over 20 victims.  One of Mr Joshi’s victims is a medical doctor who I shall refer to as “X”.    He  was  deceived  into  paying  Mr  Joshi  approximately  $477,000  for  the purchase of four luxury motor vehicles that were never delivered.  X did not receive any of these vehicles and recovered only $20,000.

[2]      At  the  time  of  sentencing,  Ms  Hamill,  for  the  Crown,  made  an  oral application on X’s behalf for permanent name suppression.  I did not consider that it was appropriate to deal with the application on such an informal basis and without evidence and accordingly made directions for the application to be put in writing and supported by affidavit evidence.  I also directed that the application be served on the media representatives who have shown an interest in the case.   Mr Kaye, for the prisoner, indicated that his client did not wish to be heard on the application.

[3]      The application has now been filed and is supported by an affidavit from X.

[4]      The application is brought pursuant to s 202 of the Criminal Procedure Act

2011 which relevantly provides:

202     Court   may   suppress   identity   of   witnesses,   victims,   and connected persons

(1)       A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who –

(a)       is called as a witness; or

(b)       is a victim of the offence; or

(c)       is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.

(2)       The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to –

(a)       cause undue hardship to the witness, victim or connected person.

[5]      X’s affidavit filed in support of his application is very brief.   He simply asserts that publication of his name would cause undue hardship as the negative publicity would diminish his patients’ trust in him and adversely affect his practice.

[6]      The Court cannot make a suppression order for a victim in a case such as the present unless the Court is satisfied that publication would be likely to cause undue hardship to the victim.   In order to establish that publication would be “likely” to cause undue hardship, it must be shown that there is a real risk of such hardship occurring.  However, it is not necessary to show that undue hardship is more likely than not to occur.

[7]      “Undue  hardship”  means  something  more  than  the  hardship  that  would normally attend publicity surrounding criminal proceedings.  It means hardship that is disproportionate to the public interest in the open reporting of court proceedings and the right to freedom of expression assured by the New Zealand Bill of Rights Act 1990.

[8]      Freedom of speech is fundamentally important in any democratic society.  It is also of critical importance that judicial proceedings are conducted in public so that public confidence in the administration of justice can be maintained.   The media plays an important role in reporting fairly and accurately on court proceedings as surrogates  of  the  public.    However,  these  fundamentally  important  rights  and interests must be balanced against the need to protect victims from harm through publication of their names in connection with court proceedings.   Parliament has provided for automatic suppression of victims’ names in certain circumstances, not applicable in this case.  In cases such as the present, the balance struck by Parliament between  these  competing  interests  is  reflected  in  the  “likely  to  cause  undue hardship” formulation.

[9]      One  can  readily  understand  why  X  would  prefer  not  to  have  his  name published in connection with this fraud.  Like many victims of this type of offending,

he may feel embarrassed at having been duped.  However, that is not sufficient to satisfy the threshold of undue hardship.

[10]     Mr Joshi was clearly a skilled fraudster.  X is only one of over 20 victims he defrauded.  The fact that X was one of these victims does not reflect badly on X.  It could not justify any of his patients losing trust in him.   Nor could it call into question his competence as a medical practitioner.  There is no apparent connection between X’s profession as medical doctor and the circumstances leading to him becoming a victim of this fraud.  I am therefore not persuaded that publication of X’s name would have an adverse affect on X’s practice.

[11]     In these circumstances, the statutory threshold test is not met.   I am not satisfied that X is likely to suffer undue hardship if his name, as one of Mr Joshi’s many victims, is published.  Accordingly, I am not able to make a suppression order under s 202 of the Act and the application must be declined.

Result

[12]     The application  for name suppression  is  declined.    However,  I make  an interim order continuing the existing order for the suppression of X’s name, address and identifying particulars to enable him to test this ruling on appeal if he wishes to do so.   This interim order will expire, unless extended, 14 days after the date of delivery of this judgment.

.

M A Gilbert J