IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000328 [2015] NZHC 3293
BETWEEN RAVI KUMAR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
P Borich for Appellant
N Fletcher for RespondentJudgment:
17 December 2015
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 17 December 2015 at 4.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors:
P Borich, Auckland
Kayes Fletcher Walker, Auckland
KUMAR v NZ POLICE [2015] NZHC 3293 [17 December 2015]
Introduction
[1] On 22 April 2015, Judge Bouchier, sitting in the Pukekohe District Court, convicted the appellant, Mr Kumar, of one charge of assault with a weapon. He was sentenced as follows:
(a) to a pay a fine of $250;
(b) to pay Court costs of $130; and
(c) to pay emotional harm reparation to the complainant of $300. [2] Mr Kumar had pleaded guilty to the charge.
[3] On 7 October 2015, Mr Kumar appealed his conviction. The appeal was filed some considerable time after the appeal period had expired. Mr Kumar seeks leave to appeal out of time. In the event that leave is granted, he seeks to set aside the sentence imposed. He argues that he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. He says that he is likely to be deported as a result of the conviction and that this consequence is disproportionate to his offending.
Application for leave to appeal out of time
[4] Mr Fletcher, appearing for the respondent, did not oppose the application for leave to appeal out of time.
[5] It appears from an affidavit which has been filed that Mr Kumar did not raise his immigration status with the solicitor representing him at the time the conviction was entered. Mr Kumar did not then know that a conviction might affect that status. He only became aware that a conviction could result in deportation when he spoke to an immigration lawyer in late August 2015. He says that he contacted a criminal barrister on 28 September 2015, and instructed him to lodge the appeal. The appeal is dated 7 October 2015. I am satisfied that it is appropriate, and in the interests of justice, to grant leave for the appeal to be filed out of time.
Fresh evidence
[6] Mr Kumar has filed an affidavit. It is advanced on the appeal as fresh evidence. It was not before Judge Bouchier when her Honour convicted and sentenced Mr Kumar. Indeed, Judge Boucher was not asked to discharge Mr Kumar without conviction.
[7] Under s 335 of the Criminal Procedure Act 2011, this Court, on appeal, can conduct its own enquiry into evidential matters if it considers it necessary or expedient in the interest of justice to do so.1
[8] The approach taken by the Court to the receipt of fresh evidence has been comprehensively summarised by Tipping J in R v Bain.2 The evidence must be fresh and credible.…
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