Bandara v Police - [2024] NZHC 134

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-79

[2024] NZHC 134

BETWEEN
ROSE BANDARA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 February 2024

Appearances:

A Dye for Appellant

V E Squires for Respondent

Judgment:

9 February 2024

JUDGMENT OF COOKE J

[1] On 8 March 2023, Ms Rose Bandara was found guilty of one charge of obtaining by deception after a judge-alone trial conducted by Judge M Mika in the Lower Hutt District Court.1 The trial was conducted in Ms Bandara’s absence after she unsuccessfully applied to adjourn the trial.2 She now appeals her conviction.

[2] The Police’s general allegations in this case were that Ms Bandara was holding herself out as being able to procure work visas for people from Sri Lanka for a particular price. The specific charge was that she falsely represented to the complainant that she would be able to obtain a visa for his brother-in-law for $10,000. It was alleged that the victim and his wife met Ms Bandara at Auckland International Airport on 19 March 2018 where the victim gave Ms Bandara $10,000 in cash to complete the work to obtain the visa for his brother-in-law. The charge relates to this payment.

1 Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty of seven years’ imprisonment.
2 Police v Bandara [2023] NZDC 4369 [Section 122 Decision].

BANDARA v NEW ZEALAND POLICE [2024] NZHC 134 [9 February 2024]

[3] The Judge accepted that Ms Bandara had deceived the victim when receiving the $10,000, and he rejected the alternative explanation offered that Ms Bandara had received the $10,000 for jewellery, and not as a payment to secure a visa.3 Ms Bandara was convicted and sentenced to pay reparation of $10,000 and to come up for sentence if called upon in six months.

Procedural history

[4] The charge was first laid against Ms Bandara on 29 July 2018. There were a number of adjournments before the matter proceeded to the hearing in March 2023.4

Section 122 application

[5] The day before the trial, 7 March 2023, Ms Bandara applied for the trial to be adjourned pursuant to s 122 of the Criminal Procedure Act 2011 (CPA). Section 122 provides that if the Court is satisfied that the defendant has a reasonable excuse for their non-attendance it cannot proceed with the trial unless it is satisfied the defendant’s absence will not prejudice the defence. Mr Dye, for Ms Bandara, provided the Court with printouts of flights which were due to leave Sri Lanka on 3 March and land in Wellington on 6 March, with a stop in Melbourne along the way. Mr Dye explained that Ms Bandara had needed to attend a family bereavement in Sri Lanka and, while she was in Sri Lanka, she contracted COVID-19, so could not get on the flight back to Wellington.5

[6] The Judge did not consider that these factors constituted a reasonable excuse. First, there was no independent evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 134
Decision Date: 9 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Rose Bandara appeals her conviction for obtaining by deception, a charge stemming from her alleged misrepresentation to a complainant about her ability to secure a work visa for his brother-in-law. Bandara's appeal is based on several grounds, including the judge's decision to proceed with the trial in her absence and the judge's failure to properly address the elements of the offence in reaching the verdict. The court first considered whether the appellant had a reasonable excuse for her non-attendance, and whether it was in the interests of justice to proceed with the trial in her absence. The appellant had a history of seeking adjournments, and the court found that the reasons provided for her latest absence were insufficient to constitute a reasonable excuse. Furthermore, the court found that proceeding with the trial in her absence did not prejudice her defence or result in an unfair trial.

The court then examined whether the judge erred in finding the appellant guilty based on hearsay evidence and/or by drawing inferences not available on the facts. The court held that the absence of evidence that the brother-in-law did not receive a visa was not fatal to the prosecution's case, as the relevant elements of the offence were whether the appellant intentionally deceived the victim and obtained a pecuniary advantage as a consequence.

The court further analysed whether the judge failed to appropriately apply the standard of proof or shifted the burden of proof to the appellant. The court found that the judge did not properly address the elements of the offence and made an error in reasoning, leading to a miscarriage of justice. The failure to address the element of intentional deception meant that the conviction should be quashed, and the matter should be remitted to the District Court for further consideration.

In conclusion, the appeal was allowed, and the conviction was quashed. The matter was remitted to the District Court to consider any question of a retrial.

Orders