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Banerjee v Police

Banerjee v Police

Case [2018] NZHC 2446 19 September 2018

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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…

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.

Continue reading Banerjee v Police

Details

AGLC: Banerjee v Police [2018] NZHC 2446
Case: [2018] NZHC 2446
Decision Date: 19 September 2018

CaseChat Overview and Summary

Anirban Banerjee, a former New Zealand resident from India, appeals his conviction for assault and the subsequent decision not to discharge him without conviction. The appeal was heard in the High Court of New Zealand, Auckland Registry. The appellant argues that the conviction should be overturned on the basis of alleged errors in the original trial, and that the decision not to grant him a discharge without conviction was unjust. The Crown argues that any errors did not result in a miscarriage of justice and that the court was correct in its decision not to grant a discharge without conviction.

The court considered whether the original judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. The appellant submitted that the judge had taken into account inadmissible evidence, which was crucial to her findings on credibility. However, the court found that while the judge did refer to inadmissible evidence, this did not result in a real risk of an unfair trial or miscarriage of justice. The court also found that the judge's decision was primarily based on the evidence given at trial, and that there was nothing to indicate the judge was unfairly swayed by the complainant's demeanour.

In relation to the decision not to grant a discharge without conviction, the court found that the judge had correctly identified the relevant law and applied it appropriately. The court considered the gravity of the offence, the direct and indirect consequences of a conviction, and whether the consequences of a conviction were out of all proportion to the gravity of the offence. The court found that the risk of deportation and adverse immigration consequences, while serious, were not disproportionate to the relatively minor nature of the offence. The court concluded that the immigration authorities were able to assess the offending for what it was and that it should not make a decision on discharge as a "signal" to influence their decision.

In conclusion, the court declined the application to appeal the appellant's conviction and sentence, finding that there was no miscarriage of justice or unfair trial. The court also found that the decision not to grant a discharge without conviction was appropriate, and that the consequences of the conviction were not out of all proportion to the gravity of the offence.

Orders