AHLAWAT v R [2022] NZCA 615

AHLAWAT v R [2022] NZCA 615 [7 December 2022]NOTE: INTERIM SUPPRESSION OF NAME, ADDRESS OR IDENTIFYINGPARTICULARS OF APPELLANT IS TO CONTINUE UNTILFRIDAY 9 DECEMBER 2022 AT 12 NOON.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA580/2022[2022] NZCA 615BETWEEN ISABELLA NIKI-HARPER AHLAWATAppellantAND THE KINGRespondentHearing: 24 November 2022Court: Miller, Collins and Palmer JJCounsel: SNB Wimsett for AppellantS C Baker for RespondentJudgment: 7 December 2022 at 12 noonJUDGMENT OF THE COURTA The appeal against the order declining Ms Ahlawat's application forcontinued name suppression is dismissed.B The existing interim name suppression order will lapse on 9 December2022 at 12 noon.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Following a trial which concluded on 6 July 2022, Ms Ahlawat was foundguilty of manslaughter and arson causing danger to life. She was sentenced on2 September 2022 by Venning J to eight years and three months' imprisonment.1[2] Ms Ahlawat has appealed her conviction, but that appeal is unlikely to be hearduntil mid-way through 2023, at the earliest.[3] Ms Ahlawat's name was suppressed during the trial because, at the time, shewas facing a charge in the District Court of attempting to pervert the course of justice.We explain the status of that charge at [13].[4] Ms Ahlawat applied for continued name suppression pending thedetermination of her appeal. That application was declined by Venning J on20 October 2022.2 Ms Ahlawat now appeals that decision.BackgroundThe death of Mr Ewart[5] The Crown case was that Ms Ahlawat persuaded Mr Ewart, a 58-year-old manwith limited intellectual capacity, to set fire to a flat that had been occupied byMs Ahlawat's mother. Ms Ahlawat had known Mr Ewart for about 10 years.The mother's tenancy of the flat was brought to an end following a hearing of theTenancy Tribunal on 6 December 2017. Ms Ahlawat appeared for her mother at thehearing.[6] Ms Ahlawat decided to seek revenge against the landlord by burning the flat.She used Mr Ewart to achieve her goal.1 R v [A] [2022] NZHC 2233 [Sentencing notes].2 R v [A] [2022] NZHC 2725 [Name suppression decision].[7] Ms Ahlawat met with Mr Ewart on 6 and 7 December 2017 and arranged forhim to obtain a new mobile phone and a bus pass to travel to the flat formerly occupiedby Ms Ahlawat's mother. Ms Ahlawat also purchased a new mobile phone to enableher to communicate with Mr Ewart without her telephone calls and text messagesbeing traced to her regular phone.[8] Ms Ahlawat arranged for a plumber to visit the property and turn off the water.A smoke alarm was either disconnected or damaged. Ms Ahlawat also arranged for anumber of milk bottles filled with petrol to be left near the flat. Mr Ewart was to setfire to the flat during the early hours of 9 December 2017.[9] Early on 9 December 2017, Ms Ahlawat went to the Waitakere Hospital so thather presence there could be recorded on CCTV. This was designed to provide her withan alibi when Mr Ewart was setting fire to the flat.[10] While placing the milk bottles filled with petrol under the floor of the flat,Mr Ewart released petrol fumes and spilt some petrol on himself. When he lit thepetrol, Mr Ewart was consumed by fire. He died at the scene.Propensity evidence[11] During the trial the Crown adduced by way of propensity evidence an accountof Ms Ahlawat having been involved with a fire to a car in 2008 that had been used byMr S. The Crown said Ms Ahlawat was interested in having a relationship with Mr Sbut he did not reciprocate her interest. Soon thereafter the car caught fire. Mr S saidin his evidence that Ms Ahlawat asked him if he thought that it was a coincidence thathis car caught fire. The Crown contended that those comments showed Ms Ahlawathad a tendency to seek revenge against those who offended her by damaging theirproperty by fire.[12] The Crown also adduced evidence that in April 2016, Ms Ahlawat complainedto the police that Mr A, a friend of her father, had threatened Ms Ahlawat andindecently assaulted her. To bolster her complaint Ms Ahlawat persuaded Mr Ewartto tell the police he had witnessed the alleged offending. The Crown argued thisshowed Ms Ahlawat had a tendency to use Mr Ewart to commit offences to achieveher objectives.[13] Mr A was charged as a result of Ms Ahlawat's complaint, but the charges weredismissed pursuant to s 147 of the Criminal Procedure Act 2011 when it becameapparent that Mr A was not present when Ms Ahlawat says he threatened and assaultedher. Ms Ahlawat was charged with wilfully attempting to pervert the course of justice.That charge was withdrawn on 13 September 2022 after Ms Ahlawat was sentencedin relation to the manslaughter and arson offences.Section 200 of the Criminal Procedure Act[14] Name suppression for a defendant is governed by s 200 of the CriminalProcedure Act. The Court can make an order suppressing the name, address oroccupation of a defendant if satisfied that publication would be likely to produce oneof the outcomes specified in s 200(2) of the Criminal Procedure Act. Those outcomesinclude:(a) causing extreme hardship to the defendant; and(b) creating a real risk of prejudice to a fair trial.[15] To succeed, an applicant under s 200 must pass two stages. The first is whetherone of the threshold grounds listed in s 200(2) of the Criminal Procedure Act has beenestablished. This is an exercise in judicial evaluation. The second stage involves anassessment of whether or not the presumption in favour of open justice should yieldin favour of suppression. This step involves the exercise of judicial discretion.33 See D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]–[12]; and Parkerv R [2020] NZCA 502, (2020) 29 CRNZ 536 at [29]–[30].High Court name suppression decision[16] The application for name suppression was advanced on two grounds:(a) Allowing Ms Ahlawat's name to be published in connection with themanslaughter and arson conviction would cause her extreme hardship.Ms Ahlawat relied on a report from Dr Kettner, a psychologist, tosupport this ground of her application. Dr Kettner concludedMs Ahlawat was likely suffering symptoms of post-traumatic stressdisorder and had a heightened reaction to emotional stimuli and anexaggerated response to perceived threats. It was also suggested as partof this ground of the application that publication of Ms Ahlawat's namewould impede her rehabilitation.(b) Name suppression should be continued to preserve Ms Ahlawat's rightto a fair trial in the event that her appeal against conviction succeededand a retrial is ordered.[17] In dismissing Ms Ahlawat's application, Venning J:(a) Explained that Dr Kettner's report did not demonstrate Ms Ahlawatwould suffer extreme hardship if her application for continued namesuppression was declined. The Judge said that the evidence ofDr Kettner fell well short of suggesting Ms Ahlawat would sufferextreme hardship if her name was published in connection with heroffending. As to Ms Ahlawat's potential for rehabilitation, the Judgeexplained that there will be ample time for Ms Ahlawat to rehabilitateherself and cope with the consequences of her actions before she isreleased into the community.4(b) Examined the argument that there was a risk to Ms Ahlawat's fair trialrights, and concluded that possibility was speculative. If there was sucha risk, then it was remote.54 At [16].5 At [19]–[21].[18] The Judge therefore concluded that neither of the grounds for suppressionpassed the first step of the inquiry required by s 200 of the Criminal Procedure Act.Even if one of the grounds had been made out the Judge said that he would not haveexercised his discretion in favour of Ms Ahlawat's application because the interests ofopen justice should prevail over her personal interests.6Grounds of appeal[19] Three grounds of appeal were set out in the written submissions of Mr Wimsett,counsel for Ms Ahlawat:(a) Ms Ahlawat would suffer extreme hardship if her appeal is dismissed.(b) Ms Ahlawat's right to a fair trial would be compromised if her appealagainst conviction is allowed and a retrial ordered.(c) Ms Ahlawat is entitled to suppression under s 203 of the CriminalProcedure Act because she is a complainant for the purposes of thatsection.Extreme hardship[20] During the course of his oral submissions, Mr Wimsett abandoned theargument that Ms Ahlawat would suffer extreme hardship if her name is able to bepublished in connection with the charges for which she has been convicted. That wasa proper concession for Mr Wimsett to have made. We accept that there is likely to besignificant publicity casting Ms Ahlawat in a very bad light. But the information inDr Kettner's report falls considerably short of demonstrating Ms Ahlawat will sufferextreme hardship if she no longer has name suppression. This ground of appealtherefore fails.6 At [22]–[24].Fair trial concerns[21] Mr Wimsett explained that the grounds of appeal for Ms Ahlawat's convictionappeal focus on the admissibility of the propensity evidence. He submitted that therare and unusual nature of the issues raised by the appeal enabled us to conclude therewas a real risk that Ms Ahlawat's fair trial rights would be compromised if her appealsucceeds and a retrial is ordered.[22] In R v Burns, this Court explained:7Once the jury has delivered its verdict and the prospect of a retrial iscontingent on a successful appeal, The Courts then find it difficult tocontemplate circumstances in which freedom of expression is outweighed, atleast until it is clear that there will be a retrial. It is not until then that thepresumption of innocence will again apply.[23] This Court has consistently declined to suppress the name of a convictedperson solely on the basis that he or she is seeking to appeal their conviction andwishes to have a retrial.8[24] The prospect of Ms Ahlawat facing a retrial is dependent on her appealsucceeding. That in itself involves a high degree of speculation and means there is nota real risk that Ms Ahlawat's fair trial rights will be infringed if the existing interimname suppression order lapses. Furthermore, the time it will take for a retrialfollowing any successful appeal provides ample opportunity to address any fair trialissues that might arise following determination of the appeal.[25] We are therefore satisfied Ms Ahlawat has failed to pass the first stage of theprocess in s 200 of the Criminal Procedure Act and that this ground of appeal fails.Section 203 of the Criminal Procedure Act[26] This issue was not presented in the High Court. We nevertheless invitedMr Wimsett to address us on this ground of appeal.7 R v Burns (Travis) [2002] 1 NZLR 387 (CA) at [16].8 At [18].[27] Under s 203 of the Criminal Procedure Act a complainant is entitled toautomatic name suppression in relation to specified sexual cases, including a chargeof indecent assault.[28] The prohibition contained in s 203 of the Criminal Procedure Act is, however,not absolute. Section 203(3) prohibits publication of a complainant's name, address,or occupation unless:(a) the complainant is aged 18 years or older; and(b) the court, by order, permits such publication.[29] The fact there will now be no trial for Mr A, or Ms Ahlawat in relation to heralleged attempt to pervert the course of justice, does not change the position thatMs Ahlawat complained to the police about an alleged indecent assault. Charges werelaid against Mr A. Ms Ahlawat therefore qualifies as a complainant for the purposesof s 203 of the Criminal Procedure Act.[30] The discretion conferred upon courts by s 203(3) to permit publication of thename of a complainant is cast broadly with the only limitation being that thecomplainant must be aged 18 years or older. It extends to publishing the name of acomplainant who wishes to remain anonymous. Provision also exist under s 203(4) toenable a complainant to apply for an order to permit publication of their name. Thatsituation is the converse of the case presented by Ms Ahlawat.[31] Although the discretion conferred by s 203(3) is broad, it should be exercisedin accordance with the legislative purposes that underpin s 203.[32] In its report leading to the Criminal Procedure Act, the Law Commissioncommented on the scope of s 139 of the Criminal Justice Act 1985, which precededs 203 of the Criminal Procedure Act. The Law Commission observed the provisionsgoverning the suppression of the names of complainants in sexual cases was justified.It said:9Sexual offences are a special category [of complaint] because of their highlypersonal and sensitive nature. There are real concerns about the low reportingrates for sexual crimes because of the ordeal associated with the trial process.Publication of victims' names would provide a further disincentive toreporting.[33] Parliament responded by affirming that the names of complainants in sexualoffence cases would continue to be automatically suppressed unless the court ordersotherwise under s 203(3)(b), including where a complainant applies to have his or hername published.[34] The public interest in having complaints reported and prosecuted survives adefendant's acquittal. That outcome merely shows that the complaint was not provedbeyond reasonable doubt. The public interest may also survive abandonment of aprosecution by the Crown. For these reasons, publication of the name of a complainantwho wishes to remain anonymous is exceptional.[35] It is not in dispute that it may be an appropriate exercise of the discretion topermit publication where the complaint has been shown to be false. We observe thateven in that case, the circumstances of the complainant and/or the public interest mayjustify continued suppression. Each case must turn on its particular facts.[36] In this case Ms Ahlawat has not been convicted of making a false complaint.However, the Crown has concluded that her complaint about Mr A was false. ThisCourt recorded the Crown's detailed position on that in the pre-trial interlocutoryappeal when it admitted the propensity evidence, which led to the severance of theperversion of justice charge from the manslaughter and arson charges.10 Venning Jaccepted in his sentencing remarks that Ms Ahlawat coached Mr Ewart to give astatement to support her account of the alleged assault.119 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [4.8].10 R v Ahlawat [2021] NZCA 610 at [22]–[23], [52] and [60]–[62].11 Sentencing notes, above n 1, at [4].[37] There is no reason to second-guess the Crown's conclusion that the complaintwas false in the particular circumstances of this case. Ms Ahlawat might have beenprosecuted for making a false complaint but little purpose would have been servedfollowing her trial and conviction on more serious charges. Her name will bepublished in connection with those charges. Her sexual allegations were admitted aspropensity evidence because of their relevance to her motive for arson and her use ofMr Ewart to that end. The public interest in publication extends to that information.There are no extenuating circumstances that might justify suppressing her name inconnection with the sexual allegations while allowing it for the other charges.[38] When Ms Ahlawat's interests are balanced against those of the community, andin particular the public interest in open reporting of court proceedings,12 the publicinterests greatly outweigh those of Ms Ahlawat. In the exceptional circumstances ofthis case, the media should be permitted to publish the details of Ms Ahlawat'soffending without being restrained by s 203 of the Criminal Procedure Act.[39] Ms Ahlawat has been convicted of very disturbing crimes. She has failed by aconsiderable margin to demonstrate any of the criteria for name suppression set out ins 200(2) of the Criminal Procedure Act. The public are entitled to know the details ofMs Ahlawat's convictions so that the public can have confidence that the courts willadhere to the principles of open justice.Result[40] The appeal against the order declining Ms Ahlawat's application for continuedname suppression is dismissed.[41] The existing interim name suppression order will lapse on 9 December 2022at 12 noon.Solicitors:Crown Law Office, Wellington for Respondent12 See Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41]–[43].