Navaratnam v Ministry of Social Development

[2014] NZHC 2614

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-87 [2014] NZHC 2614

BETWEEN

SHIVAH HARAN NAVARATNAM

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	21 October 2014
Counsel:	No appearance for Appellant M J Ferrier for Respondent
Judgment:	23 October 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 23 October 2014 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor’s Office, Wellington

NAVARATNAM v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 2614 [23 October 2014]

Introduction

[1]      Mr Navaratnam was convicted in the District Court on nine counts, which fall into the following four categories:

(a)       one count of wilfully omitting to advise Work and Income that he was planning to travel overseas;1

(b)two counts of forging documents in the form of invoices for massage services;2

(c)      two counts of forging documents purportedly from his landlord;3 and

(d)      four counts of using a document to obtain pecuniary gain.4

[2]      Mr Navaratnam appealed unsuccessfully to this Court.  Subsequently he filed an application for leave to appeal to the Court of Appeal and an application for transfer of the proceedings to Hamilton.  A hearing was scheduled for 15 September

2014.  Mr Navaratnam did not appear, and in a Minute dated 17 September 2014, I dismissed the application for transfer and granted a final adjournment of the matter to Tuesday 28 October 2014 (the hearing was then brought forward to 21 October

2014).   In my Minute of 17 September, I recorded:

[4]       Mr Navaratnam also seeks an adjournment for the purposes of filing an affidavit deposing to various matters in support of his application for leave  to  appeal.    This  affidavit  will  purportedly  deal  with  his  claimed medical situation, which Mr Navaratnam says will require a full review.

[5]       I record that Mr Navaratnam has a history of delay and of seeking adjournments for various reasons.  His current application for leave to appeal is in reality based on the central issue of mens rea, which Judge O’Driscoll found to be established on the evidence and was confirmed by me on appeal as soundly based.

[6]       As Mr Ferrier for the respondent submits, it is not clear how any evidence Mr Navaratnam purports to adduce by way of further affidavit is intended to or could in any event advance his application for leave to appeal.

1      Social Security Act 1964, s 127.

2      Section 257(1)(a).

3      Section 257(1)(a).

4      Crimes Act 1961, s 228(b).

[3]      On Monday of this week, Mr Navaratnam filed an “interlocutory application for self-dismissal” of his appeal on the basis that the refusal of legal aid and his own ill-health have prevented him from pursing it.   However, he seeks to nevertheless preserve his position by also seeking leave to bring a further application in this Court for leave to appeal to the Court of Appeal out of time at a later date.  Alternatively, he asks that the Court “place no restriction or impediment” on any future application by him for discharge without conviction under s 106 of the Summary Proceedings Act 1957.

[4]      As noted in my 17 September Minute above, Mr Navaratnam’s previous application for leave to appeal was in reality based on the central issue of mens rea, which was determined in the District Court and upheld on appeal.  It is extremely doubtful that Mr Navaratnam’s appeal is capable of satisfying the threshold for leave to appeal to the Court of Appeal and, in any event, as recorded above, he was warned in September that the adjournment granted on that occasion was to be the final adjournment.    His  application  is  therefore  dismissed  for  want  of  prosecution. Mr Navaratnam can apply for special leave to the Court of Appeal within 21 days from the date of this decision, if he so wishes.

[5]      As a final matter, Mr Navaratnam also indicated that he intended to apply for a s 106 discharge.  Having already effectively abandoned such an application when not pursuing that aspect at the appeal hearing before me, it is not now open to Mr Navaratnam to essentially seek a second appeal in relation to this.  In any event, in the circumstances of his offending, it would have been a forlorn exercise.

Result

[6]      The application for leave to appeal to the Court of Appeal is dismissed for want of prosecution.

Goddard J