Tomar v Attorney-General

[2019] NZHC 3199

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-703

[2019] NZHC 3199

BETWEEN

AKHIL TOMAR

Plaintiff

AND

ATTORNEY-GENERAL

First Defendant

AND

MASSEY UNIVERSITY

Second Defendant

Hearing:

7, 8 and 11 November 2019

Appearances:

Plaintiff appears in Person

E J Watt and D Ballinger for the Attorney-General A B Darroch and L Castle for Massey University

Judgment:

5 December 2019

JUDGMENT OF GRICE J

(Application for suppression orders)

[1]    Mr Tomar is a serving prisoner. He has been taking extramural courses while in prison through Massey University. He is eager to undertake as much education as possible while in prison. He says it will assist both his rehabilitation and give him better prospects when released from jail.

[2]    The substantive proceedings centre on the difficulties Mr Tomar says he has encountered in trying to enrol in courses and to undertake his study while in prison. He says his study has been made more difficult by the Department of Corrections (the first defendant) and Massey University (the second defendant).

[3]    Mr Tomar seeks his name be suppressed in the substantive proceedings on the following basis:

TOMAR v ATTORNEY-GENERAL [2019] NZHC 3199 [5 December 2019]

(a)his name was suppressed in the criminal proceedings that led to his sentence of imprisonment.

(b)he says he will appeal his convictions and ask for a retrial. These are the only convictions he is in prison for. He, therefore, says that following the convictions being overturned it would be unfair for his name to be published in connection with being a prisoner. He said this may affect his employability.

(c)Mr Tomar said it was in the interests of justice that he be granted name suppression as the claimant.

(d)Neither defendant has taken a position in relation to the application for name suppression. Both indicated they would abide the decision of the Court.

[4]The principles surrounding name suppression are well known.

[5]    Open justice is fundamental to our justice system. The transparency of court proceedings is to maintain public confidence in the administration of justice. It allows the public to see within court proceedings and so remove any view of judicial arbitrariness or partiality. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges”.1

[6]    There are some circumstances where the interests of justice require a reasonable departure from the rule of open justice. The Court of Appeal and the High Court have applied the courts inherent power to make non-publication orders binding against the public in the civil context.2 The Supreme Court has recently discussed, and upheld, the power of courts to make such an order in Erceg v Erceg.3 In that

1      Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 132 per Richardson J.

2      As examples seeClark v Attorney-General [Name Suppression] (2004) 17 PRNZ 554 (CA); McIntosh v Fisk [2015] NZCA 247, (2015) 22 PRNZ 609; Peters v Birnie [2010] NZAR 494 (HC) at [23]; and ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC) at [9].

3      Erceg v Erceg [2017] NZSC 135, [2017] 1 NZLR 310.

decision the Supreme Court noted the starting point must be open justice. Further, Arnold J specifically said “the party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule …”.4

[7]    Arnold J went on to cite Kirby P in John Fairfax Group v Local Court of New South Wales as follows:5

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: … . A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

[8]The comments in this quote are helpful in assessing Mr Tomar’s application.

[9]    Mr Tomar says his criminal conviction was wrongly entered. However, he has been a serving prisoner for a number of years and any appeal lodged now will be substantially out of time. There are no extant proceedings but even if there were there is nothing substantial to indicate that his conviction will be set aside.

[10]   I also note the suppression of Mr Tomar’s name in his criminal proceedings was made solely to protect the complainant’s identity. As the details of Mr Tomar’s offending will not be in anyway discussed in the present case, there is no risk of identifying the complainant or connecting them to Mr Tomar. In addition, these are civil proceedings unrelated to the criminal matters for which he has been imprisoned.

[11]   There are no reasons to support name suppression being granted in the present civil proceedings. It is clear that there are no specific adverse consequences sufficient to justify an exception of open justice in this case. While it is possible Mr Tomar may

4      At [13] (footnotes omitted).

5      John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 (NSWCA) at 142–

143. The issue in the case was whether a local magistrate hearing committal proceedings had implied power to make an order protecting the identity of an alleged victim of extortion. The majority concluded that he did have that power; Kirby P dissented.

be adversely affected by this in that his reputation may suffer and employers may become aware of this case these matters are not so exceptional as to grant name suppression. The usual rule that Mr Tomar’s name should be public should apply.

[12]Accordingly, the application is dismissed.

Grice J

Solicitors:
Crown Law Office, Wellington for Respondent