Nair v Police - [2020] NZHC 2507

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000346

[2020] NZHC 2507

BETWEEN
RUPENDRAN NAIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 September 2020

Appearances:

Heather Rogers for the Appellant Aysser Al-Janabi for the Respondent

Judgment:

24 September 2020

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 24 September 2020 at 2:00 pm

Registrar/ Deputy Registrar Date:

NAIR v NEW ZEALAND POLICE [2020] NZHC 2507 [24 September 2020]

Introduction

[1] Mr Nair was charged with two offences committed on 2 September 2019; assault on a person in a family relationship1 and intentionally impeding normal breathing (strangulation).2

[2] He pleaded guilty to the assault charge but took the strangulation charge to a Judge-alone trial.

[3] On 22 May 2020 Judge D J McNaughton found Mr Nair guilty and entered a conviction. Mr Nair was remanded for sentence to 18 August 2020 which was extended pending the determination of this appeal.

[4] He now appeals his conviction on the grounds of fresh evidence as to his circumstances. The Crown does not oppose allowing the appeal.

[5] A preliminary issue is that the appeal is filed out of time. Given the grounds of appeal and the absence of opposition from the Crown, I am satisfied that it is appropriate to grant an extension of time for the filing of the appeal and so order.

Background

[6] The victim relative to both charges had been in a relationship with Mr Nair for some two years. At around 12:30 am on 2 September 2019 Mr Nair arrived at her address. He scrolled through her phone. He found a message from another man. He jealously confronted her. He slapped her across the face before holding her against the wall by her neck. She was unable to breath properly. He also struck her on the face. She suffered minor bruising to her cheek and swelling on her neck.

[7]As a consequence of this conduct Mr Nair was charged with both offences.

1 Crimes Act 1961, s 194A; maximum penalty – two years’ imprisonment.
2 Section 198A(b); maximum penalty – seven years’ imprisonment.

Subsequent events

[8] Ms Rogers, who has been Mr Nair’s counsel throughout, advises that following Mr Nair’s plea of guilty on the assault charge, the Judge asked whether counsel had submissions on whether a conviction should be entered. Ms Rogers advises that she asked the Judge not to enter a conviction. However, following the later finding of guilt on the strangulation charge, in response to the same question, Ms Rogers advises that she did not ask that no conviction be entered. This was because on the information she was then seized of, she could see no legitimate or principled basis upon which to apply under s 106 of the Sentencing Act 2002 (“the Act”) for a discharge without conviction. She advises that although she was then aware that Mr Nair had entered a new relationship and was engaged,…

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 Nair v Police

Details

AGLC: Nair v Police [2020] NZHC 2507
Case: [2020] NZHC 2507
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the case of Nair v Police, the appellant, Mr Nair, appealed against his conviction for strangulation, which was imposed following a trial by a Judge alone. The appeal was brought under s 229 of the Criminal Procedure Act 2011 and was based on fresh evidence regarding Mr Nair’s circumstances. The Crown did not oppose the appeal. The preliminary issue of whether the appeal was brought out of time was resolved in favour of Mr Nair on the basis that the grounds of appeal and absence of opposition from the Crown justified an extension of time.

The central legal issue was whether the appeal should be allowed given the fresh evidence and the absence of opposition from the Crown. The court considered whether the evidence was indeed fresh and whether there was jurisdiction to grant the appeal. The court held that the evidence was fresh as it related to Mr Nair’s changed circumstances, which were not known to his counsel at the time of the conviction. Furthermore, the court found that there was jurisdiction to grant the appeal as s 231 of the CPA does not prohibit an appeal against conviction before sentence is imposed. The court also determined that it was not necessary to consider whether the conviction should have been quashed in the District Court.

The court concluded that a miscarriage of justice had occurred as the entry of the conviction deprived Mr Nair of the opportunity to advance an application under s 106 of the Sentencing Act 2002, which, if successful, would amount to an acquittal. Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted back to the District Court for sentencing. The court emphasized that its decision was not an indication to the District Court on the question of whether a s 106 application should be allowed or disallowed.

The final orders were that the appeal was allowed, the conviction on the strangulation charge was quashed, and the charge was remitted back to the District Court for sentencing.

Orders