Jameson Maraj pleaded guilty to driving with excess blood alcohol and careless driving in the North Shore District Court in September 2015. Judge Hinton refused his application for a discharge without conviction under s 106 of the Sentencing Act 2002.[1] Whata J dismissed the appeal from that decision.[2] Mr Maraj seeks leave to bring a second appeal.
A second appeal is precluded unless the proposed appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] Mr Maraj asserts that his proposed appeal does involve a question of general importance, namely the proper procedure for appeals of this kind against refusal to grant a discharge without conviction. Alternatively, he says that permitting the convictions to stand will result in a miscarriage of justice as a result of the Judge:
(a)applying the wrong threshold in considering the consequences of a conviction on Mr Maraj; and
(b)failing to recognise that the refusal to grant a discharge without conviction was inconsistent with other cases, particularly those involving sports people.
[3]Criminal Procedure Act 2011, s 237.
Mr Maraj sought to adduce further evidence in the form of an affidavit by his father for the purposes of the appeal. There was no opposition and we give leave for him to do so. At the conclusion of the hearing we sought additional evidence regarding Mr Maraj’s academic record, which has been provided. After the hearing we requested further submissions on one aspect of Canadian immigration law. Mr Maraj provided an affidavit from Mr Ryken, an immigration lawyer who had sworn an affidavit for the purposes of the s 106 application in the District Court. There was no objection and we accept that affidavit too.
Proper procedure for appeal against refusal to grant discharge without conviction
Because Mr Maraj’s prosecution was commenced by way of charging documents filed after the commencement of the second stage of the Criminal Procedure Act 2011 (CPA) the proposed appeal falls to be determined under pt 6 of that Act.[4] Under pt 6 there are separate provisions directed towards various types of appeals including appeals against conviction and appeals against sentence.[5] However, there is no specific provision addressing the manner in which an appeal against a refusal to grant a discharge without conviction should be approached.
[4]Criminal Procedure Act 2011, s…
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.
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AGLC
Maraj v Police [2016] NZCA 279
Case
[2016] NZCA 279
Decision Date
CaseChat Overview and Summary
Jameson Ajodhya Maraj sought leave to appeal against the Court of Appeal's decision to decline him leave to appeal the High Court's dismissal of his appeal against the North Shore District Court's refusal to grant him a discharge without conviction. The Court of Appeal considered whether the appeal involved a question of general or public importance or a miscarriage of justice. The applicant contended that the appeal involved a question of general importance regarding the proper procedure for appeals of this kind against refusal to grant a discharge without conviction. Alternatively, the applicant submitted that permitting the convictions to stand would result in a miscarriage of justice as a result of the Judge applying the wrong threshold in considering the consequences of a conviction on the applicant and failing to recognise that the refusal to grant a discharge without conviction was inconsistent with other cases, particularly those involving sportspeople. The Court of Appeal held that the application for leave to adduce further evidence was granted, but the application for leave to appeal was declined. The Court found that the proposed appeal did not involve a question of general importance that would justify a second appeal. Although the first appeal was brought as a sentence appeal, the Court proceeded on the basis that the appeal was correctly treated as being an appeal against conviction without determining the point. The Court also found that there was no miscarriage of justice if the applicant's convictions were to stand. The Court held that the applicant's offending was moderately serious and there was a low risk that as a result of his convictions he would be affected in terms of selection for the most sought-after places. The Court further held that the applicant's conviction for drinking and driving was of a type that would be relevant to his fitness to practice as a doctor and that assessment was properly made by the appropriate institutions in terms of training and practice. Finally, the Court held that although the applicant would be affected in terms of travel to Canada, that situation was a temporary one and was not a consequence that was out of all proportion to the gravity of the offending. The Court also held that the Judge did not make any error in assessing the likelihood of negative consequences materialising. The particular circumstances were to be carefully weighed in each case.