K v Police - [2023] NZHC 3641

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-70

[2023] NZHC 3641

BETWEEN
K

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2023

Counsel:

C Shade for Appellant

M K Story for Respondent

Judgment:

12 December 2023

JUDGMENT OF ELLIS J

[1] Mr K is an Indian citizen who came to New Zealand with his wife and two-year-old daughter in June 2016. Mr K had an Essential Skills Work Visa and worked here as a computer engineer. He planned to apply for permanent residency in February 2019.

[2] But on 2 January 2019 Mr K struck his wife during an argument about cooking some rice.1

1 According to the Summary of Facts to which Mr K later pleaded guilty, he slapped his wife once on the left cheek and twice on the right cheek. As she tried to leave, he struck her across the back of her body. The Summary of Facts also records that Mr K told Police he had slapped his wife after she had kicked him.

K v NZ POLICE [2023] NZHC 3641 [12 December 2023]

[3] Mr K and his wife separated soon afterwards. Mr K continued to support his wife and child financially, but custody issues required the intervention of the Family Court. Orders were made permitting Mr K to have unsupervised overnight contact with his daughter every other weekend and (on the weeks he did not have her for the weekend) overnight on Mondays.

[4] On 2 May 2019 Mr K pleaded guilty to a charge of assault on a person in a family relationship.2 He made an application for a discharge without conviction under s 106 of the Sentencing Act 2002 on 21 June 2019. Sentencing was scheduled for 19 July 2019.

[5] But on 15 July 2019, two more serious charges were laid against Mr K. These charges were the result of a further complaint first made by his wife after their separation (towards the end of February 2019) in which she alleged Mr K had sexually offended against her the previous year. The allegations resulted in Mr K facing one charge of sexual violation by unlawful sexual connection and one charge of attempted sexual violation.

[6] Mr K subsequently received legal advice that a discharge without conviction on the assault charge was no longer an option.3

[7] In September 2020, following a trial before Judge Hastings and a jury, Mr K was convicted of the two more serious charges and remanded in custody. The Judge later sentenced Mr K to three years and nine months’ imprisonment on the two serious charges and to a concurrent sentence of one-month’s imprisonment for the original assault charge.4

2 Crimes Act 1961, s 194A (maximum penalty of two years’ imprisonment).
3 As the Court of Appeal later recorded, Mr K says his…

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 K v Police

Details

AGLC: K v Police [2023] NZHC 3641
Case: [2023] NZHC 3641
Decision Date: 12 December 2023

CaseChat Overview and Summary

Mr K, an Indian citizen living in New Zealand, appeals against his conviction for assault on a person in a family relationship, seeking to be discharged without conviction instead. The appeal is out of time and Mr K also seeks leave to adduce fresh evidence. The Crown does not oppose leave to appeal and to adduce fresh evidence. The appeal is allowed and Mr K is discharged without conviction. The appeal was brought because Mr K had intended to apply for a discharge without conviction on the assault charge, but did not do so because he was to be sentenced on other, more serious charges. Mr K was later successful in appealing his convictions on those other charges and was acquitted of them. This change in circumstances can be said to give rise to a miscarriage of justice. The gravity of Mr K's offending can fairly be seen as being of low to medium gravity. The key consequence for Mr K concerns his ability to obtain a new work visa and return to New Zealand. It is likely that a conviction will jeopardise Mr K's prospects of obtaining a new work visa and returning to New Zealand. The consequences of a conviction for Mr K would be disproportionate to the gravity of the relevant offence. His conviction for assault is quashed and he is discharged without conviction instead.

Orders