Jain v Police

[2020] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000260

[2020] NZHC 2570

BETWEEN

PRATEEK JAIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 September 2020
Appearances:	Paul Wicks QC for the Appellant Benjamin Hamilton for the Respondent
Judgment:	1 October 2020

JUDGMENT OF MOORE J

[Appeal against conviction and sentence]

This judgment was delivered me on 1 October 2020 at 11:00 am

Registrar/ Deputy Registrar Date:

JAIN v NEW ZEALAND POLICE [2020] NZHC 2570 [1 October 2020]

Introduction

[1]                  On 20 August 2012, the appellant, Prateek Jain, pleaded guilty and was convicted of receiving stolen property valued at over $1,000. Mr Jain was represented by Ms Keppie Waters, then employed as a lawyer with the Public Defence Service (“PDS”) at its Waitakere office.

[2]                  Nearly eight years later on 18 March 2020, Mr Jain received a deportation notice from Immigration New Zealand (“INZ”) advising that as a result of his 2012 conviction he was liable for deportation.1 As a consequence Mr Jain now seeks to appeal his conviction.

[3]                  However, because his notice of appeal was filed well after the time prescribed under the Criminal Procedure Act 2011 (“the CPA”), he requires the leave of this Court to extend the time to appeal.

[4]                  His proposed appeal is advanced on the basis that the stolen property actually had a value of less than $500 and not $1,200 as claimed by the prosecution. He says his lawyer at the time did not advise him of the significance of the claimed value and its connection to the available penalty. Furthermore, he asserts his lawyer did not advise him of the consequences of a conviction on his immigration status.

[5]                  For Mr Jain the distinction between a conviction for receiving stolen property valued at more than $1,000 and one where the value is less than $500 is important. While the former renders Mr Jain liable to deportation, the latter does not.

[6]                  The Crown opposes the application to extend time on the basis that it is brought more than eight years after the event and the Crown is now irreparably prejudiced in being able to meaningfully respond.

The offending

[7]                  On 1 November 2011, a burglary took place at a residential address in Massey. One of the items stolen was a distinctive, albeit damaged, carbon fibre motor vehicle

1      Immigration Act 2009, s 161(1)(b).

bonnet which the Police valued at approximately $1,200. The Police located the bonnet at Mr Jain’s address after it was listed on Trade Me on the same day as the burglary. Mr Jain initially claimed the bonnet was his and that it had been in his possession for approximately 12 months. He later accepted this account was untrue. He said he had acquired the bonnet from a friend who had turned up at his home unannounced and sold it to him for $200. Mr Jain was 17 years old at the time.

The application to extend time to appeal

[8]                  Mr Jain concedes that he received the stolen item and that all the elements of the crime of receiving under s 246(1) of the Crimes Act 1961 are made out, but disputes the purported value of the item. Section 247 provides for different penalties depending on the value of the item received. There are three categories of value; not exceeding $500, more than $500 but less than $1,000 and exceeding $1,000.

[9]                  Mr Wicks QC, for Mr Jain, submits that the extension ought to be granted because otherwise Mr Jain will be liable for deportation. He submits there is merit to the appeal. Mr Wicks relies on the evidence of an experienced motor vehicle technician, who deposes that the value of the damaged carbon fibre bonnet is no more than $220. He submits that a miscarriage must have occurred for Mr Jain to have entered a guilty plea to a charge where an element of the offence was not only not made out but is demonstrably incapable of proof. This situation is compounded by the immigration consequences to Mr Jain if the conviction was allowed to stand.

[10]              Mr Wicks submits that should the application be allowed, it would be appropriate for this Court to allow the appeal and substitute the conviction for one of receiving stolen property valued at under $500.

The evidence

Appellant

[11]              Mr Jain has filed three affidavits in support of his application to extend time; two of his own and a third from the expert witness, Mr Telford.

[12]              Mr Jain’s first affidavit contains a narrative of his account of the events and his recollection of his dealings with Ms Waters and the circumstances which led up to his conviction. Mr Jain claims that at the time he decided to plead guilty, Ms Waters did not advise him on the significance of the value of the property he received and how that affected the applicable maximum penalty. In particular, he says that Ms Waters did not raise with him the value of the car bonnet as an essential element. He said he did not question the value because of his youth and his focus on getting the case completed and receiving either a diversion or being convicted and discharged.

[13]              He says that he disclosed to Ms Waters that he was a permanent resident of New Zealand and that he intended applying for citizenship. He claims that Ms Waters discussed with him the ramifications on his citizenship of a conviction for receiving and advised him that it would simply operate to delay his citizenship. She did not advise him that a possible consequence might be deportation if he pleaded guilty to receiving property said to be valued at over $1,000. He took no notes of his meeting with Ms Waters. His account is all but entirely dependent on his unassisted memory of his meeting with Ms Waters.

[14]              He says that it was not until 18 March 2020, when he received INZ’s letter, that he realised his conviction made him liable for deportation.

[15]              In summary he says that he should not have pleaded guilty because the property received was worth significantly less than the statutory threshold of $1,000.

[16]              In his second affidavit, Mr Jain exhibits Ms Waters’ file which he received following his solicitor making enquiries to PDS.

[17]              Mr Telford is an insurance loss adjuster with particular experience in the niche vehicle market.

[18]                His affidavit deals with the value of the car bonnet.  The item received by  Mr Jain was a damaged carbon  fibre  bonnet  for  an  R34  Nissan  Skyline  GTR. Mr Telford states that having viewed photographs of the bonnet and undertaken a review of sales data of comparable items, he is of the opinion it has a residual value

of $220, but that would be the best that could be obtained. He says that the value of a new bonnet of that type would be of the order of $1,000 to $1,200. Curiously, he does not venture to comment on what the value of the bonnet would have been in late 2011.

The Crown

[19]              The Crown has filed an affidavit from Ms Waters who now holds the position of Local Court Practice Manager at the Newcastle Office of Legal Aid in New South Wales, Australia. She has approximately 15 years’ post-admission criminal practice experience.

[20]              Unsurprisingly, Ms Waters has no independent recollection of either Mr Jain or the criminal charge he faced. She has no memory of any advice she may have given him. However, her original handwritten file notes have been recovered from the PDS. These, together with Ms Waters’ commentary on them, provide some insight into the advice she gave Mr Jain prior to him pleading guilty. A summary of this follows.

[21]              First, Ms Waters sets out the practice or system she adopts when meeting with a client in relation to any criminal charge. She has employed this system since commencing practice in 2004. Relevantly, she says she explains the charge and each element of the charge, which includes the value where that is an element in property offences. Next, she discusses the client’s options as to plea and the discounts available for pleas of guilty. Then she advises them on the maximum penalties and the likely sentencing outcome. Next, she discusses the availability of alternative outcomes to conviction including diversion and a discharge without conviction. Finally, she discusses the client’s personal circumstances and the potential ramifications of a conviction.

[22]              Secondly, Ms Waters refers to the contemporaneous notes she made in relation to Mr Jain. From them, she says that it is apparent she read through the Police disclosure with him. Then, significantly, on the Caption Summary she wrote “Elements” and listed them. She did not record the value as an element. Ms Waters says that her ordinary practice in 2011 would have been to advise Mr Jain of the value of the property being an element of the offence and explain to him the reason for the

charge being receiving property with a value of more than $1,000 because the summary estimated the value to be approximately $1,200.

[23]                   She says it would have been “unusual and surprising” had she not advised Mr Jain of this but, responsibly and fairly conceded that she could not “rule out the possibility that [she] did not advise Mr Jain of this element of the offence”.

[24]              Thirdly, Ms Waters’ notes reveal that she discussed Mr Jain’s personal circumstances, including the consequences of a conviction given his lack of previous convictions and his age. They discussed the option of diversion and seeking a discharge without conviction. Ms Waters made notes about Mr Jain’s aspiration to become a motor mechanic, his tertiary study and his immigration status. From her notes, Ms Waters says it is apparent that they discussed the consequences of a conviction, including how it might affect citizenship. She says that Mr Jain said any conviction would delay citizenship. Because she does not have any experience in immigration practice, either in New Zealand or Australia she says she would not have provided legal advice to Mr Jain, or any client, relating to any matter, particularly one of such significance, without the necessary knowledge. Where she was uncertain of the ramifications or consequences of a conviction, she would advise the client to undertake further research.

Submissions

[25]Mr Wicks submits that justice has miscarried. This is because:

(a)Ms Waters erred in not advising Mr Jain of the importance of the value of the property;

(b)Ms Waters erred in not advising Mr Jain as to the immigration consequences of being convicted of receiving stolen property valued at over $1,000; and

(c)Mr Jain pleaded guilty to receiving stolen property valued at over

$1,000 when the value of the bonnet was, in fact, less than $500.

[26]              Mr Hamilton, for the Crown, submits that with the passage of time it is simply impossible to respond to the appeal in any sensible or informed way. The Crown is unable to contradict the evidence of the appellant.

[27]Furthermore, he submits that it is not known how the Police set the value of

$1,200 and it is now impossible to defend that assessment, not the least because the Police file has been destroyed. As for Mr Telford’s valuation, Mr Hamilton submits that this appears to have been formed with reference to the sale of damaged bonnets between October 2013 and February 2020 from a variety of different sorts of vehicle. There is no direct comparator. Intrinsically, any such attempt at valuation must be unreliable. Furthermore, what might be the value of the bonnet on today’s market cannot be presumed to have been the value in late 2011. Values over the last eight years will, almost certainly, have materially changed. This concern simply underscores the impossibility of the position the Crown finds itself in and which, on the authorities, would tend to operate in favour of not granting leave.

Discussion

[28]              Mr Jain was required  to  file  a  notice  of  appeal  against  sentence  within 20 working days of the date of his sentence.2 The appeal is now some eight years out of time. An extension of time for filing an appeal may be granted under s 231(3) of the CPA.

[29]              Extensions to the period for filing a notice of appeal are not granted automatically, even where an appeal is arguable.3 It is not necessary for the Court to delve into the substantive merits in detail.4 The Court must weigh up the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought.5

2      Criminal Procedure Act 2011, s 248(2).

3      Nguyen v R [2016] NZCA 18 at [5].

4      R v Lee [2006] 3 NZLR 42 (CA) at [106] citing R v Knight [1988] 1 NZLR 583 (CA). See too

Butcher v R [2015] NZCA 102 at [7].

5      R v Knight at 338.

[30]                 In my view, of the three grounds Mr Wicks submits demonstrate a miscarriage of justice, only the third, relating to the value of the bonnet, impresses me as seriously arguable. My reasons for rejecting the first two grounds follow.

[31]              Mr Wicks submits Ms Waters erred in not advising Mr Jain of the importance of the value of the property. That claim is not supported by the evidence. Put it at its very highest, Ms Waters properly and responsibly accepts that given the effluxion of time and her contemporaneous notes, she cannot exclude the possibility she did not advise Mr Jain of this element. However, that concession needs to be read in the context of her other evidence and in particular, her comment that she was conscious of the value of the bonnet and knew from the Police summary what the prosecution was claiming its value was. It is also apparent from the notes and her evidence that she carefully and professionally worked her way through the summary which Mr Jain had read before he met with her. Against that evidence is Mr Jain’s contrary description of a meeting which took place some eight years ago which he took no notes of. I find it much more plausible that Ms Waters did discuss the value of the bonnet with Mr Jain and Mr Jain accepted the value ascribed to it in the summary. There is some independent support for that conclusion. After posting the bonnet for sale Mr Jain corresponded with interested prospective purchasers online, during which he indicated he had bought the item for approximately $850. I am unaware of what price Mr Jain actually listed the item for sale.

[32]              In any event, whether this claim was vendor hyperbole or not, Mr Jain’s opinion as to value is not determinative. The correct question is what, in fact, was the value at the time he entered his plea?

[33]              The second ground is Mr Jain’s claim that Ms Waters did not advise him that a possible consequence of conviction on the charge as framed might be deportation. It is apparent that the question of Mr Jain’s immigration status was raised in the discussions with Ms Waters. By reference to both her notes and her usual practice in these matters, I consider it most unlikely that she gave Mr Jain immigration advice for

the reasons she gives in her evidence. However, again, I do not regard that feature as determinative on this application.

[34]              In my view, the correct focus of Mr Jain’s application should be on whether the value of the bonnet was, in fact, less than $500. On that question there is considerable room for uncertainty. While Mr Jain accepted the value through his plea of guilty, if that element is later shown to have been factually incorrect then Mr Jain pleaded guilty to an offence he should not have. And that would constitute a miscarriage of justice. Thus, on the merits, I am satisfied any appeal would have a realistic prospect of success.

[35]              However, that in itself is insufficient to grant an application to extend time. Otherwise, it would be open to any defendant to claim long after their conviction that an element of the offence could not be proved by the prosecution and for that reason they should be permitted to appeal. There are strong public policy reasons why such a course should not be permitted unless there are good reasons, especially where, as in the present, the delay is such that the prosecution may encounter difficulties in marshalling the necessary evidence so long after the event. As the authorities stress, the time limits are there for a purpose; to ensure there is some finality to litigation. That purpose has rightly been described as a powerful consideration.

[36]              Another relevant consideration is the length of and reason for the delay. Where the delay is modest and the reasons cogent and justified, an extension will usually be granted. But here, where the delay is some eight years, the reasons for not applying for an extension to appeal earlier require particularly careful consideration. Mr Jain says he did not question the conviction until after he received INZ’s letter. Evidently, the letter came as a surprise. He described it as “coming out of the blue”. Why it has taken INZ some eight years to review Mr Jain’s immigration status is left unexplained on the evidence. However, it seems reasonable to infer that having pleaded guilty, been convicted and served his sentence, Mr Jain believed this whole matter was behind him. He got on with his life. He qualified as an automotive mechanic and now operates his own business refurbishing high performance vehicles. Eight years passed before INZ wrote to him and the significance of the conviction first dawned on Mr Jain. I am satisfied there are sound and acceptable reasons explaining the delay.

[37]              The next question, in terms of the balancing exercise, is the practical utility of the remedy sought. Mr Jain accepts he received the stolen property in question. He accepts all of the essential elements to the charge of receiving under s 246(1) are proved. He disputes only the element which prescribes the penalty, namely value. As noted, the remedy he seeks on this application is the quashing of the conviction and the substitution of a conviction for receiving stolen property with a value of less than

$500.

[38]              Mr Hamilton says there is no practical way the prosecution can contradict the evidence of value now claimed by Mr Jain. The Police file has been destroyed and there is now no ability to reconstruct how the original value of $1,200 was arrived at. I cannot agree that the task of retrospectively valuing the bonnet is as fraught as he claims. Within the automotive industry there will be performance vehicle specialists, car part dealers, fabricators and other automotive specialists whose institutional knowledge and expertise goes back at least eight years. Searches can be made of data bases in the same way Mr Telford undertook the task. Extrapolations can be made. Those enquiries may reveal the original value as pleaded to, was correct. In that case, assuming the defence position remains, there will be a contest. However, if the value is found to be less than $500 or even between $500 and $1,000 the charge can be amended. Those are all matters properly for the substantive appeal.

[39]              I also regard it as relevant and operating in favour of granting the extension, that the public interest in seeing those who commit crimes, convicted and sentenced is served in the present case. Whatever the outcome, Mr Jain will retain a conviction for receiving the car bonnet. Furthermore, he has completed his sentence. There is no question of the sentence being revisited in granting the extension.

[40]              Finally, in terms of the balancing exercise, I regard Mr Jain’s risk of deportation if the conviction on the present charge is maintained, to be a significant factor in assessing where the interests of justice lie. As noted, Mr Jain has lived here for about 20 years. He has a tertiary qualification and now runs his own business. For him to risk deportation on account of a criminal conviction which may have been flawed would be a most unjust result and would amount to a miscarriage of justice.

[41]              For these reasons I shall allow the extension and direct that the appeal is to be heard in this Court. Given Mr Jain’s admissions as to the other elements, value will be the only issue. I cannot be satisfied that at the time Mr Jain entered his plea of guilty the value of the bonnet was less than $500. There is no direct evidence before me on that point and I am not prepared to infer it. An appeal hearing will be set down to deal with the uncertainty as to the correct value of the bonnet. Under s 232 of the CPA this Court will determine whether a miscarriage of justice occurred because the property was incorrectly valued. If the appeal is successful, under s 234 it may substitute the present conviction for a conviction for the correct offence.

[42]              There is no jurisdiction for me on this application to determine the appeal. But even if there was, the evidence before me is insufficient to make any finding as to value. That will be for the Judge who hears the appeal to decide on the evidence then before them. In that regard, if the appeal was allowed there are three available options as to the statutory range of values.

Conclusion

[43]              For the reasons set out above I am satisfied that the application granting an extension to appeal should be granted.

Result

[44]The application to extend the time for filing a notice of appeal is granted.

[45]              The appeal is to be listed and called at the earliest practical date in the criminal appeals list for a date to be set and timetabling orders made for the filing of submissions and any further evidence either party wishes to place before the Court on appeal.

Moore J

Solicitors:

Mr Wicks QC, Auckland Crown Solicitor, Auckland