NEW ZEALAND POLICE v WEN [2021] NZHC 3610

NEW ZEALAND POLICE v WEN [2021] NZHC 3610 [22 December 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-54[2021] NZHC 3610BETWEEN NEW ZEALAND POLICEApplicantAND SHAO PENG WENRespondentHearing: 24 November 2021Appearances: J M O'Sullivan for AppellantL Ord and E T Blincoe for RespondentJudgment: 22 December 2021JUDGMENT OF ISAC JIntroduction[1] Rachel Pawsey was only 30 years old when she was killed in a road accidentcaused by the respondent. She was travelling home to her partner's house inUpper Hutt after netball practice. She was the only child of her parents, and a much-loved teacher in a local secondary school.[2] While this appeal concerns Mr Wen and the criminal legal process whichfollowed the accident, I wish to acknowledge at the outset the profound loss and griefthat is at the heart of the case.The appeal[3] Mr Wen was charged with careless driving causing Rachel's death.1 Heinitially pleaded not guilty. Following a sentence indication before Judge Tompkins,he entered a guilty plea. At sentencing Mr Wen sought a discharge without conviction,pointing to the immigration consequences should a conviction be entered.[4] Judge Tompkins granted the discharge. The Crown appeals that decision basedon an error of law.Background[5] The relevant events leading to the accident are outlined in the Judge'ssentencing notes:2The offending occurred on the night of 27 August 2020. At the time, Rachel,who was employed in the boarding house of a Wellington secondary school,was on her night off and was travelling northwards on State Highway 2 pastUpper Hutt to where her partner lived. At the same time the defendant, whohad been having dinner with friends, was returning home. At about 8.30 pm,the defendant drove his car down Moonshine Hill Road to the intersectionwith State Highway 2, as that State Highway passes from the Hutt RiverBridge past Upper Hutt to the Remutaka Hill. The intersection is known asa "seagull" intersection because of the shape of the intersection whenviewed from above. In essence, the intersection between Moonshine HillRoad and the northbound land is a T-intersection, but the southboundtraffic is divided from the northbound traffic by a raised barrier. The effectof that being that vehicles turning right onto State Highway 2, so intendingto travel south, have to cross the northbound lane, but then that turningvehicle moves into a separate area of the road before having to join thesouthbound lane.Unusually, the defendant had fitted his vehicle with a video recorder to therear vision mirror and when the crash was investigated, the precise sequenceof events was revealed by that video record. That showed that Mr Wen stoppedat the stop sign which controls the intersection for a little over 40 seconds,during which a number of cars passed on State Highway 2 in both directionsbefore moving slowly out of Moonshine Hill Road to complete his intendedright-hand turn. At the same time, Rachel was approaching that intersectionon her motorbike in a northerly direction. It is readily apparent that Mr Wensimply did not see Rachel approaching the intersection. The investigationreport records that she was wearing appropriate high-visibility clothing andcrash helmet and her headlight was on. But despite that, in a way in which the1 Land Transport Act 1998, s 38 (maximum penalty of three months' imprisonment or a fine notexceeding $4,500 and disqualification from holding or obtaining a driver licence for 6 months ormore).2 New Zealand Police v Wen [2021] NZDC 11953 at [2]–[3].police accept represents a momentary lapse of the standard of driving expectedof a reasonable and prudent driver, Mr Wen did not see her approaching andmoved into the intersection and into her path of travel. Rachel endeavoured toavoid the collision but was unable to do so. Tragically, she struck the right-hand side of Mr Wen's vehicle and became wedged underneath the right frontof his vehicle and tragically died at the scene. Mr Wen extracted himself fromhis vehicle, the airbags having activated, endeavoured to lift the vehicle off orotherwise assist Rachel, but was unable to do so before emergency servicesarrived.[6] Having identified what he described as a three-stage inquiry in relation to thegrant of a discharge without conviction, the Judge concluded that the direct andindirect consequences of a conviction were out of all proportion with the seriousnessof the offence.[7] In terms of an assessment of the gravity of the offending and level ofculpability, the Judge noted that Mr Wen accepted responsibility for the accident. Thepolice also accepted that it was "a momentary episode of carelessness" that caused theaccident.3 Having considered those matters, the Judge concluded that Mr Wen'sculpability "can properly be described as low".4[8] The Judge then turned to consider the direct and indirect consequences of theconviction. He concluded:5 I accept that if a conviction is entered today, Mr Wen will become liable todeportation and will be unable to renew his visa, and in those circumstances,his family who are currently still residents in China may be unable to join him.Despite the police's submission, I conclude that there is a high likelihood ofdeportation should a conviction be entered, whilst at the same timeacknowledging that under the different and applicable statutes, both theimmigration and authorities and ultimately the Minister have discretionswhich they can properly exercise in relation to this case. I also accept that ifdeported, Mr Wen's age may well make it difficult to obtain employment inChina should he be compelled to return there. No other direct or indirectconsequences of the entry of a conviction were identified.[9] Turning then to what he described as the "proportionality balancing exercise",the Judge observed:63 At [7].4 At [8].5 At [9].6 At [12].Against all that background, I have concluded that Mr Wen should bedischarged without conviction. In reaching that conclusion, I have concludedthe direct and indirect consequences of the entry of conviction, andparticularly the high likelihood of deportation, are out of all proportion to thegravity of the offending given its nature. As I have already said, in grantingthis discharge without conviction, nothing should be taken away from the veryreal and long-lasting consequences which Rachel's death will have for herfamily, friends and wider community.Approach on appeal and a question of law[10] This is an appeal on a question of law pursuant to s 296(2) of the CriminalProcedure Act 2011. There is no general right of appeal. The prosecutor may, with theleave of the Court, appeal on a question of law against a ruling by a trial court.7[11] A question of law arises when there is:8(a) a misdirection of law apparent in the decision;(b) oversight of a relevant matter or consideration of an irrelevant matter;or(c) a factual finding unsupported by any evidence or an omission to drawan inference of fact which is the only reasonably possible one on theevidence.(d) a decision which is "plainly wrong".[12] In R v Cleaver,9 the Court of Appeal outlined the test applicable to policeappeals against a discharge without conviction under s 296:10The test to be applied under s 296 of the Criminal Procedure Act isfundamental to our assessment of this appeal. It can be contrasted to an appealby a defendant who has been refused a discharge without conviction. In thatcase, although an appellate court must be persuaded that the Court below waswrong, it reaches its decision on that point by its own view of the merits. Onthe other hand, in this appeal we need to be persuaded not that the Courtbelow was wrong, but that no Judge acting rationally within the scope of ss106 and 107 of the Sentencing Act could have made the decision under appeal.It is a much more stringent test.(emphasis added)7 Criminal Procedure Act 2011, s 296(2).8 R v Taulapapa [2018] NZCA 414 at [17]–[18].9 R v Cleaver [2020] NZCA 397.10 At [20].Grounds of proposed appeal[13] In written submissions the appellant advanced three questions in support of itsapplication for leave to appeal, characterising each of them as a question of law:(i) Did the learned District Court Judge err as to the immigrationconsequences of conviction (by making findings unsupported byreliable evidence)?(ii) Did the learned District Court Judge fail to consider a relevant matter,namely the difference between the consequences of a conviction andthe consequences of the offending itself?(iii) Did the learned District Court Judge fail to refer to, and properly giveeffect to, the settled authority on usurping the functions ofimmigration authorities?[14] While these questions were advanced as separate grounds of appeal, during thecourse of argument it became apparent that they are essentially restatements of thesame underlying propositions.[15] During the hearing Ms O'Sullivan for the Police refined the grounds of appealinto two essential challenges:(a) First, the Judge relied on an affidavit of Mr Wen to support hisconclusion that the immigration consequences of a conviction were outof all proportion to the gravity of the offence. The appellant saysMr Wen's evidence was inadmissible opinion and factually wrong.Admission of the affidavit was an error of law. And without it there wasno evidence to support the finding that Mr Wen's deportation followingconviction was highly likely.(b) Second, in Mr Wen's case the liability for deportation arose not from aconviction, but rather the underlying criminal offence he committedand his admission of guilt. In essence, a conviction was not causativeof the asserted consequence; Mr Wen's liability for deportation existedwhether a conviction was entered or not. The Judge's failure toappreciate this distinction was an error of law, because it was a failureto have regard to a relevant consideration.Status of evidence filed on appeal[16] In support of its proposed appeal, the appellant filed an affidavit from aMr Kurt Williams, a senior Immigration Compliance Officer employed byImmigration New Zealand. Mr Williams deposed that:I have been asked to comment on Shaopeng Wen's immigration circumstancesand the potential impact of the imposition of a conviction on his immigrationstatus.[17] In addition to this evidence on appeal, the respondent filed an updatingaffidavit of his own, outlining a deportation liability notice (or DLN) that had beenissued by Immigration New Zealand (INZ) despite his discharge without conviction,but successfully challenged subsequently on what is known as a "good reasons"review by INZ.[18] The respondent also filed an affidavit from a Mr Richard Fletcher, anexperienced barrister and solicitor who specialises in immigration law. Mr Fletcher'saffidavit took issue with Mr Williams' evidence as to the likely or potentialimmigration consequences had a conviction been entered (either in the District Court,or now on appeal).[19] I raised with Ms O'Sullivan the obvious concern that the appellant had notapplied for leave to admit fresh evidence on its appeal. In addition, as the appeal waslimited to one on a point of law only, it was difficult to imagine a case where leave toadduce fresh evidence would be appropriate.[20] After hearing from counsel, I resolved to proceed with the hearing on the basisthat the evidence filed by both parties would not be formally admitted unless theapplicant had identified an error of law in the District Court's sentencing decision.Only if I found such an error existed would it then be appropriate to consider whetherleave to admit fresh evidence ought to be granted. I took counsel for both parties toaccept that approach, albeit that both made reference to the evidence filed on appealin their written and oral submissions.[21] Despite this approach, as a matter of completeness I record that I have read theadditional evidence as part of my overall consideration of the appeal.Discussion[22] The Judge identified and applied the correct legal test to determine whether adischarge without conviction was appropriate. I do not take the applicant to suggestthere was an error of law in the Judge's assessment of the gravity of the offending, orthe Judge's assessment whether the direct and indirect consequences were out of allproportion to the gravity of the offence.[23] I therefore turn to the two principal challenges to the District Court's decision.First ground of appeal: was Mr Wen's affidavit inadmissible opinion evidence and wasit misleading?[24] The appellant's first challenge is to the admissibility, and accuracy, ofMr Wen's affidavit in the District Court which outlined the potential consequences ofa conviction for him. This is what Mr Wen said:30. My employment relies on me having a current work visa.31. I understand that a temporary entry class visa holder is liable todeportation on receiving a criminal conviction. I currently hold whatI call a work visa, that is, a visa that enables me to work inNew Zealand. I attach this marked (D).32. The Immigration Act 2009 (the Act) (s 157) provides that a temporaryentry class visa holder is liable for deportation if there is sufficientreason to deport the temporary entry class visa holder.33. Section 4 of the Act defines a temporary entry class visa. I am liablefor deportation as a result of a criminal conviction on being servedwith a Deportation Liability Notice. A criminal conviction includesone where the maximum penalty is three months imprisonment.34. I am advised I have a right of appeal to the Immigration Tribunalwhich has to be exercised within 28 days of the service of the notice.I understand under New Zealand law even a minor conviction carriesa minimum sentence of up to three months in jail (even 'if I was aresident which I am not). I am advised that careless driving causingdeath is a criminal charge and that triggers a deportation liability.35. I understand that if I wish to apply for a resident's visa or had aresident's visa the same difficulty arises. Any charge that carries amaximum penalty of three months' imprisonment or more means thatI am unlikely to obtain a resident's visa.36. The grounds for determining appeals to the Immigration Tribunal areset out at s 207 of the Act. The Tribunal can only allow an appealagainst liability for deportation on humanitarian grounds:(a) Where it is satisfied there are exceptional circumstances of ahumanitarian nature that it would make it unjust or unduly harshfor the appellant to be deported from New Zealand; and(b) It would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.37. I am advised by my lawyers the Supreme Court has considered thematter of exceptional circumstances and says these "must be welloutside the normal run of circumstances and they have to be truly theexception rather than the rule".38. I do not believe that I can meet this test having been in New Zealandonly since 2018, having only recently obtained work and with myfamily still in China.39. I am extremely stressed and concerned about the deportation liabilitythat I will be subject to. I have lived in New Zealand for three years,studied and obtained work. My family in China has made sacrificesfor me to come to New Zealand and ultimately my wife and son werelooking forward to joining me here once I obtained a residence visaso that we could live together as a family and have opportunities thatwere not open to us in China.40. I want to be able to keep working, continue to support my family andhave a life in New Zealand. I feel very, very anxious that my future inNew Zealand depends on whether it is possible for me to bedischarged. without conviction for the offence I currently face.[25] Ms O'Sullivan argued that Mr Wen's evidence, at [31] and [33] of his affidavit,that he would be "liable to deportation on receiving a criminal conviction" was"incorrect" and "materially misconstrued the Immigration Act".[26] The key passage is at [32]–[36] of the affidavit. This is, broadly, an accuratestatement of the legal position derived for the most part from the actual language usedin the Immigration Act 2009.[27] I also agree with Ms Ord that, strictly speaking, Mr Wen's evidence wasunnecessary because it was simply a statement of the legal position, which can beascertained from the language of the statute itself, and the various judgments that wereavailable to the Judge at sentencing from the parties' submissions. Those decisionscontained helpful statements about the operation of the Immigration Act and itsinterplay with the criminal justice system.[28] I do not consider the objection to the admissibility of Mr Wen's affidavit is wellfounded or warrants leave to appeal. In the District Court, where some evidentialfoundation may be appropriate at sentencing, it is common practice for defendants toplace material before the Court in the form of an affidavit. There is no requirement forevidential pedantry when it comes to determining how that material ought to comebefore the District Court.[29] The real issue here is the accuracy of the information in Mr Wen's affidavit,and whether any inaccuracy was material to the Court's decision.[30] It is true that Mr Wen deposed that he was liable for deportation as a result ofa "criminal conviction on being served with a Deportation Liability Notice." Strictlyspeaking, as the applicant submits, he was in fact liable for deportation without entryof a conviction. That is because s 157(5)(b) of the Act provides that a "sufficient reasonto deport" includes "criminal offending", as opposed to a conviction for criminaloffending.[31] Despite this, it is also clear that any alleged inaccuracy was not material to thedecision of the District Court.[32] First, As Ms Ord submitted, the information available to the Judge was notconfined to Mr Wen's affidavit. My attention was brought to detailed legalsubmissions filed prior to the sentence indication hearing. Those submissions outlinedMr Wen's contention as to his "deportation liability by reference to relevant provisionsof the Immigration Act",11 and also referred the Judge to a number of decisions of the11 Including s 157 and s 207, the latter relating to the determination of humanitarian appeals fromthe issue of a deportation liability notice.Supreme Court, the High Court, and the New Zealand Immigration ProtectionTribunal.12[33] It is clear from the submissions themselves, and the cases cited, that there wasample basis for the Judge to conclude that the Immigration consequences of aconviction were out of all proportion to the gravity of the offence. Those casesidentified the very risks Mr Wen raised in support of his submission.[34] The submissions did not contain the same "error" highlighted by the applicantin Mr Wen's affidavit, and instead focus on the issue of a DLN for "offences". Thesubmissions went on to record that the "gravity of the offending does not appear tohave significant weight in INZ's decision-making process". They went on tohighlight the reference to "criminal offending" in s 157(5)(b), and the impact of aconviction on Mr Wen's ability to challenge a DLN under s 157(4), on the basis of a"good reasons" review, a position which seems to be accepted by the appellant.[35] Mr Wen's submissions then went on to address an appeal on humanitariangrounds to the New Zealand Immigration and Protection Tribunal in the event a goodreasons review under s 157(2) was not successful, noting that entry of a convictionwould likely preclude any chance of success. The submissions concluded (based noton Mr Wen's affidavit, but on the authorities cited in the submissions) that:It is of course a matter for the Minister to decide whether to issue a deportationliability notice and for the Tribunal to decide whether to allow an appeal.However, it is submitted that the likelihood of a deportation liability noticebeing issued is high (or as the Tribunal said "almost inevitable" in thesecircumstances), and the prospects of a successful appeal to the Immigrationand Protection Tribunal are very low. Accordingly, deportation is a real andserious consequence.[36] The submissions therefore reveal that rather than focussing on an assertion thata conviction would render Mr Wen liable for deportation, a more nuanced, andaccurate, position was before the Judge.12 The addendum submissions referred the Judge to ss 157 and 207 of the Immigration Act, Ye vMinister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; IX (India) v Minister ofImmigration [2020] NZIPT 504813; Almoka v Minister of Immigration [2017] NZIPT 502990;the INZ Operational Manual, NE (Skilled migrant) v Minister of Immigration [2015] NZIPT202112; and Jeon v Police [2014] NZHC 66.[37] Second, it is also clear from the Judge's sentencing notes that he understoodthe more nuanced combination of consequences and factors put forward by Mr Wen.[38] Ms O'Sullivan in both written and oral submissions emphasised a particularphrase used by the Judge as an indication the alleged inaccuracy in Mr Wen's evidencewas material to his decision. That phrase was:I accept that if a conviction is entered today, Mr Wen will become liable todeportation [39] Again, looked at in isolation the choice of language used might suggest anerroneous equivalence of conviction with deportation. But the Judge went on to clarifyhis appreciation of the legal position in the very next sentence:Despite the police's submission, I conclude that there is a high likelihood ofdeportation should a conviction be entered, whilst at the same timeacknowledging that under the different and applicable statutes both theimmigration authorities and ultimately the Minister have discretions whichthey can properly exercise in this case.[40] This passage confirms the Judge was alive to the fact that even without aconviction Mr Wen might still be liable to a deportation process. It follows that thecriticism by the applicant of the Judge's decision lacks merit; Mr Wen's submissionsaccurately set out the possible consequences for him as a result of entry of aconviction, and the Judge's decision reflected the subtlety of that position.Second ground of appeal: was a conviction causative of liability for deportation?[41] Unlike the Judge, on appeal I have also had the benefit of the recent decisionof the Court of Appeal in Sok v R.13 As the Court noted there, as a matter of law liabilityto deportation sometimes turns on conviction and sometimes not, depending on theperson's status.14 The Court went on to observe: Conviction triggers liability where the holder of a residence class visacommits a qualifying offence. The position is otherwise for a temporary entryclass visa holder such as Mr Sok. As a matter of law, his liability dependednot on conviction but on an INZ character assessment. We accept that theconviction triggered the administrative requirement for a character waiver inconnection with Mr Sok's application for a partnership visa. However, the13 Sok v R [2021] NZCA 252.14 At [46].Manual required that INZ evaluate his character at that juncture in any eventand the conviction is not conclusive evidence of bad character, nor would adischarge preclude denial of a visa on character grounds. [42] Mr Wen is the holder of a temporary entry class visa. So, as the Court of Appealnoted, his liability depended not on conviction but on a character assessment.[43] Ultimately, the applicant's argument is one of causation: it says conviction hasno casual connection to Mr Wen's liability for deportation because he was liable fordeportation on a character assessment, and that assessment turns on the underlyingconduct in issue, not on whether a conviction is entered. But this overlooks a Court ofAppeal's observation that:15the causation question can sometimes be brought into focus by askingwhether a discharge will eliminate or mitigate a risk of deportation. This issuch a case, as we explain when dealing below with the unhappycircumstances in which Mr Sok finds himself.[44] I do not take this as an indication that an enhanced risk of deportation as aresult of a conviction is not a consequence of conviction falling outside the scope of s107 of the Sentencing Act. Such a reductionist "but for" view of causation is notconsistent with a line of authority both in this Court and the Court of Appeal.16[45] In this case, while avoiding a conviction did not eliminate Mr Wen's liabilityfor deportation, it certainly mitigated that risk.[46] For these reasons, I conclude there was no error in the Judge's approach. Therelevant consideration for the Judge was whether a conviction would affect the risk ofdeportation. That risk was clearly live, and there was no error in the Judge havingregard to it as a potential consequence. Nor do I find that such an assessment requiresexpert evidence from an immigration lawyer before the Court can make the relevantfinding. The Immigration Act itself, combined with the extensive array of judgmentsthe Judge was referred to (as well as those referred to on appeal), provide sufficientclarity on the "consequences" which may be engaged once a conviction is entered.15 At [52].16 See for instance Bong v R [2020] NZCA 94 at [21]–[29] and [32]; George v Police [2014] NZHC1725 at [46]; Jeon v Police [2014] NZHC 66 at [21]; Kumar v Police [2015] NZHC 3293 at [41]–[42].[47] In reaching this conclusion, I have addressed and dismissed both of theapplicant's challenges noted at [15] above.Does the applicant's failure to raise an issue in the District Court make a difference?[48] There is a further difficulty with this proposed ground of appeal. Mr Wen'saffidavit was dated 10 March 2021 and appears to have been filed and served shortlythereafter. It was filed in preparation for the sentence indication hearing of 31 March2021. So, it seems safe to assume that prior to that hearing New Zealand Police wereaware of its content.[49] The sentencing hearing did not occur until 18 June 2021, approximately threemonths later. At no stage prior to sentencing did the applicant object to Mr Wen'sevidence, assert that it was inaccurate or misleading, or file evidence to contradict it.[50] It is inappropriate in my view for police to criticise the District Court'ssentencing decision on an appeal to this Court when no objection was taken to theevidence and no effort made to file evidence to correct it at first instance. Finality isan essential quality of justice. Parties who do not put their best foot forward before afirst instance court are generally precluded from challenging its decision based onevidence or matters they could have advanced in the court below.[51] For these reasons, even if I had found an error of approach by the DistrictCourt, I would be reluctant to grant leave to appeal.Immigration New Zealand might reconsider deportation if conviction entered onappeal[52] A second troubling aspect of the appeal is that the further evidence filed onappeal indicates that if the appeal is allowed Mr Wen may be exposed once again to arisk of deportation.[53] The applicant's proposed appeal was advanced on the basis that the adverseimmigration risk that arose from the accident has already been considered and dealtwith by INZ. While it had initially issued a DLN, it had withdrawn the notice followingMr Wen's "good reasons" review challenge. It followed, so the argument went, thatentry of a conviction on appeal should not give rise to any immigration consequence.[54] The difficulty with this is that INZ has not provided an undertaking that it willnot seek to revisit deportation should I enter a conviction on the appeal. The affidavitof Mr Williams for the applicant recorded: In my opinion, and having reviewed the circumstances of the case, shouldMr Wen receive a conviction for careless use of a motor vehicle causing death[on appeal] the INZ Compliance Branch is unlikely to issue a new deportationliability notice pursuant to section 157 of the Act.(my emphasis).[55] As I observed during the hearing, I consider it is contrary to the interests ofjustice for this Court to interfere in a judgment of the District Court on the basis thatthe Judge wrongly had regard to an irrelevant consideration (namely the risk ofdeportation following conviction), to then have Mr Wen face a further risk ofdeportation on entry of a conviction (whether deportation is "unlikely", or not). Theabsence of an undertaking and the applicant's acceptance of the further risk to Mr Wensimply underscores the consequences of a conviction for the appellant.Evidence on appeal indicates case for discharge is stronger than it was before theDistrict Court[56] Finally, having reviewed the evidence filed by both parties on appeal, it is clearthat the respondent's case in support of a discharge has been strengthened rather thanweakened. The evidence of Mr Fletcher of the adverse immigration consequencesexpands the considerations before the District Court to include the impact on Mr Wen'sability to gain residence, including his wife and child in China. The adverse impactnot only on Mr Wen but on his family members would clearly support, in my view, adischarge without conviction.Result and conclusion[57] Leave to appeal is granted. But for the foregoing reasons I am not satisfied thatthere was any error of law in the approach of the District Court. The appeal isdismissed.[58] The evidence filed since the hearing before the District Court strengthens theconclusion that the direct and indirect consequences of a conviction are out of allproportion to the gravity of Mr Wen's offending.[59] None of this should detract from what lies at the heart of this case, or theongoing anguish of Rachel's parents and her partner. Mr Wen remains responsible —in every sense — for Rachel's death. The discharge he received does not change that.Isac JSolicitors:Crown Solicitor, Wellington for ApplicantOrd Legal, Wellington for Respondent