Singh v Police
[2016] NZHC 147
•12 February 2016
IN THE HIGH COURT OF NEW ZEALAND
NELSON REGISTRY
CRI-2015-442-0029
[2016] NZHC 147
BETWEEN HARINDER SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 February 2016 Appearances:
R Ord for the Appellant
S K O'Donoghue for the Respondent
Judgment:
12 February 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 12 February 2016 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Crown Solicitor, Nelson.
SINGH v NEW ZEALAND POLICE [2016] NZHC 147 [12 February 2016]
Introduction
[1]The appellant, Harinder Singh, faces a charge of indecent assault.1
[2] He appeals a ruling of a District Court Judge declining to grant interim name suppression until trial, on the grounds that publication would cause discrimination towards Sikhs in Nelson, would cast undue suspicion on others, and risk his rights to a fair trial.
[3]I dismissed the appeal and now give my reasons.
Alleged facts and procedural history
[4] It is alleged that in March 2008, when the appellant was working as a taxi driver in Auckland, he indecently assaulted a female passenger.
[5] The appellant was charged and arrested on 1 May 2008. He was bailed, but then left New Zealand for India. It appears he considered the matter was over.2 He returned to New Zealand around seven years later and was arrested in Wellington. He pleaded guilty to breaching bail.
[6] He has not had name suppression from 2008 until this application, although the case does not seem to have attracted any publicity.
The law
[7] Name suppression is governed by the Criminal Procedure Act 2011, primarily s 200, which provides:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
1 Crimes Act 1961, s 135, maximum penalty of 7 years imprisonment.
2 The appellant had received a letter in 2008 from Legal Services saying, “your case has now finished”.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
[8] The section contemplates a two-stage test. First, it must be determined whether one of the grounds has been established.3 Only once one of these is made out does the question of discretion arise.4 The exercise is still discretionary even if one of the grounds in s 200 is made out.
[9] It is clear that the starting point in name suppression decisions is the principle of open justice. In R v Liddell,5 the Court of Appeal stated:
“the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates’ of the public”.
This was a pre-CPA decision, but is still considered good authority. The courts continuously emphasise the presumption of open justice.6
[10] The approach on appeal will depend what part of a decision is being challenged. If it is the decision regarding whether the threshold was satisfied, the appeal will be on the ordinary Austin, Nichols approach. If it is the discretion being
3 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
4 Fagan v Serious Fraud Office, above n 3, at [9].
5 R v Liddell [1995] 1 NZLR 538 (CA).
6 Robertson v Police [2015] NZCA 7 at [43]-[44]; Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA200.01].
challenged, the B v R approach will apply.7 It is unclear which exactly is at issue here. The appellant’s submissions accept that there was little information before the busy list Judge.
District Court decision
[11] The ruling of the Judge was brief. Mr Ord is recorded as submitting “He’s a member of an identifiable minority. That not only leads to issues against him personally but also to issues against his culture.” The Judge appears to have declined the application, with Mr Ord signalling he would make an application to the High Court for appeal. The Judge granted interim suppression until that afternoon.
Submissions
[12] Mr Ord for the appellant submits that publication would cause extreme hardship to him, or undue hardship to persons connected with him. Mr Ord makes this submission on the basis of the appellant’s Sikh faith.
[13] He appears to suggest that publication would cast suspicion on other male Sikhs that would cause undue hardship to them, as most male Sikhs have the last name ‘Singh’. This may manifest in enmity or discrimination. He also submits this discrimination would risk the right to a fair trial.
[14] The Crown submits that the test of extreme hardship is not made out, and indeed the suggestion of it is merely speculative. Any defendant facing a sexual offending charge may experience hardship. The publication of the appellant’s name will actually prevent undue suspicion and hardship on other Sikhs.
[15] Even if the grounds in s 200 were made out, in Ms O’Donoghue’s submission the discretionary stage of the name suppression assessment would favour publication, as the alleged offending involves an indecent assault on a lone female passenger by a taxi driver in a position of trust.
7 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf edition, Westlaw) at [CPA287.03].
Analysis
[16] The appellant’s submissions seem to be suggesting that some combination of ss 200(2)(a),(b) and (d) applies. The requisite causative link of s 200(2) – that publication would be likely to cause one of the grounds – is not explicitly set out. I will deal with all three.
[17] The appellant contends that he, or other male Sikhs, will suffer discrimination based on their religion. The test under s 200(2)(a) of extreme hardship is extremely high. The Court of Appeal recently said that it was clear “beyond argument” that the test of extreme hardship connotes a very high level of hardship.8 Further the Court stated: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.
[18] While it may be that Sikhs and other minority groups in New Zealand suffer discrimination, the causative link between publication and extreme hardship has not been shown. The suggestion that the appellant will suffer religious discrimination if his name is published in this case is merely speculative. No evidence has been filed to show any discrimination against Sikhs facing criminal charges in the Nelson area. Mr Ord refers to a recent human trafficking trial involving Sikhs, but could not point to any particular discrimination faced by Sikhs in the community.
[19] As regards hardship from shame within his community, I am not satisfied that the high test of extreme hardship is made out. While there will likely be some shame and embarrassment coming from the Sikh community, it is not shown that this is above what would usually be the case when a person is charged with a sexual offence. The Court of Appeal has expressed reluctance to create special groups of people who enjoy suppression when others would not.10 In Tiwari v Police, it was argued a Hindu priest would lose respect and his income if his name were published.
8 Robertson v Police [2015] NZCA 7 at [48].
9 Robertson v Police, above n 8, at [48].
10 Proctor v R [1997] 1 NZLR 295 (CA), noting that this was as regards surgeons, who are certainly a more privileged group in New Zealand society than Sikhs.
While the Court accepted he may lose respect and some of his livelihood, extreme hardship was not made out.11
[20] Further, the submission that lapse of name suppression would cause undue suspicion to fall on other persons is not compelling. Publication will include the appellant’s full name, not just the last name ‘Singh’, which should curb any suspicion and undue hardship on others. There is no evidence of any other Harinder Singh in the Nelson area who would face this suspicion.
[21] Mr Ord submitted that the presumption of innocence favoured suppression. He relied on S(1) & S(2) v Police where the Judge referred to the need at the pre- conviction stage of criminal proceedings, to consider the presumption of innocence and the risk of substantial harm to a potentially innocent person.12 I accept that this is a factor to be taken into account.
[22] As Ms O’Donoghue submitted, it is not sufficient simply to speculate about contended prejudice and impacts on fair trial rights. The jury will be given the usual direction to put sympathies and prejudice aside.
[23] There were two other points made in Mr Ord’s submissions. The first is that there was no evidence of the complainant’s views as to name suppression. The complainant’s position can be a relevant consideration pursuant to s 200(2)(c) and (f) but those are not the grounds on which the appellant relies.
[24] Finally, Mr Singh questions the public interest in a case where the alleged offending took place over eight years ago. In the circumstances he questions why the public cannot wait until the trial is completed to know the identity of the person charged with the offence. Balanced against that, however, is the principle of open justice and the legitimate public interest in a case involving allegations of sexual offending by a taxi driver.
11 Tiwari v Police [2014] NZHC 2509 at [56].
12 S(1)) v Police (1995) 12 CRNZ 714.
Result
[25] For the reasons given, I am not satisfied that publication would be likely to cause either the claimed extreme or undue hardship or that the discretion to suppress should, in the circumstances, be exercised. The appeal is dismissed.
Thomas J
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