Dhamija v Police - [2012] NZHC 1853

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-431 [2012] NZHC 1853

BETWEEN DEEPAK DHAMIJA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 March and 24 July 2012

Appearances: T D Clee for appellant
K Chang for respondent

Judgment: 27 July 2012

JUDGMENT OF ALLAN J [Appeal against sentence and conviction]

This judgment was delivered by me on 27 July 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel: T D Clee, Auckland: tc@tudorclee.net

Solicitors: Crown Solicitor, Auckland: karen.chang@meredithconnell.co.nz

Copy: C Newton, Manukau, Auckland: crn.law@xtra.co.nz

DHAMIJA V NZ POLICE HC AK CRI 2011-404-431 [27 July 2012]

[1] Mr Dhamija was convicted on 22 November 2011, following a summary trial before Judge Doherty, on charges of assault on his then wife and of theft of $6,000 from her.1 On 24 November 2011, he was convicted and discharged on each charge but ordered to pay costs of $132.89 and directed to make reparation by payment of
$6,000 to the complainant within 28 days.2

[2] The Judge rejected an application for a discharge without conviction.

[3] On this appeal, the appellant contends that there was a miscarriage of justice arising out of the circumstances in which the Judge decided to proceed with the trial on 22 November 2011, notwithstanding the belief of both parties that it would not proceed on that day. Mr Clee submits that there has been a breach of s 24(d) of the New Zealand Bill of Rights Act 1990 (NZBORA). In the alternative, the appellant argues that he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Events preceding the trial

[4] The charges arose out of an incident on 1 July 2010. The appellant’s relationship with the complainant had by then become problematic. On that day, he was booked to fly to Sweden to deal with family business. His wife wanted to accompany him but he was unhappy about that. In order to finance the cost of the air ticket and related expenses for herself, the complainant obtained a total of $6,000 in cash from her mother and from ATM withdrawals. While the appellant and the complainant were in a motor vehicle together, an argument developed. The appellant pulled the complainant’s hair, punched her, and then forcibly pushed her head twice into the passenger door window before leaving the car. As he left, he snatched the
$6,000 from her.

[5] The complainant says that she suffered visible injuries as a result. The appellant denied both the assault and the taking of the cash, which he claimed never
existed.

1 Police v Dhamija DC Manukau CRI-2011-092-4517, 22 November 2011.
2 Police v Dhamija DC Manukau CRI-2011-092-4517, 24 November 2011.

[6] A hearing was initially set down for 25 August 2011, but an adjournment became necessary because the complainant was not available. She was in hospital. The adjourned hearing date was 18 January 2012 but Ms Newton, then counsel for the appellant, sought and obtained…

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: [2012] NZHC 1853
Decision Date: 27 July 2012

CaseChat Overview and Summary

The appeal in this case was against the sentence and conviction of the appellant, Mr Dhamija, who was found guilty of assaulting his then wife and stealing $6,000 from her. The appellant argued that there was a miscarriage of justice arising from the circumstances in which the Judge decided to proceed with the trial on 22 November 2011, despite both parties believing it would not proceed on that day. The appellant also argued that he should be discharged without conviction pursuant to the Sentencing Act 2002. The court considered the evidence presented and found that the appellant's right to a fair trial had not been breached, and that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence. The appeal was ultimately dismissed, and the appellant's convictions stood.

Orders