Sharma v Police
[2024] NZHC 3086
•23 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000451
CRI-2024-404-000452 [2024] NZHC 3086
BETWEEN ROHINEET SHARMA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 October 2024 Appearances:
N Mani for Appellant
W Fotherby and A Afzaly for Respondent P Gillick for NZME
Judgment:
23 October 2024
JUDGMENT OF VENNING J
[Appeal against suppression]
This judgment was delivered by me on 23 October 2024 at 11.30 am,
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Public Defence Service, Auckland
Copy to: NZME (P Gillick)
SHARMA v NEW ZEALAND POLICE [2024] NZHC 3086 [23 October 2024]
[1] Rohineet Sharma faces 11 charges of money laundering pursuant to s 243(2) of the Crimes Act 1961. A Judge-alone trial (JAT) has been scheduled for 1 July 2025.
[2] The matter before this Court is an appeal against Judge D A Bell’s “refusal to determine interim name suppression” on 20 August 2024.1
Procedural background
[3] The procedural background to this matter is complicated to say the least. Mr Sharma was first before the Court on 7 December 2021. There have been numerous appearances before the Court following that first appearance. Mr Sharma initially did not seek or have name suppression.
[4] The issue of name suppression seems to have been raised first before Judge N R Dawson on 24 August 2023 when the media sought permission to take photographs.2 Judge Dawson recorded that:
[1] He does not have name suppression. He may or may not have had publicity already. If there is publicity, people would no doubt recognise his name, those people who know him best and deal with him, and I do not see the addition of photos would make any difference. The application is granted.
[5] The application granted by Judge Dawson was an application by the media to take photographs. The Judge correctly noted that at that time, Mr Sharma did not have name suppression.
[6] However, the issue of name suppression has been referred to on a number of other appearances during the course of these proceedings in the District Court.
[7] Although Mr Sharma has a date for a JAT, on 20 May 2024, then counsel for Mr Sharma (not Mr Mani) and the Police had filed a joint memorandum in which it was confirmed Mr Sharma had accepted a “resolution proposal”. Full reparation of
$180,000–$220,000 was a condition of the proposal. The memorandum noted that Mr Sharma sought interim name suppression until sentencing.
1 New Zealand Police v Sharma [2024] NZDC 20825.
2 New Zealand Police v Sharma [2024] NZDC 16317.
[8] On 6 June 2024, Judge S Harrop noted that Mr Mani sought name suppression for Mr Sharma but ruled:
I decline that because Mr Nicholls says a judge has already declined it (Mr Mani did not know that).
[9] When the proceedings came before Judge Bell on 20 August 2024, there was again a discussion regarding name suppression. Judge Bell took the view that as Judge Dawson had ruled photographs could be taken, the issue of name suppression would have been dealt with. Judge Bell indicated that she was of the view that name suppression had been declined and was anticipating Mr Mani would be proceeding with an appeal, which had apparently already been filed in this Court (presumably from Judge Dawson’s decision). However, that particular appeal was abandoned because counsel took the view it was not clear that name suppression had been declined by Judge Dawson.
[10] Mr Mani advised Judge Bell that they were going to refile the appeal or ask for the appeal to be brought on, and sought continued interim suppression until the appeal was heard. Judge Bell acceded to that request and made an order for interim suppression of name until the appeal was determined.
Jurisdiction
[11] There is a preliminary issue as to whether there is jurisdiction for the appeal as it is presently formulated. The appeal is said to be against a refusal to “determine” name suppression. Section 283(1) of the Criminal Procedure Act 2011 (CPA) provides for an appeal against a decision on suppression. As filed, Mr Sharma’s appeal does not suggest Judge Bell made a decision on name suppression.
[12] As noted, as I read the District Court record, the issue of name suppression was not raised until the media sought to take photographs on 24 August 2023. Apart from Judge Dawson’s decision that day, there is no decision where any application for name suppression was raised or determined by the District Court. I agree with Judge Bell to the extent that, on any sensible reading of Judge Dawson’s decision, it should effectively be read as a decision to decline name suppression.
[13] That is also consistent with the relevant provisions of the CPA, particularly s 200(4) and (5). I consider the correct position is that Mr Sharma has never had name suppression. Alternatively, Judge Dawson declined the application for name suppression when the issue was before him, albeit informally. The appeal should have been against that decision, but I understand that the appeal against that decision was withdrawn.
[14] Strictly speaking, this Court does not have jurisdiction to entertain an appeal under s 283(1) of the CPA on the basis the Judge refused to make a decision. The jurisdiction only extends to appeal a “decision”. There is no justiciable decision before this Court for it to deal with. Left there, this appeal would be dismissed for want of jurisdiction. Mr Sharma would not have name suppression.
[15] However, after discussion with counsel, who had all prepared to deal with this appeal on the merits, I indicated that I would be prepared to treat Judge Bell’s decision as a decision to refuse to make a suppression order, which would provide jurisdiction for the Court to deal with the matter on appeal. Mr Mani agreed with that proposal and accepted it. Neither Mr Fotherby nor Mr Gillick objected to the Court dealing with the matter that way.
Approach to the appeal
[16] An appeal against refusal to make an order suppressing the name involves a two-stage process. The first is whether the requisite threshold prescribed in s 200(2) is reached, which is an evaluative exercise and to be assessed according to the approach set out in Austin, Nichols & Co Inc v Stichting Lodestar.3 The second stage involves the exercise of a discretion with the issues being whether the Judge erred in law or principle, where the usual principles relating to an appeal against an exercise of a discretion are involved.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Appeal grounds
[17] In support of his appeal Mr Sharma relies on an affidavit filed in the District Court, a further affidavit filed in this Court to support the appeal, and also seeks leave to adduce further evidence, namely a certificate from a medical practice. There was no opposition to that further evidence being admitted.
[18] In his first affidavit dated 10 July 2024, Mr Sharma says he is the founder and group CEO of Green Solar 24 Limited (Green Solar). He says Green Solar specialises in financing, procurement and construction of large-scale solar power plants or solar farms, and distributes mobile solar systems throughout the South Pacific. Mr Sharma refers to his contact with a number of overseas entities in a number of different states. He refers to joint venture agreements. He then asserts that publication of his name would cause extreme hardship and would adversely impact the operation of Green Solar’s business both here and overseas. The publication of his name would lead to the identification of Green Solar which would halt the business discussions he is currently involved in.
[19] In his affidavit filed for this appeal, Mr Sharma goes on to explain the procedural background to the issue of name suppression. He accepted he had made no application for name suppression initially. He noted that there was no publication or mention of his name following Judge Dawson’s decision and that, although there was a TVNZ Sunday programme in February 2024 about scams involving money laundering and one of the victims of his alleged offending was part of the programme, neither his name nor business were identified in the programme.
[20] Mr Sharma says he seeks suppression because of the renewed interest in the case by the media. Mr Sharma then goes on to state that, apart from the international lenders and investors, he is also currently talking to local investors and Māori Iwi groups who are keen to partner with him to build solar power plants. He says publication of his name will kill those discussions. Mr Sharma says that he is not sleeping and has nightmares. He has thoughts about ending his life.
[21] Finally, Mr Sharma makes the submission in his affidavit that if his name is published, he will not be able to raise the funds to pay back the victims of the alleged
scam. He says he wishes to make reparation but will need until February 2025 to make full reparation (which, as noted, is in the range of $180,000 to $220,000).
[22] The additional evidence sought to be introduced is a letter from a medical practice which simply notes Mr Sharma’s self-reporting statements that the allegations have caused him a lot of distress, and that he has been suicidal and paranoid due to the stress. It confirms Mr Sharma has been assessed by a crisis team at ADHB. He has minimal family support and has been referred for further counselling to a third-party provider.
Analysis
[23] The only basis for suppression in Mr Sharma’s case is that, if his name is not suppressed, he will suffer extreme hardship.4
[24] In support of the appeal, Mr Mani submitted there is a real and appreciable risk of extreme hardship to Mr Sharma if his name is published. He relied on the case of H (CA134/2022) v R, where the Court of Appeal allowed continued interim name suppression.5 The application related entirely to H’s career as an entertainer.6 The Court emphasised the difference between losing a long-established career in the nature of a vocation and losing a relatively “run-of-the-mill” job as a consequence of publication.7 Mr Mani submitted this was an application based on the impact of name publication on the career or business of the applicant that was not “run-of-the-mill”, and submitted that, while individual factors viewed in isolation may not satisfy the test, when viewed cumulatively they may amount to the required threshold of extreme hardship.
[25] Mr Mani also referred to the case of R v BGE (No 2), where the Court continued suppression on the basis of business interests in conjunction with other factors.8
4 Criminal Procedure Act 2011, s 200(2)(a).
5 H (CA134/2022) v R [2022] NZCA 220.
6 At [27].
7 At [36].
8 R v BGE (No 2) HC Hamilton CRI-2005-419-122, 1 June 2006 at [23].
[26] Regarding public interest, Mr Mani submitted the facts of Mr Sharma’s offending are more akin to reckless, rather than intentional, money laundering. He referred to Mr Sharma’s medical issues and suicidal thoughts. He submitted that on a cumulative basis, Mr Sharma meets the extreme test of extreme hardship.
[27] However, as the Court has said on a number of occasions, the extreme hardship test is a high one. As the Court of Appeal said in Robertson v Police:9
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)(d) indicates something more again.
[28]And the Court of Appeal in P v R said further:10
[13] [Extreme hardship] requires the court to compare the consequences of publication in the case before it with those that normally attend prosecution. The stress, embarrassment and adverse personal and financial consequences that usually attend criminal proceedings are not enough. Something out of the ordinary is needed if the applicant is to cross the specified threshold. Indeed, the threshold for extreme hardship is very high. As Wylie J observed, examples are a real risk of suicide or a fatal consequence for a family member suffering from a heart condition.
[29] It may well be that if Mr Sharma’s name is published, and the connection is made with the business of Green Solar, then his reputation and business may be adversely affected. That may cause him and the business hardship, possibly even undue hardship, but it falls short of extreme hardship or hardship out of the ordinary suffered in such circumstances.
[30] It is also relevant, as Mr Gillick submitted, that Mr Sharma’s professional reputation can hardly be said to be intact. Mr Sharma was a barrister and solicitor. In 2015, he was struck off the roll of barristers and solicitors as he was found to have misconducted himself in a number of ways including by deliberately making a false declaration to a bank.
[31] I place little weight on Mr Sharma’s assertions as to his suicidal thoughts or the letter from the medical practice. While there is no opposition to that evidence (the
9 Robertson v New Zealand Police [2015] NZCA 7 at [48] (footnotes omitted).
10 P v R [2018] NZCA 302 (footnotes omitted).
letter from the medical practice), it is not cogent. As Mr Gillick noted, it is written by the clinical nurse manager, not a doctor. It essentially relies on Mr Sharma’s self-reporting. It refers to the stress Mr Sharma is facing as a consequence of his charges, but makes no mention whatsoever of the consequences of publication. Relevantly, it also refers to the fact he has been referred for counselling and will at least have that support.
[32] In H v R, the Court of Appeal considered the High Court had been justified in concluding that the evidence of a link between publication and the adverse consequences was not made out.11 Similarly, in the present case, it is apparent the stress Mr Sharma is suffering primarily arises from the charges. There is no cogent evidence of a further likely link to a risk arising from publication. I also note that Mr Sharma seems to have been able to deal with the fallout of being struck off as a lawyer and gone on to establish other businesses.
[33] As to the impact on his business, in Sansom v R, the Court of Appeal noted that in the commercial world, where the allegation is commercial misconduct, commercial relationships and transactions arising from them inevitably will be affected, but that is not undue hardship (let alone extreme hardship).12
[34] As noted, one reason Mr Sharma seeks suppression is to enable him to carry on with his business and commercial endeavours, which will enable him and his business to obtain funds from investors and lenders, and which he says will assist him to pay the reparation. That submission is itself troubling. The investors and lenders dealing with Mr Sharma are entitled to know about the charges he faces. Also, his affidavit is entirely without detail as to how he will legitimately earn the reparation of
$180,000–$220,000 by February 2025.
[35] Mr Sharma also suggests his culpability in this case should be categorised as reckless. A similar submission was rejected by the disciplinary tribunal in 2015. Further, the number of charges and amounts involved underline the seriousness of the allegation, even if his conduct was to be categorised as reckless. In the case of
11 H v R [2021] NZCA 481.
12 Sansom v R [2018] NZCA 49 at [32].
Sperry v R, which also involved money laundering as part of a scam where $800,000 was transferred into Mr Sperry’s account, Mr Sperry made six transfers totalling in excess of $126,000.13 Mr Sperry was charged with being reckless as to the provenance of the funds and applied for name suppression. He submitted publication would cause extreme hardship to himself, his family, and his business and business associates. Justice Anderson concluded the high test for extreme hardship was not made out.14 The consequences did not go further than the ordinary consequences on a person’s business for someone facing charges of this nature.15 Similar reasoning applies to Mr Sharma’s position in this case. Further, as a director of a company and with his background qualifications, Mr Sharma can be expected to have a level of understanding of the law and the obligation to not engage in money laundering, irrespective of whether he was reckless or otherwise.
[36] I also accept the point made by Mr Fotherby that Mr Sharma’s reference to the existence of the projects and business developments is speculative. Mr Sharma refers to joint venture agreements but there is no detail of actual projects. Further, while he refers to an agreement to purchase land to establish a solar power plant, as Mr Fotherby submitted, the agreement is entirely conditional. There is no evidence of satisfaction of the conditions (the date for a number of which has passed) or of how the purchase price is to be funded.
[37] As Mr Sharma falls well short of satisfying the threshold test it is unnecessary to consider the discretionary assessment.
[38] If the Court had reached the stage that the discretionary consideration was relevant, then, having regard to the submissions made by Mr Gillick (and Mr Fotherby), I accept that there is public interest in knowing the identity of those charged with money laundering and in particular, of receiving the proceeds of a scam. The presumption of open justice outweighs any adverse impact that publication of his name may have on Mr Sharma.
13 R v Sperry [2024] NZHC 1956.
14 At [26].
15 At [30].
[39]As Anderson J noted in Sperry:16
… [t]here is a considerable public interest in knowing the identity of those charged with (even reckless rather than intentional) money laundering and in receiving the proceeds of a scam.
In Mr Sperry’s case, the public interest was enhanced rather than reduced by the fact he held a licence as a financial service provider. Any consequences are ordinary and proportionate to publication, and are insufficient to displace the presumption of open justice.
Result
[40] For the above reasons, the appeal is dismissed. The media may publish Mr Sharma’s name and the details of the charges he faces.
Venning J
16 At [43].
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