Bedi v Police - [2015] NZHC 1138

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000441 [2015] NZHC 1138

BETWEEN
MARICHI BEDI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 May 2015

Appearances:

B L Sellars for Appellant
K R Muirhead for Respondent

Judgment:

26 May 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 26 May 2015 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

BEDI v NZ POLICE [2015] NZHC 1138 [26 May 2015]

Introduction

[1] On 15 May 2014 Marichi Bedi pleaded guilty to one charge of obtaining by deception.1 Judge C S Blackie refused his application for a discharge without conviction. Mr Bedi appeals on the grounds that the Judge erred in concluding that the consequences of a conviction were not out of all proportion to the offending as a result of:

(a) Assessing the offending as more serious than it was;

(b)Wrongly concluding that there was no real risk of Mr Bedi losing his job as a result of a conviction being entered;

(c) Wrongly treating the consequences of a conviction as being only possible rather than inevitable.

Application to adduce further evidence

[2] Mr Bedi applied for leave to adduce further evidence in the form of an affidavit from himself and one from his former fiancée, Ms Jasmeet Kaur Sarna. Whilst fresh evidence may be adduced on an appeal, it is generally necessary to show that the proposed evidence is fresh in the sense that it could not with reasonable diligence have been called at trial and is credible, both inherently and in the broader context of the case.2

[3] The application to adduce further evidence was opposed on the ground that, to the extent it is fresh in that it describes events that have occurred since the sentencing, it is not relevant because the appeal is to be determined on the basis of the evidence as it stood at the time of the decision to refuse the application. Otherwise, it is said that the evidence is not sufficiently fresh and, in any event, that
it would have made no difference to the assessment of the application.

1 Crimes Act 1961, s 240(1)(c).
2 R v Bain [2004] 1 NZLR 638 (CA) at [18]-[27], affirmed on appeal in Bain v R [2007] UKPC
33 (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [24];
Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 AT [120].

[4] I do not accept Ms Muirhead’s submission that updating evidence of events that have occurred subsequent to the decision cannot be adduced for the purposes of an appeal. The fact that a consequence asserted as real by the appellant at sentencing but rejected by the Judge has come to pass is a matter that is properly taken into account on appeal. For this reason I allow Mr Bedi to adduce the evidence at paragraphs 1 – 5 and 12 –…

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 Bedi v Police

Details

AGLC: Bedi v Police [2015] NZHC 1138
Case: [2015] NZHC 1138
Decision Date: 26 May 2015

CaseChat Overview and Summary

The appellant, Marichi Bedi, appealed against the District Court's refusal to grant him a discharge without conviction after pleading guilty to a charge of obtaining by deception. The key issues for the High Court to determine were whether the District Court judge erred in assessing the seriousness of the offence, whether the consequences of a conviction were out of proportion to the offending, and whether there were grounds to adduce further evidence. The appellant argued that the judge mischaracterised the seriousness of the offence, wrongly assessed the consequences of a conviction on his employment and immigration status, and should have treated the consequences as inevitable rather than possible. The court allowed the appellant to adduce some fresh evidence but excluded parts that were not sufficiently new or relevant.

The court found that the District Court judge was correct in assessing the seriousness of the offence. The judge's assessment of the risk to the appellant's employment was incorrect, but the consequences of the conviction were not out of proportion to the seriousness of the offence. The change to the appellant's immigration status was a direct consequence of the conviction, and while deportation was not inevitable, the appellant's immigration status was less favourable than before. The court concluded that the consequences were not out of proportion to the gravity of the offence and dismissed the appeal.

Orders