Ali v The King
[2025] NZCA 267
•24 June 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA159/2024 |
| BETWEEN | ASHIK ALI |
| AND | THE KING |
| Hearing: | 3 April 2025 |
Court: | Campbell, Dunningham and Harvey JJ |
Counsel: | M W Ryan, A Finchett and A C Gilbert for Appellant |
Judgment: | 24 June 2025 at 11.00 am |
JUDGMENT OF THE COURT
AThe application to adduce fresh evidence on appeal is granted.
BThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harvey J)
Introduction
Ashik Ali was initially charged with assaulting and strangling his wife and assaulting his seven‑year‑old son. On the morning of trial, 1 February 2022, Mr Ali agreed that he would plead guilty to a representative charge of male assaults female (for the assault against his wife) and the Crown would withdraw the remaining charges and amend the summary of facts in his favour.[1] No conviction was entered as Mr Ali signalled his intent to apply for a discharge without conviction.
[1]Crimes Act 1961, s 194(b). Maximum penalty: two years’ imprisonment.
After Mr Ali’s sentencing hearing on 1 April 2022, which was adjourned to give him time to provide further supporting evidence, Mr Ali and his counsel had a falling out. He engaged new counsel and applied to vacate his guilty plea, claiming trial counsel error. This application was unsuccessful at first instance[2] and on appeal.[3]
[2]R v Ali [2023] NZDC 7477 [Judge Otene’s decision].
[3]Ali v R [2023] NZCA 557 [Palmer J’s decision].
On 11 March 2024, Judge Forrest declined Mr Ali’s application for a discharge without conviction, imposed a sentence of supervision and directed him to make an emotional harm reparation payment of $2,000.[4] Mr Ali now appeals. He says his conviction is a result of two errors amounting to a miscarriage of justice: first, trial counsel error and, second, the error made by Judge Forrest in refusing to grant a discharge without conviction. Ms Hoskin, for the Crown, opposes the appeal and submitted that no miscarriage of justice has occurred.
The offending
[4]R v Ali [2024] NZDC 5571 [Judge Forrest’s decision].
This account is based on the amended summary of facts to which Mr Ali pleaded guilty on 1 February 2022. On 8 January 2021, Mr Ali and his wife were at home with their six children. He was looking through his wife’s phone and refused to give it back, despite repeated requests from his wife and their son. Mr Ali became angry and pushed and slapped her multiple times to her chest and face in front of the children. The pair went downstairs and their argument continued. Mr Ali pushed his wife’s upper chest. She stumbled backwards, hitting the back of her head against a brick wall. She received a three to four centimetre cut to the back of her head. When spoken to about the offending, Mr Ali explained that he did not remember and did not know how the victim got her injury.
Procedural history
As foreshadowed, after Mr Ali pleaded guilty to a representative charge of male assaults female on 1 February 2022, he appeared before Judge Earwaker on 1 April 2022 seeking a discharge without conviction. The Judge indicated that Mr Ali’s case to be discharged without conviction was not strong. The sentencing was adjourned to afford Mr Ali an opportunity to file further supporting evidence. He then engaged new counsel and made an application for leave to withdraw his guilty plea on the basis of trial counsel error.
Application to vacate guilty plea
Mr Ali claimed his trial counsel, Mr Kashyap, erred in two ways. First, Mr Kashyap failed to consider all available defences and gave erroneous advice to advance a defence of necessity. Secondly, Mr Kashyap gave erroneous advice to Mr Ali on the morning of trial which led him to honestly believe that even if the jury found him not guilty, the judge would find him guilty.
On 28 April 2023, Judge Otene declined Mr Ali’s application to vacate his guilty plea. She found “nothing problematic in Mr Kashyap’s advice that self‑defence was not viable” and that “even if the full vulnerabilities of a necessity defence were identified and advised to Mr Ali earlier than, as occurred, on the morning of trial it would not have made the earlier rejected self‑defence any more tenable”.[5] The Judge observed:
[21] … Mr Ali was demonstrably capable of weighing up and rejecting Mr Kashyap’s advice having done so at least three times for twice rejecting Crown resolution proposals commended to him by Mr Kashyap and for reversing the decision to plead guilty to the child assault.
[5]Judge Otene’s decision, above n 2, at [18] and [20].
The Judge also noted:[6]
[24] Although Mr Ali deposed in affidavit evidence that he accepted Mr Kashyap’s recommendation to accept the Crown resolution proposal on Mr Kashyap’s advice that even if the jury found him not guilty, the judge would order the jury to find him guilty and that Mr Kashyap told him that if he accepted the resolution proposal Mr Kashyap could secure the discharge without conviction, Mr Ali accepts now that matters may have been put to him as Mr Kashyap describes. There is no basis to find that Mr Kashyap deliberately or mistakenly misrepresented to Mr Ali the trial process and judge and jury roles or the sentencing outcome upon the proposed resolution. …
[6]Emphasis added.
The Judge held that there would be no miscarriage of justice if Mr Ali’s guilty plea was not set aside because Mr Kashyap’s actions were “not so wrong as to induce Mr Ali’s decision to plead guilty under mistaken belief about the availability and viability [of] potential defences”.[7] In addition, the Judge found that “Mr Ali knew what he was doing upon entry of the guilty plea and the likely consequences and legal significance of the facts”.[8]
Appeal of Judge Otene’s decision
[7]At [28(a)].
[8]At [28(b)].
Mr Ali sought leave to appeal Judge Otene’s decision. On 8 November 2023, this Court declined to grant leave because Mr Ali’s proposed appeal concerned matters of fact rather than issues of law.[9] There was accordingly no jurisdiction to entertain the appeal under s 296 of the Criminal Procedure Act 2011.
Sentencing decision
[9]Palmer J’s decision, above n 3, at [4].
At his 11 March 2024 sentencing, Mr Ali sought discharge without conviction on the basis that the consequences of a conviction on his reputation and ability to travel would be disproportionate.[10] His counsel acknowledged the key argument of his application was the impact on his ability to travel.[11] Mr Ali provided affidavit evidence of his overseas trips in 2022 and 2023, his purchase of a NZD $5 million interest in an apartment complex in Thailand in 2023 and his intention to purchase apartments in the United States and Dubai.[12] Mr Ali explained his plan was to live overseas most of the year and to come to New Zealand for one to two weeks every two months for business.[13]
[10]Judge Forrest’s decision, above n 4, at [10].
[11]At [10].
[12]At [11]–[13].
[13]At [13].
The Judge considered the gravity of the offending to be moderate.[14] Her Honour found that, as to wider considerations, Mr Ali had attempted to undermine his guilty plea and resile from the summary of facts which he had accepted on 1 February 2022.[15] The Judge held that the guilty plea had been upheld by Judge Otene and by this Court, and consequently she was required to proceed on the basis of the accepted summary of facts.[16] The Judge noted that Mr Ali had attended a non‑violence course a couple of years earlier. However, on the other hand, she found that Mr Ali had consistently sought to resile from his guilty plea and, rather than show remorse, sought to blame the victim. Therefore, taking all these factors into account, the Judge maintained her finding that the gravity of the offending was moderate.[17]
[14]At [16].
[15]At [17].
[16]At [18].
[17]At [19]–[20].
As to the impact of conviction on Mr Ali’s intended travel, the Judge noted that Mr Ali was already required to apply for a visa (although he seemingly did not) when travelling to the United States due to his previous conviction for excess blood alcohol. Further, the Judge noted that only crimes of “moral turpitude” (such as rape, kidnap, manslaughter, murder and forgery) would preclude Mr Ali from traveling to the United States. She concluded that a conviction on this charge would likely not preclude Mr Ali from being granted a visa to travel to the United States.[18] The Judge also noted that Mr Ali had not filed anything about his ability to travel to other destinations.[19] On the other hand, she did not accept the Crown’s submission that Mr Ali’s travel was only speculative, given the evidence of his many overseas trips.[20]
[18]At [23].
[19]At [24].
[20]At [25].
The Judge also noted a shift in Mr Ali’s position from his 10 March 2022 affidavit where he said that he wished to travel the world to holiday with his children. This was different from his claims advanced at the 2024 sentencing, and the Judge noted that it had been a considerable period of time since Mr Ali had had contact with his children.[21] Ultimately, she considered that the consequences of a conviction would not be out of all proportion to the gravity of the offending. Instead, they were the usual consequences that flow from offending of this nature.[22] The Judge declined the application for discharge without conviction and specifically stated that this was:
[28] … not to say that, as I have indicated you do not have a good character, which I accept you do and that you have taken steps towards rehabilitation and that you are eligible also for a modest discount for those matters and for your early guilty plea.
[21]At [26].
[22]At [27].
As mentioned, Mr Ali was then sentenced to supervision and ordered to pay an emotional harm reparation payment of $2,000 to the victim.[23]
Evidence on appeal
[23]At [30].
Mr Ryan, for Mr Ali, sought to adduce CCTV footage of the house at the time of the offending as fresh evidence. He contended that the CCTV footage was available to trial counsel prior to Mr Ali entering a guilty plea and ought to have been put in evidence earlier in the proceeding. Mr Ali and Mr Kashyap filed fresh affidavit evidence and were cross‑examined at the appeal hearing.
We were conscious of a number of affidavits and cross‑examination transcripts already before the Court, being the evidence made available in the District Court. We also considered the CCTV footage is only relevant as it relates to whether trial counsel erred in his assessment of the footage. However, given the proposed evidence was constrained, cogent and relevant to the issues, we allowed its admission.
Approach on appeal
Under s 232(2)(c) of the Criminal Procedure Act, this Court must dismiss Mr Ali’s conviction appeal for trial counsel error unless it is satisfied that a miscarriage of justice has occurred. “Miscarriage of justice” is defined in s 232(4) as:
(4)… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
An appeal against conviction following a guilty plea will only be entertained in exceptional circumstances.[24] This may include where a defendant pleaded guilty on the basis of incorrect advice as to the non‑availability of certain defences or outcomes.[25] However, the Court will need to assess the proposed defence to determine whether what has occurred has given rise to a miscarriage of justice. The existence or assertion of a possibly viable defence is insufficient.[26] Moreover, an appeal will rarely succeed where the defendant received competent and correct legal advice before the plea or, except in “very rare circumstances”, if the Court is satisfied that the plea was made freely and on an informed basis.[27]
[24]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[25]R v Merrilees [2009] NZCA 59 at [34]; Watts v R [2011] NZCA 41 at [22]; and Sharp v District Court at Whangarei [1999] NZAR 221 (HC) at 230.
[26]Penniket v R [2016] NZCA 154 at [8]; and Nixon v R [2016] NZCA 589, (2016) 28 CRNZ 698 at [9]–[11].
[27]R v Merrilees, above n 25, at [35]. See also R v Stretch [1982] 1 NZLR 225 (CA) at 229.
As to Mr Ali’s appeal against Judge Forrest’s refusal to grant discharge without conviction, this is an appeal against conviction.[28] An application for discharge without conviction is guided by s 107 of the Sentencing Act 2002. This Court must determine whether a miscarriage of justice has arisen because of a material error made by Judge Forrest in entering Mr Ali’s conviction or if, “for any reason”, her Honour erred in applying the principles found in s 107 for discharging an offender without conviction.[29] The threshold test in s 107 is a matter of fact requiring judicial assessment and is subject to appeal on normal appellate principles.[30]
Appeal against conviction — trial counsel error
[28]Charteris v R [2025] NZCA 244 at [6]; and De Souza v R [2024] NZCA 637 at [11].
[29]Gaunt v Police [2017] NZCA 590 at [9]; and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
[30]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Doyle v R [2022] NZCA 307 at [15].
Mr Ryan submitted that, due to trial counsel error, Mr Ali did not receive adequate advice about the implications of pleading guilty before entering his guilty plea or advice as to the availability of self‑defence. Counsel contended that, as Judge Earwaker indicated, Mr Kashyap’s intended defence of necessity would have been inappropriate. Mr Ryan argued that while a necessity argument would have lost, a self‑defence argument could have been successful: the complainant was involved in a physical altercation with Mr Ali, who honestly believed he needed to defend himself and used reasonable force to do so. Counsel submitted that Mr Kashyap failed to present CCTV footage of the incident which would have helped to show the nature of the alleged offence. This footage was made available to Mr Kashyap before the trial and before Mr Ali pleaded guilty.
In addition, and as referred to in Mr Ali’s affidavit of 15 October 2024, Mr Ryan contended that Mr Ali did not read the summary of facts nor appreciate their meaning or the full ramifications of him initialling the summary. Counsel argued that, overall, the conviction should be quashed and the matter remitted to the District Court.
Ms Hoskin submitted that Mr Ali was represented by counsel, fully appreciated the merits of his position and made an informed decision to plead guilty. There are no exceptional circumstances that could provide a basis for vitiating Mr Ali’s guilty plea. Counsel argued the evidence does not show Mr Ali was incorrectly advised of the availability of self‑defence or that he was unaware of the implications of pleading guilty. Mr Kashyap’s affidavit showed that Mr Ali ventured self‑defence as an explanation for his actions at the outset, but that Mr Kashyap did not believe this argument would be successful. Mr Kashyap thought the CCTV footage was inconsistent with Mr Ali’s account and advised him to that effect.
Ms Hoskin highlighted that Mr Kashyap advised Mr Ali that his best option was to accept the Crown’s proposal to plead guilty to a single (and hopefully reduced) charge, to get his other charges withdrawn and to then use his guilty plea to assist in obtaining a discharge without conviction. Counsel submitted that this was a relatively favourable outcome. The Crown withdrew the charges of assault on a child and strangulation, neither of which would have been amenable to a self‑defence narrative. Despite Mr Kashyap failing to have the male assaults female charge reduced to common assault, the Crown made favourable amendments to the summary of facts. Balanced against a weak self‑defence argument, Ms Hoskin contended it was unsurprising Mr Ali accepted Mr Kashyap’s advice to plead guilty.
Counsel referred to Mr Kashyap’s evidence that these developments were discussed with Mr Ali beforehand and that Mr Kashyap had no reason to doubt Mr Ali fully understood the summary of facts. As noted by Judge Otene, Ms Hoskin reiterated that Mr Ali had demonstrated a robust approach to his defence and was able and willing to depart from Mr Kashyap’s advice.[31]
[31]Judge Otene’s decision, above n 2, at [21].
For completeness, Ms Hoskin submitted that Mr Kashyap was correct to conclude that self‑defence was not supported by the CCTV footage and was untenable. Self‑defence was also not readily available on Mr Ali’s narrative, which has been repeatedly, and inconsistently, given — for example, Mr Ali’s affidavit of 27 February 2024 suggested his actions were in fact accidental.
Counsel argued that Mr Ali’s assertion he did not understand the implications of pleading guilty is opaque and he has not specified what he mistakenly thought would be the result. To the extent Mr Ali seeks to revive his prior suggestion that trial counsel advised him he would be discharged without conviction, Mr Kashyap confirmed that no such assurance was given. Ms Hoskin submitted that Judge Otene was correct in concluding that “Mr Ali knew what he was doing upon entry of the guilty plea and the likely consequences and legal significance of the facts”.[32]
Discussion
[32]At [28(b)].
This issue was squarely considered by Judge Otene and she concluded that a miscarriage of justice would not result if Mr Ali’s guilty plea was not set aside.[33] This Court was not prepared to grant leave to appeal her decision as there was no appealable question of law.[34] At sentencing, Judge Forrest was not prepared to relitigate Mr Ali’s application to withdraw his guilty plea.[35] However, in considering Mr Ali’s appeal against conviction on the basis of trial counsel error, we are, in effect, asked to do exactly that. In these unusual circumstances, we focus our discussion on the arguments advanced on appeal and the accompanying evidence. As the appeal is brought under s 229 rather than s 296 of the Criminal Procedure Act, the question we must now consider is whether a trial counsel error exists which resulted in a miscarriage of justice, not whether Judge Otene erred regarding a question of law.
[33]At [29].
[34]Palmer J’s decision, above n 3, at [3]–[4].
[35]Judge Forrest’s decision, above n 4, at [18].
Mr Ali claimed he was reliant on the advice of Mr Kashyap and was heavily guided by him due to Mr Ali’s poor comprehension of English. He claimed he signed the summary of facts without reading it, as he had relied on Mr Kashyap’s “loose” explanation in Hindi. Mr Ali was tested on his claimed lack of comprehension during cross‑examination. He was adamant that his affidavits were drafted by Mr Kashyap, his Facebook posts were written by his wife and his business communications were transcribed into English by his staff. However, Mr Ali only first raised this purported lack of understanding in his 15 October 2024 affidavit, despite having sought to impugn counsel and vitiate his guilty plea as early as 30 September 2022. Moreover, seven out of eight affidavits affirmed by Mr Ali did not require translations, and none of his appearances, including where he was cross‑examined, required an interpreter.
While we doubt Mr Ali’s claim to have poor comprehension of English, we consider it is unnecessary to make a finding on this since Mr Ali and Mr Kashyap largely communicated in Hindi. Mr Ali accepted that after receiving a reporting email from Mr Kashyap, Mr Kashyap would then call him to explain its contents. The relevance of the written material being in English is thus somewhat lessened by the oral advice provided in Hindi by Mr Kashyap during their conversations. It is also clear from the evidence, as remarked by Ms Hoskin and Judge Otene, that Mr Ali was capable of departing from Mr Kashyap’s advice and had done so previously.
On the evidence before Judge Otene, Mr Ali accepted that matters may have been put to him as described by Mr Kashyap. As Mr Kashyap explained, on the morning of trial there were several negotiations between the Crown and Mr Ali (taking up most of the morning) before Mr Ali finally agreed to accept the current summary of facts. Mr Kashyap accepted that he did “persuade” Mr Ali to enter a guilty plea but did not resile from the position that Mr Ali fully understood what was stated in the amended summary of facts. We find there is no evidence to support the claim that Mr Kashyap failed to explain the merits of Mr Ali’s position to him or otherwise obscured the details of the Crown resolution proposal to inappropriately induce Mr Ali into pleading guilty. We find that there was no sufficient trial counsel error in this account to give rise to a miscarriage of justice.
Mr Ryan also contended a self‑defence argument was available and ought to have been run in lieu of the defence of necessity. We disagree. Having had the benefit of reviewing the CCTV footage, we can see no error with Mr Kashyap’s assessment that a self‑defence argument would fail and that the footage would not support such an argument. It follows there is also no error in Mr Kashyap’s decision to decline to put the CCTV footage in evidence.
Though it is regrettable Mr Kashyap was not as familiar with the defence of necessity as he should have been — a point which Mr Kashyap accepted — his pursuit of it was not to the exclusion of any other, more viable defences. The self‑defence argument lacked substance and, therefore, the fact it was not run has not led to a miscarriage of justice.[36] Mr Ali’s position was challenging, with few available options if he continued to trial. Neither self‑defence nor the defence of necessity were, in our assessment, likely to succeed. As this Court observed in R v Merrilees:[37]
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[36]See Cooper v R [2013] NZCA 551 at [20]–[21].
[37]R v Merrilees, above n 25.
Mr Kashyap fulfilled his professional duties in advising Mr Ali that his best option was to plead guilty to a single charge in order for the other charges to be withdrawn and favourable changes made to the summary of facts. We consider there was no miscarriage of justice arising from that advice.
Appeal against conviction — discharge without conviction
Mr Ryan submitted that Mr Ali accepts the seriousness of his alleged offending. However, weighing the low overall gravity of the offending against the consequences of a conviction to Mr Ali’s business interests, counsel contended a conviction was disproportionate. Mr Ryan argued that the gravity of Mr Ali’s offending was less serious than the offending in other cases where discharges without conviction were granted.[38]
[38]Referring to Singh v R [2020] NZHC 491; Sunda v Police [2019] NZHC 756; and Worthington v R [2020] NZHC 377.
Mr Ryan noted that Mr Ali has only one previous conviction, for excess breath alcohol over 30 years ago when Mr Ali was only 22 years old. He is now 55 years old. Accordingly, counsel contended that Mr Ali can legitimately be treated as a first‑time offender of previous good character. Taking into account the nature of the offending, Mr Ali’s personal mitigating factors and the outcomes in similar cases, Mr Ryan argued that the gravity of the offending should be assessed as low.
As to the potential impacts of conviction, counsel submitted there is a real and appreciable risk that Mr Ali’s overseas business interests will be negatively affected. He is the director of several companies and is engaged in property development here and overseas. Mr Ryan contended this requires regular travel to Australia, the United States and Thailand, and argued that a conviction would jeopardise Mr Ali’s business by impairing his ability to travel. In particular, counsel noted that Mr Ali is completing a property development in the United States that often requires his presence at short notice. Mr Ryan submitted it is uncertain whether Mr Ali would be able to continue to travel to the United States if convicted. Counsel also contended that the entering of a conviction is, itself, a direct consequence to which the Court may have regard, especially considering this is Mr Ali’s first conviction since 1992.[39]
[39]DC (CA47/2013) v R [2013] NZCA 255 at [44].
Mr Ryan acknowledged that the risks relating to Mr Ali’s travel are not definite. However, counsel referred to Evans v Police and Tait v Police as cases showing that, although there may be no direct evidence regarding a reduced ability to travel, generic adverse consequences flowing from conviction could support an application for discharge without conviction.[40] Mr Ryan also referred to Brewer J’s acknowledgement in George v Police that sometimes the consequence of subjecting an offender to the scrutiny of a decision‑making body would, itself, be undue.[41]
[40]Evans v Police HC Wellington CRI-2009-485-97, 6 November 2009 at [14]–[15]; and Tait v Police [2015] NZHC 1601 at [27]. See also Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].
[41]George v Police [2014] NZHC 1725 at [46].
Counsel argued that a real and appreciable basis has been established which shows that the consequences of a conviction would be disproportionate to the low gravity of the offending. Therefore, submitted Mr Ryan, a discharge without conviction is appropriate and should have been granted.
Ms Hoskin submitted that Judge Forrest correctly characterised the gravity of the offending as moderate. It was a persistent incident of domestic violence committed in front of the couple’s six children. Counsel argued the preceding interplay involving the mobile phone does not diminish the gravity of the offending, nor is its assessment assisted by Mr Ali’s ongoing attempts to blame the victim. Equally, Ms Hoskin submitted that the Judge was correct not to reduce the gravity of the offending on account of Mr Ali’s guilty plea, which he consistently has sought to resile from, or for remorse, of which he has shown none.
Counsel submitted that Mr Ali has not provided any evidence to support his claim that his overseas business interests, as a director of various companies, requires his regular travel to Australia, Thailand and the United States. In contrast, Ms Hoskin points to Mr Ali’s previous affidavits in support of his s 106 application in which he said he wished to travel on holiday. The only previous affidavit to potentially allude to offshore business interests is that of 7 March 2024. Moreover, counsel submitted that the overseas purchases and overseas travel discussed in that affidavit occurred after Mr Ali’s offending and guilty plea. Importantly, as discussed by Judge Forrest, counsel also argued there is no evidence an assault conviction would preclude Mr Ali from future travel to any of his preferred destinations.
Discussion
In assessing the gravity of offending as moderate, Judge Forrest was alive to the wider circumstances, including Mr Ali’s post‑offending conduct. Her Honour recognised that Mr Ali’s good character and completion of a non‑violence course needed to be weighed against his affidavit evidence, where he denied responsibility for the offending and sought to resile from the amended summary of facts. The authorities cited by Mr Ryan do not change this assessment. Although some of the offending in those cases involves more serious violence, Mr Ali lacks many of the mitigating factors present in those cases — for example, remorse and the support of the victim. We agree with the Judge’s finding that the totality of Mr Ali’s conduct does not justify the gravity of the offending as being anything less than moderate.
Mr Ali has also not met the evidential burden to show any direct consequences flowing from the conviction. His claim that his business interests require frequent overseas travel is problematic. Despite providing travel itineraries for 10 international trips between 2022 and 2023, there is no guarantee that his business interests require future travel, and no evidence of any pending. Even if future travel was required, he has not demonstrated how a conviction would impede that. If Mr Ali is required to declare his conviction in his visa application to the United States, it is unclear why this is burdensome as he has a pre‑existing conviction and was still able to travel there in July 2023. Whether Mr Ali’s travel is for personal or business purposes (which was closely contested on appeal), we are not satisfied the conviction entered will cause any real disruption to those travel plans on the evidence before us.
Although there may be general, unspecified and indirect consequences of a conviction, as argued by Mr Ryan, we do not consider that any such consequences are disproportionate to the moderate gravity of the offending. As the Judge concluded, they are the usual consequences that flow from offending of this nature. We therefore do not consider the Judge erred in refusing to grant a discharge without conviction.
Result
The application to adduce fresh evidence on appeal is granted.
The appeal against conviction is dismissed.
Solicitors:
Brookfields Lawyers, Auckland for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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