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…

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 R v Joshi

Details

AGLC: R v Joshi [2015] NZHC 2523
Case: [2015] NZHC 2523
Decision Date: 14 October 2015

CaseChat Overview and Summary

The case of R v Joshi was heard by Justice Gilbert in the High Court of New Zealand in Auckland. The case involved an application by a victim, referred to as "X," for the suppression of their name, address, and occupation under section 202 of the Criminal Procedure Act 2011. Mr. Joshi, the defendant, had pleaded guilty to 29 offences involving dishonesty, affecting over 20 victims, one of whom was the medical doctor "X." The legal issue before the court was whether publication of the victim's identity would cause undue hardship, warranting suppression of their name.

Justice Gilbert detailed the considerations necessary to determine undue hardship, emphasizing that it must be more than typical hardship associated with criminal proceedings. The court assessed the balance between the public interest in open court proceedings and freedom of speech, against the need to protect victims from harm. Given the significant number of victims and the lack of a direct connection between the victim's profession and the fraud, Justice Gilbert concluded that publication would not likely cause undue hardship to the victim. Therefore, the application for name suppression was declined.

The court, however, issued an interim order maintaining the suppression of the victim's details for 14 days post-judgment, allowing the victim time to consider an appeal. This decision highlights the careful balancing act required by courts when dealing with name suppression applications, ensuring that the rights of all parties are considered in light of the public interest.

Orders