NAIR v NEW ZEALAND POLICE [2020] NZHC 2507

NAIR v NEW ZEALAND POLICE [2020] NZHC 2507 [24 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000346[2020] NZHC 2507BETWEEN RUPENDRAN NAIRAppellantAND NEW ZEALAND POLICERespondentHearing: 22 September 2020Appearances: Heather Rogers for the AppellantAysser Al-Janabi for the RespondentJudgment: 24 September 2020JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 24 September 2020 at 2:00 pmRegistrar/ Deputy RegistrarDate:Introduction[1] Mr Nair was charged with two offences committed on 2 September 2019;assault on a person in a family relationship1 and intentionally impeding normalbreathing (strangulation).2[2] He pleaded guilty to the assault charge but took the strangulation charge to aJudge-alone trial.[3] On 22 May 2020 Judge D J McNaughton found Mr Nair guilty and entered aconviction. Mr Nair was remanded for sentence to 18 August 2020 which wasextended pending the determination of this appeal.[4] He now appeals his conviction on the grounds of fresh evidence as to hiscircumstances. The Crown does not oppose allowing the appeal.[5] A preliminary issue is that the appeal is filed out of time. Given the groundsof appeal and the absence of opposition from the Crown, I am satisfied that it isappropriate to grant an extension of time for the filing of the appeal and so order.Background[6] The victim relative to both charges had been in a relationship with Mr Nair forsome two years. At around 12:30 am on 2 September 2019 Mr Nair arrived at heraddress. He scrolled through her phone. He found a message from another man. Hejealously confronted her. He slapped her across the face before holding her againstthe wall by her neck. She was unable to breath properly. He also struck her on theface. She suffered minor bruising to her cheek and swelling on her neck.[7] As a consequence of this conduct Mr Nair was charged with both offences.1 Crimes Act 1961, s 194A; maximum penalty – two years' imprisonment.2 Section 198A(b); maximum penalty – seven years' imprisonment.Subsequent events[8] Ms Rogers, who has been Mr Nair's counsel throughout, advises that followingMr Nair's plea of guilty on the assault charge, the Judge asked whether counsel hadsubmissions on whether a conviction should be entered. Ms Rogers advises that sheasked the Judge not to enter a conviction. However, following the later finding of guilton the strangulation charge, in response to the same question, Ms Rogers advises thatshe did not ask that no conviction be entered. This was because on the informationshe was then seized of, she could see no legitimate or principled basis upon which toapply under s 106 of the Sentencing Act 2002 ("the Act") for a discharge withoutconviction. She advises that although she was then aware that Mr Nair had entered anew relationship and was engaged, she knew nothing more about Mr Nair's personalcircumstances and could see no reason to enquire further.[9] However, on 2 July 2020, Mr Nair told Ms Rogers he was getting married anda few weeks later, on 24 July 2020, he asked of her how a conviction might affect hisposition if he wished to work in Australia. However, it was not until 11 August 2020that he disclosed to Ms Rogers that his new wife had been living in Australia for fiveyears, held a senior management position in a pharmacy in Sydney and that he and hiswife were intending to move to Sydney. It was only then that Mr Nair instructedMs Rogers to make an application for a discharge without conviction.Appellant's submissions[10] Ms Rogers submits that she had no reason to make any particular enquiries ofMr Nair following his conviction. Had she known his wife was intending to return toAustralia or was aware of Mr Nair's claim that he had a "long-held wish to relocate toAustralia" then she would have requested a conviction not be entered at the time thecharge was found proved.[11] Ms Rogers submits that these are factors which would have justified hermaking an application under s 106 of the Act for a discharge without conviction.Supporting such an outcome is that Mr Nair has no criminal history and, Ms Rogerssubmits, the index offending was not sufficiently serious to require the entry of aconviction and the imposition of a sentence.Crown's submissions[12] Ms Al-Janabi, for the Crown, while properly not expressing a view on thelikely success or otherwise of a s 106 application, accepts that it is in the interests ofjustice for the appeal to be allowed.[13] This is on the basis of an affidavit made by Mr Nair deposing to the followingfacts:(a) Mr Nair's now wife returned to New Zealand to visit her parents inFebruary 2020. Mr Nair has known her as a good friend since 2013.The COVID-19 crisis trapped her in New Zealand when the borderswere closed;(b) Mr Nair and his wife to be, reconnected and commenced a relationship;(c) they became engaged and were married on 6 July 2020. Mr Nair's wifeis qualified to be employed in a pharmacy in Australia but notNew Zealand. It is her intention to return to work as the store managerof the pharmacy she managed in Sydney before she travelled toNew Zealand; and(d) Mr Nair wishes to accompany his wife and to find employment inAustralia. He has been offered work as a service technician but cannotaccept that employment until the borders re-open.[14] Ms Al-Janabi accepts this information amounts to fresh evidence for thepurposes of the conviction appeal. Furthermore, she submits that it would be in theinterests of justice for the appeal to be allowed and the matter remitted back to theDistrict Court so that the application for a discharge without conviction can beconsidered.[15] Ms Al-Janabi expressly reserves the prosecution's position on the relativemerits of the s 106 application. She simply observes that Mr Nair, in the interests ofjustice, ought to be given the opportunity of advancing the application which thepresent conviction presents as an obstacle.Discussion[16] I am satisfied that the appeal should be allowed for the reasons which follow.[17] First, the evidence advanced by Mr Nair has the quality of fresh evidence aboutit. Mr Nair had not married when the conviction was entered. Ms Rogers was notaware of his future wife's qualifications, her desire to return to Australia to work norMr Nair's consequent intention to join her. Neither, in my view, were thecircumstances at the relevant time such that she should have been on notice to makesuch an enquiry. I am satisfied that the evidence could not, with reasonable diligence,have been produced or brought to the Court's attention before the conviction wasentered.3 I am also satisfied that the evidence is, on its face, credible and cogent andthus should be admitted on this appeal.[18] Secondly, I am satisfied here is jurisdiction to grant the appeal. It has beenbrought under s 229 of the Criminal Procedure Act 2011 ("the CPA"). InGurney v Police, Collins J remarked that whilst it is "highly unusual" to hear an appealagainst conviction before sentence is imposed, s 231 does not prohibit it.4 There theconviction was quashed because there was a jurisdictional impediment to the DistrictCourt hearing the charge. Plainly there is no such impediment here. However, I notethat the lack of jurisdiction in Gurney meant that proceeding to sentence would havebeen an exercise in futility. That is not the position in the present case because thelikelihood of a discharge without conviction is uncertain.[19] Thirdly, I have considered whether a preferable approach would have been forMr Nair to have been sentenced and then appealed. I have decided that course is notavailable. In Ho v R the Court of Appeal left undecided the issue of whether anappellate Judge was correct in refusing to discharge without conviction in the absenceof an application at first instance. The Court observed that it may be appropriate to3 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].4 Gurney v Police [2017] NZHC 1581 at [11]. His Honour observed by way of footnote that this isdifferent to s 115(3) of the Summary Proceedings Act 1957.consider granting a discharge where there is a change in circumstances or where freshevidence has become available.5 However, because an appeal against a refusal todischarge a defendant without conviction is a conviction appeal and not a sentenceappeal, I am satisfied that the present procedural pathway is the correct one.[20] Another question is whether the conviction should have been quashed in theDistrict Court rather than in appealed to this Court. I agree with the parties that thereis no jurisdiction to quash in this case. Section 177 of the CPA allows a Court to ordera re-trial or re-hearing. However, that course is not available for category 3 offences,that is offences punishable by more than three years. The maximum penalty for thestrangulation charge is seven years.[21] Ms Rogers draws my attention to Police v Paea.6 In the District Court,Judge Cathcart considered that the District Court's inherent power to prevent an abuseof its process was available to order a re-hearing even where s 177 did not apply. TheJudge stated:"[28] As noted earlier, I have already found that there has been a miscarriageof justice in relation to the hearing on 21 July 2016. Thus, if this charge wascovered by s 177, I would have had no hesitation in granting the order settingaside the conviction and ordering a rehearing. However, as I noted already,s 177 does not apply to this case.[29] I have formed the view that there is an equivalent parallel poweravailable to a District Court Judge under the doctrine of inherent power whichexists to ensure a fair trial and to prevent an abuse of the Court process."[22] However, for the reasons set out above, it is not necessary for me to decidewhether that course is available or whether it is necessary to resort to this Court'sinherent jurisdiction to resolve this matter.[23] In conclusion, I am satisfied that a miscarriage of justice has occurred. Theentry of a conviction on the strangulation charge was an error, irregularity oroccurrence in relation to the trial. Secondly, that error, irregularity or occurrenceresulted in unfairness because Mr Nair, as a consequence, was deprived of the5 Ho v R [2016] NZCA 229 at [11].6 Police v Paea [2016] NZDC 14790.opportunity to advance an application under s 106 which, if successful, would amountto an acquittal.[24] For that reason I am satisfied the appeal should be allowed, the convictionquashed and the matter remitted back to the District Court for Judge McNaughton tosentence Mr Nair. In making that order I must emphasise that nothing in this judgmentis to be interpreted as an indication to the District Court on the question of whether as 106 application should be allowed or disallowed. This Court has not heard theevidence which the trial Judge did. The trial Judge is in the unique position of makingthe appropriate assessment under s 106 of the seriousness of the offence and undertakethe balancing exercise the Court is required under s 107 of the Act.Result[25] The appeal is allowed.[26] The conviction on the strangulation charge is quashed.[27] The charge is remitted back to the District Court for sentencing.Moore JSolicitors:Ms Rogers, AucklandCrown Solicitor, Manukau