Bandara v Police
[2024] NZHC 134
•9 February 2024
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 that she had contracted COVID-19 as she claimed.6 Second, Ms Bandara had also stated she contracted COVID-19 when she was in Melbourne, which was in February 2023.7 Finally, the flight confirmations submitted as evidence did not have Ms Bandara’s name on them — only an email address.8 There was, therefore, nothing to prove the flights were Ms Bandara’s.
3 Police v Bandara [2023] NZDC 17708 at [9], [16]–[18] and [20].
4 Section 122 Decision, above n 2, at [14].
5 At [5] and [8].
6 At [23].
7 At [5] and [9].
8 At [21] and [24].
[7] The Judge then went on to consider whether proceeding with the trial in Ms Bandara’s absence would be contrary to the interests of justice, as required by s 122(4). Mr Dye submitted that because Ms Bandara had a stroke in 2022, he had not been able to get instructions from Ms Bandara since May 2022.9 The Judge did not consider that proceeding with the trial was contrary to the interests of justice as Mr Dye had been recorded as counsel since August 2018.10 Further, there was a signed statement by Ms Bandara which was to form part of the evidence at trial.11 The Judge, therefore, dismissed the application.
Substantive decision
[8] At the end of the prosecution case the appellant sought to have the charges dismissed under s 147, but this was dismissed.12 She was subsequently convicted by a further decision dated 8 March 2023.13 The Judge outlined the elements of the offence namely that:14
(a)Ms Bandara obtained a pecuniary advantage of $10,000;
(b)Ms Bandara did so by deception;
(c)Ms Bandara intended to deceive another person;
(d)Ms Bandara’s deceptive conduct played a material part in obtaining the
$10,000; and
(e)Ms Bandara did so without claim of right.
[9] The Judge considered that the central issues at trial were whether Ms Bandara deceived and intended to deceive the victim into giving her $10,000 at Auckland International Airport on 19 March 2018.15 It was accepted that the victim had given
9 At [10] and [26].
10 At [26].
11 At [27].
12 Police v Bandara [2023] NZDC 4465 [Section 147 Decision].
13 Police v Bandara, above n 3.
14 At [5].
15 At [6].
Ms Bandara the money. But Ms Bandara’s statement to Police was that she received the $10,000 for gold jewellery.16 She said that the victim’s wife, who was also at the airport when the money was handed over, went away to the car to get traditional Sri Lankan food when the money was exchanged for the jewellery.17 The victim denied this. The victim’s wife’s evidence was that she was there when the money was handed over.18 She watched Ms Bandara count the money and she did not leave to get the food.19 The Judge preferred the evidence of the victim and his wife in relation to this dispute.20
[10] The Judge also rejected Ms Bandara’s assertion that the victim had made a false report for the Court to give him money he was not entitled to.21 Given the Judge’s findings about the reasons for the $10,000 and that Ms Bandara did not have a claim of right to this money, he considered that the elements of the offence were proven and Ms Bandara was guilty of obtaining $10,000 by deception.22
[11] After being found guilty of the offence, Ms Bandara unsuccessfully applied for a discharge without conviction on 2 November 2023.23
Grounds of appeal
[12]Ms Bandara appeals her conviction on the following grounds:
(a)The Judge erred in proceeding with the trial in Ms Bandara’s absence as she had a reasonable excuse, and it was in the interests of justice for an adjournment to be granted;
(b)The Judge erred in relying on hearsay evidence and/or drawing inferences not available on the facts in finding Ms Bandara guilty;
16 At [7].
17 At [7].
18 At [8].
19 At [8].
20 At [9].
21 At [19].
22 At [20].
23 See Police v Bandara [2023] NZDC 24259.
(c)The Judge failed to consider the tri-partite direction and/or shifted the burden of proof to Ms Bandara; and
(d)The Judge failed to appropriate apply the standard of proof.
Approach to appeal
[13]Section 232 of the CPA relevantly provides:
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
…
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
[14]Section 232(4) defines “miscarriage of justice” as follows:
(4)In subsection (2), miscarriage of justice means 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.
[15] Appeals under s 232(2)(b) are conducted by way of rehearing, with an onus on the appellant to show that an error has been made.24 The customary caution must be exercised to reflect the trial judge’s advantage in hearing the evidence in the first instance.25 If the appellate court comes to a different view than the trial judge on the evidence, the appeal must be allowed.26
[16] Under s 232(2)(b) and subs (4), a two-step inquiry is required.27 The appellant must first establish that there was an error, irregularity, or occurrence. If so, then they
24 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [28] and [38]–[40] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768.
25 At [38]–[40].
26 At [38].
27 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
must establish any of the consequences under subs (4)(a) or (4)(b) occurred. In terms of subs (4)(a), the appellate court must be satisfied that there is a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong. The use of the term “real” in subs (4)(a) means the inquiry is concerned with realistic, rather than theoretical possibilities.28 In terms of subs (4)(b), the Court of Appeal in Wiley v R described the inquiry as follows:29
Not every error, irregularity or occurrence will result in an unfair trial as … [t]he assessment is to be made in relation to the trial overall. The Supreme Court referred to Lord Bingham’s observation in Randall that there will come a point when a departure from good practice is so gross, or so persistent, or so prejudicial, or so irremedial, an appellate court will have no choice but to condemn the trial as unfair and quash the conviction as unsafe.
…
If the court finds there has been an unfair trial in terms of subs (4)(b), it is unnecessary to consider whether this may have affected the outcome of the trial. Section 232(4)(b) assumes that if an accused person has not received a fair trial then any conviction arising must be set aside. This is consistent with the authorities establishing that a conviction resulting from an unfair trial cannot be sustained even if a different outcome was unlikely or a conviction was inevitable.
Ground one: proceeding in Ms Bandara’s absence
[17] This ground of appeal concerns the Judge’s application of s 122 of the CPA. Section 122 of the CPA applies when a defendant is required to be present at the trial but does not appear. It relevantly provides:
122Non-attendance of defendant at trial for offence in category 2, 3 or 4
…
(2)If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant’s absence will not prejudice his or her defence.
(3)If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:
(a) proceed with the trial in the absence of the defendant:
28 At [28].
29 At [35] and [37].
(b) issue a warrant to arrest the defendant and bring him or her before the court.
(4)Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.
(5)Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 121(4).
[18] Section 121(4) provides the following matters must be considered in assessing whether proceeding without the defendant would be contrary to the interests of justice:
(a)any information available to the court about the reasons for the defendant’s absence:
(b)any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:
(c)the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:
(d)the nature and seriousness of the offence:
(e)the interests of any co-defendant.
[19] Under the CPA a defendant has a general right to be present in Court during any hearing of charges against them.30 Moreover under s 25(e) of the New Zealand Bill of Rights Act 1990, a defendant has a right to be present at their trial and to present a defence. This is an absolute right, and if in the circumstances of the trial as a whole the right has been breached, the trial will be regarded as unfair for the purposes of s 232(4)(b) of the CPA.31
[20] In Kumar v R the Court of Appeal identified that the factors identified by the House of Lords in R v Jones can be relevant to the consideration of the interests of justice under s 121.32 In the end the overriding concern is to ensure that the trial is as fair as circumstances permit, and that it leads to a just outcome.
30 Criminal Procedure Act 2011, s 117.
31 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77].
32 Kumar v R [2013] NZCA 77, [2013] 3 NZLR 201 at [26] and [75]; R v Jones [2002] UKHL 5,
[2003] 1 AC 1 at [14].
[21] In this case there was an important background that is relevant to the Judge’s assessment that the appellant did not have a reasonable excuse for her non-attendance, and to any subsequent assessment whether it was contrary to the interests of justice to proceed in her absence. That is the very lengthy history associated with prior adjournments. In particular:
(a)The trial was originally set down for 1 July 2019, Police successfully sought an adjournment as the complainant was unavailable.
(b)The trial was then scheduled for 28 April 2020. Counsel for Ms Bandara successfully sought an adjournment as Ms Bandara was in Australia and unable to return to New Zealand due to COVID-19 restrictions.
(c)The trial was rescheduled for 14 June 2021. Counsel for Ms Bandara then successfully sought an adjournment as Ms Bandara was in Australia and was unable to arrange flights in time for the trial.
(d)The trial was rescheduled for 1 April 2022. Counsel for Ms Bandara sought an adjournment as she was in Australia and advised she had contracted COVID-19, so had not booked return flights. The Police applied for the trial to proceed in Ms Bandara’s absence. The District Court Judge nevertheless granted the adjournment of the trial.
(e)The trial was next rescheduled for 27 June 2022. But counsel for Ms Bandara sought an adjournment as she was out of the country. This was again granted.
(f)The trial was further rescheduled for 6 December 2022. Counsel for Ms Bandara then sought an adjournment to arrange for a communications assistance following a stroke suffered by Ms Bandara in May 2022. This was not opposed by Police, but it was indicated that the Police would seek that the trial proceed in her absence if she was not present at the next date.
(g)The trial was next rescheduled for 7 March 2023. On 7 February 2023, counsel for Ms Bandara then sought that the hearing be adjourned based on medical advice from Dr Alex Stepanov, which suggested that Ms Bandara needed another three to six months to recover from the stroke she had in May 2022. On 22 February 2023, Judge Hinton declined the application due to the history of the matter, the medical advice, and the engagement of a communications assistant.
(h)The appellant nevertheless made the further application to adjourn the trial the day before the trial. This was declined. This is the decision challenged under appeal.
[22] I agree with the District Court Judge against that background that the appellant did not present a reasonable excuse for non-attendance. It would have been apparent that persuasive and verifiable information would have been necessary to demonstrate that the trial should be yet again adjourned, especially after Judge Hinton’s decision on 22 February 2023. But the material provided was not sufficient to establish a reasonable excuse for not attending. The information provided concerning her air tickets did not show that those tickets were booked in her name. Neither was there any independent evidence that she had again contracted COVID-19.
[23] I also agree with the District Court Judge that, on the face of it, it was not contrary to the interests of justice to proceed in Ms Bandara’s absence having regard to the matters in s 121(4). The background is again important given the delays occasioned by earlier adjournments. The most important factor relied upon by the appellant is that the case turned on credibility issues, and that there was an injustice because Ms Bandara was not present to give her side of events. But there are two responses to that concern. The first is that the Ms Bandara was not denied an opportunity to present evidence — for the reasons referred to above she had the ability to attend the hearing but had effectively elected not to do so, and had been put on notice that the matter could proceed in her absence. Second, she was able to put her side of the story to the prosecution witnesses through her counsel during cross-examination. The statements that she had made to Police, which provided her
alternative explanation for the payments that had been made by the victim, was also able to be put the witnesses.
[24] As indicated, the ultimate question is whether the trial has been as fair as circumstances permit, and whether there has been a just outcome. I consider that the previous decisions of the Court, and then the decisions of the trial Judge, evidence a real concern to ensure that this was a fair trial, and that the trial was conducted as fairly as the circumstances permitted. It was not contrary to the interests of justice for the trial to proceed.
[25]For these reasons this ground of appeal is dismissed.
Ground two: hearsay and inferences
[26] The second key ground of appeal is that Ms Bandara could not have been found guilty unless there was an implicit finding that the victim’s brother-in-law did not receive a visa to enter New Zealand. Mr Dye argued that there was no direct evidence to confirm that the brother-in-law was not provided with a visa. Further, any evidence which indicated the brother-in-law did not receive a visa was hearsay. The evidence from the victim and his wife that the victim’s brother-in-law was still in Sri Lanka did not provide an evidential basis that he was not provided with a visa. There are a number of reasons the brother-in-law could have chosen not to come to New Zealand. In the absence of evidence about the visa, the prosecution could not prove that Ms Bandara deceived the victim.
[27] I accept Ms Squires’ submissions, for the Police, however, that whether the brother-in-law obtained a visa or not was not an element of the charge. The relevant elements were whether Ms Bandara intentionally deceived the victim and obtained a pecuniary advantage as a consequence. The relevant deception alleged here was that Ms Bandara falsely represented she was able to assist in obtaining a visa for the victim’s brother-in-law knowing she could not do so. It was not necessary for the Police to prove that the victim’s brother-in-law was not issued a visa to prove this charge.
[28]This ground of appeal is accordingly dismissed.
Grounds three and four: the tripartite direction, the onus of proof, and the burden of proof
[29] Mr Dye submitted that the Judge found Ms Bandara guilty solely because he did not accept her evidence. The Judge failed to then put Ms Bandara’s explanation to one side and consider whether the prosecution proved their case in accordance with the standard tripartite direction provided at jury trials. Instead, the Judge moved straight from a rejection of Ms Bandara’s explanation to a finding of guilt. In doing so, the Judge reversed the burden of proof. Mr Dye further submits that the Police evidence fell short of establishing deception beyond reasonable doubt.
[30] I accept that there are material deficiencies in the District Court Judge’s decision. The Judge correctly identified the elements of the offence, but then proceeded on the basis that the required elements of deception, and the intention to deceive, were addressed by the Court accepting or rejecting Ms Bandara’s alternative explanation for the payment. This proceeded on the basis that once the Court had rejected her explanation, and accepted the evidence of the prosecution witnesses that the payments were made to procure a visa, the elements of the charge were proved.
[31] That was not the case. There were two relevant elements of the charge that the Judge did not address. The first element was that there was a deception — in this context that by her words and conduct Ms Bandara made false statements to the victim which formed a material part in obtaining the money. The Judge did not address this element. Indeed at no stage in the Judge’s reasons for verdict, or the earlier s 147 decision, did the District Court identify what the false representation actually was. There is then the next element of the offence — that Ms Bandara intended to deceive the victim. In the present case that would involve the Police proving that Ms Bandara knew that her representations were false. It would not be enough to prove that Ms Bandara represented that she could procure a visa. It would be necessary to prove that she also knew that this statement was false.
[32] In Sena v Police the Supreme Court explained the significance of the failure to address the element of the offence in the reasons for verdict in the following way:33
33 Sena v Police, above n 24, at [36].
… We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. …
[33] These considerations arise in the present case. As to the first element — that Ms Bandara’s representations to the victim were false — the prosecution case was reasonably clear. Under s 6 of the Immigration Advisers Licensing Act 2007 no person could provide immigration advice as defined in s 7 unless licensed under the Act. The procurement services that Ms Bandara represented she could provide fall within the definition. Evidence was presented that Ms Bandara did not hold such a license. So for Ms Bandara to represent that she was able to procure, or assist in procuring the visa was false. She was not able to do so under the legislation. Were this the only concern with the District Court decision it is unlikely that I would have allowed the appeal. That is because the prosecution case on this element was reasonably clear, supported by the evidence, and the Court’s findings on this element could be said to be implicit. The witnesses gave evidence that Ms Bandara represented she would be able to facilitate the grant of a visa to the victim’s brother-in-law, and that this was not true. The deficiency of the Court’s reasoning in this respect does not, in itself, mean there has been a miscarriage of justice, or result in an unfair trial giving rise to a miscarriage of justice.
[34] But there is the second important element. The prosecution needed to show that the misrepresentation was intentional — that is, that Ms Bandara had been dishonest. This would mean that the Police would have to prove that Ms Bandara knew that she was unable to assist in the procuring of the grant of a visa to the victim’s brother-in-law. At no point did the Judge address that element and make appropriate findings. Rather he proceeded on the basis that, once he had dismissed Ms Bandara’s alternative explanation for the payment, the charges were proved. But he needed to
address whether the Police had proved that Ms Bandara had intentionally made a false representation which had played a material part in inducing the payment.
[35] There are two factors in particular that might be said to show that Ms Bandara was dishonest:
(a)In her interview with police she explained that she had previously worked for a company who brought workers from Sri Lanka to New Zealand on work visas, but that that had stopped in 2010 when Immigration policy had changed. This may imply that she knew that she could no longer engage in work offering to procure visas in this way.
(b)She then offered the explanation at the interview that she did not do any “visa work” at all, and had not said that she would assist in obtaining a work visa for the victim’s brother-in-law for the payment of NZ$10,000, but rather that this payment was for jewellery. The offering of this false alternative explanation for the payment could be taken as evidence that she knew that a representation that she could assist in obtaining him a visa was false.
[36] But I do not accept that these factors by themselves can safely lead me to conclude, on appeal, that she acted dishonestly. Earlier in this interview she said that she had authority to bring Sri Lankans to New Zealand to work and for training purposes, that they then completed courses, and they could then apply for work visas. She also said that she was entitled to charge people for this service, and had indeed done so in relation to the victim’s brother-in-law in relation to the US$10,000 he had paid her. That is evidence offered by Ms Bandara that she understood she was entitled to be paid for taking steps that would facilitate the grant of visas to a person.
[37] In those circumstances this evidence would have to be addressed in order to make a finding that she knew she could not facilitate or procure a grant of a visa to the victim’s brother-in-law, and had falsely represented that she could do so in her statements to the victim. The failure of the Judge to identify this element of the charge,
and then address that element in light of the evidence, is a significant error. I am satisfied there has been a miscarriage of justice for this reason, and that the conviction should be quashed.
Conclusion
[38] For these reasons the appeal is allowed and the conviction is quashed. The matter is remitted to the District Court where any question of a retrial can be considered.
Cooke J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent
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