Ram v Police

[2015] NZHC 333

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-34 [2015] NZHC 333

BETWEEN

VINNY VINESH KUMAR RAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 March 2015
Counsel:	H Cuthill for Appellant M J Thomas for Respondent
Judgment:	3 March 2015

JUDGMENT OF BROWN J

[1]      On 19 August 2014 the appellant pleaded guilty in the Invercargill District

Court to three charges:

(a)       driving with excess blood alcohol content; (b) wilful trespass;

(c)       criminal harassment.

[2]      On 29 September 2014 the appellant was sentenced to one and a half months imprisonment on the first and second charges and to six months imprisonment on the harassment charge, all sentences being cumulative.

[3]      He appeals  against  conviction  on  the charge of criminal  harassment  and against the total sentence of nine months imprisonment for all three charges.  Those

appeals were to be heard today.

RAM v NZ POLICE [2015] NZHC 333 [3 March 2015]

[4]      The ground of appeal in respect of his conviction on the charge of criminal harassment is that he received incompetent legal advice, that as a consequence he did not properly appreciate the nature of the charge or that he had a possible defence to the charge, and that a miscarriage of justice will occur if the conviction is not overturned.

[5]      Affidavit evidence has been filed by the appellant and by two solicitors who represented him  concerning the content of the legal  advice which  the appellant received.

[6]      In  the light  of that  affidavit  evidence counsel  for the respondent  filed  a memorandum dated 2 March 2015 which states that given the multiplicity of alleged issues with representation, the gravity of the overall criminality, and the risk to the appearance of fair trial rights, it is appropriate that the appellant be able to advance his purported defence to the charge of criminal harassment.

[7]      In the Crown’s submission the irregularity complained of has created a “real risk that the outcome of the [matter] was affected”1 and that the appropriate step is to quash the conviction and refer the matter back to the District Court for a new trial.

[8]      In view of the Crown’s submission I order that the conviction on the charge of criminal harassment is set aside pursuant to s 233(2) and a new trial be held pursuant to s 233(3)(b).

[9]      Given  that  the sentence  appeal  relates  to  the total  sentence for  all  three charges, that appeal is adjourned part heard pending the new trial on the charge of

criminal harassment.  Ms Cuthill agrees that that course is appropriate.

Solicitors:

Cruickshank Pryde, Invercargill

Preston Russell Law, Invercargill

Brown J

1      Criminal Procedure Act 2011, s 232(4)(a).