Inland Revenue Department v Kamal [2013] NZHC 3474 (19 December 2013)

Last Updated: 9 April 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-0058 [2013] NZHC 3474

INLAND REVENUE DEPARTMENT

v

IMRAN MOHAMMED KAMAL

Hearing: 12 December 2013

Counsel: D La Hood and M Ferrier for Applicant

W T Nabney for Respondent

Judgment: 19 December 2013

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] Mr Kamal pleaded guilty in the District Court to six counts of knowingly providing false tax returns under s 143A of the Tax Administration Act 1994. He was sentenced to three months’ home detention and 150 hours’ community work. He sought name suppression under s 200 of the Criminal Procedure Act 2011 (the Act), which the District Court denied.

[2] On appeal, Mr Kamal applied for leave to adduce two items of further evidence. The first was an affidavit from Mr Kamal, in which he deposed that Mrs Kamal had attempted suicide when she heard about the District Court decision declining name suppression. The second item was a report from a counsellor, Ms Tanielu-Etuale, which stated Mrs Kamal was at risk of suicide if Mr Kamal’s

_{name were to be released.}

INLAND REVENUE DEPARTMENT v KAMAL [2013] NZHC 3474 [19 December 2013]

[3] I granted name suppression on the basis that there was a clear link between publication and the danger to Mrs Kamal, in terms of s 200(e) of the Act. I reasoned that:¹

... there is independent clinical evidence that indicates publication could well lead to a second and perhaps successful suicide attempt by Mrs K. This case is distinguishable from other situations where there was a risk of suicide but no attempt had actually been made. The Crown (understandably) makes no argument that the first suicide attempt was other than genuine. Nor is it argued that there was no causal nexus between the prospect of publication and the suicide attempt.

...

In the end, I am persuaded by a clear margin that in the exceptional circumstances of this case, the need to protect Mrs K’s wellbeing outweighs the strong public interest in revealing the appellant’s name.

[4] Since that decision, the Crown has unearthed information that casts doubt on the accuracy and authenticity of Mr Kamal’s affidavit and the report from Ms Tanielu-Etuale. Unsurprisingly, the Crown now applies to revoke the name suppression order.

[5] The situation is complicated by the additional factor that Mr Kamal has filed

a report from an experienced consultant psychiatrist on Mrs Kamal’s mental health.

Mr Kamal’s affidavit

[6] Mr Kamal’s affidavit upon which I relied in my first decision, said:

... on the evening of 25 July 2013 ... [Mrs Kamal] started having anxiety attacks. She started shivering, shaking and sweating. I comforted her and gave her support and tried to give her assurance that things would be all fine.

Later on that evening and after the conversation referred to above, she tried to overdose herself with sleeping tablets and commit suicide.

Once I became aware that she had taken an overdose of sleeping tablets, I immediately called an ambulance. I was asked by the emergency call operator to force her to vomit and keep her airways clear. Finally the ambulance arrived and the paramedic gave her an injection. She was then taken to Kenepuru Hospital for treatment.

¹ K v Inland Revenue Department [2013] NZHC 2426 at [59] and [61].

[7] Following my judgment, the Crown contacted Ms Carla Nahr, a Patient Information Officer at the CCDHB. Ms Nahr said that the CCDHB holds no record of Mrs Kamal’s suicide attempt, hospital admission and subsequent treatment as described in Mr Kamal’s affidavit.

[8] The Crown put this inconsistency to Mr Kamal in an email dated 14 October

2013. He responded in a letter dated 22 October 2013, saying:

When I swore the updating affidavit that you are concerned about, I had confused the first instance where my wife was transported to the hospital with the second occasion when she overdosed on pills.

On the second occasion, I didn’t in fact contact the ambulance; I decided to take my wife to the hospital in our car. We arrived at the hospital and there was a long waiting list.

We waited for a while and when my wife seemed to be alright, we decided to go home without having her treated.

When I swore my affidavit, I had in mind the first instance which was about

4 days earlier that I had to take my wife in the hospital in an emergency. The ambulance was repeated called in this instance but as they were busy, I had to take her in to the hospital in my car. I did not intend to mislead anyone and did not deliberately put something in my affidavit that I knew to be untrue. My wife did make an attempt at suicide, by overdosing on pills.

[9] Mr Kamal’s letter was sent to Ms Nahr and she swore an additional affidavit in response, saying that where a patient self-presents at the Accident and Medical Clinic, the patient is required to “check in” with front desk staff. If Mrs Kamal had entered the hospital a record of her “check” in would be on the file. Further, during the check in process, all patients undergo a brief screening to determine the nature and severity of the illness or injury. Patients are seen in order of urgency, not arrival times. A patient who presented following an attempted suicide by overdosing with sleeping pills would, to the best of Ms Nahr’s knowledge, have been assigned to triage 1. Triage 1 patients receive immediate treatment.

[10] When, in a second hearing before me, Ms Nahr’s evidence was put to Mr Kamal, he said that he and Mrs Kamal sat in the waiting room without checking in and then left without speaking to anyone.

[11] In my view, it is extremely unlikely that Mr Kamal, having discovered his wife had taken an overdose of sleeping pills and rushed her to hospital, would simply sit with her at the back of the waiting room and then leave without seeking any treatment whatsoever. His explanation that her condition appeared to have improved and that he was satisfied she had thrown up all of the sleeping pills is also difficult to credit. As Mr Kamal accepted during cross-examination, he had no way of knowing whether any pills remained in Mrs Kamal’s stomach.

[12] Mr Kamal’s explanation that he confused the two incidents lacks credibility. His original affidavit contains detail that did not feature in either incident as he subsequently portrayed them when challenged. In particular:

(a) that he was told by the emergency operator to induce vomiting; (b) that Mrs Kamal was taken to hospital by ambulance; and

(c) that Mrs Kamal received an injection from a paramedic.

[13] I also had the opportunity of seeing Mr Kamal under cross-examination. I found his evidence vague, evasive and inconsistent. The effect of the additional evidence filed by the Crown and Mr Kamal’s unsatisfactory explanation is that his original affidavit in respect of his wife’s suicide attempt cannot now be relied upon to support his application for name suppression.

Ms Tanielu-Etuale’s report

[14] Ruta Tanielu-Etuale’s report dated 12 August 2013, said:

[Mrs Kamal] is suffering from severe depression, anxiety and suicidal ideation due to the proposed name publication of her husband’s name for a historical tax offence. I have great concerns in relation to [Mrs Kamal’s] current mental health and her ability to keep herself safe as she has tried to commit suicide.

I am closely monitoring and providing counselling support to [Mrs Kamal]

on a daily basis as she is very high risk of committing suicide.

...

Based on my clinical assessments, any name publication of [Mr Kamal] will deteriorate [Mrs Kamal] mental health and may create severe hardship on the young family.

[15] As noted above, I saw this report as independent clinical evidence indicating that publication could lead to a second and perhaps successful suicide attempt by Mrs K. This report must now be revisited in light of the Crown evidence. As the above excerpts show Ms Tanielu-Etuale’s diagnosis is tainted by Mr Kamal’s story about Mrs Kamal’s attempted suicide. That is not to fault Ms Tanielu-Etuale. Her job is to listen and provide support to her patients, not to determine their veracity.

[16] Further, it appears that Ms Tanielu-Etuale was not qualified to give an opinion about the risk of suicide. The Crown filed an affidavit by Dr Miller, a Registered Psychologist. Dr Miller said:

It is my opinion that Ms Tanielu-Etuale, as a Counsellor, is not qualified to provide a clinical assessment, and that the basis of her assertions [about Mrs Kamal’s mental health and her risk of suicide] are seriously deficient against minimal standards required to give weight to her conclusions that Mrs Kamal’s condition (if correctly stated) are solely attributable to the stigma of Mr Kamal’s name suppression being revoked.

[17] Dr Miller gave evidence before the Court on the assessment of the risk of suicide:

Q. Can I just ask you to talk quickly about assessing risk of suicide? Is

it a complicated process? What’s involved in it?

A. Yes, it is. Clearly, there are acute indications and that's very straightforward that someone is threatening or got a knife, or perhaps taken pills or whatever. Those kind of things, clearly, you’ve got an actual behaviour. But, when you’ve got risks about future risks or where is alleged risk, or potential risks, it is wise to undergo a very careful assessment process with a competent skilled practitioner in the area that knows, knows the indications and will be able to do testing.

Q. And what would the assessment process typically entail?

A. Past history, current ideation, independent corroboration with other members of the family, parties other people work with, the person. Sometimes medical evidence, of course, if there’s been a history and there’s a GP involved, that's a very good place to go. Has there been any previous counselling support, reference to church agencies, or other agencies. Any of those kinds of things. Approaches to Youthline, those kind of things.

Q. Now, you’ve seen I think, reports from a counsellor Ruta Etuale?

A. I have.

...

Q. The report from Ms Etuale is commented on in your affidavit. Can you just tell us, whether in your opinion, her as a counsellor with her experience is qualified to make an assessment about risk of suicide.

A. I would have concerns about that level of skill and –

Q. What would those –

A. – and I’ve said so. I believe, in this case, counselling doesn't fall within the Health Practitioners Competence Assurance Act. I think a referral to someone who is skilled in that area, a psychiatrist, a psychologist. Even a psychotherapist registered would be, I think, a prudent move.

[18] In essence, Dr Miller’s evidence is that Ms Tanielu-Etuale is not qualified to give an opinion about the risk of suicide and, even if she was, her report failed to assess many of the relevant factors that would ordinarily be assessed in such a report.

[19] On that basis, and because Ms Tanielu-Etuale based her diagnosis on the report of Mrs Kamal’s attempted suicide (which itself must now be called into question), the report cannot be relied upon to support Mr Kamal’s application for name suppression. In any event, the report has now been superseded by the properly qualified opinion of a consultant psychiatrist, Dr Vijayasenan.

[20] I do note in passing that other matters were raised by the Crown with regard to the veracity of Ms Tanielu-Etuale’s report. These raised serious concerns in my mind about Ms Tanielu-Etuale’s independence and truthfulness. It is however, unnecessary for me to take those issues any further in light of the overall conclusion I have reached in relation to the reliability of her evidence.

Dr Vijayasenan

[21] The additional report filed by Mr Kamal when the matter came back before me, was prepared by Dr Vijayasenan. It was produced following a 45 minute consultation with Mr and Mrs Kamal. Dr Vijayasenan said that Mrs Kamal was suffering from nightmares, stress and panic attacks as a result of the prospect of her

husband’s name being released. He also noted that Mr Kamal had advised him (without demurrer from Mrs Kamal) that she had attempted suicide by overdosing on pills. He concluded that:

... in my opinion if the “name suppression order” is lifted she poses a serious

danger of harming herself by suicide.

[22] Clearly, that opinion must also be revisited in light of my conclusions on Mr Kamal’s affidavit. Importantly, when Dr Vijayasenan was questioned by the Crown on whether his opinion would be any different if the suicide attempt was a fiction, he said:

No I think, certainly the strength of my conviction would be less but still having seen the woman as she presented, I think she did have a suicidal threat and in fact she was telling me herself about how she was (inaudible

15:05:20), wanting to kill herself with the knife and only the children’s cries

stopped it, that was enough for me to think that she’s a suicidal risk.

[23] I put the following question to Dr Vijayasenan:

Q. In your expert opinion whatever the situation with the previous evidence and its believability, were you presented with a woman who had genuine suicidal ideation?

[24] He replied:

A. Yeah, that’s a good question. I think – those kind of thoughts went through my mind but being not being admitted it was just asking for help probably she did that. What about distress at that time it was and when it was I’m not sure but, again, having heard that I thought this real situation at the moment which is distressing her there’s a danger of suicide that’s what I thought.

[25] Dr Vijayasenan also acknowledged that effective treatment could mitigate the risk of suicide in the event that the name suppression order was revoked:

Q. ... assuming the order was lifted, assuming you’ve seen her, assessed her in light of the change of circumstances, the order has gone, if her condition warranted it at that point, you could put in place a treatment plan that would mitigate the risk of suicide?

A. Yeah I will do that, will do all the best that can be done, yeah.

Discussion

[26] Ultimately, it is Dr Vijayasenan’s evidence that will decide this application coloured though the situation must now be by my finding that Mr Kamal’s evidence is not reliable on the crucial point. The question is whether Dr Vijayasenan’s evidence establishes that it is still likely that publication will endanger the safety of Mrs Kamal in terms of s 200(e).

[27] The veracity of Dr Vijayasenan’s evidence is not in question, nor is the fact that he is properly qualified to give it. Importantly however, Dr Vijayasenan emphasised during the hearing that his diagnosis was not the result of a detailed analysis:

Q. It's a concern when your assessing somebody isn’t it if you're only relying on a self-report or the word of the person or somebody interested in the outcome of the report?

A. Yes, you know I just want to make it very clear that it was a – I’m a busy man and it was just an urgent request that they made to me so I wanted to help the situation and I went and did it, that’s it. I mean I wasn’t listening to all this kind of thing. My main aim was to help the situation and to stop any calamity or a fatality happening.

[28] It was not evident from the report, or in his description of the consultation during the hearing, that he undertook the kind of in-depth analysis described by Dr Miller in [17] above as required in the circumstances. His diagnosis was based on what he was told by Mr and Mrs Kamal, and his impression of her during the 45 minute consultation.

[29] Dr Vijayasenan also accepted that it is not his role to determine the veracity of what he is told. In response to questions from the court he said that if there is any doubt as to whether someone is at risk of suicide, it is best to err on the side of caution and assume the risk is real.

[30] In a case such as this, the nature and extent of the danger must be weighed against the importance of open justice. Name suppression is appropriate, indeed necessary, where the court is satisfied it is likely that publication will endanger the

safety of any person. That will generally require unequivocal evidence in order to guard against fabrication and abuse of s 200(e).

[31] Here the evidence is that Mrs Kamal is in a state of distress at the prospect of her husband’s name being published. But there is now no reliable evidence that she has attempted suicide in the past. Rather, the evidence is the risk of her committing suicide can be mitigated to some extent by familial support and appropriate professional help.

[32] In conclusion, I am satisfied that the name suppression order ought to be revoked. The Crown helpfully suggested that the order remain for a period to allow Mr and Mrs Kamal and their family time to prepare for the inevitable consequences that will arise from publication. I agree that this is an appropriate means of allowing Mr and Mrs Kamal to manage the situation. The extant suppression order will be

_{lifted on Friday, 10 January 2014.}

Williams J