Police v Wen
[2021] NZHC 3610
•22 December 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-485-54
[2021] NZHC 3610
BETWEEN NEW ZEALAND POLICE
Applicant
AND
SHAO PENG WEN
Respondent
Hearing: 24 November 2021 Appearances:
J M O’Sullivan for Appellant
L Ord and E T Blincoe for Respondent
Judgment:
22 December 2021
JUDGMENT OF ISAC J
Introduction
[1] Rachel Pawsey was only 30 years old when she was killed in a road accident caused by the respondent. She was travelling home to her partner’s house in Upper Hutt after netball practice. She was the only child of her parents, and a much- loved teacher in a local secondary school.
[2] While this appeal concerns Mr Wen and the criminal legal process which followed the accident, I wish to acknowledge at the outset the profound loss and grief that is at the heart of the case.
NEW ZEALAND POLICE v WEN [2021] NZHC 3610 [22 December 2021]
The appeal
[3] Mr Wen was charged with careless driving causing Rachel’s death.1 He initially pleaded not guilty. Following a sentence indication before Judge Tompkins, he entered a guilty plea. At sentencing Mr Wen sought a discharge without conviction, pointing to the immigration consequences should a conviction be entered.
[4] Judge Tompkins granted the discharge. The Crown appeals that decision based on an error of law.
Background
[5] The relevant events leading to the accident are outlined in the Judge’s sentencing notes:2
The offending occurred on the night of 27 August 2020. At the time, Rachel, who was employed in the boarding house of a Wellington secondary school, was on her night off and was travelling northwards on State Highway 2 past Upper Hutt to where her partner lived. At the same time the defendant, who had been having dinner with friends, was returning home. At about 8.30 pm, the defendant drove his car down Moonshine Hill Road to the intersection with State Highway 2, as that State Highway passes from the Hutt River Bridge past Upper Hutt to the Remutaka Hill. The intersection is known as a “seagull” intersection because of the shape of the intersection when viewed from above. In essence, the intersection between Moonshine Hill Road and the northbound land is a T-intersection, but the southbound traffic is divided from the northbound traffic by a raised barrier. The effect of that being that vehicles turning right onto State Highway 2, so intending to travel south, have to cross the northbound lane, but then that turning vehicle moves into a separate area of the road before having to join the southbound lane.
Unusually, the defendant had fitted his vehicle with a video recorder to the rear vision mirror and when the crash was investigated, the precise sequence of events was revealed by that video record. That showed that Mr Wen stopped at the stop sign which controls the intersection for a little over 40 seconds, during which a number of cars passed on State Highway 2 in both directions before moving slowly out of Moonshine Hill Road to complete his intended right-hand turn. At the same time, Rachel was approaching that intersection on her motorbike in a northerly direction. It is readily apparent that Mr Wen simply did not see Rachel approaching the intersection. The investigation report records that she was wearing appropriate high-visibility clothing and crash helmet and her headlight was on. But despite that, in a way in which the
1 Land Transport Act 1998, s 38 (maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and disqualification from holding or obtaining a driver licence for 6 months or more).
2 New Zealand Police v Wen [2021] NZDC 11953 at [2]–[3].
police accept represents a momentary lapse of the standard of driving expected of a reasonable and prudent driver, Mr Wen did not see her approaching and moved into the intersection and into her path of travel. Rachel endeavoured to avoid the collision but was unable to do so. Tragically, she struck the right- hand side of Mr Wen’s vehicle and became wedged underneath the right front of his vehicle and tragically died at the scene. Mr Wen extracted himself from his vehicle, the airbags having activated, endeavoured to lift the vehicle off or otherwise assist Rachel, but was unable to do so before emergency services arrived.
[6] Having identified what he described as a three-stage inquiry in relation to the grant of a discharge without conviction, the Judge concluded that the direct and indirect consequences of a conviction were out of all proportion with the seriousness of the offence.
[7] In terms of an assessment of the gravity of the offending and level of culpability, the Judge noted that Mr Wen accepted responsibility for the accident. The police also accepted that it was “a momentary episode of carelessness” that caused the accident.3 Having considered those matters, the Judge concluded that Mr Wen’s culpability “can properly be described as low”.4
[8] The Judge then turned to consider the direct and indirect consequences of the conviction. He concluded:5
… I accept that if a conviction is entered today, Mr Wen will become liable to deportation and will be unable to renew his visa, and in those circumstances, his family who are currently still residents in China may be unable to join him. Despite the police’s submission, I conclude that there is a high likelihood of deportation should a conviction be entered, whilst at the same time acknowledging that under the different and applicable statutes, both the immigration and authorities and ultimately the Minister have discretions which they can properly exercise in relation to this case. I also accept that if deported, Mr Wen’s age may well make it difficult to obtain employment in China should he be compelled to return there. No other direct or indirect consequences of the entry of a conviction were identified.
[9] Turning then to what he described as the “proportionality balancing exercise”, the Judge observed:6
3 At [7].
4 At [8].
5 At [9].
6 At [12].
Against all that background, I have concluded that Mr Wen should be discharged without conviction. In reaching that conclusion, I have concluded the direct and indirect consequences of the entry of conviction, and particularly the high likelihood of deportation, are out of all proportion to the gravity of the offending given its nature. As I have already said, in granting this discharge without conviction, nothing should be taken away from the very real and long-lasting consequences which Rachel’s death will have for her family, friends and wider community.
Approach on appeal and a question of law
[10] This is an appeal on a question of law pursuant to s 296(2) of the Criminal Procedure Act 2011. There is no general right of appeal. The prosecutor may, with the leave of the Court, appeal on a question of law against a ruling by a trial court.7
[11]A question of law arises when there is:8
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.
(d)a decision which is “plainly wrong”.
[12] In R v Cleaver,9 the Court of Appeal outlined the test applicable to police appeals against a discharge without conviction under s 296:10
The test to be applied under s 296 of the Criminal Procedure Act is fundamental to our assessment of this appeal. It can be contrasted to an appeal by a defendant who has been refused a discharge without conviction. In that case, although an appellate court must be persuaded that the Court below was wrong, it reaches its decision on that point by its own view of the merits. On the other hand, in this appeal we need to be persuaded not that the Court below was wrong, but that no Judge acting rationally within the scope of ss 106 and 107 of the Sentencing Act could have made the decision under appeal. It is a much more stringent test.
(emphasis added)
7 Criminal Procedure Act 2011, s 296(2).
8 R v Taulapapa [2018] NZCA 414 at [17]–[18].
9 R v Cleaver [2020] NZCA 397.
10 At [20].
Grounds of proposed appeal
[13] In written submissions the appellant advanced three questions in support of its application for leave to appeal, characterising each of them as a question of law:
(i)Did the learned District Court Judge err as to the immigration consequences of conviction (by making findings unsupported by reliable evidence)?
(ii)Did the learned District Court Judge fail to consider a relevant matter, namely the difference between the consequences of a conviction and the consequences of the offending itself?
(iii)Did the learned District Court Judge fail to refer to, and properly give effect to, the settled authority on usurping the functions of immigration authorities?
[14] While these questions were advanced as separate grounds of appeal, during the course of argument it became apparent that they are essentially restatements of the same underlying propositions.
[15] During the hearing Ms O’Sullivan for the Police refined the grounds of appeal into two essential challenges:
(a)First, the Judge relied on an affidavit of Mr Wen to support his conclusion that the immigration consequences of a conviction were out of all proportion to the gravity of the offence. The appellant says Mr Wen’s evidence was inadmissible opinion and factually wrong. Admission of the affidavit was an error of law. And without it there was no evidence to support the finding that Mr Wen’s deportation following conviction was highly likely.
(b)Second, in Mr Wen’s case the liability for deportation arose not from a conviction, but rather the underlying criminal offence he committed and his admission of guilt. In essence, a conviction was not causative of the asserted consequence; Mr Wen’s liability for deportation existed whether a conviction was entered or not. The Judge’s failure to appreciate this distinction was an error of law, because it was a failure to have regard to a relevant consideration.
Status of evidence filed on appeal
[16] In support of its proposed appeal, the appellant filed an affidavit from a Mr Kurt Williams, a senior Immigration Compliance Officer employed by Immigration New Zealand. Mr Williams deposed that:
I have been asked to comment on Shaopeng Wen’s immigration circumstances and the potential impact of the imposition of a conviction on his immigration status.
[17] In addition to this evidence on appeal, the respondent filed an updating affidavit of his own, outlining a deportation liability notice (or DLN) that had been issued by Immigration New Zealand (INZ) despite his discharge without conviction, but successfully challenged subsequently on what is known as a “good reasons” review by INZ.
[18] The respondent also filed an affidavit from a Mr Richard Fletcher, an experienced barrister and solicitor who specialises in immigration law. Mr Fletcher’s affidavit took issue with Mr Williams’ evidence as to the likely or potential immigration consequences had a conviction been entered (either in the District Court, or now on appeal).
[19] I raised with Ms O’Sullivan the obvious concern that the appellant had not applied for leave to admit fresh evidence on its appeal. In addition, as the appeal was limited to one on a point of law only, it was difficult to imagine a case where leave to adduce fresh evidence would be appropriate.
[20] After hearing from counsel, I resolved to proceed with the hearing on the basis that the evidence filed by both parties would not be formally admitted unless the applicant had identified an error of law in the District Court’s sentencing decision. Only if I found such an error existed would it then be appropriate to consider whether leave to admit fresh evidence ought to be granted. I took counsel for both parties to accept that approach, albeit that both made reference to the evidence filed on appeal in their written and oral submissions.
[21] Despite this approach, as a matter of completeness I record that I have read the additional evidence as part of my overall consideration of the appeal.
Discussion
[22] The Judge identified and applied the correct legal test to determine whether a discharge without conviction was appropriate. I do not take the applicant to suggest there was an error of law in the Judge’s assessment of the gravity of the offending, or the Judge’s assessment whether the direct and indirect consequences were out of all proportion to the gravity of the offence.
[23]I therefore turn to the two principal challenges to the District Court’s decision.
First ground of appeal: was Mr Wen’s affidavit inadmissible opinion evidence and was it misleading?
[24] The appellant’s first challenge is to the admissibility, and accuracy, of Mr Wen’s affidavit in the District Court which outlined the potential consequences of a conviction for him. This is what Mr Wen said:
30.My employment relies on me having a current work visa.
31.I understand that a temporary entry class visa holder is liable to deportation on receiving a criminal conviction. I currently hold what I call a work visa, that is, a visa that enables me to work in New Zealand. I attach this marked (D).
32.The Immigration Act 2009 (the Act) (s 157) provides that a temporary entry class visa holder is liable for deportation if there is sufficient reason to deport the temporary entry class visa holder.
33.Section 4 of the Act defines a temporary entry class visa. I am liable for deportation as a result of a criminal conviction on being served with a Deportation Liability Notice. A criminal conviction includes one where the maximum penalty is three months imprisonment.
34.I am advised I have a right of appeal to the Immigration Tribunal which has to be exercised within 28 days of the service of the notice. I understand under New Zealand law even a minor conviction carries a minimum sentence of up to three months in jail (even 'if I was a resident which I am not). I am advised that careless driving causing death is a criminal charge and that triggers a deportation liability.
35.I understand that if I wish to apply for a resident’s visa or had a resident’s visa the same difficulty arises. Any charge that carries a
maximum penalty of three months’ imprisonment or more means that I am unlikely to obtain a resident’s visa.
36.The grounds for determining appeals to the Immigration Tribunal are set out at s 207 of the Act. The Tribunal can only allow an appeal against liability for deportation on humanitarian grounds:
(a) Where it is satisfied there are exceptional circumstances of a humanitarian nature that it would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) It would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
37.I am advised by my lawyers the Supreme Court has considered the matter of exceptional circumstances and says these “must be well outside the normal run of circumstances and they have to be truly the exception rather than the rule”.
38.I do not believe that I can meet this test having been in New Zealand only since 2018, having only recently obtained work and with my family still in China.
39.I am extremely stressed and concerned about the deportation liability that I will be subject to. I have lived in New Zealand for three years, studied and obtained work. My family in China has made sacrifices for me to come to New Zealand and ultimately my wife and son were looking forward to joining me here once I obtained a residence visa so that we could live together as a family and have opportunities that were not open to us in China.
40.I want to be able to keep working, continue to support my family and have a life in New Zealand. I feel very, very anxious that my future in New Zealand depends on whether it is possible for me to be discharged. without conviction for the offence I currently face.
[25] Ms O’Sullivan argued that Mr Wen’s evidence, at [31] and [33] of his affidavit, that he would be “liable to deportation on receiving a criminal conviction” was “incorrect” and “materially misconstrued the Immigration Act”.
[26] The key passage is at [32]–[36] of the affidavit. This is, broadly, an accurate statement of the legal position derived for the most part from the actual language used in the Immigration Act 2009.
[27] I also agree with Ms Ord that, strictly speaking, Mr Wen’s evidence was unnecessary because it was simply a statement of the legal position, which can be ascertained from the language of the statute itself, and the various judgments that were available to the Judge at sentencing from the parties’ submissions. Those decisions
contained helpful statements about the operation of the Immigration Act and its interplay with the criminal justice system.
[28] I do not consider the objection to the admissibility of Mr Wen’s affidavit is well founded or warrants leave to appeal. In the District Court, where some evidential foundation may be appropriate at sentencing, it is common practice for defendants to place material before the Court in the form of an affidavit. There is no requirement for evidential pedantry when it comes to determining how that material ought to come before the District Court.
[29] The real issue here is the accuracy of the information in Mr Wen’s affidavit, and whether any inaccuracy was material to the Court’s decision.
[30] It is true that Mr Wen deposed that he was liable for deportation as a result of a “criminal conviction on being served with a Deportation Liability Notice.” Strictly speaking, as the applicant submits, he was in fact liable for deportation without entry of a conviction. That is because s 157(5)(b) of the Act provides that a “sufficient reason to deport” includes “criminal offending”, as opposed to a conviction for criminal offending.
[31] Despite this, it is also clear that any alleged inaccuracy was not material to the decision of the District Court.
[32] First, As Ms Ord submitted, the information available to the Judge was not confined to Mr Wen’s affidavit. My attention was brought to detailed legal submissions filed prior to the sentence indication hearing. Those submissions outlined Mr Wen’s contention as to his “deportation liability by reference to relevant provisions of the Immigration Act”,11 and also referred the Judge to a number of decisions of the
11 Including s 157 and s 207, the latter relating to the determination of humanitarian appeals from the issue of a deportation liability notice.
Supreme Court, the High Court, and the New Zealand Immigration Protection Tribunal.12
[33] It is clear from the submissions themselves, and the cases cited, that there was ample basis for the Judge to conclude that the Immigration consequences of a conviction were out of all proportion to the gravity of the offence. Those cases identified the very risks Mr Wen raised in support of his submission.
[34] The submissions did not contain the same “error” highlighted by the applicant in Mr Wen’s affidavit, and instead focus on the issue of a DLN for “offences”. The submissions went on to record that the “gravity of the offending does not appear to have significant weight in INZ’s decision-making process…”. They went on to highlight the reference to “criminal offending” in s 157(5)(b), and the impact of a conviction on Mr Wen’s ability to challenge a DLN under s 157(4), on the basis of a “good reasons” review, a position which seems to be accepted by the appellant.
[35] Mr Wen’s submissions then went on to address an appeal on humanitarian grounds to the New Zealand Immigration and Protection Tribunal in the event a good reasons review under s 157(2) was not successful, noting that entry of a conviction would likely preclude any chance of success. The submissions concluded (based not on Mr Wen’s affidavit, but on the authorities cited in the submissions) that:
It is of course a matter for the Minister to decide whether to issue a deportation liability notice and for the Tribunal to decide whether to allow an appeal. However, it is submitted that the likelihood of a deportation liability notice being issued is high (or as the Tribunal said “almost inevitable” in these circumstances), and the prospects of a successful appeal to the Immigration and Protection Tribunal are very low. Accordingly, deportation is a real and serious consequence.
[36] The submissions therefore reveal that rather than focussing on an assertion that a conviction would render Mr Wen liable for deportation, a more nuanced, and accurate, position was before the Judge.
12 The addendum submissions referred the Judge to ss 157 and 207 of the Immigration Act, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; IX (India) v Minister of Immigration [2020] NZIPT 504813; Almoka v Minister of Immigration [2017] NZIPT 502990; the INZ Operational Manual, NE (Skilled migrant) v Minister of Immigration [2015] NZIPT 202112; and Jeon v Police [2014] NZHC 66.
[37] Second, it is also clear from the Judge’s sentencing notes that he understood the more nuanced combination of consequences and factors put forward by Mr Wen.
[38] Ms O’Sullivan in both written and oral submissions emphasised a particular phrase used by the Judge as an indication the alleged inaccuracy in Mr Wen’s evidence was material to his decision. That phrase was:
I accept that if a conviction is entered today, Mr Wen will become liable to deportation …
[39] Again, looked at in isolation the choice of language used might suggest an erroneous equivalence of conviction with deportation. But the Judge went on to clarify his appreciation of the legal position in the very next sentence:
Despite the police’s submission, I conclude that there is a high likelihood of deportation should a conviction be entered, whilst at the same time acknowledging that under the different and applicable statutes both the immigration authorities and ultimately the Minister have discretions which they can properly exercise in this case.
[40] This passage confirms the Judge was alive to the fact that even without a conviction Mr Wen might still be liable to a deportation process. It follows that the criticism by the applicant of the Judge’s decision lacks merit; Mr Wen’s submissions accurately set out the possible consequences for him as a result of entry of a conviction, and the Judge’s decision reflected the subtlety of that position.
Second ground of appeal: was a conviction causative of liability for deportation?
[41] Unlike the Judge, on appeal I have also had the benefit of the recent decision of the Court of Appeal in Sok v R.13 As the Court noted there, as a matter of law liability to deportation sometimes turns on conviction and sometimes not, depending on the person’s status.14 The Court went on to observe:
… Conviction triggers liability where the holder of a residence class visa commits a qualifying offence. The position is otherwise for a temporary entry class visa holder such as Mr Sok. As a matter of law, his liability depended not on conviction but on an INZ character assessment. We accept that the conviction triggered the administrative requirement for a character waiver in connection with Mr Sok’s application for a partnership visa. However, the
13 Sok v R [2021] NZCA 252.
14 At [46].
Manual required that INZ evaluate his character at that juncture in any event and the conviction is not conclusive evidence of bad character, nor would a discharge preclude denial of a visa on character grounds. …
[42] Mr Wen is the holder of a temporary entry class visa. So, as the Court of Appeal noted, his liability depended not on conviction but on a character assessment.
[43] Ultimately, the applicant’s argument is one of causation: it says conviction has no casual connection to Mr Wen’s liability for deportation because he was liable for deportation on a character assessment, and that assessment turns on the underlying conduct in issue, not on whether a conviction is entered. But this overlooks a Court of Appeal’s observation that:15
…the causation question can sometimes be brought into focus by asking whether a discharge will eliminate or mitigate a risk of deportation. This is such a case, as we explain when dealing below with the unhappy circumstances in which Mr Sok finds himself.
[44] I do not take this as an indication that an enhanced risk of deportation as a result of a conviction is not a consequence of conviction falling outside the scope of s 107 of the Sentencing Act. Such a reductionist “but for” view of causation is not consistent with a line of authority both in this Court and the Court of Appeal.16
[45] In this case, while avoiding a conviction did not eliminate Mr Wen’s liability for deportation, it certainly mitigated that risk.
[46] For these reasons, I conclude there was no error in the Judge’s approach. The relevant consideration for the Judge was whether a conviction would affect the risk of deportation. That risk was clearly live, and there was no error in the Judge having regard to it as a potential consequence. Nor do I find that such an assessment requires expert evidence from an immigration lawyer before the Court can make the relevant finding. The Immigration Act itself, combined with the extensive array of judgments the Judge was referred to (as well as those referred to on appeal), provide sufficient clarity on the “consequences” which may be engaged once a conviction is entered.
15 At [52].
16 See for instance Bong v R [2020] NZCA 94 at [21]–[29] and [32]; George v Police [2014] NZHC 1725 at [46]; Jeon v Police [2014] NZHC 66 at [21]; Kumar v Police [2015] NZHC 3293 at [41]– [42].
[47] In reaching this conclusion, I have addressed and dismissed both of the applicant’s challenges noted at [15] above.
Does the applicant’s failure to raise an issue in the District Court make a difference?
[48] There is a further difficulty with this proposed ground of appeal. Mr Wen’s affidavit was dated 10 March 2021 and appears to have been filed and served shortly thereafter. It was filed in preparation for the sentence indication hearing of 31 March 2021. So, it seems safe to assume that prior to that hearing New Zealand Police were aware of its content.
[49] The sentencing hearing did not occur until 18 June 2021, approximately three months later. At no stage prior to sentencing did the applicant object to Mr Wen’s evidence, assert that it was inaccurate or misleading, or file evidence to contradict it.
[50] It is inappropriate in my view for police to criticise the District Court’s sentencing decision on an appeal to this Court when no objection was taken to the evidence and no effort made to file evidence to correct it at first instance. Finality is an essential quality of justice. Parties who do not put their best foot forward before a first instance court are generally precluded from challenging its decision based on evidence or matters they could have advanced in the court below.
[51] For these reasons, even if I had found an error of approach by the District Court, I would be reluctant to grant leave to appeal.
Immigration New Zealand might reconsider deportation if conviction entered on appeal
[52] A second troubling aspect of the appeal is that the further evidence filed on appeal indicates that if the appeal is allowed Mr Wen may be exposed once again to a risk of deportation.
[53] The applicant’s proposed appeal was advanced on the basis that the adverse immigration risk that arose from the accident has already been considered and dealt with by INZ. While it had initially issued a DLN, it had withdrawn the notice following
Mr Wen’s “good reasons” review challenge. It followed, so the argument went, that entry of a conviction on appeal should not give rise to any immigration consequence.
[54] The difficulty with this is that INZ has not provided an undertaking that it will not seek to revisit deportation should I enter a conviction on the appeal. The affidavit of Mr Williams for the applicant recorded:
… In my opinion, and having reviewed the circumstances of the case, should Mr Wen receive a conviction for careless use of a motor vehicle causing death [on appeal] the INZ Compliance Branch is unlikely to issue a new deportation liability notice pursuant to section 157 of the Act.
(my emphasis).
[55] As I observed during the hearing, I consider it is contrary to the interests of justice for this Court to interfere in a judgment of the District Court on the basis that the Judge wrongly had regard to an irrelevant consideration (namely the risk of deportation following conviction), to then have Mr Wen face a further risk of deportation on entry of a conviction (whether deportation is “unlikely”, or not). The absence of an undertaking and the applicant’s acceptance of the further risk to Mr Wen simply underscores the consequences of a conviction for the appellant.
Evidence on appeal indicates case for discharge is stronger than it was before the District Court
[56] Finally, having reviewed the evidence filed by both parties on appeal, it is clear that the respondent’s case in support of a discharge has been strengthened rather than weakened. The evidence of Mr Fletcher of the adverse immigration consequences expands the considerations before the District Court to include the impact on Mr Wen’s ability to gain residence, including his wife and child in China. The adverse impact not only on Mr Wen but on his family members would clearly support, in my view, a discharge without conviction.
Result and conclusion
[57] Leave to appeal is granted. But for the foregoing reasons I am not satisfied that there was any error of law in the approach of the District Court. The appeal is dismissed.
[58] The evidence filed since the hearing before the District Court strengthens the conclusion that the direct and indirect consequences of a conviction are out of all proportion to the gravity of Mr Wen’s offending.
[59] None of this should detract from what lies at the heart of this case, or the ongoing anguish of Rachel’s parents and her partner. Mr Wen remains responsible — in every sense — for Rachel’s death. The discharge he received does not change that.
Isac J
Solicitors:
Crown Solicitor, Wellington for Applicant Ord Legal, Wellington for Respondent
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