Criminal Procedure Act 2011, s 200 – abuse of process jurisdiction – collateral attack – serial applications for name suppression – delay in filing the application – prospect of further interim suppression orders, delays and undermining of public confidence in administration of justice – serial attempts to misuse statutory grounds in Criminal Procedure Act
Yikar v R [2023] NZCA 296.
Mustafa Yikar was employed by Sir James Wallace and lived in his home. Yikar was charged with attempting to pervert the course of justice by trying to dissuade a witness from giving evidence against Wallace in relation to sexual assault allegations.
Wallace was granted interim name suppression. Yikar was also granted interim name suppression; allowing the media to publish his name would defeat the purpose of granting interim name suppression to his employer. The suppression orders continued throughout their joint trial in the High Court.
Yikar was convicted and sentenced to 12 months’ home detention. Wallace was convicted of three charges of indecent assault and two charges of attempting to pervert the course of justice. He was sentenced to two years, four months’ imprisonment.
Wallace sought permanent name suppression from the Court of Appeal, appealing the High Court name suppression judgment and making a fresh application for suppression. Interim name suppression orders were made pending determination of the appeals.
Yikar did not appeal the High Court name suppression judgment. Nevertheless, before determining Wallace’s name suppression appeal and application, the Court of Appeal asked if Yikar was proposing to file any submissions concerning name suppression. Yikar did not respond.
The Court of Appeal subsequently dismissed Wallace’s name suppression appeal and application. On 26 June 2023, the Supreme Court dismissed his application for leave to appeal, with the judgment taking effect at 2 pm on 28 June 2023. Wallace’s and Yikar’s names could then be published.
Hours before the Supreme Court’s judgment took effect, Yikar filed an application in the Court of Appeal, seeking interim name suppression (he also filed an application in the High Court, which declined to deal with it). The basis for the application was that publishing his name could have an adverse effect on his mother who was working in Turkey.
Applicable principles: Criminal Procedure Act 2011, s 200 – abuse of process jurisdiction – collateral attack upon final decision of court of competent jurisdiction – serial applications for name suppression – delay in filing the application – application could have been advanced earlier with reasonable diligence – prospect of further interim suppression orders, delays and undermining of public confidence in administration of justice – serial attempts to misuse statutory grounds in Criminal Procedure Act.
Held: Yikar’s application constituted an abuse of process and was declined.
Yikar had “sat on his hands”, even after counsel was asked whether her client wished to make any submissions on Wallace’s suppression bid. His mother’s concerns lacked merit. She and her son had had every opportunity to apply to the court in a timely manner if there had been some basis to her apprehension.
The court noted Yikar’s application had “all the hallmarks of a desperate attempt to again frustrate the right of the public” to know of the pair’s convictions.
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