Tiwari v Police - [2014] NZHC 2509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000133 [2014] NZHC 2509

BETWEEN
AJAY KUMAR TIWARI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 July 2014 and 6 October 2014

Counsel:

V D Heather for the Appellant
W R Potter for the Respondent

Judgment:

14 October 2014

JUDGMENT OF DUFFY J

[Re Appeal Against Conviction and Sentence
and Refusal to Grant Name Suppression]

This judgment was delivered by Justice Duffy on 14 October 2014 at 10.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: V D Heather, Auckland
Meredith Connell, Auckland

TIWARI v POLICE [2014] NZHC 2509 [14 October 2014]

[1] The appellant pleaded guilty in the District Court to a charge of common assault on his partner. He sought, but was unsuccessful in obtaining a discharge without conviction. He now appeals against that refusal. He also makes a fresh application for permanent name suppression.

[2] The appellant sought in the context of the appeal against conviction to withdraw his guilty plea on the ground that it was entered in error. The appeal was adjourned part-heard. When the hearing resumed, the appellant’s counsel advised the Court that this aspect of the appeal was abandoned.

[3] The appeal and the application for permanent name suppression are opposed.

Facts of offending

[4] The appellant was initially charged with male assaults female, under s 194 of the Crimes Act 1961. Later, the charge was amended along with the summary of facts to the offence of common assault under s 196 of the Crimes Act. The maximum penalty for this offence is a term of imprisonment of one year.

[5] The assault was the outcome of an argument between the appellant and the victim at their home address. The appellant discovered that the victim had cut their eldest son’s hair. In the appellant’s view, this was against their religion. The victim waved the defendant away with her hands. The appellant grabbed the victim’s hands and pushed her backwards. She then pushed back. In the process of pushing her away, the appellant’s hand connected with the victim’s left cheek. The victim fell into the couch, hitting her face on the wall behind the couch. As a result of the assault, the victim received swelling and bruising to her left cheek. The victim left the family home and sought help at a neighbouring house.

Personal circumstances

[6] The appellant is 35 years of age; he has no previous convictions. He and the victim have three young children, the eldest of whom is aged five years. He is self- employed as a Hindu priest and, in this role, he works through, or with the

Sanskrit Yoga and Jyotish Trust. He was born as a Brahman, which is a member of the Hindu priestly cast. As a Brahman, the appellant fulfils a societal and religious role and is seen to be a conduit for God. He is expected to embody the values of the Hindu faith and their character. In…

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 Tiwari v Police

Details

AGLC: Tiwari v Police [2014] NZHC 2509
Case: [2014] NZHC 2509
Decision Date: 14 October 2014

CaseChat Overview and Summary

Ajay Kumar Tiwari appealed against his conviction and sentence, as well as the refusal to grant a permanent name suppression order. Tiwari had pleaded guilty to common assault on his partner and was seeking a discharge without conviction, which was refused. The appeal was opposed. Tiwari argued that the sentencing judge made factual errors and erred in considering the consequences of a conviction under the Sentencing Act. He also sought permanent name suppression on the basis that publication would cause him extreme hardship and the victim undue hardship. The Crown argued that the appeal against the refusal to discharge without conviction should be considered as an appeal against conviction and sentence and that the judge was correct to characterise the offending as low to moderate. It was submitted that the consequence of a conviction, resulting in some temporary decrease in Tiwari's business, was proportionate to the seriousness of the offending. The Crown also argued that the starting point on any application for suppression is the presumption of openness in reporting and that the hardship that Tiwari may suffer is not catastrophic, nor will the effect be permanent. The Court found that the consequences of the conviction were not out of proportion to the gravity of the offence and dismissed the appeal against the refusal to discharge without conviction. The Court also dismissed the application for permanent name suppression, finding that the hardship that Tiwari's family would suffer did not go beyond what the circumstances warranted. The appeal was dismissed, and the application for permanent name suppression was dismissed.

Orders