SSB v R

[2017] NZHC 2590

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011 (AS SET OUT IN PARA [37] OF THIS JUDGMENT).

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000120 [2017] NZHC 2590

BETWEEN

SAMY SALEEB BESHARA

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 October 2017
Appearances:	C M Yardley for the Appellant S J Mallett for the Respondent
Judgment:	24 October 2017

JUDGMENT OF NATION J

[1]                 Mr Beshara appeals against a ruling declining his application for name suppression following his conviction on a guilty plea to one charge of indecent assault.

Background

[2]                 At the time of his offending, Mr Beshara was employed as a taxi driver. Late one night, it seems around midnight, he picked up his female victim from a bar in central Christchurch. Shortly before arriving at the victim’s address, Mr Beshara grabbed the victim’s hand, placed it on his thigh and held it there for a short time. When she removed her hand, he placed it back on his thigh. When they arrived at the

BESHARA v R [2017] NZHC 2590 [24 October 2017]

address, Mr Beshara parked in the driveway, undid his seatbelt and started to kiss the victim on the side of the face. He grabbed her breasts, attempted to pull them out of her top and started kissing them. The victim eventually managed to get out of the taxi and shouted, loudly, “no”. The incident was caught on a camera installed in the taxi. The assault while the car was parked lasted approximately 34 seconds. The victim waited for the taxi to leave and then went inside the house. A short time later, Mr Beshara returned and knocked on the victim’s door. The victim called the Police.

[3]                 In the District Court at Christchurch, Judge Kellar provided a sentencing indication on 23 June 2017. This was accepted by Mr Beshara. At the time, there was no order forbidding publication of his name but an application for such suppression was subsequently made. In a brief ruling on 7 July 2017 in the District Court another Judge declined that application. While he was still waiting to be sentenced in the District Court, Mr Beshara appealed that refusal of interim suppression to the High Court.

[4]                 Mr Beshara was sentenced to three months’ home detention in the District Court on 30 August 2017. At that time, Judge Keller refused an application for a permanent suppression order.

[5]                 The original appeal against the refusal of an interim suppression order was to have been heard in the High Court on 7 September 2017 but, by then, there had been the further decision of the District Court refusing final suppression.

[6]                 Mr Beshara abandoned the appeal against the refusal of interim suppression but lodged this new appeal against the refusal to order final suppression. That appeal was heard on 3 October 2017.

[7]                 At all stages, since the initial refusal of an interim suppression order, there have been orders made in the District Court for interim suppression to continue pending the outcome of the appeal to the High Court.

Jurisdiction and approach to appeal

[8]                 Mr Beshara appeals as of right.1 As a general appeal, the appellant bears the onus to satisfy the appeal court that it should reach a different decision.2 The appeal Court is entitled to give judgment in accordance with its own opinion even where that opinion is an assessment of fact and degree that entails a value judgment.

[9]                 In order for name suppression to be granted, the appellant must demonstrate that the publication of his name is likely to cause the appellant or any person connected with the appellant “extreme hardship”.3 Under the conventional two-step inquiry, the Court first assesses whether extreme hardship is likely to result. If it is, the Court secondly has discretion as to whether, given the competing interests of open justice, name suppression should be granted.4

[10]              The threshold for extreme hardship is very high. In Robertson v Police the Court of Appeal noted that ‘hardship’ on its own means “severe suffering or privation”, that the qualifier ‘undue’ used elsewhere in the Act indicates something more, and that ‘extreme’ indicates something more again.5 The hardship must be something well beyond the ordinary associated consequences of offending.

District Court decision

[11]              In refusing a final suppression order, the Judge referred to the two stage analysis required by s 200 Criminal Procedure Act 2011 and as discussed by the Court of Appeal in Robertson v Police. He also adopted Gilbert J’s view as to what was required for a court to find the publication would be likely to cause extreme hardship, namely that there had to be “a real risk that cannot be readily discounted”.6

[12]              The Judge referred to the evidence from Mr Beshara’s wife as to what she considered would be the consequences. He referred to all the matters which I am being

1      Criminal Procedure Act 2011, s 283.

2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 10, [2008] 2 NZLR 141.

3      Criminal Procedure Act 2011, s 200(2)(a).

4      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [40]–[42].

5 At [48].

6      Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17].

asked to consider on this appeal. He concluded that a number of those consequences were not out of the ordinary for his offending. He accepted there could be a degree of the family being ostracised or shunned by members of the small and close-knit community of which they are part but said that, again, those considerations would not be out of the ordinary consequences for offending such as Mr Beshara’s. He thus said he was not satisfied there was likely to be extreme hardship to Mr Beshara’s wife or children as a result. He also said that, if he was wrong about that, at the second stage of the analysis, he needed to weigh the competing interests for Mr Beshara and his family against the public interest in open reporting. He referred to a number of factors which I will again consider but concluded that all those factors, when considered against the presumption in favour of open reporting, did not justify the grant of an order suppressing publication of Mr Beshara’s name.

Appellant’s submissions

[13]              The application before the District Court and the appeal were advanced for Mr Beshara on the basis that his wife and children would suffer extreme hardship if name suppression is not granted.

[14]              In support of the application, Mr Beshara’s wife swore an affidavit in which she sought to explain what she says would be the effects on her and her family if name suppression is refused.

[15]              She says the family moved to New Zealand from Egypt four years ago with her family in the hope of bringing her children up in a safe and peaceful environment. She deposes that her family suffered hardship in Egypt on account of their Coptic Christian faith. She says they are part of a close-knit Egyptian community in Christchurch and that she and her children are likely to be shunned by that community as a result of the shame associated with her husband’s offending. She also tells of how their two children suffer from anxiety issues. A letter from their doctor is also before the Court confirming this and opining that their anxiety is likely to be aggravated by their father’s name being known.

[16]              In her affidavit, Mr Beshara’s wife goes on to suggest a further consequence of refusing suppression is that their children would be prevented from marrying within

the local Egyptian community as it would be thought that their father’s wrongdoing could repeat itself in them.

[17]              In her affidavit, Mr Beshara’s wife says she has a graduate diploma in commerce from Lincoln University and she is a registered chartered accountant. She says she has her own business with her twin sister which provides accounting services to members of her community. She says that, with publication, she would lose those people as clients because of the shame resulting from her husband’s actions and the way the family would be shunned by the community.

[18]              The last of the documents before the Court is a letter from their Coptic Christian Priest in which he appears to lend support to the concerns of Mr Beshara’s wife. In his letter, he says that, with publication, Mr Beshara’s children would not be able to marry anyone within the Coptic Christian community and they would not be able to live as part of that community because “they could be insulted from the community members”. He contends also that publication would affect Mrs Beshara’s reputation and that she would not be able to communicate with any other community member.

[19]              In its written submissions for the appeal, the Crown suggested that, if the community is as “small and close-knit” as was suggested in the wife’s affidavit, it was difficult to see how the offending would not already be a matter of knowledge within those social circles. At the commencement of the appeal, Mr Beshara’s counsel made an oral application for leave to allow Mr Beshara’s wife to give further evidence as to this. In the face of that application, Mr Mallett for the Crown said he was willing for the appeal to proceed on the basis that others in the Christchurch Coptic community did not, at this stage, know of Mr Beshara’s offending. With that concession, the application for Mr Beshara’s wife to be able to give further evidence was not pursued.

Analysis

[20]              As is clear from the authorities, the threshold for extreme hardship is very high, indeed extreme. I have to be satisfied that such stated harm or risk or harm is a real

and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.7

[21]              Offending, especially sexual offending, will always be associated with a degree of embarrassment and shame on the part of the family of the offender. I accept that in the present circumstances the embarrassment and shame which will result may well be higher than is ordinarily the case because of the cultural context of this family and the community to which they belong. However, I am not persuaded that it meets the very high threshold of extreme hardship.

[22]              Similarly, I accept that publication of Mr Beshara’s name may have some negative impact on his wife and children. However, this is often the case and one of the sad realities of criminal offending. The cases where suppression has been granted on such grounds tend to involve more severe potential consequences, such as a risk of suicide.8

[23]              I do not consider the consequences for the children are likely to amount to extreme hardship. They are of an age where it is the support and security they have with their parents which will be of prime importance. Their parents have been able to minimise for them the stress that must have arisen for the parents as a consequence of Mr Beshara’s offending and the ensuing criminal proceedings. The parents will both be able to provide that continuing support. This has been facilitated through Mr Beshara being sentenced to three months’ home detention, to be served at his home.

[24]              Although his wife, in her affidavit, refers to the children having anxiety issues, there is no evidence that this has arisen as a result of Mr Beshara’s offending or the ensuing proceedings. The doctor’s letter accompanying his wife’s affidavit describes the issue of whether or not publication would aggravate the daughter’s anxiety at the level of being only a “concern”. The doctor says the son has a particular problem that “would be aggravated by the stress of his father’s name being known” but, with that son aged 11, the parents are in a good position to provide the support and reassurance to significantly reduce or avoid such stress.

7      Beacon Media Group Ltd v Waititi, above n 6.

8      See for example GWS v Police [2013] NZHC 943.

[25]              I am not satisfied that the possibility that, in the long term, they might find it difficult to marry within their own Christian community because that community would consider them somehow tainted by their father’s wrongdoing, could be extreme hardship. It is only a possibility. With the children aged 11 and 13, this possibility is not likely to be an issue for them until at least their late teens or even later. By then, it is to be expected that their views, the views of those with whom they might associate socially and even those within the small Coptic Christian community in Christchurch, will be influenced to some extent by the knowledge, understanding and tolerance which is present in the wider community, values which it would be reasonable to expect a Coptic Christian community in New Zealand to be open to.

[26]              It is not clear from the information before me that, if and when these children do marry, they will have to marry people within the same Coptic Christian faith. Nor should I assume that, if they do, people within the community will, at that uncertain time well into the future, think quite unfairly that these children will be tainted by something which their father did, something which he did quite independently of his children and for which they could in no way be responsible.

[27]              I note the priest from the Coptic Church, who served in Christchurch for four years and who described himself as “the community leader”, has demonstrated his continuing support for this family through the letter he provided to the Court. He does not suggest that any of the family will be formally excluded from that community.

[28]              While there may be some financial consequences for Mr Beshara’s wife through the loss of clients from the Coptic Christian community, the extent of such a loss should be mitigated through the support which will be available to her from her sister who is a partner in that business. She does not suggest that she would lose that support through her sister coming to learn of the offending. The information before the Court is certainly not sufficient to establish that publication would inevitably prevent Mr Beshara’s wife being able to work as a chartered accountant, either within her existing business or elsewhere in Christchurch.

[29]              I accept the submission made for the respondent that, at worst, if there are the consequences for her business which Mr Beshara’s wife contemplates, it will mean

she will need to expand her customer base to include other members of the wider Christchurch community. She has the qualifications to be able to do this. The possibility that she may need to do so does not amount to extreme hardship.

[30]In H v R, it was held:9

[41] Financial loss is often a direct consequence of public knowledge of one’s offending. Sometimes the impact will reach beyond the economic interests of the offender, and may cause loss to his family and persons associated with him. However, these are ordinary consequences of the offender’s identity becoming public knowledge. … In the majority of cases, name suppression should not be viewed as a tool to protect one’s commercial interests.

[31]              The request for suppression appears to be driven very much by Mr Beshara’s wife’s sense of shame and anxiety over her husband’s offending and fears that it will lead to her and her children being ostracised by her local Egyptian Coptic Christian immigrant community. In her affidavit, she referred to the struggles they had living in Egypt because they were Christians and of wanting to bring her children up in a “safe and peaceful land”. They are now in the country of their choice where the level of understanding and tolerance is greater than she suggests prevails within the immigrant community that is just a small part of the wider New Zealand social environment. In these circumstances, it is appropriate that I look at the likely consequences for her and her family within the wider community that her family and the Egyptian Coptic Christian community are now part of. Doing that, I do not consider she needs to be as anxious or fearful as she says she is as to the consequences of publication.

[32]              For all these reasons, I do not consider the high statutory threshold for suppression has been made out.

[33]              As a result, it is not necessary for me to move to the second stage of the analysis and decide whether, in the exercise of discretion, there should be suppression. At that stage, it would be necessary to weigh the competing interest effectively of Mr Beshara’s family and the public, taking into account the importance of open justice. Judge Keller said that, if he had been wrong in the conclusions he reached at the first

9      H v R [2015] NZHC 1501.

stage, he would nevertheless have refused suppression in the exercise of his discretion. My decision would be the same, having particular regard to the nature of the offending and the way in which members of the public had to trust Mr Beshara through the occupation he had as a taxi driver. The principle of open justice is important in New Zealand. I would have been reluctant to see the application of that principle effectively undermined through what is said to be the views of a small community which would appear to be at odds with those of the wider community within New Zealand.

[34]              Ordering suppression is likely to leave Mr Beshara’s wife with continuing anxiety that someone else in the community might come to hear of his offending and with anxiety as to what might happen if this were to occur. If there is publication, the family will be able to confront and deal with whatever consequences might result so that they can then move on from all that has happened. There would also be the opportunity for the small and close-knit Christian community, which the wife has described, to support this family with knowledge and understanding as the priest has done through the letter of support which he has written. With Mr Beshara able to secure a sentence of home detention in the family home his wife, a Coptic Christian, has shown she has been able to do that.

[35]For all these reasons, the appeal is dismissed.

[36]              Counsel advised that, if this was to be the outcome on the appeal, Mr Beshara would be seeking leave from the Court of Appeal to appeal to that Court. Mr Beshara sought interim suppression pending the outcome of such an appeal.

[37]              In the circumstances, I make an interim order forbidding publication of Mr Beshara’s name, age, occupation and any particulars that could lead to his identification, including the fact that he is a member of the Egyptian Coptic Christian community. That interim order is to continue until 24 November 2017 unless an application for leave to appeal this decision is filed with the Court of Appeal on or before that date. If such an application has been filed within that time, this interim order is to continue until the appeal is finally determined.

Solicitors:

C M Yardley, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.