Nair v Police
[2020] NZHC 2507
•24 September 2020
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, she knew nothing more about Mr Nair’s personal circumstances and could see no reason to enquire further.
[9] However, on 2 July 2020, Mr Nair told Ms Rogers he was getting married and a few weeks later, on 24 July 2020, he asked of her how a conviction might affect his position if he wished to work in Australia. However, it was not until 11 August 2020 that he disclosed to Ms Rogers that his new wife had been living in Australia for five years, held a senior management position in a pharmacy in Sydney and that he and his wife were intending to move to Sydney. It was only then that Mr Nair instructed Ms Rogers to make an application for a discharge without conviction.
Appellant’s submissions
[10] Ms Rogers submits that she had no reason to make any particular enquiries of Mr Nair following his conviction. Had she known his wife was intending to return to Australia or was aware of Mr Nair’s claim that he had a “long-held wish to relocate to Australia” then she would have requested a conviction not be entered at the time the charge was found proved.
[11] Ms Rogers submits that these are factors which would have justified her making an application under s 106 of the Act for a discharge without conviction. Supporting such an outcome is that Mr Nair has no criminal history and, Ms Rogers submits, the index offending was not sufficiently serious to require the entry of a conviction and the imposition of a sentence.
Crown’s submissions
[12] Ms Al-Janabi, for the Crown, while properly not expressing a view on the likely success or otherwise of a s 106 application, accepts that it is in the interests of justice for the appeal to be allowed.
[13] This is on the basis of an affidavit made by Mr Nair deposing to the following facts:
(a)Mr Nair’s now wife returned to New Zealand to visit her parents in February 2020. Mr Nair has known her as a good friend since 2013. The COVID-19 crisis trapped her in New Zealand when the borders were closed;
(b)Mr Nair and his wife to be, reconnected and commenced a relationship;
(c)they became engaged and were married on 6 July 2020. Mr Nair’s wife is qualified to be employed in a pharmacy in Australia but not New Zealand. It is her intention to return to work as the store manager of the pharmacy she managed in Sydney before she travelled to New Zealand; and
(d)Mr Nair wishes to accompany his wife and to find employment in Australia. He has been offered work as a service technician but cannot accept that employment until the borders re-open.
[14] Ms Al-Janabi accepts this information amounts to fresh evidence for the purposes of the conviction appeal. Furthermore, she submits that it would be in the interests of justice for the appeal to be allowed and the matter remitted back to the District Court so that the application for a discharge without conviction can be considered.
[15] Ms Al-Janabi expressly reserves the prosecution’s position on the relative merits of the s 106 application. She simply observes that Mr Nair, in the interests of
justice, ought to be given the opportunity of advancing the application which the present conviction presents as an obstacle.
Discussion
[16]I am satisfied that the appeal should be allowed for the reasons which follow.
[17] First, the evidence advanced by Mr Nair has the quality of fresh evidence about it. Mr Nair had not married when the conviction was entered. Ms Rogers was not aware of his future wife’s qualifications, her desire to return to Australia to work nor Mr Nair’s consequent intention to join her. Neither, in my view, were the circumstances at the relevant time such that she should have been on notice to make such an enquiry. I am satisfied that the evidence could not, with reasonable diligence, have been produced or brought to the Court’s attention before the conviction was entered.3 I am also satisfied that the evidence is, on its face, credible and cogent and thus should be admitted on this appeal.
[18] Secondly, I am satisfied here is jurisdiction to grant the appeal. It has been brought under s 229 of the Criminal Procedure Act 2011 (“the CPA”). In Gurney v Police, Collins J remarked that whilst it is “highly unusual” to hear an appeal against conviction before sentence is imposed, s 231 does not prohibit it.4 There the conviction was quashed because there was a jurisdictional impediment to the District Court hearing the charge. Plainly there is no such impediment here. However, I note that the lack of jurisdiction in Gurney meant that proceeding to sentence would have been an exercise in futility. That is not the position in the present case because the likelihood of a discharge without conviction is uncertain.
[19] Thirdly, I have considered whether a preferable approach would have been for Mr Nair to have been sentenced and then appealed. I have decided that course is not available. In Ho v R the Court of Appeal left undecided the issue of whether an appellate Judge was correct in refusing to discharge without conviction in the absence of an application at first instance. The Court observed that it may be appropriate to
3 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
4 Gurney v Police [2017] NZHC 1581 at [11]. His Honour observed by way of footnote that this is different to s 115(3) of the Summary Proceedings Act 1957.
consider granting a discharge where there is a change in circumstances or where fresh evidence has become available.5 However, because an appeal against a refusal to discharge a defendant without conviction is a conviction appeal and not a sentence appeal, I am satisfied that the present procedural pathway is the correct one.
[20] Another question is whether the conviction should have been quashed in the District Court rather than in appealed to this Court. I agree with the parties that there is no jurisdiction to quash in this case. Section 177 of the CPA allows a Court to order a re-trial or re-hearing. However, that course is not available for category 3 offences, that is offences punishable by more than three years. The maximum penalty for the strangulation charge is seven years.
[21] Ms Rogers draws my attention to Police v Paea.6 In the District Court, Judge Cathcart considered that the District Court’s inherent power to prevent an abuse of its process was available to order a re-hearing even where s 177 did not apply. The Judge stated:
“[28] As noted earlier, I have already found that there has been a miscarriage of justice in relation to the hearing on 21 July 2016. Thus, if this charge was covered by s 177, I would have had no hesitation in granting the order setting aside the conviction and ordering a rehearing. However, as I noted already, s 177 does not apply to this case.
[29] … I have formed the view that there is an equivalent parallel power available to a District Court Judge under the doctrine of inherent power which exists to ensure a fair trial and to prevent an abuse of the Court process.”
[22] However, for the reasons set out above, it is not necessary for me to decide whether that course is available or whether it is necessary to resort to this Court’s inherent jurisdiction to resolve this matter.
[23] In conclusion, I am satisfied that a miscarriage of justice has occurred. The entry of a conviction on the strangulation charge was an error, irregularity or occurrence in relation to the trial. Secondly, that error, irregularity or occurrence resulted in unfairness because Mr Nair, as a consequence, was deprived of the
5 Ho v R [2016] NZCA 229 at [11].
6 Police v Paea [2016] NZDC 14790.
opportunity to advance an application under s 106 which, if successful, would amount to an acquittal.
[24] For that reason I am satisfied the appeal should be allowed, the conviction quashed and the matter remitted back to the District Court for Judge McNaughton to sentence Mr Nair. In making that order I must emphasise that nothing in this judgment is to be interpreted as an indication to the District Court on the question of whether a s 106 application should be allowed or disallowed. This Court has not heard the evidence which the trial Judge did. The trial Judge is in the unique position of making the appropriate assessment under s 106 of the seriousness of the offence and undertake the balancing exercise the Court is required under s 107 of the Act.
Result
[25]The appeal is allowed.
[26]The conviction on the strangulation charge is quashed.
[27]The charge is remitted back to the District Court for sentencing.
Moore J
Solicitors:
Ms Rogers, Auckland Crown Solicitor, Manukau
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