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 confirmed that counsel had arranged to serve the enclosed documentation on Police Prosecutions.

[7]                  On 4 June the Deputy Registrar emailed counsel for Mr Kumar attaching what was referred to as a ‘filing schedule’. The filing schedule relevantly read:

NOTICE OF LEAVE TO APPEAL OUT OF TIME APPLICATION

(r2.16 Criminal Procedure Rules 2011)

…

TAKE NOTICE

(a)That an application by Pankaj KUMAR relating to the charge(s) of

[driving with excess breath alcohol].

(b)was received at this Court on the 30th day of May 2025. Should leave be granted the appeal will be considered. Filing is due by the end of next week, Friday, 13 June. Please ensure the District Court has received any further documents for the application by or before that date.

[8]                  That notice was issued to both the solicitors representing Mr Kumar and to Police Prosecutions in Timaru. Neither party immediately responded.

[9]                  On 17 June, shortly after 9 am, the Deputy Registrar again emailed the solicitors representing Mr Kumar and Police Prosecutions recording:

The filing schedule was sent out to all parties on 4 June and any submissions were to be filed by Friday 13 June. No submissions were received by the court.

Are these matters still to proceed?

[10]              Mr Graham, on behalf of Mr Kumar, replied immediately confirming that the appellant had filed a complete set of documents together with full submissions and was therefore ready to proceed. Mr Graham estimated a two-hour hearing was required to deal with all aspects of the appeal.

[11]              The Deputy Registrar promptly responded by email “[i]t is our understanding that firstly the out of time application has to be granted by a Judge, then the other matters can proceed piece by piece…” and that the Court was not in a position to offer a range of dates for hearing as that was a matter for the scheduler to determine.

[12]              The Deputy Registrar then referred the appeal to a Judge, by way of a letter dated 17 June, enclosing the documents filed by Mr Graham on 30 May. Relevantly, the referral letter made express reference to the written submissions filed in support of the appeal. The Registrar’s referral letter concluded “All parties were asked to file submissions by Friday 13 June, however none were filed which is why the matter has been brought to your attention for Direction”.

[13]              The Judge, in a handwritten notation signed and dated 17 June 2025, recorded on the referral letter: “No submissions filed. Appeal dismissed.”

[14]              Very early the following morning, on 18 June, a Police Prosecutor responded to the Deputy Registrar’s email of 17 June, advising that the Police had received the documents filed by Mr Graham but that Police were “not aware of any timetabling”. The prosecutor advised that they had just received an affidavit from trial counsel and could not file submissions without first obtaining that affidavit.

[15]              At 9.56 am on 18 June, the Deputy Registrar advised  counsel  and  the  Police Prosecutor that the “Appeal application and the other applications filed alongside it ha[d] been dealt with in chambers by [the Judge]. The decision is that the Appeal is DISMISSED”.

[16]              On 16 July 2025, Mr Kumar filed an application in this Court seeking leave to appeal the Judge’s decision dismissing his first appeal.

[17]              On 19 August 2025, I issued a minute advising counsel of my preliminary view that as a consequence of errors, the merits of the appeal had not been appropriately considered, giving rise to  a miscarriage of justice.  By  joint  memorandum  dated  20 August, Mr Lange, for the appellant, and Mr Mitchelmore, for the respondent, confirmed their agreement that leave should be granted, the appeal allowed and the case remitted to the District Court for a first instance determination of the appeal.

[18]              I heard briefly from counsel in the appeals callover list on 21 August 2025 and late on 22 August counsel filed a further joint memorandum, a bundle of emails and the notice issued by the District Court.

Jurisdiction

[19]              A charge of driving with excess breath alcohol is a category two offence.2 Section 356 of the Criminal Procedure Act 2011 (CPA) prescribes the jurisdiction of a Community Magistrate. Generally, jurisdiction is limited to qualifying category one offences. Sections 357 and 358 of the CPA extend jurisdiction to sentencing for a category two offence if the defendant has pleaded guilty and the maximum term of imprisonment that can be imposed does not exceed three months.

[20]              The Community Magistrate had jurisdiction to fine3 and disqualify4 Mr Kumar. Jurisdiction extended to discharging Mr Kumar without conviction.5 No application to discharge was advanced before the Community Magistrate. That failure and the merits of such an application are central to the substantive appeal.

[21]              Mr Kumar’s appeal against the failure of the Community Magistrate to discharge him without conviction is properly characterised as a composite appeal against conviction and sentence.6

2      Criminal Procedure Act 2011, s 6.

3      Section 357(2)(b).

4      Section 358(1)d).

5      Section 357(2)(g).

6      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].

[22]              The CPR apply to a proceeding to which the CPA applies in a District Court or the High Court, and to related and incidental matters.7 Part 8 of the CPR deals with appeals and applies to every leave to appeal and to every appeal to a District Court or to the High Court to which Part 6 of the CPA applies.8

[23]              Section 229(1) of the CPA provides that a person convicted of an offence may appeal under subpart 3 of Part 6 to the first appeal court against the conviction. Section 230(1)(a) of the CPA relevantly provides:

230     First appeal courts

(1)The first appeal court for an appeal under this subpart is—

(a)the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

[24]              Pursuant to s 231 of the CPA, a convicted person commences a first appeal by filing a notice of appeal if the court appealed to is the District Court, High Court or Court of Appeal. Mr Kumar appropriately filed his appeal in the Timaru District Court. The  timeframe  for  filing  an  appeal  against  conviction  and  sentence  is  20 working days after the date of sentencing.9 Mr Kumar’s appeal was filed well out of time. The first appeal court may, at any time, extend the time allowed for filing the notice of appeal.10

[25]              Rule 8.5 of the CPR provides that a notice given out of time must be treated as if it contains an application for extension of time. Leave is not required to appeal out of time. Pursuant to s 213(2) of the CPA, leave to appeal to any court other than the Supreme Court is required only if leave is expressly required by Part 6 of the CPA or any other Act.

[26]When an appeal is filed r 8.15 requires the registrar to allocate a fixture date:

7      Criminal Procedure Rules 2012, r 1.5(1).

8      Rule 8.1(1).

9      Criminal Procedure Act, ss 231(2) and 248(2).

10     Section 231(3) and 248(4).

8.15      Notice of fixture for oral hearing

(1)This rule applies to a hearing for an appeal or, if an oral hearing is to be held, for an application for leave to appeal.

(2)A Registrar must allocate a fixture.

(3)Notice of the time and place fixed for the hearing must be given by a Registrar to—

(a)the appellant; and

(b)the respondent; and

(c)if the appellant or the respondent is in custody and the court has granted the appellant or the respondent leave to be present at the hearing, the chief executive of the department for the time being responsible for the administration of the Corrections Act 2004.

[27]              Once a fixture has been allocated, the timetabling of submissions for appeals is prescribed by r 8.16:11

8.16Timing of submissions

(1)The appellant must file and serve on the respondent the appellant’s written submissions on all appeal points not later than 15 working days before the hearing date.

(2)In the case of an application for leave to appeal that is to be determined at an oral hearing, the submissions must include any reasons why leave should be granted.

(3)The respondent must file and serve on the appellant the respondent’s written submissions on all appeal points not later than 10 working days before the hearing date.

…

[28]              Finally, non-compliance with a timetable order for the filing of submissions can lead to the dismissal of an appeal, but not without notice from the appeal court. Section 338 of the CPA provides:

338 Power of appeal court to dismiss appeal for non-compliance with procedural orders

(1)Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.

11     Rule 8.16(4) applies to bail appeals.

(2)Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.

(3)The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.

(4)A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).

(5)In this section, appeal includes an application for leave to appeal.

What went wrong?

[29]              I have not been provided with any statistics, but I think it reasonable to surmise that the District Court regularly hears appeals against the decision of a community magistrate to decline bail but that appeals against conviction and/or sentence are far less common. That reflects the limited jurisdiction of a community magistrate. It may be that the rarity of conviction and/or sentence appeals to the District Court goes some way to explain the process failings and jurisdictional errors in this case.

[30]              First and foremost, the application of the CPR was overlooked. On the filing of Mr Kumar’s appeal, in accordance with r 8.15, the registrar was required to allocate a fixture and to give notice of that fixture to the parties. No such notice was given.

[31]              Secondly, the notice given by the Deputy Registrar has no legal standing. It wrongly referred to the Criminal Procedure Rules 2011.12 Even more curiously, there is no r 2.16. It is unclear what rule the Deputy Registrar had in mind. The form of the notice bears similarities to a notice issued in the civil jurisdiction. The language of the notice does not reflect the CPA or the CPR.  It refers to an application filed by  Mr Kumar. He had filed a notice of appeal, not an application. It refers to “filing” not to written submissions. It refers without explanation, to a due date for filing. How that due date was determined is unclear. It conflicts with the statutory timetable for the filing of written submissions. There is no record of the appeal being referred to a Judge for directions. Rather than record that a formal timetable order was made by a

12     The rules were enacted in 2012 not 2011.

Judge, the notice simply invited the parties to “ensure” that any further documents were filed by the nominated date.

[32]              The notice was headed, “notice of leave to appeal out of time application”. Mr Kumar did not require leave to appeal. He did require an extension of time. His notice of appeal included an application for an extension.13

[33]              Thirdly, because r 8.16 prescribes timetable orders, the notice purporting to impose a timetabling order was unnecessary.14

[34]              Fourthly, the response from Mr Kumar’s lawyers to the Deputy Registrar’s email of 17 June recording that no further submissions had been filed, was inexplicably overlooked, as was the Police response the following day. Consequently, both the Deputy Registrar and the Judge overlooked that the appellant had filed full submissions in support of the appeal prior to the notice being issued. It is perhaps not surprising that a busy District Court Judge relied upon the position as outlined by the Deputy Registrar in the referral letter although, as I have observed, the submissions were attached to the referral letter.

[35]              Fifthly, the Judge then dismissed the appeal without considering the appellant’s submissions or otherwise considering the merit of the appeal, inferentially on the grounds of non-compliance with an order made by the Court. I am satisfied there were no grounds to dismiss the appeal. No enforceable order had been made. Even if the notice did record an enforceable order, the appellant had filed full written submissions so was not in breach.

[36]              But even if the Judge had made a timetable order and the appellant had failed to comply, the Judge did not have jurisdiction to dismiss the appeal. Under s 338(2) of the CPA the appeal court was required to give 10 working days’ notice of an intention to dismiss for non-compliance. The requirement to give notice reflects the appellant’s right of appeal against conviction as confirmed by s 229(1) of the CPA. Three statutory preconditions must be met before an appeal can be dismissed under

13     Criminal Procedure Rules 2012, r 8.5.

14     The timeframes prescribed in r 8.16 will be amenable to amendment with the consent of the parties or in the case of urgency, r 8.2.

s 338. First, the appellant must have failed to comply with a timetable or other procedural order fixed for the appeal. In this case there had been no non-compliance. Secondly, the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal. No such notice was given. Thirdly, the appellant, after having been given notice, must fail to rectify the non-compliance within the notice period. There was no non-compliance to rectify.

[37]              The consequence of the various failings is that Mr Kumar’s right of appeal has been denied. The first appeal court has not engaged in any assessment of the merits of the appeal, more particularly the District Court has not considered whether a miscarriage of justice has occurred for any reason.

The second appeal

[38]              Mr Kumar has filed a notice of application for leave in this Court as the second appeal court. Pursuant to s 240 of the CPA, the second appeal court must allow the appeal if satisfied it should be allowed on any of the grounds described in s 232(2) of the CPA. Section 232(2) provides:

232     First appeal court to determine appeal

…

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

…

[39]              A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.15

[40]              Mr Mitchelmore, for the Police, responsibly acknowledges that a miscarriage has occurred as a consequence of the procedural and jurisdictional errors.   Both    Mr Lange and Mr Mitchelmore accept that it is inappropriate for this Court to determine the substantive appeal when the merits have not been considered by the first appeal court.

Result

[41]              Leave is granted to bring a second appeal against conviction. The appeal is allowed. The decision to dismiss the appeal is set aside. The appeal is remitted to the District Court for hearing.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Timaru Young Hunter, Christchurch

15     Criminal Procedure Act, s 232(4).