Banerjee v Police

[2018] NZHC 2446

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-209

[2018] NZHC 2446

BETWEEN

ANIRBAN BANERJEE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 September 2018

Appearances:

J C Harder for the Appellant

H E Savage for the Respondent

Judgment:

19 September 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 19 September 2018 at 12.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

J C Harder, Barrister, Auckland Meredith Connell, Auckland

BANERJEE v NEW ZEALAND POLICE [2018] NZHC 2446 [18 September 2018]

What happened?

[1]    Mr Anirban Banerjee, now aged 25, arrived in New Zealand from India in 2013 on a student visa. He completed his studies and obtained temporary work visas, working in the hospitality industry in Auckland full-time from August 2016. His last temporary visa expired on 28 November 2016. His brother has been a permanent resident in New Zealand since 2016 and also works in the United States. His parents spend half the year in India and, on temporary parents’ residents’ visas, in New Zealand.

[2]    At 2.00 pm 5 October 2016, in Glenfield, Mr Banerjee stopped a 17-year-old schoolgirl on a street and asked her in turn if she had bus money, a HOP card or cigarettes. When she said no, he suggested they have some cigarettes out of sight. She refused and tried to walk past him. He grabbed her arm, which she pulled away and walked quickly away.

[3]    For this, after a trial in the North Shore District Court on 6 March 2017, Judge A M Manuel found Mr Banerjee guilty of one charge of assault under s 9 of the Summary Offences Act 1981.1 She stated he was convicted but District Court records indicate no conviction was entered and an application for discharge was expected to be made. The offence carries a maximum sentence of six months’ imprisonment. Mr Banerjee applied for a discharge without conviction. The Police were neutral on the application. Judge Manuel declined the application on 16 June 2017, instead ordering Mr Banerjee to come up for sentence if called upon within six months.2 On 23 June 2017, Immigration New Zealand deported him to India on the basis he was in New Zealand without a valid visa.

[4]    Mr Banerjee appeals against his conviction and sentence, including the decision not to discharge him without conviction. In doing so, he seeks to adduce further evidence of the consequence of conviction, in the form of an affidavit by his only brother, Mr Arunava Banerjee. He attaches an opinion from an immigration

1      Police v Banergee [2017] NZDC 12208 [Conviction Judgment]. The District Court documentation recorded the defendant’s name as “Banergee” but the High Court documentation records it as “Banerjee” which counsel advises is correct.

2      Police v Banergee [2017] NZDC 12884 [Discharge and Sentence Judgment].

expert, a psychologist’s report and a letter of support from a Member of Parliament. The Crown objects to the evidence being admitted as either not fresh or for lack of cogency. However, I take the evidence into account, as expedient in the interests of justice under s 335 of the Criminal Procedure Act 2011 (the Act). In essence, it gives an account of Mr Banerjee’s current circumstances, including those of his family. It states Mr Banerjee is unable to support himself in India and requires financial support from his father and brother who are both in New Zealand. And I consider the report by the immigration expert evidence assists my decision.

Should the conviction be overturned?

Law of criminal appeal

[5]    Under s 232(2) of the Act, I must allow an appeal if satisfied Judge Manuel erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred. A miscarriage of justice means “any error, irregularity, or occurrence in or in relation to or affecting the trial” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”. Otherwise I must dismiss the appeal.

Submissions

[6]    Mr Harder, for Mr Banerjee, submits Judge Manuel took into account inadmissible evidence being witness statements which he submits was most important to the Judge’s findings on credibility.3 He also submits she wrongly took into account an unredacted inadmissible and prejudicial video interview. He relies on Guy v R.4 He submits the Judge must have been left with a reasonable doubt on the basis of the admissible evidence at trial. He submits the Judge erred in rejecting Mr Banerjee’s evidence as implausible. And he points to the complainant being in tears while giving evidence as demeanour evidence which should not have been taken into account.

[7]    Ms Savage, for the Crown, accepts Judge Manuel referred to a witness statement that should not have been taken into account but submits that has not

3      Conviction Judgment, above n 1, at [10] and [11].

4      Guy v R [2014] NZSC 165, [2015] 1 NZLR 315.

produced unfairness or a miscarriage of justice. She relies on Ogden v R.5 She submits the Judge told counsel she would disregard the unredacted parts of the video interview,6 and she was entitled to make the credibility findings she made. She submits the Judge’s hearing of the evidence should be given weight.

Decision on conviction

[8]    As Mr Harder submits, it is clear the Judge took into account witness statements which she should not have done. But, as the Court of Appeal found in a similar situation in Ogden, in the circumstances of this case I do not consider that gave rise to a real risk of an unfair trial or miscarriage of justice. I do not consider Guy v R, concerning a jury trial, assists Mr Banerjee.

[9]    Here, the only reference in the Judge’s summary to evidence not borne out at trial was that the complainant was grabbed by the right wrist not the right arm. That was not a material difference. Neither was the characterisation of where Mr Banerjee was standing. I accept Ms Savage’s submission the Judge’s decision has been reached primarily on the basis of the evidence given at trial.

[10]   Neither is there anything to indicate the unredacted video interview gave rise to unfairness. Judges often have to put aside inadmissible evidence in a trial. Judge Manuel said she would. Nothing indicates she did not. The Judge specifically noted in her judgment the interview was redacted. Mr Harder submits there are aspects of the Judge’s characterisation of the offending which reflects the prejudicial inadmissible material. But I do not agree. I considered the characterisation fair without knowing of the prejudicial material.

[11]   It is true the judge stated “[i]n the final analysis it is the consistency or inconsistency of the statements and the impressions I formed of the honesty and reliability of the two witnesses which have led to my decision in this case”.7 But the transcript of the complainant’s evidence was unwavering and straightforward, with little material inconsistency internally or under cross-examination. The witness

5      Ogden v R [2016] NZCA 21.

6      Notes of Evidence at 29/16–27 and 30/1–5.

7      Conviction judgment, above n 1, at [11].

statements did not affect that. And the key part of the Judge’s reasoning was her difficulty in reconciling Mr Banerjee’s evidence in chief with his police interview.8 Mr Harder may be correct that Mr Banerjee was concerned about the immigration consequences of his arrest in his responses to the police interview. But that is something the Judge was able to assess. So was the complainant’s evidence. On reviewing the case on appeal, I detect nothing to indicate the Judge was unfairly swayed by her demeanour. I consider Judge Manuel was entitled to prefer the complainant’s evidence over Mr Banerjee’s evidence

[12]   Despite Mr Harder’s well-argued submissions, I consider the Judge’s finding was available to her, she did not err and there was not a miscarriage of justice or unfair trial.

Should there have been a discharge without conviction?

Law of discharge without conviction

[13]   Section 107 of the Sentencing Act 2002, which “provides a gateway through which any discharge without conviction must pass”, states:9

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[14]   Under s 107 the court must undertake a three-step process: first, identify the gravity of the offence; second, identify the direct and indirect consequences of a conviction; and third, determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.10 The proportionality test is a matter of judicial assessment.11

[15]   If s 107 is satisfied, a court may discharge a guilty offender without conviction under s 106. A discharge is deemed to be an acquittal. It remains open to the court to

8      Conviction judgment, above n 1, at [11].

9      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

10     R v Hughes, above n 9, at [16]–[17].

11     H (CA680/11) v R [2012] NZCA 198 at [30].

decline to exercise its discretion to grant a discharge even if the consequences are out of all proportion to the gravity of the offence.12

[16]   As Asher J in Zhang v Ministry of Economic Development made clear, the courts often conclude the immigration consequences of a conviction should be resolved by the immigration authorities, rather than pre-empted by a court’s decision to discharge a conviction.13 That is particularly so where the details of the offending will be known to, and closely examined by, the relevant authority. He also said a court’s assessment of culpability may assist those authorities and there will always be finely balanced cases where a discharge may be warranted. In Rahim v Police, the Court of Appeal noted it is important to distinguish between whether it is the offender’s conduct or the conviction that gives rise to the consequences the offender wishes to avoid.14

[17]   Appeal of a decision on an application for a discharge without conviction is governed by the usual appeal principles. In essence, I need to decide whether I consider the decision was wrong.15

Submissions

[18]   Mr Harder submits Judge Manuel erred in immediately entering a conviction following the guilty finding at the 6 March 2017 hearing. He submits she erred at the 16 June 2017 hearing in finding the consequences of conviction were not out of all proportion to the gravity of the offence, the risk of deportation and employment consequences. He submits, if a discharge had been granted, it would have been open to Mr Banerjee to apply for a visa. He says Mr Banerjee is now shut out of his family’s long-term plans to settle in New Zealand. He also submits the Judge erred in saying the public, Immigration New Zealand and employers had a right to know about the offending. He submits it is not clear the Judge properly digested the material before her about the immigration issues. He submits the Judge was just plain wrong and I

12     R v Hughes, above n 9, at [10] and [22].

13     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14], approved in Ho v R [2016] NZCA 229 at [15].

14     Rahim v Police [2018] NZCA 182 at [31].

15     R v Hughes, above n 9, at [11], citing R v Rajamani [2008] 1 NZLR 723; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

should provide some amelioration to Mr Banerjee’s immigration situation. He points to other cases where a discharge was granted for more serious offending.16

[19]   Ms Savage submits there was no error in the Judge’s approach and it was appropriate for her to find the relevance of Mr Banerjee’s offending to his immigration status should be left to Immigration New Zealand. She acknowledges a s 61 application would have been a possibility but submits that was before the Judge when she concluded the consequences would be out of all proportion to the offending. She submits the issue of deportation arose from Mr Banerjee’s unlawful status in New Zealand rather than as a result of the conviction itself.

Decision on discharge without conviction

[20]   In the 16 June 2017 hearing Judge Manuel identified the law correctly. The question is whether she applied it correctly. If she did, her statement that he was convicted on 6 March 2017, which I accept appears to have been a misfiring, would be irrelevant. In any case, as Mr Harder submits, a sentencing judge is not precluded from discharging without conviction even if a conviction is entered.17 And Judge Manuel proceeded on that basis.

[21]   The Victim Impact Statement makes it clear the complainant found the experience frightening, as well she might in terms of fear of what else might have happened. As the Judge noted, there was no physical injury but the incident was “unsavoury” and had a psychological effect on a young vulnerable victim. But I agree with the Judge the offending that actually occurred was at the lower end of seriousness. It was a fleeting, minor assault, during the day, in a public place which the victim was able to shake off and from which she walked away. This is reflected in the sentence imposed, of coming up for sentence if called upon.

[22]   Mr Banerjee’s security guard certification was apparently suspended and he was unable to work at Nando’s. The information about the conviction also appears to have been requested in relation to an application by Mr Banerjee for a training course

16     Rahim v Police, above n 15; Kumar v Police [2015] NZHC 3293.

17     R v Sarich CA407/04, 18 April 2005 at [30].

in Singapore, though there is nothing to suggest what impact, if any, it would have on Mr Banerjee’s admission. But I agree with the Judge the employment consequences of the conviction did not warrant a discharge. Such offending can be expected to have consequences for employment or educational opportunities overseas.

[23]   The key question is whether the risk Mr Banerjee would be deported or face adverse immigration consequences because of the conviction would be disproportionate. At first sight, such a serious consequence of conviction for a relatively minor offence would be disproportionate. Mr Harder is correct that discharges have been granted for more serious offending in other cases to avoid such consequences. But I must consider whether this conviction would have disproportionate consequences.

[24]   I do not have all the information the immigration authorities had or have. Judge Manuel’s judgment notes Mr Banerjee had been in New Zealand illegally since the end of 2015, although from the material before me now it appears that may have been from the end of 2016. The report of Mr Aaron Martin, Mr Banerjee’s employment expert, makes clear Mr Banerjee was deported as a consequence of his unlawful presence in New Zealand, not as a consequence of his conviction.18 And Immigration New Zealand declined to issue a visa on 28 November 2016 because Mr Banerjee failed to disclose the assault charge, not because of the conviction.19 He is now subject to a two-year period of prohibition, again because of the deportation, not the conviction.20

[25]   Mr Martin considers a discharge without conviction would have reduced the materiality of the non-disclosure and would have permitted Mr Banerjee to seek a special visa under s 61 of the Immigration Act 2009 prior to deportation. Because Mr Banerjee was deported on the basis of being in New Zealand unlawfully, a discharge now would not necessarily allow him to return. He would still be a prohibited person as a result of his prior deportation.21 During the period of prohibition, any prospect of return is a matter of Immigration New Zealand and the Minister considering making

18 Report of Mr Aaron Martin, Director, New Zealand Immigration Law, 27 July 2018, at [3].

19 At [4].

20     Immigration Act 2009, ss 15 and 179.

21     Immigration Act 2009, s 15(1)(c).

a special direction and/or reducing or removing the period of prohibition. Both these decisions are at the absolute discretion of the Minister.22 Both can be considered whether or not Mr Banerjee is discharged. But Mr Martin is of the opinion a discharge would help Mr Banerjee’s case.

[26]   After the period of prohibition expires, the conviction will still have immigration consequences as it may prevent Mr Banerjee from being considered of good character and require a character waiver. Again, however, the conviction is not an absolute bar but a factor to be taken into account by Immigration New Zealand. And Mr Martin considers a character waiver may be required even without a conviction as a result of Mr Banerjee’s non-disclosure to Immigration New Zealand.23

[27]   In considering whether to deport Mr Banerjee for being unlawfully in New Zealand I can see no reason why the immigration authorities should not have taken into account Mr Banerjee’s minor offending and sentence. The same is true, now, for the decision whether to make a special direction. I should not make a decision on discharge as a “signal” to them, to influence their decision, when I do not have the information they have and am not making their decision. The immigration authorities are able to assess the offending for what it is. I must consider whether it was wrong for Judge Manuel to decide the consequences of his conviction were not out of all proportion to the gravity of the offending.

[28]   Mr Banerjee’s deportation occurred because he was in New Zealand unlawfully, which was due to him failing to advise Immigration New Zealand about the criminal charge against him. It was not a direct result of his conviction. In considering whether to deport Mr Banerjee for being unlawfully in New Zealand I can see no reason why the immigration authorities should not have been able to take into account Mr Banerjee’s minor offending and sentence.

[29]   The same is true, now, for the decision whether to make a special direction and for any future immigration decision. I do not consider I should make a decision on discharge as a “signal” to the immigration authorities, to influence their decision, when

22     Immigration Act 2009, ss 378 and 182.

23 At [31].

I do not have the information they have and their decision is not mine to make. The immigration authorities are able to assess the offending for what it is, with reference to Judge Manuel’s comments, and now mine, about its relative lack of seriousness. Accordingly, I do not consider the conviction itself has had, or has, a consequence out of proportion to the offending.

Result

[30]I decline the application to appeal Mr Banerjee’s conviction and sentence.

Palmer J