Kumar v Police - [2025] NZHC 2458

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2025-476-012

[2025] NZHC 2458

BETWEEN
PANKAJ KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 August 2025, joint memorandum filed 22 August 2025

Appearances:

S G Graham and A G F Lange for Appellant C J Mitchelmore for Respondent

Judgment:

27 August 2025

JUDGMENT OF EATON J

(application for leave to bring second appeal against conviction)

This judgment was delivered by me on Wednesday, 27 August 2025 at 12 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 27 August 2025

KUMAR v POLICE [2025] NZHC 2458 [27 August 2025]

[1] On 17 July 2023, Pankaj Kumar appeared before a community magistrate in the Timaru District Court on a charge of driving with excess breath alcohol.1 He was represented by a duty lawyer who entered a guilty plea on behalf of Mr Kumar. Mr Kumar was convicted, fined $460, ordered to pay court costs of $130 and disqualified from driving for a period of six months.

[2] He filed an appeal against conviction on 30 May 2025. The appeal was dismissed on 17 June 2025, the Judge having wrongly understood Mr Kumar had failed to file submissions. He now applies to this Court for leave for a second appeal against conviction.

[3] I am satisfied it is appropriate to grant leave for a second appeal, to allow the appeal and remit the case to the District Court for a substantive hearing of the appeal. My reasons follow.

Procedural background

[4] On about 8 May 2025, nearly two years after he was convicted of driving with excess breath alcohol, Mr Kumar was notified by letter by an officer of the Ministry of Business, Innovation and Employment that as a consequence of his conviction he was liable for deportation. Mr Kumar sought and obtained legal advice and instructed his counsel to file an appeal against conviction. The single issue Mr Kumar sought to raise on appeal was whether he should have been discharged without conviction due to the otherwise unforeseen immigration consequences. Competence of counsel was formally raised reflecting Mr Kumar’s evidence that the duty solicitor had not advised him that a guilty plea and conviction might impact his future immigration status in New Zealand.

[5] When filing the notice of appeal on 30 May 2025, Mr Graham, representing Mr Kumar also filed:

(a)A memorandum addressing r 8.7 of the Criminal Procedure Rules 2012 (CPR) (competence of counsel).

1 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment or $4500 fine.

(b)An affidavit of the appellant sworn 30 May 2025.

(c)An affidavit of the appellant’s wife sworn 30 May 2025.

(d)Written submissions in support of the appeal against conviction.

[6] Mr Graham’s letter to the registry of 30 May 2025 invited the Court to make timetabling directions for the filing of a response from the Police and sought confirmation of a hearing date for the appeal. The letter…

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 Kumar v Police

Details

AGLC: Kumar v Police [2025] NZHC 2458
Case: [2025] NZHC 2458
Decision Date: 27 August 2025

CaseChat Overview and Summary

Pankaj Kumar appeals against his conviction and sentence imposed by a community magistrate in the Timaru District Court for driving with excess breath alcohol. Kumar argues that the community magistrate should have discharged him without conviction due to unforeseen immigration consequences stemming from his conviction. The appeal against conviction was dismissed by the District Court, which Kumar now seeks to appeal to this Court. The legal issues in this case revolve around the procedural errors made by the District Court in dismissing Kumar's appeal and whether these errors resulted in a miscarriage of justice. The Court must determine whether the procedural and jurisdictional errors were such that they deprived Kumar of a fair hearing of his appeal.

The Court found that several procedural errors occurred in the District Court's handling of Kumar's appeal. Firstly, the Court failed to allocate a fixture date for the hearing of the appeal as required by the Criminal Procedure Rules 2012. Secondly, the Deputy Registrar issued a notice that incorrectly referred to the 2011 version of the rules and failed to mention the full submissions filed by Kumar. The Judge then dismissed the appeal without considering Kumar's submissions, apparently relying on the Deputy Registrar's incorrect information. The Court found that these errors deprived Kumar of a fair hearing of his appeal and amounted to a miscarriage of justice. The Court noted that the District Court lacked jurisdiction to dismiss the appeal without providing Kumar with the required notice and opportunity to rectify any non-compliance. Accordingly, the Court granted Kumar leave to bring a second appeal, allowed the appeal, and remitted the case to the District Court for a substantive hearing of the appeal.

The final orders of the Court are that leave is granted to bring a second appeal against conviction, the appeal is allowed, the decision to dismiss the appeal is set aside, and the appeal is remitted to the District Court for hearing. The District Court must now properly consider the merits of Kumar's appeal against his conviction and sentence.

Orders