NARAYAN v R [2022] NZCA 527

NARAYAN v R [2022] NZCA 527 [4 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA367/2022[2022] NZCA 527BETWEEN NILESH NARAYANAppellantAND THE KINGRespondentCourt: Goddard, Brewer and Edwards JJCounsel: T Singh for AppellantC A Brook for RespondentJudgment:(On the papers)4 November 2022 at 3.30 pmJUDGMENT OF THE COURTA The application for extension of time to appeal is granted.B The appeal is allowed.C The conviction of the appellant under s 11 of the Aviation Crimes Act 1972is set aside.D There is no order for retrial.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Mr Narayan was charged with attempting to take a dangerous weapon on boardan aircraft, contrary to s 11(1)(b) of the Aviation Crimes Act 1972. He pleaded guilty.A conviction was entered at the District Court at Manukau on 4 February 2021.On 19 April 2021 he was sentenced to 130 hours of community work.[2] Section 18 of the Aviation Crimes Act provides that no proceedings for the trialand punishment of any person charged with a crime against s 11 of that Act maybe instituted in any court except with the consent of the Attorney-General.The Attorney-General's consent to bring charges against Mr Narayan was neverobtained. That omission was identified by the police in the course of an audit of theirfiles, some time after Mr Narayan had been convicted and sentenced. In thosecircumstances, the police invited Mr Narayan to pursue an appeal from his conviction.[3] In response to that invitation, Mr Narayan has applied for an extension of timeto appeal against his conviction.[4] Counsel for Mr Narayan and for the Crown have filed a helpfuljoint memorandum in relation to this appeal. The memorandum confirms that havingregard to the circumstances set out above, the Crown does not oppose an extension oftime and submits the conviction should be quashed. No order for retrial is soughtgiven the minor nature of the offending. The memorandum records that the partiesagree the matter can fairly be dealt with on the papers.[5] In Talley's Group Ltd v WorkSafe New Zealand this Court considered thecircumstances in which a charging document is a nullity.1 Section 379 of theCriminal Procedure Act 2011 (CPA) provides that charging documents may not be setaside or held invalid by reason only of any defect, irregularity, omission or want ofform unless the court is satisfied that there has been a miscarriage of justice. But if acharging document is a nullity, s 379 cannot save it. This Court said:2[45] In New Zealand, such considerations have tended to be dealt withunder s 379 of the CPA (or its predecessors), where miscarriage must beestablished in order to invalidate a defective charge. This means thatNew Zealand courts have tended to be less strict on the prior question ofnullity. A charging document will be a nullity if it fails to disclose an offence,or a defendant, or is so unintelligible that the nature of the offence cannot beascertained. Such will also be the case where the charge lacks a required1 Talley's Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198.2 Footnotes omitted and emphasis added.statutory consent, or is out of time. To void a charging document therefore,relevant defects must be so radical as to deprive the document of its essentialcharacter. Technical or mechanical defects will not suffice, and the courts willbe slow to reach such a "drastic conclusion". It follows that even seriousdefects will be protected by s 379 of the CPA if, despite the impugned defect,the document nonetheless discloses a recognisable charge, a recognisabledefendant, (where necessary) is in time and is supported by statutory consents.But if one or more of these elements is missing, "there is nothing before theCourt capable of rectification". That said, the dividing line between nullityand mere irregularity is not always a bright one. Whether the defect goes tothe very heart of a charging document will sometimes be a matter of degreealmost always informed by the risk of a miscarriage of justice.[6] The absence of the Attorney-General's consent to bring the charge in this casewas a defect that went to the heart of the charging document, rendering it a nullity.3The proceedings should not have been instituted, and should not have been consideredby the District Court. That in and of itself requires the conviction to be set aside. It isnot strictly speaking necessary to inquire further. But we accept the submission in thejoint memorandum of counsel that if the Attorney-General's consent had been sought,there is no guarantee the consent would have been given. If that consent had beenrefused, Mr Narayan could not have been prosecuted for the offence on which he wasconvicted. The real possibility of a different outcome is a further reason why amiscarriage of justice has occurred in this case.[7] In these circumstances, it is appropriate for the extension of time to appeal tobe granted and for the appeal to be allowed. The conviction should be set aside. Thesentence imposed on Mr Narayan has already been set aside by the District Court.4In the absence of any valid charging document, no question of retrial arises. There is,quite simply, no valid charge before the District Court.Result[8] The application for extension of time to appeal is granted.[9] The appeal is allowed.3 For a recent English decision that reaches the same result, see Regina v Lalchan [2022] EWCACrim 736, [2022] QB 680 at [39]–[42].4 Police v Narayan [2022] NZDC 17646 at [2].[10] The conviction of the appellant under s 11 of the Aviation Crimes Act 1972 isset aside.[11] There is no order for retrial.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent