BANERJEE v NEW ZEALAND POLICE [2018] NZHC 2446

BANERJEE v NEW ZEALAND POLICE [2018] NZHC 2446 [18 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-209[2018] NZHC 2446BETWEEN ANIRBAN BANERJEEAppellantAND NEW ZEALAND POLICERespondentHearing: 18 September 2018Appearances: J C Harder for the AppellantH E Savage for the RespondentJudgment: 19 September 2018JUDGMENT OF PALMER JThis judgment is delivered by me on 19 September 2018 at 12.30pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:J C Harder, Barrister, AucklandMeredith Connell, AucklandWhat happened?[1] Mr Anirban Banerjee, now aged 25, arrived in New Zealand from India in 2013on a student visa. He completed his studies and obtained temporary work visas,working in the hospitality industry in Auckland full-time from August 2016. His lasttemporary visa expired on 28 November 2016. His brother has been a permanentresident in New Zealand since 2016 and also works in the United States. His parentsspend half the year in India and, on temporary parents' residents' visas, in NewZealand.[2] At 2.00 pm 5 October 2016, in Glenfield, Mr Banerjee stopped a 17-year-oldschoolgirl on a street and asked her in turn if she had bus money, a HOP card orcigarettes. When she said no, he suggested they have some cigarettes out of sight.She refused and tried to walk past him. He grabbed her arm, which she pulled awayand walked quickly away.[3] For this, after a trial in the North Shore District Court on 6 March 2017, JudgeA M Manuel found Mr Banerjee guilty of one charge of assault under s 9 of theSummary Offences Act 1981.1 She stated he was convicted but District Court recordsindicate no conviction was entered and an application for discharge was expected tobe made. The offence carries a maximum sentence of six months' imprisonment. MrBanerjee applied for a discharge without conviction. The Police were neutral on theapplication. Judge Manuel declined the application on 16 June 2017, instead orderingMr Banerjee to come up for sentence if called upon within six months.2 On 23 June2017, Immigration New Zealand deported him to India on the basis he was in NewZealand without a valid visa.[4] Mr Banerjee appeals against his conviction and sentence, including thedecision not to discharge him without conviction. In doing so, he seeks to adducefurther evidence of the consequence of conviction, in the form of an affidavit by hisonly brother, Mr Arunava Banerjee. He attaches an opinion from an immigration1 Police v Banergee [2017] NZDC 12208 [Conviction Judgment]. The District Courtdocumentation recorded the defendant's name as "Banergee" but the High Court documentationrecords it as "Banerjee" which counsel advises is correct.2 Police v Banergee [2017] NZDC 12884 [Discharge and Sentence Judgment].expert, a psychologist's report and a letter of support from a Member of Parliament.The Crown objects to the evidence being admitted as either not fresh or for lack ofcogency. However, I take the evidence into account, as expedient in the interests ofjustice under s 335 of the Criminal Procedure Act 2011 (the Act). In essence, it givesan account of Mr Banerjee's current circumstances, including those of his family. Itstates Mr Banerjee is unable to support himself in India and requires financial supportfrom his father and brother who are both in New Zealand. And I consider the reportby the immigration expert evidence assists my decision.Should the conviction be overturned?Law of criminal appeal[5] Under s 232(2) of the Act, I must allow an appeal if satisfied Judge Manuelerred in her assessment of the evidence to such an extent a miscarriage of justice hasoccurred. A miscarriage of justice means "any error, irregularity, or occurrence in orin relation to or affecting the trial" that "has created a real risk that the outcome of thetrial was affected" or "has resulted in an unfair trial or a trial that was a nullity".Otherwise I must dismiss the appeal.Submissions[6] Mr Harder, for Mr Banerjee, submits Judge Manuel took into accountinadmissible evidence being witness statements which he submits was most importantto the Judge's findings on credibility.3 He also submits she wrongly took into accountan unredacted inadmissible and prejudicial video interview. He relies on Guy v R.4He submits the Judge must have been left with a reasonable doubt on the basis of theadmissible evidence at trial. He submits the Judge erred in rejecting Mr Banerjee'sevidence as implausible. And he points to the complainant being in tears while givingevidence as demeanour evidence which should not have been taken into account.[7] Ms Savage, for the Crown, accepts Judge Manuel referred to a witnessstatement that should not have been taken into account but submits that has not3 Conviction Judgment, above n 1, at [10] and [11].4 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315.produced unfairness or a miscarriage of justice. She relies on Ogden v R.5 She submitsthe Judge told counsel she would disregard the unredacted parts of the videointerview,6 and she was entitled to make the credibility findings she made. She submitsthe Judge's hearing of the evidence should be given weight.Decision on conviction[8] As Mr Harder submits, it is clear the Judge took into account witnessstatements which she should not have done. But, as the Court of Appeal found in asimilar situation in Ogden, in the circumstances of this case I do not consider that gaverise to a real risk of an unfair trial or miscarriage of justice. I do not consider Guy vR, concerning a jury trial, assists Mr Banerjee.[9] Here, the only reference in the Judge's summary to evidence not borne out attrial was that the complainant was grabbed by the right wrist not the right arm. Thatwas not a material difference. Neither was the characterisation of where Mr Banerjeewas standing. I accept Ms Savage's submission the Judge's decision has been reachedprimarily on the basis of the evidence given at trial.[10] Neither is there anything to indicate the unredacted video interview gave riseto unfairness. Judges often have to put aside inadmissible evidence in a trial. JudgeManuel said she would. Nothing indicates she did not. The Judge specifically notedin her judgment the interview was redacted. Mr Harder submits there are aspects ofthe Judge's characterisation of the offending which reflects the prejudicialinadmissible material. But I do not agree. I considered the characterisation fairwithout knowing of the prejudicial material.[11] It is true the judge stated "[i]n the final analysis it is the consistency orinconsistency of the statements and the impressions I formed of the honesty andreliability of the two witnesses which have led to my decision in this case".7 But thetranscript of the complainant's evidence was unwavering and straightforward, withlittle material inconsistency internally or under cross-examination. The witness5 Ogden v R [2016] NZCA 21.6 Notes of Evidence at 29/16–27 and 30/1–5.7 Conviction judgment, above n 1, at [11].statements did not affect that. And the key part of the Judge's reasoning was herdifficulty in reconciling Mr Banerjee's evidence in chief with his police interview.8Mr Harder may be correct that Mr Banerjee was concerned about the immigrationconsequences of his arrest in his responses to the police interview. But that issomething the Judge was able to assess. So was the complainant's evidence. Onreviewing the case on appeal, I detect nothing to indicate the Judge was unfairlyswayed by her demeanour. I consider Judge Manuel was entitled to prefer thecomplainant's evidence over Mr Banerjee's evidence[12] Despite Mr Harder's well-argued submissions, I consider the Judge's findingwas available to her, she did not err and there was not a miscarriage of justice or unfairtrial.Should there have been a discharge without conviction?Law of discharge without conviction[13] Section 107 of the Sentencing Act 2002, which "provides a gateway throughwhich any discharge without conviction must pass", states:9The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[14] Under s 107 the court must undertake a three-step process: first, identify thegravity of the offence; second, identify the direct and indirect consequences of aconviction; and third, determine whether the consequences of a conviction are out ofall proportion to the gravity of the offence.10 The proportionality test is a matter ofjudicial assessment.11[15] If s 107 is satisfied, a court may discharge a guilty offender without convictionunder s 106. A discharge is deemed to be an acquittal. It remains open to the court to8 Conviction judgment, above n 1, at [11].9 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].10 R v Hughes, above n 9, at [16]–[17].11 H (CA680/11) v R [2012] NZCA 198 at [30].decline to exercise its discretion to grant a discharge even if the consequences are outof all proportion to the gravity of the offence.12[16] As Asher J in Zhang v Ministry of Economic Development made clear, thecourts often conclude the immigration consequences of a conviction should beresolved by the immigration authorities, rather than pre-empted by a court's decisionto discharge a conviction.13 That is particularly so where the details of the offendingwill be known to, and closely examined by, the relevant authority. He also said acourt's assessment of culpability may assist those authorities and there will always befinely balanced cases where a discharge may be warranted. In Rahim v Police, theCourt of Appeal noted it is important to distinguish between whether it is the offender'sconduct or the conviction that gives rise to the consequences the offender wishes toavoid.14[17] Appeal of a decision on an application for a discharge without conviction isgoverned by the usual appeal principles. In essence, I need to decide whether Iconsider the decision was wrong.15Submissions[18] Mr Harder submits Judge Manuel erred in immediately entering a convictionfollowing the guilty finding at the 6 March 2017 hearing. He submits she erred at the16 June 2017 hearing in finding the consequences of conviction were not out of allproportion to the gravity of the offence, the risk of deportation and employmentconsequences. He submits, if a discharge had been granted, it would have been opento Mr Banerjee to apply for a visa. He says Mr Banerjee is now shut out of his family'slong-term plans to settle in New Zealand. He also submits the Judge erred in sayingthe public, Immigration New Zealand and employers had a right to know about theoffending. He submits it is not clear the Judge properly digested the material beforeher about the immigration issues. He submits the Judge was just plain wrong and I12 R v Hughes, above n 9, at [10] and [22].13 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14], approved in Ho v R [2016] NZCA 229 at [15].14 Rahim v Police [2018] NZCA 182 at [31].15 R v Hughes, above n 9, at [11], citing R v Rajamani [2008] 1 NZLR 723; Austin, Nichols & CoInc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].should provide some amelioration to Mr Banerjee's immigration situation. He pointsto other cases where a discharge was granted for more serious offending.16[19] Ms Savage submits there was no error in the Judge's approach and it wasappropriate for her to find the relevance of Mr Banerjee's offending to his immigrationstatus should be left to Immigration New Zealand. She acknowledges a s 61application would have been a possibility but submits that was before the Judge whenshe concluded the consequences would be out of all proportion to the offending. Shesubmits the issue of deportation arose from Mr Banerjee's unlawful status in NewZealand rather than as a result of the conviction itself.Decision on discharge without conviction[20] In the 16 June 2017 hearing Judge Manuel identified the law correctly. Thequestion is whether she applied it correctly. If she did, her statement that he wasconvicted on 6 March 2017, which I accept appears to have been a misfiring, wouldbe irrelevant. In any case, as Mr Harder submits, a sentencing judge is not precludedfrom discharging without conviction even if a conviction is entered.17 And JudgeManuel proceeded on that basis.[21] The Victim Impact Statement makes it clear the complainant found theexperience frightening, as well she might in terms of fear of what else might havehappened. As the Judge noted, there was no physical injury but the incident was"unsavoury" and had a psychological effect on a young vulnerable victim. But I agreewith the Judge the offending that actually occurred was at the lower end of seriousness.It was a fleeting, minor assault, during the day, in a public place which the victim wasable to shake off and from which she walked away. This is reflected in the sentenceimposed, of coming up for sentence if called upon.[22] Mr Banerjee's security guard certification was apparently suspended and hewas unable to work at Nando's. The information about the conviction also appears tohave been requested in relation to an application by Mr Banerjee for a training course16 Rahim v Police, above n 15; Kumar v Police [2015] NZHC 3293.17 R v Sarich CA407/04, 18 April 2005 at [30].in Singapore, though there is nothing to suggest what impact, if any, it would have onMr Banerjee's admission. But I agree with the Judge the employment consequencesof the conviction did not warrant a discharge. Such offending can be expected to haveconsequences for employment or educational opportunities overseas.[23] The key question is whether the risk Mr Banerjee would be deported or faceadverse immigration consequences because of the conviction would bedisproportionate. At first sight, such a serious consequence of conviction for arelatively minor offence would be disproportionate. Mr Harder is correct thatdischarges have been granted for more serious offending in other cases to avoid suchconsequences. But I must consider whether this conviction would havedisproportionate consequences.[24] I do not have all the information the immigration authorities had or have.Judge Manuel's judgment notes Mr Banerjee had been in New Zealand illegally sincethe end of 2015, although from the material before me now it appears that may havebeen from the end of 2016. The report of Mr Aaron Martin, Mr Banerjee'semployment expert, makes clear Mr Banerjee was deported as a consequence of hisunlawful presence in New Zealand, not as a consequence of his conviction.18 AndImmigration New Zealand declined to issue a visa on 28 November 2016 because MrBanerjee failed to disclose the assault charge, not because of the conviction.19 He isnow subject to a two-year period of prohibition, again because of the deportation, notthe conviction.20[25] Mr Martin considers a discharge without conviction would have reduced themateriality of the non-disclosure and would have permitted Mr Banerjee to seek aspecial visa under s 61 of the Immigration Act 2009 prior to deportation. Because MrBanerjee was deported on the basis of being in New Zealand unlawfully, a dischargenow would not necessarily allow him to return. He would still be a prohibited personas a result of his prior deportation.21 During the period of prohibition, any prospect ofreturn is a matter of Immigration New Zealand and the Minister considering making18 Report of Mr Aaron Martin, Director, New Zealand Immigration Law, 27 July 2018, at [3].19 At [4].20 Immigration Act 2009, ss 15 and 179.21 Immigration Act 2009, s 15(1)(c).a special direction and/or reducing or removing the period of prohibition. Both thesedecisions are at the absolute discretion of the Minister.22 Both can be consideredwhether or not Mr Banerjee is discharged. But Mr Martin is of the opinion a dischargewould help Mr Banerjee's case.[26] After the period of prohibition expires, the conviction will still haveimmigration consequences as it may prevent Mr Banerjee from being considered ofgood character and require a character waiver. Again, however, the conviction is notan absolute bar but a factor to be taken into account by Immigration New Zealand.And Mr Martin considers a character waiver may be required even without aconviction as a result of Mr Banerjee's non-disclosure to Immigration New Zealand.23[27] In considering whether to deport Mr Banerjee for being unlawfully in NewZealand I can see no reason why the immigration authorities should not have takeninto account Mr Banerjee's minor offending and sentence. The same is true, now, forthe decision whether to make a special direction. I should not make a decision ondischarge as a "signal" to them, to influence their decision, when I do not have theinformation they have and am not making their decision. The immigration authoritiesare able to assess the offending for what it is. I must consider whether it was wrongfor Judge Manuel to decide the consequences of his conviction were not out of allproportion to the gravity of the offending.[28] Mr Banerjee's deportation occurred because he was in New Zealandunlawfully, which was due to him failing to advise Immigration New Zealand aboutthe criminal charge against him. It was not a direct result of his conviction. Inconsidering whether to deport Mr Banerjee for being unlawfully in New Zealand I cansee no reason why the immigration authorities should not have been able to take intoaccount Mr Banerjee's minor offending and sentence.[29] The same is true, now, for the decision whether to make a special direction andfor any future immigration decision. I do not consider I should make a decision ondischarge as a "signal" to the immigration authorities, to influence their decision, when22 Immigration Act 2009, ss 378 and 182.23 At [31].I do not have the information they have and their decision is not mine to make. Theimmigration authorities are able to assess the offending for what it is, with referenceto Judge Manuel's comments, and now mine, about its relative lack of seriousness.Accordingly, I do not consider the conviction itself has had, or has, a consequence outof proportion to the offending.Result[30] I decline the application to appeal Mr Banerjee's conviction and sentence.Palmer J