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

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 Jain v Police

Details

AGLC: Jain v Police [2020] NZHC 2570
Case: [2020] NZHC 2570
Decision Date: 1 October 2020

CaseChat Overview and Summary

Prateek Jain, the appellant, appeals against his conviction for receiving stolen property valued at over $1,000, seeking an extension of time to appeal on the basis that the stolen property was actually worth less than $500. The court must determine whether the appeal falls outside the time limits set out in the Criminal Procedure Act 2011, and if so, whether an extension should be granted. Jain argues that his lawyer did not advise him of the significance of the claimed value and its connection to the available penalty, nor the consequences of a conviction on his immigration status. The Crown opposes the application on the grounds that the appeal is brought more than eight years after the event and the Crown is now irreparably prejudiced in being able to meaningfully respond.

Moore J held that the application to extend the time for filing a notice of appeal should be granted. While the court acknowledged that the delay of eight years was significant, it found that the delay was explained by the appellant's belief that the matter was behind him after he completed his sentence. The court also found that the appellant had a realistic prospect of success on the appeal, as the value of the stolen property was a matter of some uncertainty. The court considered that the public interest in seeing those who commit crimes convicted and sentenced was served in the present case, and that the appellant's risk of deportation if the conviction on the present charge was maintained, was a significant factor in assessing where the interests of justice lie.

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. The court will determine whether a miscarriage of justice occurred because the property was incorrectly valued and, if the appeal is successful, may substitute the present conviction for a conviction for the correct offence.

Orders