Prasad v The King - [2025] NZHC 86

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS(ES)

PURSUANT TO S 202(1) OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-530

[2025] NZHC 86

BETWEEN
PRANEEL VISHAL PRASAD

Appellant

AND

THE KING

Respondent

Hearing: 4 February 2025

Counsel:

S Kumar for Appellant

H Clark and B So for Respondent

Judgment:

4 February 2025

(ORAL) JUDGMENT OF WILKINSON-SMITH J

[Appeal against conviction]

Solicitors/Counsel:
Sanjay Barristers & Solicitors, Auckland Crown Law, Wellington

PRASAD v R [2025] NZHC 86 [4 February 2025]

Table of Contents Para No

Introduction[1]

Preliminary issue[7]

Background[17]

Approach on appeal against conviction [22]

The District Court decision[27]

Discussion[56]

Conclusion[85]

Introduction

[1] Following a judge-alone trial before Judge K Maxwell in the Auckland District Court, which ended on 20 May 2024, Mr Prasad was convicted of one charge of sexual violation by unlawful sexual connection (anal penetration).1 He was acquitted of a second charge of sexual violation by unlawful sexual connections (oral/genital contact). He has not yet been sentenced.

[2] Mr Prasad appeals against his conviction on the basis that the Judge erred in her assessment of the evidence in various ways and in refusing a defence application at trial for an adjournment to enable the Institute of Environment Science and Research (ESR) to undertake a comparison of a DNA sample obtained from the complainant.

1 R v Prasad [2024] NZDC 16998.

[3] In a related judgment, I declined Mr Prasad’s application for an order that the DNA sample be tested in advance of the appeal hearing.

[4] Mr Prasad also sought an adjournment of the appeal hearing on the grounds that he wished to obtain medical evidence for the purpose of the appeal. That application was declined by Johnstone J on 16 January 2025.2

[5] Mr Kumar sought to adjourn this appeal again this morning, but an adjournment having already been declined by Johnstone J recently, I declined any further adjournment. Mr Kumar asked to withdraw the appeal but in my view that is an attempt to achieve an adjournment by different means. The appeal can be dismissed for want of prosecution or it can proceed.

[6] I am concerned at the delays. Mr Prasad was convicted of sexual violation by unlawful sexual connection. He was granted bail pending sentencing and remains on bail. An appeal was then filed against conviction before the sentencing hearing and the sentencing delayed to await the outcome of the appeal.

Preliminary issue

[7] As a preliminary issue, I note that it is unusual for an appeal against conviction to be filed in advance of sentencing. There is an issue as to whether an appellant can or should bring an appeal against conviction in the High Court before a sentence is imposed in respect of the conviction to which the appeal relates.

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 Prasad v The King

Details

AGLC: Prasad v The King [2025] NZHC 86
Case: [2025] NZHC 86
Decision Date: 4 February 2025

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Mr Prasad against his conviction for sexual violation by unlawful sexual connection, specifically anal penetration. The appellant contested the conviction on several grounds, including the trial judge's assessment of the evidence and the refusal to adjourn the trial for DNA comparison. The court began by addressing the unusual nature of filing an appeal against conviction before sentencing. While not the norm, the court allowed the appeal to proceed given the circumstances of the case. The court then turned to the merits of the appeal, assessing the evidence afresh and considering whether the trial judge's assessment led to a miscarriage of justice. The court found no errors in the trial judge's assessment of the evidence and concluded that the trial judge's credibility findings were open to her and led inevitably to the verdict. The appeal was dismissed, and the conviction upheld.

Orders