Prasad v The King - [2024] NZHC 3798

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-530

[2024] NZHC 3798

BETWEEN
PRANEEL VISHAL PRASAD

Appellant

AND

THE KING

Respondent

Hearing: 09 December 2024

Appearances:

S Kumar for Appellant H Clark for Respondent

Judgment:

9 December 2024

(ORAL) JUDGMENT OF WILKINSON-SMITH

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

PRASAD v R [2024] NZHC 3798 [9 December 2024]

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 connection (oral genital contact). He has not yet been sentenced.

[2] Mr Prasad has filed an appeal 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 Environmental Science and Research (ESR) to undertake a comparison of a DNA sample obtained from the complainant.

[3] Mr Prasad seeks an order that the DNA sample be tested in advance of the appeal. If the testing excludes him from being a possible contributor, he will apply to produce that evidence as fresh evidence on appeal.

[4] The Crown opposes the application on the basis that the additional testing will not produce evidence that could have any material effect on the outcome of the appeal.

Background

[5] The applicant is a male in his forties. The complainant, Ms X, is a female in her twenties who worked as an escort at a club in Auckland. Mr Prasad and Ms X were known to each other as Mr Prasad was a previous client of Ms X at the club.

[6] On Saturday 30 January 2021, Ms X was working at the club. Mr Prasad arrived at about 11 pm. He spent a short time at the bar and eventually booked Ms X for a sexual service paying $345. Ms X says that during the booking he penetrated her anus with his penis without her consent. Ms X also says that after the anal intercourse Mr Prasad approached her and attempted to put his penis in her mouth. Ms X did perform oral sex on Mr Prasad. She says that at times she was crying while she did so.

1 R v Prasad [2024] NZDC 16998.

[7] During the booking, Ms X pushed a button on an intercom and told her manager that she was leaving the room. She made an immediate complaint to her manager and Mr Prasad was escorted off the premises of the club.…

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 [2024] NZHC 3798
Case: [2024] NZHC 3798
Decision Date: 9 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Prasad v The King was heard on 9 December 2024, involving an appeal by Mr. Prasad against his conviction for sexual violation by unlawful anal penetration, while being acquitted for another charge of oral genital contact. Mr. Prasad sought to have additional DNA testing done on a sample from the complainant before the appeal, arguing that the Judge erred in her assessment of the evidence and in denying a request for an adjournment to allow for the DNA comparison. The Crown opposed the application, arguing that further testing would not materially affect the appeal outcome.

The legal issues focused on whether the proposed DNA testing could lead to evidence that would affect the outcome of the appeal. The court considered the context of the evidence and the utility of further investigation. The court concluded that the DNA evidence was neutral; it neither proved nor disproved the allegations. The testing could not have excluded Mr. Prasad as a possible contributor to the DNA sample, nor could it confirm his involvement. The court found that the Judge's decision to set aside the DNA evidence was correct, and additional testing would not change the outcome. The court declined the application, emphasizing that requiring such testing would place an unjustified burden on resources and cause unnecessary delays and expense.

Orders