YIKAR v R [2023] NZCA 296

YIKAR v R [2023] NZCA 296 [13 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA311/2021[2023] NZCA 296BETWEEN MUSTAFA ERINC YIKARApplicantAND THE KINGRespondentCourt: Collins, Ellis and Dunningham JJCounsel: R S Reed KC for ApplicantM J Lillico for RespondentJudgment:(On the papers)13 July 2023 at 9.30 amJUDGMENT OF THE COURTThe application for name suppression is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 28 June 2023 the Court received a very belated application for interim namesuppression from Mr Yikar. We declined to deal with the application and said ourreasons for doing so would be delivered later.1[2] These are our reasons.1 Yikar v R CA311/2021, 28 June 2023 (Minute of the Court).Chronology[3] This matter has had a protracted history. We will confine ourselves to a briefsummary of the key events.[4] On 17 April 2018, Mr Yikar was charged with attempting to pervert the courseof justice by trying to dissuade a witness from giving evidence againstSir James Wallace. Mr Yikar was an employee of Sir James and lived in his home.The witness was one of a number of men who had complained to the police that theyhad been sexually assaulted by Sir James.2[5] Mr Yikar was initially granted interim name suppression. That order was madebecause Sir James had interim name suppression and allowing the media to publishMr Yikar's name would inevitably defeat the purpose of the Court having grantedinterim name suppression to Sir James.3[6] On 5 March 2019, Judge Collins refused to continue interim name suppressionfor Sir James, Mr Yikar and another defendant.4 At that stage, the trial was scheduledto take place in the District Court. That changed when evidence of another complaintagainst Sir James emerged causing the trial to be transferred to the High Court.[7] On 14 June 2019, the High Court allowed an appeal by Sir James and orderedthat his name, Mr Yikar's name and that of another defendant be suppressed untilfurther order of the Court.5 Those orders were made because Sir James was intendingto apply to sever some of the charges against him. The High Court explained whengranting interim name suppression that if the severance application failed, then theinterim suppression orders would lapse.6[8] The High Court subsequently severed one set of charges involving onecomplainant from the charges involving other complainants.7 As a consequence, Sir2 R v Yikar [2021] NZHC 985 [Yikar sentencing notes] at [2]–[7].3 R v Wallace [2019] NZDC 6177 at [2].4 R v Wallace, above n 3, at [5]; R v Wallace [2019] NZDC 5414 at [36]; and R v Wallace [2019]NZDC 5986.5 W v R [2019] NZHC 1350.6 At [107].7 R v W [2019] NZHC 3084 at [148].James and Mr Yikar had the benefit of interim name suppression during the course oftheir trial in order to preserve Sir James' fair trial rights in relation to his second trial.[9] Sir James was convicted on 23 March 2021 on three charges of indecentlyassaulting three men and two charges of attempting to pervert the course of justice.8Mr Yikar was convicted at the same time on one charge of attempting to pervert thecourse of justice.9 Sir James was sentenced to two years and four months'imprisonment.10 Mr Yikar was sentenced to 12 months' home detention.11[10] Sir James was found not guilty in relation to the charges brought against himin his second trial. The trial Judge suppressed publication of Sir James' name inrelation to the charges he was acquitted of.[11] Sir James' appeal against conviction and sentence in relation to the first trialwas dismissed by this Court on 9 February 2023, as was Mr Yikar's appeal againstconviction.12[12] Sir James filed a notice of appeal in relation to the interim name suppressionjudgment made by the High Court. He also filed a new application for namesuppression in this Court, and also relied on an application for name suppression filedin this Court by a connected entity.[13] Interim name suppression orders were made preserving Sir James' positionpending the determination of his appeals.[14] Mr Yikar did not appeal the High Court name suppression judgment.Nevertheless, on 1 March 2023, before it determined Sir James' name suppressionappeal/application, this Court asked if Mr Yikar was proposing to file any submissionsconcerning name suppression. Mr Yikar did not respond.8 R v Wallace [2021] NZHC 1213 at [1].9 Yikar sentencing notes, above n 2, at [1].10 R v Wallace, above n 8, at [46].11 Yikar sentencing notes, above n 2, at [28].12 Wallace v R [2023] NZCA 6.[15] On 10 March 2023, this Court dismissed Sir James' appeal/application forname suppression.13 The Court deferred its judgment taking effect to enable Sir Jamesto file an application for leave to appeal in the Supreme Court.14[16] On 21 March 2023 the Supreme Court dismissed Sir James' application forleave to appeal his conviction.15 On 26 June 2023 the Supreme Court dismissedSir James' application for leave to appeal this Court's name suppression decision.16The Supreme Court said that its judgment dismissing the application for leave toappeal the name suppression judgment would take effect at 2.00 pm on 28 June 2023.17The application[17] Just hours before the Supreme Court's 26 June 2023 judgment was to takeeffect, Mr Yikar filed an application seeking interim name suppression.We understand he also filed a similar application in the High Court. The High Courtdeclined to deal with Mr Yikar's application.[18] We need not go into the details of Mr Yikar's application. Suffice to say thatin his supporting affidavit Mr Yikar said his mother, who has been working in Turkeysince November 2022, was concerned that publishing Mr Yikar's name in connectionwith his conviction would potentially have an adverse effect on her because of theshame that she would suffer through persons in Turkey learning about Mr Yikar'sconviction.[19] Mr Yikar explained that he wanted this Court to consider suppressing his nameuntil his mother's contract in Turkey comes to an end in either December 2023 or"ideally June 2024".[20] In her supporting memorandum, counsel for Mr Yikar explained that anapplication would be made by Mrs Yikar for name suppression in her capacity as aconnected person.13 Wallace v R [2023] NZCA 56.14 At [45].15 Wallace v R [2023] NZSC 24.16 Wallace v R [2023] NZSC 74.17 At [15].Abuse of process[21] The doctrine of abuse of process is long-standing. Lord Diplock said thefollowing in Hunter v Chief Constable of the West Midlands Police:18[A]ny court of justice must possess [the inherent power] to prevent misuse ofits procedure in a way which, although not inconsistent with the literalapplication of its procedural rules, would nevertheless be manifestly unfair toa party to litigation before it, or would otherwise bring the administration ofjustice into disrepute among right-thinking people.[22] Lord Diplock went on to opine that it would be unwise to attempt to createfixed categories as to what circumstances constitute an abuse of process.19 That caseconcerned a "collateral attack upon a final decision of a court of competentjurisdiction" which the House of Lords said was an abuse of process.20 Lord Diplock'sdescription of the doctrine has been affirmed by the United Kingdom Privy Council,21and by New Zealand courts.22[23] Another example of abuse of process is Ashmore v British Coal Corporation.23In that case, potential plaintiffs were invited to submit their cases for selection asrepresentative cases for trial. The applicant failed to submit her case for considerationand then attempted to litigate the case independently of the main proceedings. TheCourt found that this was an abuse of process because "it [was] contrary to the interestsof justice and public policy to allow those same issues to be litigated again" when theapplicant had been given an opportunity to participate and had failed to do so.24[24] Litigation for the purposes of obtaining a "collateral advantage beyond thatlegitimately gained from a court proceeding" has also been found to constitute an18 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536per Lord Diplock.19 At 536; and affirmed in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 10.20 Hunter v Chief Constable of the West Midlands Police, above n 18, at 541 and 546.21 Brandt v Commissioner of Police [2021] UKPC 12, [2021] 4 All ER 637 at [34]; Hurnam v Bholah[2010] UKPC 12 at [43] per Lord Brown.22 Reid v New Zealand Trotting Conference, above n 19, at 10; Merisant Co Inc v Flujo SanguineoHoldings Pty Ltd [2018] NZCA 390 at [22], [25] and [27]; and Waterhouse v Contractors BondingLtd [2013] NZSC 89, [2014] 1 NZLR 91 at [30]. See also McGechan on Procedure(Thomson Reuters, online ed) at [HR15.1.05].23 Ashmore v British Coal Corporation [1990] 2 QB 338 (CA).24 At 349 per Stuart-Smith LJ.abuse of process.25 In the context of repeated suppression applications and appeals,this Court held in Young v District Court at Hamilton that:26Courts will not generally permit serial applications, eking out by instalmentthe various statutory grounds provided for in s 200(2) [of the CriminalProcedure Act 2011]. Repeated applications seeking identical relief in theabsence of changed circumstance will generally be treated as an abuse ofprocess. Repeated applications advancing new grounds that could withreasonable diligence have been advanced on a previous occasion may wellalso be an abuse of process, although the whole circumstances are to beconsidered.[25] We declined to consider Mr Yikar's application because it constituted an abuseof process. This conclusion was reached because:(a) Despite Mr Yikar's mother having worked in Turkey since November2022, Mr Yikar did not file an application for name suppression in thisCourt until 28 June 2023, even though his appeal against convictionwas dismissed by this Court on 9 February 2023.(b) Mr Yikar sat on his hands, even after his counsel was asked on 1 March2023 whether or not he wished to make any submissions in relation toname suppression. This is analogous to the abuse of process found inAshmore v British Coal Corporation.27(c) We do not see any merit in Mrs Yikar's concerns. Even if there were abasis for her apprehensions, she and her son have had every opportunityto apply to the Court for interim name suppression orders in a timelymanner. This is analogous to the circumstances of Young v DistrictCourt at Hamilton,28 as Mr Yikar's application could have beenadvanced earlier with reasonable diligence.25 McGechan on Procedure, above n 22, at [HR15.1.05(2)]; and Goldsmith v Sperrings Ltd [1977] 2All ER 566 (HL) at 581 per Lord Denning MR and cited with approval in Walker v Forbes [2015]NZHC 1730, [2015] 3 NZLR 831 at [36].26 Young v District Court at Hamilton [2015] NZCA 584 at [28] (footnotes omitted).27 Ashmore v British Coal Corporation, above n 23.28 Young v District Court at Hamilton, above n 26.[26] If we had entertained the application and made an interim order, this wouldhave provided an opportunity for Sir James to also seek further interim suppressionorders so as to preserve Mr Yikar's position. That would have created an intolerablespectacle of further delays in allowing the public to know about Sir James' convictionsand would have undermined public confidence in the administration of justice.[27] This Court will always consider name suppression applications/appeals thatare filed in accordance with the timetable prescribed in the Criminal Procedure Act2011 or where proper applications are brought in a timely manner.[28] Mr Yikar's application had all the hallmarks of a desperate attempt to againfrustrate the right of the public to know of his and Sir James' convictions. As thisCourt said in Young v District Court at Hamilton,29 such serial applications in order tomisuse the statutory grounds in the Criminal Procedure Act will not be permitted.[29] Accordingly, we were satisfied the application constituted an abuse of process.Result[30] The application for name suppression is declined.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent29 At [28].