KRISHNAN v NEW ZEALAND POLICE [2023] NZHC 2498

KRISHNAN v NEW ZEALAND POLICE [2023] NZHC 2498 [7 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000260[2023] NZHC 2498YUVARAJ KRISHNANvNEW ZEALAND POLICEHearing: 14 August 2023Appearances: S Tait for AppellantL P Radich, S Arnerich for RespondentJudgment: 7 September 2023JUDGMENT OF WHATA JSolicitors:Kayes Fletcher Walker, Crown Solicitor, ManukauS Tait, Auckland[1] This matter came before me by way of an appeal against sentence for amongother things perjury. It so happens I was the Judge in the proceedings in which theperjury occurred, namely an appeal against a refusal to grant a discharge withoutconviction ("the perjury"). In that case, relying on documentation produced byMr Krishnan, without opposition from the Crown, I allowed the appeal on the basisthat conviction would have, in short, the effect of depriving Mr Krishan of the abilityto advance his medical qualifications.[2] It also just so happens, the first instance Judge in the original proceedings alsohappens to be the sentencing Judge in the present matter. Following entry of guiltypleas, the Judge sentenced Mr Krishan to three years and seven months imprisonmenton multiple charges including forgery, dishonest use of a document, using a forgeddocument, altering a document with intent to deceive, using an altered document withintent to deceive and the perjury.[3] Mr Tait for Mr Krishnan contends that I should recuse myself given my priorinvolvement.[4] Given the seriousness of this matter I was not content to address it withoutproper submissions and citation of authority. Those submissions were filed.They helpfully traversed the applicable principles of recusal to which I will now turn.It transpires however for reasons that I will shortly explain, the law of contemptprovides a useful framework of reference.Guiding principles[5] The recusal principles of general application are now captured by the HighCourt Recusal Guidelines dated 12 June 2017. Most relevantly:(a) A judge should recuse him or herself if, in the circumstances, a fairminded fully informed observer would have a reasonable apprehensionthe judge may not bring an impartial mind to the resolution to thequestion the judge is required to decide.11 Justice G J Venning (Chief High Court Judge — Te Kaiwhakawa Matua) "High Court recusalguidelines" (12 June 2017) Courts of New Zealand <www.courtsofnz.govt.nz> at 1.2.(b) The standard for recusal is one of "real and not remote possibility",rather than probability.2(c) The test is a two-stage test — a judge must consider:3(i) what is it that might possibly lead to a reasonable apprehensionby a fully informed observer that the judge might decide thecase other than on its merits; and(ii) whether there is a "logical and sufficient connection" betweenthose circumstances and that apprehension.(d) A judge should apply the above principles firmly and not accede tooreadily to suggestions of bias.4(e) A judge is not required to recuse him or herself merely because theissues involved in a case are in some indirect way related to the judge'spersonal experience or that the judge has previously dealt with thecase.5(f) If, after considering all relevant circumstances, there is doubt aboutwhether there may properly be an appearance of bias, it may be prudentfor the judge to decline to sit in that case.6(g) The apprehension of bias is case dependent. The fact that a particularrelationship falls outside the examples in the guidelines does notautomatically mean that there cannot be a reasonable apprehension ofbias in the circumstances of the case at hand.[6] As the Court of Appeal stated in Hartley v R:72 At 1.3.3 At 1.4.4 At 1.5.1.5 At 1.5.3.6 At 1.5.5.7 Hartley v R [2014] NZCA 162 at [121].To begin with, the fair minded lay observer must be taken to understandsomething of the workings of the judicial system and would understand thatboth before and during trial judges may be exposed to information unhelpfulto a defendant. They may have to decide questions of admissibility ofevidence, for example, or bail, and they will know of the defendant's criminalhistory. The fair minded observer would recognise that judges possessindependence and detachment and are accustomed to determining whatinformation is relevant to any particular decision then deciding the case basedonly on that information.[7] The following statement from the Supreme Court in Jessop v R provides anillustration of the operation of general principle relating to recusal of some relevanceto the present case:8[6] The decision of the Court of Appeal to set aside the conviction andsentence was by consent, effectively at the request of both the Crown and theapplicant. Even if the appeal is properly characterised as a subsequent stageof the same earlier proceeding (a characterisation we think doubtful), a Judgeis not normally disqualified because he or she has sat on an appeal at an earlierstage of a proceeding. It is necessary for there to be some real ground fordoubting the ability of the judge to bring an objective judgment to bear. Herethere is no ground upon which it can properly be suggested that the ChiefJustice should not have sat in determining any appeal from the conviction andsentence on retrial. The Chief Justice is accordingly part of the present panelconstituted under s 27(2) of the Supreme Court Act 2003 to determine theapplication for reconsideration of the decision of 27 March 2006.(footnotes omitted)Submissions[8] Mr Tait submits, in short, that as I was the Judge effectively deceived by theperjury, I am effectively the complainant and should recuse myself for apparent bias.Ms Arnerich submits, again in short, that the present situation is unique but that thereis no absolute bar for judges sitting in matters that they had a prior involvement in.9Assessment[9] Ordinarily, no issue of recusal for apparent bias arises in cases of contempt ofwhich perjury is one form.10 Indeed, that prospect fundamentally misunderstands the8 Jessop v R [2007] NZSC 96 at [6].9 Citing various cases, including Jessop above n 8; and R v Bublitz [2017] NZHC 752.10 Historically it was a form of common law criminal contempt but is now governed by the CrimesAct 1961, ss 108 and 109. See discussion in Law Commission Contempt in Modern New Zealand(NZLC IP36, 2014) at [1.18].role of the judge in such cases. As Elias CJ and McGrath J explained in Siemer:11[27] The law of contempt does not, of course, exist to protect the dignityof judges but to protect the public interest in the due administration of justiceby an impartial court.(footnotes omitted)[10] Moreover, it is well understood that the judge must act to protect the processesof the Court even though the judge in that case may be said to be the "complainant".As Lang J observed in McAllister v Solicitor-General:12[44] Acts that potentially amount to contempt can occur in many differentways. For that reason, it is not possible to definitively prescribe the procedureto be followed in determining whether a person is in contempt, and if so, theappropriate penalty to be imposed. It has been accepted, however, that indetermining whether a person is in contempt the Judge is entitled to use asummary procedure that is quite different to the formal process used when aperson is charged with a criminal offence. There is, for example, no formalcharge and no formal plea. This reflects the fact that contempt allegations aregenerally dealt with quickly, and with a minimum of formality. This mayplace the Judge in a difficult position, however, because he or she is requiredto simultaneously the role of complainant, witness, prosecutor and Judge.The authorities make it clear that a Judge when determining an allegation ofcontempt should therefore act with considerable caution, particularly when aperson's liberty may be at stake.[11] It follows that the fair-minded fully informed observer would not expect a"complainant" judge in contempt cases to recuse themselves on grounds of apparentbias alone. Though as Lang J says, judges must act with considerable caution in suchcases.[12] However, perjury is governed by the Crimes Act 1961. The maximumsentence for perjury is seven years. Rights to trial by jury and minimum standards ofcriminal procedure are therefore fully engaged.13 The evident policy of the lawtherefore is that the "complainant" judge will not deal with perjury in their court.14A curious feature of this case is that Mr Krishnan has pleaded guilty to the perjury11 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767. While the minority in thatcase, this basic proposition was not doubted by the majority.12 McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708 at [44].13 See Siemer v Solicitor General, above n 11. See also New Zealand Bill of Rights Act 1991, s24(e) affirming the right to trial by jury and s 25 affirming the right to minimum standards ofcriminal procedure.14 Siemer v Solicitor-General, above n 11.thus foregoing trial by jury. The "complainant" Judge engaged in sentencingMr Krishnan is therefore doing no more than they have always done when dealingwith a contemnor. But I accept that given this policy, underpinned by the New ZealandBill of Rights Act 1990, full vent must be given to Mr Krishnan's right to fair criminalprocess, including in sentencing. That leans heavily against the "complainant" Judgedealing with sentence.[13] I therefore direct that this appeal be set down before another judge on the firstavailable date suitable to counsel and the Court.[14] For completeness, in assigning this appeal to another judge, I should not betaken to have made any adverse findings about the involvement of Judge Dawson.That issue was not argued before me._________________Whata J