SINGH v NEW ZEALAND POLICE [2016] NZHC 147

SINGH v NEW ZEALAND POLICE [2016] NZHC 147 [12 February 2016]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCRI-2015-442-0029[2016] NZHC 147BETWEEN HARINDER SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 10 February 2016Appearances: R Ord for the AppellantS K O'Donoghue for the RespondentJudgment: 12 February 2016JUDGMENT OF THOMAS JThis judgment was delivered by me on 12 February 2016 at 11.00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors:Crown Solicitor, Nelson.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 namesuppression until trial, on the grounds that publication would cause discriminationtowards Sikhs in Nelson, would cast undue suspicion on others, and risk his rights toa 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 taxidriver in Auckland, he indecently assaulted a female passenger.[5] The appellant was charged and arrested on 1 May 2008. He was bailed, butthen left New Zealand for India. It appears he considered the matter was over.2 Hereturned 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, althoughthe case does not seem to have attracted any publicity.The law[7] Name suppression is governed by the Criminal Procedure Act 2011, primarilys 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 nowfinished".(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, or convictedof, or acquitted of the offence, or any person connected with thatperson; or(b) cast suspicion on another person that may cause undue hardshipto 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 issuppressed 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 determinedwhether one of the grounds has been established.3 Only once one of these is madeout does the question of discretion arise.4 The exercise is still discretionary even ifone of the grounds in s 200 is made out.[9] It is clear that the starting point in name suppression decisions is the principleof open justice. In R v Liddell,5 the Court of Appeal stated:"the starting point must always be the importance in a democracy of freedomof speech, open judicial proceedings, and the right of the media to report thelatter fairly and accurately as 'surrogates' of the public".This was a pre-CPA decision, but is still considered good authority. Thecourts continuously emphasise the presumption of open justice.6[10] The approach on appeal will depend what part of a decision is beingchallenged. If it is the decision regarding whether the threshold was satisfied, theappeal will be on the ordinary Austin, Nichols approach. If it is the discretion being3 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 issuehere. The appellant's submissions accept that there was little information before thebusy list Judge.District Court decision[11] The ruling of the Judge was brief. Mr Ord is recorded as submitting "He's amember of an identifiable minority. That not only leads to issues against himpersonally but also to issues against his culture." The Judge appears to havedeclined the application, with Mr Ord signalling he would make an application to theHigh Court for appeal. The Judge granted interim suppression until that afternoon.Submissions[12] Mr Ord for the appellant submits that publication would cause extremehardship to him, or undue hardship to persons connected with him. Mr Ord makesthis submission on the basis of the appellant's Sikh faith.[13] He appears to suggest that publication would cast suspicion on other maleSikhs that would cause undue hardship to them, as most male Sikhs have the lastname 'Singh'. This may manifest in enmity or discrimination. He also submits thisdiscrimination would risk the right to a fair trial.[14] The Crown submits that the test of extreme hardship is not made out, andindeed the suggestion of it is merely speculative. Any defendant facing a sexualoffending charge may experience hardship. The publication of the appellant's namewill 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 submissionthe discretionary stage of the name suppression assessment would favourpublication, as the alleged offending involves an indecent assault on a lone femalepassenger 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 ofss 200(2)(a),(b) and (d) applies. The requisite causative link of s 200(2) – thatpublication would be likely to cause one of the grounds – is not explicitly set out. Iwill deal with all three.[17] The appellant contends that he, or other male Sikhs, will suffer discriminationbased on their religion. The test under s 200(2)(a) of extreme hardship is extremelyhigh. The Court of Appeal recently said that it was clear "beyond argument" that thetest of extreme hardship connotes a very high level of hardship.8 Further the Courtstated:9The word "hardship" on its own means "severe suffering or privation". Theaddition of the qualifier "undue" in s 200(2)(c) indicates that somethingmore than hardship simple is required, while the word "extreme" in s200(2)(d) indicates something more again.[18] While it may be that Sikhs and other minority groups in New Zealand sufferdiscrimination, the causative link between publication and extreme hardship has notbeen shown. The suggestion that the appellant will suffer religious discrimination ifhis name is published in this case is merely speculative. No evidence has been filedto 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 pointto any particular discrimination faced by Sikhs in the community.[19] As regards hardship from shame within his community, I am not satisfied thatthe high test of extreme hardship is made out. While there will likely be some shameand embarrassment coming from the Sikh community, it is not shown that this isabove what would usually be the case when a person is charged with a sexualoffence. The Court of Appeal has expressed reluctance to create special groups ofpeople who enjoy suppression when others would not.10 In Tiwari v Police, it wasargued 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 arecertainly a more privileged group in New Zealand society than Sikhs.While the Court accepted he may lose respect and some of his livelihood, extremehardship was not made out.11[20] Further, the submission that lapse of name suppression would cause unduesuspicion to fall on other persons is not compelling. Publication will include theappellant's full name, not just the last name 'Singh', which should curb anysuspicion and undue hardship on others. There is no evidence of any otherHarinder 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 innocenceand the risk of substantial harm to a potentially innocent person.12 I accept that thisis a factor to be taken into account.[22] As Ms O'Donoghue submitted, it is not sufficient simply to speculate aboutcontended prejudice and impacts on fair trial rights. The jury will be given the usualdirection to put sympathies and prejudice aside.[23] There were two other points made in Mr Ord's submissions. The first is thatthere was no evidence of the complainant's views as to name suppression. Thecomplainant'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 allegedoffending took place over eight years ago. In the circumstances he questions whythe public cannot wait until the trial is completed to know the identity of the personcharged with the offence. Balanced against that, however, is the principle of openjustice and the legitimate public interest in a case involving allegations of sexualoffending 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 tocause either the claimed extreme or undue hardship or that the discretion to suppressshould, in the circumstances, be exercised. The appeal is dismissed._______________________Thomas J