MALHOTRA v NEW ZEALAND POLICE [2020] NZCA 342

MALHOTRA v NEW ZEALAND POLICE [2020] NZCA 342 [12 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA625/2019[2020] NZCA 342BETWEEN KUNAL MALHOTRAApplicantAND NEW ZEALAND POLICERespondentCourt: Clifford, Woolford and Dunningham JJCounsel: J Y Yi for ApplicantJ M Irwin for RespondentJudgment:(On the papers)12 August 2020 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] On 9 March 2018 the applicant, Kunal Malhotra, was found guilty byJudge Blackie after a Judge-alone trial in the District Court at Auckland of one chargeof male assaults female. Mr Malhotra indicated he would apply to be dischargedwithout conviction pursuant to s 106 of the Sentencing Act 2002. At the subsequentsentencing hearing, the Judge declined that application, convicted Mr Malhotra andordered him to come up for sentence if called upon within nine months and to payemotional harm reparation of $500 to his victim, K.1 Mr Malhotra subsequentlyappealed his conviction and sentence to the High Court. Davison J dismissed thatappeal.2[2] Mr Malhotra now applies for leave to bring a second appeal to this Court someeight months out of time. In an affidavit filed with the notice of appeal he explainedthat the delay was caused by him awaiting the outcome of his application foran extension of his visa, which he had anticipated would be approved. It was onlyafter that process failed that he considered a further appeal. While we do notnecessarily accept an applicant like Mr Malhotra is entitled to wait for months forthe immigration process to complete before attempting a further appeal, in this casethe Crown opposed the application on the merits and, in the circumstances, we grantthe necessary extension. Sections 237(2) and 253(3) of the Criminal Procedure Act2011 provides that this Court must not grant leave unless it is satisfied that the appealinvolves a matter of general or public importance or that a miscarriage of justice mayhave occurred or may occur unless the appeal is heard. That statutory test sets a highthreshold.[3] Mr Malhotra says the appeal he wishes to bring involves a matter of general orpublic importance: that is, how the courts should approach the immigrationconsequences of a conviction when determining s 106 applications. He also says amiscarriage of justice may have occurred or may occur unless the appeal is heard.Context[4] Mr Malhotra came to New Zealand in 2014 on a study visa. He and his victimK were acquaintances at high school. K stayed with Mr Malhotra for a short while inearly 2016, while looking for accommodation. Mr Malhotra formed an attachment toK which was not reciprocated. After K moved out to her own flat in May 2016,Mr Malhotra continued to message her. K did not respond. In the early evening of5 July 2017 Mr Malhotra went to K's flat.1 Police v Malhotra [2018] NZDC 15734.2 Malhotra v Police [2019] NZHC 305.[5] Uninvited and unannounced Mr Malhotra entered K's flat through an opendoor and went to K's bedroom. Mr Malhotra grabbed K's phone, in an effort it wouldappear to find evidence of a relationship with another person. She protested.[6] In the scuffle which ensued Mr Malhotra struck K on the side of her face withhis hand. A flatmate witnessed the altercation. By the time the flatmate had separatedMr Malhotra and K, K was considerably distressed and, in anger, Mr Malhotra hadsmashed a wine bottle on the kitchen floor as he left the flat.[7] At K's request, the police were called to the flat that evening. Mr Malhotrawas subsequently charged. Although K had made a written complaint, she declined toappear at Mr Malhotra's trial. Evidence of the assault was given by K's flatmate.[8] In declining Mr Malhotra's application for a discharge without conviction,Judge Blackie assessed his offending as being of moderate seriousness. In respondingto Mr Malhotra's submission that the immigration consequences of a convictionwould be out of all proportion to the seriousness of his offending, the Judge noted thatthese consequences followed in the ordinary course. Their significance, in terms ofMr Malhotra's immigration status, was best treated as a matter for the immigrationauthorities. It would be up to those authorities to determine what the actualconsequences of the offending and conviction would be.3[9] On appeal to the High Court, K gave evidence. In her evidence-in-chief sheretracted her allegations of violence. She was cross-examined. The Judge concludedthat — to the extent her evidence before him varied from the account she had given tothe police on the night of the offending — her evidence lacked credibility.4 The Judgetherefore declined to admit that evidence.[10] In considering Mr Malhotra's appeal, the Judge concurred with theDistrict Court's assessment of his offending as being "moderately serious, and not atthe lower end of the scale".5 He characterised that offending as involving a seriousinvasion of K's privacy. It was not — as the District Court had concluded — "a classic3 Police v Malhotra, above n 1, at [14]–[15].4 Malhotra v Police, above n 2, at [45]–[48].5 At [55].case of domestic violence".6 Nevertheless, given Mr Malhotra was keen to establisha close personal relationship with K, and had become jealous and suspicious that shewas involved with someone else, the offending possessed some of the features ofdomestic violence. Notably Mr Malhotra's use of his dominant physical force to enterK's bedroom, to seize her phone and then to prevent her from leaving her room — allactions motivated by jealousy. At the same time, the Judge recognised the mitigatingfactors of the absence of any history of prior offending, the expression of "someremorse" and the completion of a stopping violence programme.7[11] Turning to the assessment of proportionality, and like Judge Blackie inthe District Court, Davison J concluded the assessment of immigration consequenceswas best left to the relevant authorities, and could not be considered to be out of allproportion to Mr Malhotra's conviction, that is to the gravity of the offence for whichhe was found guilty.8Analysis[12] When dealing with leave only applications it is appropriate to give reasons"briefly and in general terms", as envisaged by r 5I of the Court of Appeal (Criminal)Rules 2001.[13] In his affidavit Mr Malhotra explained that, following the dismissal of hisappeal by the High Court and in line with the decision of both Courts, he took nofurther steps as regards his immigration status. Rather, because his visa remained validfor several months longer, he waited until he needed to apply for an extension. Indoing so, he declared the fact of his offending and conviction and, accordingly, wasrequired to apply for a waiver of the character requirement. That waiver was declined,a decision confirmed on review.[14] Mr Malhotra says, in effect, those subsequent events have proved his point.His conviction has resulted in him no longer qualifying for a visa to remain inNew Zealand. That is a consequence of his conviction out of all proportion to the6 At [52(b)].7 At [53].8 At [61]–[62].gravity of his offending. The Courts below were therefore wrong not to discharge himwithout conviction. This Court should grant leave for that decision to be reconsidered.[15] In our view, there is no proper basis to challenge the characterisation by bothCourts below that Mr Malhotra's offending was of "moderate seriousness". Nor isthere such a basis for a challenge to the conclusion also reached by both Courts belowthat the significance of that offending for Mr Malhotra's immigration status was bestassessed by the relevant immigration authorities. Nor does the subsequentimmigration process establish that the consequences of Mr Malhotra's convictionwere out of all proportion to the gravity of his offending. The documentary record ofthat process, appended by Mr Malhotra to the affidavit he filed, evidenced a properconsideration by the immigration authorities of the substance of Mr Malhotra'soffending for which he was found guilty, and of other relevant immigrationconsiderations, not simply of the fact of his conviction.[16] As the cases referred to by the Crown show, the approach taken by the Districtand High Courts in response to Mr Malhotra's s 106 application is in line with theapproach generally taken to such applications.9[17] We are therefore not satisfied a miscarriage of justice has been or will beoccasioned if leave is not granted for a second appeal, nor that such an appeal wouldraise a matter of public importance for further consideration by this Court.Result[18] The application for an extension of time is granted.[19] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent[20]9 Ho v R [2016] NZCA 229 at [15]; and A (CA747/10) v R [2011] NZCA 328 at [30].