Singh v New Zealand Police

JurisdictionNew Zealand
CourtHigh Court
JudgePriestley J
Judgment Date07 October 2010
Neutral Citation[2010] NZHC 1758
Docket NumberCRI-2010-404-373

[2010] NZHC 1758

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2010-404-373

Between
Daljit Singh
Appellant
and
New Zealand Police
Respondent
Appearances:

R Mansfield for the Appellant

RMA McCoubray for the Respondent

T C Goatley for APM Media Works and TVNZ

Counsel:

R M Mansfield, P O Box 2674, Shortland Street, Auckland 1140. Fax:09 368 4473 Email: ron@22lorne.co.nz

RMA McCoubrey, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629 DX CP24063. Email: robin.mccoubrey@meredithconnell.co.nz

T C Goatley, Bell Gully, P O Box 4199, Shortland Street, Auckland 1140. Fax: 09 916 8801 DX CP20509. Email: info@belgully.com

Copy to:

R Burns, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629 DX CP24063 Email: ross.burns@meredithconnell.co.nz

Appeal against a District Court decision refusing to grant interim name suppression — defendant was standing for the Papatoetoe Community Board in the ongoing local body elections — defendant was charged with an offence laid indictably under s257(1)(c) Crimes Act 1961 (using forged documents) — defendant faced charges that he knowingly deployed an enrolment form which had been forged — whether interim name suppression should be granted until close of the postal ballots for the election.

Held: The DC Judge had discretion under 140 Criminal Justice Act 1985 (Court may prohibit publication of names) whether to grant name suppression. There was no basis on which the Judge had incorrectly weighed the relevant factors or had exercised her discretion on improper or irrelevant grounds. There was more to this appeal than an appeal from an exercise of discretion. What was involved at an appellate level was an assessment of the Judge's evaluation of all relevant factors.

Were it not for the fact that S was a candidate in a local body election, still ongoing at the time of his arrest there would have been some sympathy for his submission as it related to time to consider the suppression issue. What set this case part was that the alleged offending involved use of a forged enrolment document which was an integral part of the electoral system. The DC Judge was right to have given considerable weight to the public interest, not just in the election then taking place but also to the integrity of the electoral system generally.

The entire system of enrolment and voting depended on people not endeavouring to manipulate the system for personal or political advantage. A degree of trust and honesty was demanded from all those involved in the process. Furthermore, great weight had to be given to an open system of criminal justice and the damage to other possible candidates could be considerable if name suppression was granted. The interests of justice demanded publication of S's name to remove any taint of suspicion from other candidates.

For those reasons the appeal was dismissed.

S's counsel then indicated his intention to make an application to the Court of Appeal to appeal this judgment. The High Court was gravely concerned that the statutory right for special leave to appeal may result in information which it considered should be in the public domain, not being disclosed. There was a very real risk that the right to seek leave to appeal might result in exactly the same outcome, for procedural reasons, as would have been the case if the appeal had been allowed.

It was not for the High Court to usurp the function of the Court of Appeal in this area, that being to grant or decline leave. However, it would be surprising if the Court of Appeal did grant leave, but that was its prerogative alone. It would be wrong in principle, absent any supporting authority, for the High Court to destroy S's right to seek leave to appeal.

If there was a need for a prior application to the High Court for leave to appeal to the Court of Appeal, the application would be refused on the basis of a failure to identify any special issue which would justify the Court of Appeal's attention.

Accordingly there was an interim order prohibiting publication of S's name. That order extended to publishing identifying information between now and the Court of Appeal's resolution. It was for the Court of Appeal to decide whether that order was extended.

ORAL JUDGMENT OF Priestley J

The appeal
1

This appeal has been set down for hearing at short notice. The appeal challenges a decision made in the Manukau District Court two days ago (5 October 2010) by Judge H M Simpson. She refused an application for interim name suppression which had been sought by the appellant.

2

Counsel at the District Court hearing then indicated that an appeal would be lodged. In accordance with normal practice the Judge granted an interim order prohibiting publication of the appellant's name so that his right of appeal was not rendered nugatory.

3

It is important to stress that this was not a situation whereby the Judge herself ordered suppression of the appellant's name. Rather it was a situation where, in accordance with normal practice, suppression was granted solely to ensure the right of appeal could be exercised.

Background
4

The appellant is a man with some involvement in the Papatoetoe community. He is, so I am told, a Justice of the Peace and is employed in the real estate industry. Central, however, to the issue of whether or not his name should be published is the fact that he is a candidate seeking election in the current local body elections. The position which the appellant seeks is a place on the Papatoetoe Community Board.

5

Relevant to the dynamic of the local body election is the fact that the opportunity for electors to cast a ballot is almost at an end. I have been informed by counsel that the polls close at 1.00 pm on Saturday 9 October, two days time.

6

Because the mechanisms for local body elections involve the posting out of ballot papers to registered electors with an invitation for the specially bar coded ballot paper to be returned in an envelope, postal time lines are of importance. I have been informed from the bar the Returning Officer's recommendation is that to ensure arrival by 1.00 pm on Saturday 9 October, ballot papers should have been posted yesterday. There is an element of common ground between counsel, to the extent that it is relevant, that the bulk of electors, but not all, will by now have voted.

Alleged offending
7

The appellant is charged with an offence laid indictably under s 257(1)(c) of the Crimes Act 1961. The charge is that together with another person he knowingly deployed an enrolment form which had been forged, thus causing another person (presumably electoral officials) to assume that the document was a genuine one.

8

I have been provided with a summary of facts. There is no need, in the circumstances, for me to set out the basis on which the current police charge is mounted. I am informed by Mr McCoubrey that police investigations are ongoing.

9

It is a matter of some public knowledge that there have been concerns expressed and ventilated in the media about unusual phenomena in the Papatoetoe ward, including the enrolment of a significant number of electors at various addresses and also the removal, as a result of official investigation, of a number of names from the roll.

10

It is not apparent to me the extent to which, if at all, the appellant may be allegedly connected with those previous activities. Suffice to say that the issue of the integrity of the electoral system in the local body elections, so far as it relates to this particular ward, has excited some public interest and has been the subject of some publicity.

District Court process
11

The appellant was apparently arrested some time mid-morning two days ago on 5 October. Mr Mansfield informs me that he had previously been retained by the appellant. At the time of the appellant's arrest Mr Mansfield was involved in the last (and obviously critical) day of a homicide trial, so was not available to appear in the Manukau District Court when the appellant made his first appearance. He was, however, able to arrange for competent representation for the appellant in that forum.

12

Normally speaking, at a first call pleas are not taken. Issues of bail are addressed. Where there may be relevant issues relating to name suppression it will frequently be the case, particularly in a busy District Court, that a short window of opportunity of a day or two is afforded to counsel to investigate the issue of name suppression, if there is some possible merit lying behind such an application. In the normal course of events one might have expected the appellant's status, as both being employed in the real estate industry and a Justice of the Peace to have resulted in some consideration being given to the issue of name suppression and a brief opportunity for that matter to be responsibly investigated afforded.

13

Some time in the late afternoon Mr Lawry, who was appearing for the appellant, made an application under s 140 for an interim order preventing publication. The issue of bail was also addressed. The whole matter was stood down (other than the name suppression issue) for a period of just over three weeks at which stage the plea and other matters would be addressed. The appellant was bailed, it would appear, on his own recognisance. The Judge, however, and properly so in my view, considered that because of the background to which I have briefly referred and the high degree of public interest, it was appropriate for her to deal with the issue of name suppression forthwith. This she did. At the outset of her oral judgment she referred to a number of representatives of the press being present and also a “larger than usual number of members of the public” appearing in the public gallery who appeared to be...

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