Narayan v The the King

[2022] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA367/2022
 [2022] NZCA 527

BETWEEN	NILESH NARAYAN Appellant
AND	THE KING Respondent

Court:	Goddard, Brewer and Edwards JJ
Counsel:	T Singh for Appellant C A Brook for Respondent
Judgment: (On the papers)	4 November 2022 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for extension of time to appeal is granted.

BThe appeal is allowed.

CThe conviction of the appellant under s 11 of the Aviation Crimes Act 1972 is set aside.

DThere is no order for retrial.

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REASONS OF THE COURT

(Given by Goddard J)

1. Mr Narayan was charged with attempting to take a dangerous weapon on board an aircraft, contrary to s 11(1)(b) of the Aviation Crimes Act 1972.  He pleaded guilty.  A conviction was entered at the District Court at Manukau on 4 February 2021.  On 19 April 2021 he was sentenced to 130 hours of community work. 

1. Section 18 of the Aviation Crimes Act provides that no proceedings for the trial and punishment of any person charged with a crime against s 11 of that Act may be instituted in any court except with the consent of the Attorney-General.  The Attorney-General’s consent to bring charges against Mr Narayan was never obtained.  That omission was identified by the police in the course of an audit of their files, some time after Mr Narayan had been convicted and sentenced.  In those circumstances, the police invited Mr Narayan to pursue an appeal from his conviction. 

1. In response to that invitation, Mr Narayan has applied for an extension of time to appeal against his conviction. 

2. Counsel for Mr Narayan and for the Crown have filed a helpful joint memorandum in relation to this appeal.  The memorandum confirms that having regard to the circumstances set out above, the Crown does not oppose an extension of time and submits the conviction should be quashed.  No order for retrial is sought given the minor nature of the offending.  The memorandum records that the parties agree the matter can fairly be dealt with on the papers.

3. In Talley’s Group Ltd v WorkSafe New Zealand this Court considered the circumstances in which a charging document is a nullity.[1]  Section 379 of the Criminal Procedure Act 2011 (CPA) provides that charging documents may not be set aside or held invalid by reason only of any defect, irregularity, omission or want of form unless the court is satisfied that there has been a miscarriage of justice.  But if a charging document is a nullity, s 379 cannot save it.  This Court said:[2]

   [45]     In New Zealand, such considerations have tended to be dealt with under s 379 of the CPA (or its predecessors), where miscarriage must be established in order to invalidate a defective charge.  This means that New Zealand courts have tended to be less strict on the prior question of nullity.  A charging document will be a nullity if it fails to disclose an offence, or a defendant, or is so unintelligible that the nature of the offence cannot be ascertained.  Such will also be the case where the charge lacks a required statutory consent, or is out of time.  To void a charging document therefore, relevant defects must be so radical as to deprive the document of its essential character.  Technical or mechanical defects will not suffice, and the courts will be slow to reach such a “drastic conclusion”.  It follows that even serious defects will be protected by s 379 of the CPA if, despite the impugned defect, the document nonetheless discloses a recognisable charge, a recognisable defendant, (where necessary) is in time and is supported by statutory consents.  But if one or more of these elements is missing, “there is nothing before the Court capable of rectification”.  That said, the dividing line between nullity and mere irregularity is not always a bright one.  Whether the defect goes to the very heart of a charging document will sometimes be a matter of degree almost always informed by the risk of a miscarriage of justice.

   [1]Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198.

   [2]Footnotes omitted and emphasis added.

4. The absence of the Attorney-General’s consent to bring the charge in this case was a defect that went to the heart of the charging document, rendering it a nullity.[3]  The proceedings should not have been instituted, and should not have been considered by the District Court.  That in and of itself requires the conviction to be set aside.  It is not strictly speaking necessary to inquire further.  But we accept the submission in the joint memorandum of counsel that if the Attorney-General’s consent had been sought, there is no guarantee the consent would have been given.  If that consent had been refused, Mr Narayan could not have been prosecuted for the offence on which he was convicted.  The real possibility of a different outcome is a further reason why a miscarriage of justice has occurred in this case.

   [3]For a recent English decision that reaches the same result, see Regina v Lalchan [2022] EWCA Crim 736, [2022] QB 680 at [39]–[42].

1. In these circumstances, it is appropriate for the extension of time to appeal to be granted and for the appeal to be allowed.  The conviction should be set aside.  The sentence imposed on Mr Narayan has already been set aside by the District Court.[4] In the absence of any valid charging document, no question of retrial arises.  There is, quite simply, no valid charge before the District Court. 

Result

[4]Police v Narayan [2022] NZDC 17646 at [2].

1. The application for extension of time to appeal is granted.

2. The appeal is allowed.

3. The conviction of the appellant under s 11 of the Aviation Crimes Act 1972 is set aside.

4. There is no order for retrial.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent