SSB v R

Case [2017] NZHC 2590 24 October 2017

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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…

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 SSB v R

Details

AGLC: SSB v R [2017] NZHC 2590
Case: [2017] NZHC 2590
Decision Date: 24 October 2017

CaseChat Overview and Summary

The appellant, Mr Beshara, appeals against the District Court's refusal to grant him a final suppression order following his conviction for indecent assault. The District Court had previously declined to grant an interim suppression order which was also appealed to the High Court but was abandoned before hearing. The appeal before the High Court concerns the refusal of the District Court to grant a final suppression order. The District Court had found that the appellant had not demonstrated that publication of his name was likely to cause him or any person connected with him "extreme hardship". The High Court was required to determine whether the District Court's finding was correct.

The High Court found that the threshold for extreme hardship is extremely high and must be a real and appreciable possibility that cannot be dismissed as being remote or fanciful. The Court found that the appellant's wife and children would suffer some degree of embarrassment and shame as a result of the publication of his name, but that it did not meet the threshold of extreme hardship. The Court also found that the appellant's wife would not necessarily lose all her clients as a result of publication and that the family could continue to live within the wider New Zealand community. The Court concluded that the appellant had not met the high statutory threshold for suppression and therefore dismissed the appeal. The Court also made an interim order forbidding publication of the appellant'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, 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.

Orders