Mehta v Commerce Commission [2015] NZHC 3172 (11 December 2015)

Last Updated: 16 December 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-305 [2015] NZHC 3172

BETWEEN	VIKRAM MEHTA Appellant
AND	COMMERCE COMMISSION Respondent

Hearing:	11 December 2015
Counsel:	B J Meyer (on instructions from P K Hamlin) for Appellant A M McClintock for Respondent
Judgment:	11 December 2015

_{JUDGMENT OF BREWER J}

Solicitors/Counsel: Philip Hamlin (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

MEHTA v COMMERCE COMMISSION [2015] NZHC 3172 [11 December 2015]

Introduction

[1] Mr Mehta appeals against a decision of Judge AE Kiernan in the District

Court at Auckland on 1 October 2015 refusing to grant him name suppression.¹

[2] Mr Mehta faces five charges, two of which are in the alternative, which I will characterise broadly as charges of dishonesty. They arise from the operation by Mr Mehta of a business called Flexi Buy Ltd. That business has been described as the business of a mobile trader, essentially selling goods out of a truck.

[3] The charges against Mr Mehta came as a result of a year-long investigation by the Commerce Commission into the activities of mobile traders. Flexi Buy Ltd was named as one of the mobile traders in the Commerce Commission’s report. Mr Mehta is the only mobile trader, however, who has been prosecuted. He feels singled out unfairly because of this.

[4] Judge Kiernan noted that no interim suppression was in place for Mr Mehta in the period 1 to 15 September 2015. During that period, a number of news media publications named Mr Mehta and Flexi Buy Ltd and outlined the charges. Mr Mehta then obtained interim name suppression to prevent further publication of his name and details, and that was the situation before Judge Kiernan.

[5] The ground for name suppression advanced by Mr Mehta was that publication of his name would result in a real risk of prejudice to his fair trial. The risk of the news media publishing his name and the facts of the allegations would lead to a real risk of prejudice, according to Mr Mehta.

[6] The Judge was not satisfied that there is a real risk. In her view the case presented by Mr Mehta was nothing out of ordinary. Accordingly, Judge Kiernan

_{refused to grant name suppression.}

¹ Commerce Commission v Mehta [2015] NZDC 20119.

Appeal

[7] The appeal before me today was brought originally by the Public Defence

Service. Comprehensive submissions were filed by the Public Defence Service on

6 October 2015. Subsequently, Mr Hamlin was appointed to represent Mr Mehta.

[8] This appeal was scheduled to be heard on 27 November 2015 but Mr Hamlin obtained an adjournment because he had only recently been engaged and had been unable to take instructions.

[9] Today, Mr Meyer, on instructions from Mr Hamlin, seeks a further adjournment. The basis is that Mr Mehta would like the opportunity to gather further evidence and put other material before me. Mr Meyer made reference to the health of Mr Mehta’s mother. I am not prepared to adjourn this hearing and ruled accordingly. This is a straightforward matter and there has already been one adjournment. Mr Meyer relies, therefore, on the submissions filed on behalf of Mr Mehta by the Public Defence Service.

[10] The grounds identified in those submissions as to why the Judge was wrong to refuse to suppress Mr Mehta’s name are as follows:

(a) Mr Mehta has not received all of the disclosure in his case:

This leads to a difficult situation where, before further disclosure is received, the appellant is unable to advance helpful submissions on how likely it is that his fair trial rights will be affected.²

(b) There are 37 complainants and other potential witnesses who may be influenced by the fact that the appellant is the only one charged currently.

(c) It is in the public domain that the Commerce Commission investigated 32 businesses over a year-long period. Because the

_{appellant is the only person charged after these investigations, there is}

² Appellant’s submissions in support of appeal against refusal to grant further interim name

suppression order, dated 6 October 2015, at 16(i).

likely to be a real risk of prejudice to a fair trial as potential witnesses

or jurors may be influenced by Mr Mehta’s position as the only person

_charged.

Discussion

[11] It has long been the case that the law favours a process of open justice. The work of the Court is carried on in public and the public is entitled to know what is happening in the Courts of the land. That is a basic principle of our democracy. The name of a defendant is suppressed by the Court only if there is a good reason for it which outweighs the principle of open justice.

[12] It is not enough to say that the principle of open justice should not apply because if a person’s name is published and the particulars of the charges he faces are published then those who become aware of them might think badly of the defendant. There has to be more than that.

[13] Name suppression is provided for by s 200 of the Criminal Procedure Act

2011. This says that a Court may make an order forbidding publication of the name, address or occupation of a person who is charged with an offence. However, the Court may make such an order only if the Court is satisfied, in this instance, that publication would be likely to create a real risk of prejudice to a fair trial.

[14] It will be apparent from this that a two-stage analysis is required. The first stage is the jurisdiction stage. I have to consider whether the threshold ground of “likely to create a real risk of prejudice to a fair trial” has been established.

[15] This stage is an absolute threshold requirement that does not involve a balancing exercise. The inquiry is fact-specific at this stage and must focus on the personal circumstances of Mr Mehta. It is only if the threshold ground has been established that the second stage is reached. That is the stage at which I have a discretion. If this stage is reached I have to weigh the interests of Mr Mehta against the open justice principle.

[16] The wording in the statute is quite clear. The phrase “would be likely to” means that there is a real risk that cannot be readily discounted. It means there is an appreciable risk. That follows on to the phrase “create a real risk of prejudice to a fair trial”. Again “real risk” means just what it says. There must be an appreciable or real risk, as the language is used.

[17] I see nothing in Mr Mehta’s position which is out of the ordinary. There are commonly far more high profile cases than Mr Mehta’s where the name of the defendant is known and where the news media eagerly and serially publish details of the allegations. Very often the circumstances which give rise to charges are likely to invoke real emotion or distaste in the minds of the public. But that is insufficient to be likely to create a real risk of prejudice to fair trial. There has to be something particular.

[18] Here there is not. The fact that there has been a Commerce Commission report; the fact that some people might know that Mr Mehta is the only person charged as a result of the report; those matters do not create a real risk of prejudice to a fair trial. The fact that there is further disclosure to be made and that there are numerous complainants and potential witnesses does not signify at all.

[19] In short, I find myself in full agreement with Judge Kiernan. This is a fairly standard case and nothing about it comes close to the threshold of satisfying me that publication would be likely to create a real risk of prejudice to a fair trial for Mr Mehta. Accordingly, I do not need to consider the second stage of the inquiry as to whether or not I should exercise a discretion to forbid publication.

Decision

_{[20] The appeal is dismissed.}

Brewer J