IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2018-409-000041
[2018] NZHC 2365	

BETWEEN	SHAUN FORSTER
Appellant	
AND	THE NEW ZEALAND POLICE
Respondent	

Hearing:	30 August 2018	
Appearances:	L C Denton for the Appellant S J Mallett for the Respondent	
Judgment:	7 September 2018	

JUDGMENT OF NATION J

[1]	The appellant, Mr Forster, appeals against his conviction for male assaults female. He challenges both the finding which was made on the evidence and the Judge’s refusal to grant him a discharge without conviction under s 106 Sentencing Act 2006.

[2]	These days it is not uncommon for the Courts to have to deal with allegations of domestic violence when relationships are under stress and somehow an argument develops over a cell phone. This case has elements of that.

Background

[3]	On 11 March 2017, Mr Forster was almost 29. He was from Newcastle in the United Kingdom and had been living in New Zealand since November 2013. On 10 March 2017, he was issued a residence class visa which allows him to remain in New Zealand indefinitely. He had been in a relationship with the complainant for almost

FORSTER v POLICE [2018] NZHC 2365 [7 September 2018]

two years and had lived with her in Queenstown and Christchurch. In March 2017, Mr Forster said that, over recent times, he had not been feeling “loved as much” as he would have liked and felt the complainant was not doing much about it.

[4]	On 11 March 2017, after work, he started to talk to the complainant about this. To him, it seemed she did not take him seriously. He walked out and went to a local club. There was some text messaging between them in which he said he thought the way she had reacted to him was a disgrace. He said that things had got to a point where he was at the end of his tether.

[5]	Mr Forster ended up going back to their home. The complainant also came back from where she had gone bringing a pizza. Mr Forster came out to the living area from having a shower to see the complainant sitting on the couch on her phone. She did not act towards him the way he wanted. Mr Forster said he tried to talk to her again but she was negative about that so he took her phone.

[6]	At the Judge alone trial, there were two versions of what happened at that point. The complainant said they had an argument and Mr Forster took her cell phone from her. She said she managed to get the cell phone back and tried to get away. He grabbed her from behind, put his foot on her right foot and threw her to the ground. She said she was thrown about two metres and landed on her front. She was holding her phone to her stomach. Mr Forster was on her back trying to get it and ended up breaking one of her bracelets which cut her wrist. Eventually, he overpowered her and got her phone back.

[7]	The complainant said she tried to get up but ended up on the ground again and there was a second incident similar to the first. She said that, as a result of what happened, she had a bite mark on the left side of her shoulder at the back, a few scratches behind her right ear, bruising and scratches on her wrist from where the bracelets had been, bruising on her arms from where he had grabbed her, a carpet burn on her knees and other minor bruising on her legs. The Police took photographs consistent with these injuries.

[8]	Mr Forster represented himself during the hearing but experienced counsel had been appointed to cross-examine the complainant. The complainant denied what occurred was a fight over Mr Forster’s keys, rather than a fight over her phone. She disagreed entirely with the proposition that at no time during the incident had she been holding onto her phone with Mr Forster trying to take it off her. She did recall taking his car keys as retaliation for him grabbing her phone. The complainant denied that she had ended up on the ground through an accident when she lost her balance and fell over. She did not see exactly how she had been thrown on the carpet but said she flew across it which was how she got the burns. She did not accept that his standing on her foot would have been accidental.

[9]	The complainant did not accept that she had his keys during the incident but had his vehicle, keys and belongings on 13 March 2017 and dropped them all off for him at his work place. She could not recall Mr Forster’s keys being in her possession during the altercation.

[10]	Under re-examination, the complainant said Mr Forster had got the phone back when she was first on the ground with the phone in front of her and she may have then grabbed the keys off the kitchen bench, had been holding them in her hand and she may have had the keys when she was thrown a second time to the ground. To the Judge, the complainant said she had returned to her home the following day. Mr Forster had left but his car and all his belongings were there. She was not sure if his keys were at the house when she returned or whether she had them overnight.

[11]	Constable Smith spoke to the complainant at 9.30 pm on 11 March 2017, took a statement from her and arranged for her to have her injuries photographed at the Christchurch Central Police Station. When interviewed, she was visibly most distressed.

[12]	Mr Forster was interviewed by the same Constable at close to midnight. His interview was recorded on DVD. At the trial, Mr Forster said that what he had said in his interview was correct.

[13]	Mr Forster said that, after he had taken her phone, the complainant was telling him to give it back to her. He was refusing to give it back and saying he wanted to talk to her. He said she grabbed his car keys and his wallet. He thought she must have grabbed his cigarettes as well. He tried to snatch them back out of her hands and swore a bit as well. While they were struggling, she fell on the floor and that, “trying to get her”, he thought she caught one of her bracelets on her hands but he was trying to get his keys from her and she was holding her hands tight. He denied that he had grabbed the complainant from behind when she still had her phone. He denied that, while she was lying on the floor, he had bit her on her left shoulder. He denied that he had stood on her foot where she had a bruise unless it had happened accidentally.

[14]	Mr Forster said that, after the complainant went outside, she went to drive away. He waited behind the car to try and keep her there but after a while he let her drive off. The complainant left without her phone but with his keys and his wallet and perhaps his cigarettes. After a few minutes, she came back and asked for her phone. He did not give it to her.

[15]	When giving evidence, without any objection from the prosecution, the Judge permitted Mr Forster to read out a statement. In that statement, he said, rather than trying to pry the complainant’s phone from her hand, he was trying to get back his car/house keys and “was using reasonable force to return back [his] possessions”. He said she still had his keys in her possession when he was released from the Court cells on the Monday.

[16]	Under cross-examination, Mr Forster said that he had taken the complainant’s phone when she had put it to one side and it was at that point that she went to the kitchen bench and took his keys, that he had then been angry and that is when he was trying to get the keys back. He accepted that, when he was trying to get the keys, he snapped one of the bracelets and that must have been what caused the injuries to her wrist. He said that she probably got carpet burns when she was on the ground but maintained she still had his keys at that time. To the Judge, Mr Forster said that, after she had taken his keys, he had grabbed her while her back was to him.

The Judge’s decision

[17]	Mr Forster initially consulted a lawyer but, because of the cost, decided to represent himself. The record indicates that, at some point, Police discussed the possibility of his pleading guilty to a lesser charge and perhaps being granted diversion but, for reasons which are not material at this stage, matters were not resolved in that way. The prosecution proceeded to a Judge alone trial on 10 January 2018. Counsel was appointed under s 95 Evidence Act 2006 to conduct the cross-examination of the complainant on Mr Forster’s behalf.

[18]	The Judge gave his decision shortly after hearing all the evidence.

[19]	The Judge said Mr Forster had returned several hours later, after going to the Club:1

… having clearly had some drink but it seems that he was not unduly intoxicated. He again sought to talk things out and by his own admission grabbed [the complainant’s] phone to stop her using it so that they could have what he believed would be an adult discussion. She was annoyed by that it seems and was trying to get her phone back. In retaliation she grabbed his keys and possibly also his wallet.

[20]	The Judge then summarised the complainant’s account of what happened, in line with what I have set out above. The Judge noted that Mr Forster was arrested a couple of hours later, cooperated with the Police and explained what happened in the interview. The Judge said:

[17]  I have seen photographs and they do certainly depict injuries which   are consistent with the account that [the complainant] has given, that account not being too different to the one that Mr Forster has given except perhaps by degree and the extent of force applied.

[21]	As to Mr Forster, the Judge said:

[20] In general terms Mr Forster reiterated the account he gave in his interview. He reiterated that he accepts that he pulled her, that she ended up on the ground, and that various marks that were seen in photographs were likely the result of the interaction between the pair.

[22]	The Judge concluded:

1	Police v Forster [2018] NZDC 272 at [10].

[22]	I found both witnesses actually to be honest and trying their best to tell what had occurred in what was clearly a difficult situation.

[23]	It is clear that [the complainant] was very upset by what occurred on the night. That much is established by the demeanour that was observed by the police who dealt with her shortly afterwards. It is clear that she sustained injuries as seen in the various photographs taken on the night in question and again several days later. It is clear that one bracelet was snapped, another bracelet bent to some extent during the interaction. It is also clear from Mr Forster’s interview that he intentionally applied reasonably considerable force to [the complainant] sufficient to essentially pull her from behind onto the ground in a manner which had her skating across some carpet. So with those factors in mind, alongside [the complainant’s] evdidence [sic], I find it proved beyond reasonable doubt that an assault is made out.

[24]	The only caveat to that is that I am not satisfied to the requisite standard that the assault involved a bite. It may well have done but it was to the back part of [the complainant’s] shoulder and as such it seems that she likely would not have been able to see it, but rather feel it. I accept that there is at least a reasonable possibility in the fracas that was unfolding that some mistake might have been made about that. It certainly appears that there is an injury to her shoulder but quite what the mechanism of that injury was is something I am not sure about.

[25]	The charge is proven and there will be a guilty finding on the charge of male assaults female but that excludes the bite and focuses on the pushing of [the complainant] to the ground with some force, and then trying to get the keys off her using significant enough force to leave marks, and to damage the bracelets.

[23]	The Judge remanded Mr Forster for sentence, at least partly, because Mr Forster had indicated to the Judge he would be interested in applying for a discharge without conviction. The Judge also obtained a pre-sentence report.

[24]	The Judge had told Mr Forster that, on a s 106 application, he must file any material he wished to rely on. Mr Forster had provided some material to the counsel who had been appointed to cross-examine the complainant but that counsel was not acting for him. The information Mr Forster had provided to that counsel had not been forwarded to the Court or to the Police. The Judge dealt with Mr Forster’s application as an oral application.

[25]	The pre-sentence report assessed Mr Forster as being a “medium risk of harm, with a low risk of reoffending given this was his first appearance before the Court”. It recommended a sentence of supervision with a special condition to attend and complete an appropriate family violence programme to target his rehabilitative needs.

It noted that Mr Forster was willing to comply with such a sentence if imposed. The Court said no barriers had been identified in regard to Mr Forster’s ability to comply with a community-based sentence.

[26]	On sentencing, the Judge referred to Mr Forster’s four and a half years’ working in the scaffolding industry and the way he had been promoted in his work.2 The Judge accepted that he was well valued by his employer and that, whatever happened on sentence, his employer would be keeping him on in his current position. His employment therefore was not in jeopardy.

[27]	The Judge referred to the three step process required on a s 106 application, as mandated in other leading cases such as Z, Blythe and Hughes.3

[28]	As to the gravity of offending, he said it involved an assault in a domestic setting but was at the lower end of such assaults, did not involve a bite and:4

… was a push in circumstances which had the complainant on the ground where she sustained some carpet burning and there were also some marks to her wrists and damage to bracelets where Mr Forster had held her.

[29]	The Judge noted Mr Forster did not have previous convictions in New Zealand and did not plead guilty. Overall, he said the offending was “at the lower but not the lowest end of the scale for assaults on females” and said that any assault in a domestic setting is serious by its very nature.

[30]	Turning to asserted consequences, the Judge referred to Mr Forster’s statement that he may be hampered in his future quest to become a permanent resident in New Zealand but said he had not provided any evidence of that, for example from an immigration lawyer or an immigration consultant. The Judge nevertheless accepted that “upon conviction for an offence there is an additional barrier which is put in place because the Immigration Department will be assessing his overall character”. The Judge went on to say:

2	Police v Forster [2018] NZDC 6542.
3	Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142; Blythe v R [2011] NZCA 190, [2011]
2 NZLR 620; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
4	Police v Forster, above n 2, at [9].

[12]	In any event though as Mr Forster has framed it there is no issue with him being deported in the near future because of his indefinite residency arrangement. It is only in the event that he applies for permanent residency that this might be an issue.

[13]	Ms Stratton for the police has quite rightly made the point that ordinarily it should be for the Immigration Department to assess people who are seeking residency within this country. The Courts should not as a general rule be complicit in hiding criminal offending. In this case the Immigration Department will have this decision which I am currently dictating along with my decision from the Judge alone trial on 10 January to help make its decision.

[14]	From where I sit as the Judge I would have thought that Mr Forster’s immigration status ought not be impacted by this on the proviso that in between now and whenever that is considered he keeps his nose clean and continues to be a productive member of our community here in New Zealand. But, ultimately, immigration is for the immigration authorities and the relevant Minister and it is not for me.

[31]	The Judge referred to the pre-sentence report and the victim impact statement which indicated the victim was understandably upset although not significantly injured in any way.

[32]	Looking at all of this in the round, the Judge decided the consequences of conviction did not outweigh the gravity of the offending and were “certainly not out of all proportion to that as the test under ss 106 and 107 requires”. The Judge dismissed the application for discharge without conviction. He sentenced Mr Forster to supervision for 10 months on the condition that he complete an appropriate family violence programme as recommended in the pre-sentence report and make an emotional harm reparation payment to the victim of $750.

[33]	The Judge concluded by saying that a copy of the decision would be transcribed so that Mr Forster could keep it on his files for showing to the Immigration Department. He wished Mr Forster well in his endeavours to remain in New Zealand to contribute constructively to our community.

Approach on appeal

[34]	Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her

assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.

[35]	What constitutes a miscarriage of justice is set out under s 232(4):

(4)	In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)	has created a real risk that the outcome of the trial was affected; or

(b)	has resulted in an unfair trial or a trial that was a nullity.

[36]	The Supreme Court has held that a miscarriage of justice is more than an inconsequential or immaterial mistake or irregularity.5

[37]	As was noted by the Court of Appeal in Wylie v R, determining whether there has been a miscarriage of justice requires a two-step process:6

[24] The inquiry involves a two-step process: was there an  error,  irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of the two states of affairs in subs (4)(a) or (b) arise in consequence?

[38]	A “real risk” means there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.7

[39]	The approach to an appeal against the refusal to grant a discharge without conviction was set out by the Court of Appeal in Jackson v R.8

Admission of further evidence

[40]	Mr Forster applied for leave to adduce evidence on appeal with regard to the s 106 discharge application. The application was not opposed by the Crown. In the particular circumstances, I granted him leave.

[41]	In his affidavit, Mr Forster acknowledged how, when representing himself, he had not understood just how much material might be required to support an application

5	Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145, at [30].
6	Wylie v R [2016] NZCA 28.
7	Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730, at [110].
8	Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

for discharge. He said that, when he appeared on his application for discharge, he was not aware how a conviction could affect his visa and he thought his visa would be secure because his residency had been granted. He said that, since his sentencing, he had become aware of how a conviction could affect his visa. He also explained that he was in a new relationship and he was concerned how decisions over his visa might complicate that relationship.

[42]	Mr Forster was also concerned how the loss of his visa could jeopardise his employment. He produced the positive reference he had obtained from his employer which he had thought would be made available to the Court when he was sentenced. He was also concerned about the general consequences of a conviction and the difficulties that would cause for him if travelling internationally.

[43]	There was also an affidavit from his new partner. That affidavit indicated Mr Forster was in a long-term and supportive relationship with a person who wanted to live with him in New Zealand indefinitely.

Submissions for the appellant

[44]	Through counsel, Mr Forster appealed his conviction on the grounds:

The District Court Judge concluded that Mr Forster was trying to obtain his keys from the complainant. Having regard to this, the District Court erred in not considering that the defence of moveable property was available to Mr Forster. This created a real risk that the outcome of the trial was affected.

[45]	In her submissions, Ms Denton detailed the evidence which was given by both the complainant and Mr Forster and submitted the Judge’s ultimate finding was supportive of Mr Forster’s account in that he found there had been a push and a struggle for keys. She referred to s 53 Crimes Act 1961 and judgments in which that defence had been considered by the High Court.

[46]	Ms Denton also provided detailed submissions in support of the appeal against the refusal to grant a discharge, highlighting in particular that Mr Forster’s visa was at risk in ways that had not been appreciated by the District Court Judge.

[47]	Ms Denton also submitted that, if the conviction was to remain in place, a sentence of 10 months’ supervision was, in all the circumstances, manifestly excessive.

Submission for the respondent

[48]	For the respondent, Mr Mallett helpfully set out the basis on which an appeal against conviction has to be considered. He acknowledged that, although there was no explicit reference to s 53 Crimes Act in the notes of evidence, a factual foundation had been raised in the appellant’s evidence for the defence.

[49]	Mr Mallett invited the Court to look at all the evidence in its entirety and submitted that it was open for the Judge to conclude on all the evidence, particularly the evidence of the complainant, that an assault had occurred in the context of Mr Forster trying to retrieve the complainant’s phone, not his own keys. He submitted that, because this was a conclusion available to the Judge on the facts and was not inconsistent with the Judge’s summary of the evidence, there was no “error affecting the trial”, as that phrase is used under s 232(4), by failing to consider the defence. On that basis, he submitted there had been no miscarriage of justice.

[50]	Mr Mallett also submitted that, even if the defence could apply, it was not made out on the evidence because he had used more than reasonable force. In that regard, he referred to the way the altercation had begun with Mr Forster taking the complainant’s phone and the injuries she suffered.

[51]	As to the Judge’s refusal to grant a discharge without conviction, Mr Mallett submitted the Judge had correctly identified and followed the requisite three step legal process. He submitted that deportation would not be automatic if there was a conviction and that Immigration New Zealand should be allowed to properly carry out its legislative functions to determine whether to serve a deportation notice.

[52]	In his written submissions, Mr Mallett submitted that supervision had been imposed to ensure Mr Forster could attend an appropriate family violence course to the satisfaction of a probation officer. A rehabilitative sentence was appropriate in the exercise of the Judge’s judicial discretion.

[53]	In his oral submissions, Mr Mallett acknowledged the evidence which had been presented on appeal that indicated Mr Forster had completed a stopping violence programme. Therefore, at this juncture, there was no need for a supervision sentence to continue. He did not disagree with the submission for Mr Forster that an appropriate sentence now would have been a conviction and discharge, a fine or community work with an order for an emotional harm reparation payment.

Discussion

[54]	I consider there was an error at the trial in that the Judge did not expressly consider whether there was a defence under s 53 Crimes Act. That section states:

53 Defence of movable property with claim of right

(1)	Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his or her authority, is protected from criminal responsibility for defending his or her possession by the use of reasonable force, even against a person entitled by law to possession, if he or she does not strike or do bodily harm to the other person.

[55]	It has been held in the High Court that a s 53 defence is available in the context of a tussle or struggle to recover possession of personal property which has been taken from a defendant.9

[56]	In Ruwhiu, Priestley J emphasised that the context of the defence must be examined. He held there would be no violence to the Parliamentary intention with s 106 to allow the defence in situations of a possessory tussle in seeking to reclaim a chattel in the immediate aftermath of its being taken.

[57]	The defence is not available if a defendant strikes or does bodily harm to the other person. However, what might constitute a strike or bodily harm must be assessed in the context of s 106 which permits reasonable force to be used to defend a right to possession of a chattel. This means that a realistic and reasonable range of bodily contact had to be contemplated as within the right to use reasonable force to assert a right to possession of chattel. In Hastings v Police, Priestley J considered striking, as

9	Kapene v NZ Police [2014] NZHC 41; Manase v Police HC Auckland CRI-2006-404-39, 21 July 2006; Ruwhiu v Police HC Auckland CRI-2008-404-259, 22 December 2008.

referred to in s 53, differed from actions which involved pushing, holding or physically obstructing a person; although he acknowledged a push or shove could reach a level of force which might constitute striking.10 He said it was an issue of “proportionate pushing and shoving, fending off and obstruction resulting in bodily injury would be permissible”.11

[58]	In the circumstances of this case, the Judge might have concluded that the defence was not available because the force Mr Forster used in trying to recover the keys was more than reasonable. He might also have found that the defence could not be available because the injuries the complainant suffered did amount to bodily harm.

[59]	On the evidence, it cannot however be said that such findings were inevitable. Mr Forster should not have picked up the appellant’s phone to try and make her talk to him but that was not part of the assault which occurred. The Judge could have concluded that the injuries she suffered did occur during the struggle but were nevertheless unintended and accidental. The Judge had the advantage of hearing both the complainant and Mr Forster as they gave their evidence. He largely accepted Mr Forster’s account. It would thus be wrong for me to find there had been no miscarriage because a s 53 defence would not have been available on the complainant’s account of what happened.

[60]	Regardless of what the proper outcome might have been on the evidence, there was an error in that the Judge did not turn his mind to the potential for a s 53(1) defence. The error is explicable. Because Mr Forster was self-represented, the defence was not clearly raised. Although, in his evidence, Mr Forster did read out a statement in his defence in which he said:

In the summary of facts, it states I was trying to pry [the complainant’s] phone from her hand but it was actually my car/house keys I was trying to get back, so I was using reasonable force to return back my possessions.

[61]	A potential defence under s 53(1) had to be considered even if not expressly raised.

10	Hastings v Police HC Whangarei AP24/01, 19 July 2001.
11	At [30].

[62]	There was thus an error in the trial which has created a real risk that the outcome of the trial was affected. This gives rise to a miscarriage of justice in terms of s 232(4).

[63]	Cummings v Police involved a charge of male assaults female.12 The incident began with the complainant trying to grab the defendant’s phone. According to the complainant, on two occasions when she had tried to grab the phone, the appellant had assaulted her. On the first occasion, he put her in a strangle hold. The appellant said the complainant had been the aggressor. The trial Judge preferred the complainant’s evidence.

[64]	On appeal to the High Court, Gendall J held the Chief District Court Judge was entitled to accept the complainant’s version of events. That in turn meant the Chief District Judge could not be criticised for failing to address issues of self-defence and defence of property because, on the complainant’s account, those issues did not arise. On the complainant’s version, a s 53 defence could not have been available so there could not have been any miscarriage of justice through the Chief District Court Judge failing to consider a potential s 53(1) defence.

[65]	Here, the District Court Judge had, to a large extent, accepted the appellant’s version of events. On that version, I cannot say the Police would have been able to prove beyond reasonable doubt that a s 53 defence was not available.

[66]	For those reasons, the appeal against conviction has to be allowed.

[67]	I must now consider whether the proceedings should be remitted back to the District Court for retrial or whether the conviction should be quashed and the charge dismissed.

[68]	It is now almost 18 months since the events in question. After the incident, the complainant’s relationship with Mr Forster, not surprisingly, came to an end.

12 Cummings v Police [2018] NZHC 338. The Court of Appeal has recently granted leave for a  second appeal because of concerns as to the basis on which the District Court Judge had concluded the complainant’s account should be considered the more credible.

[69]	In the pre-sentence report, it was indicated that Mr Forster would benefit from appropriate counselling to ensure he did not put himself or others at risk of domestic violence in the future. Given his own evidence as to how he became angry when his former partner did not respond to him in the way he wanted and the way he then acted when angry, the probation officer’s recommendation had merit. In his affidavit in support of his discharge application, Mr Forster said he had benefited from counselling sessions which he had undertaken voluntarily after his sentence was suspended with his appeal.

[70]	In all the circumstances, I consider it is a situation where it is appropriate to quash the conviction and dismiss the charge.

[71]	This means that it is not necessary for me to make a decision on the appeal against the refusal to grant a discharge.

[72]	In support of that aspect of the appeal, Ms Denton put before the Court a letter from an immigration lawyer with the firm of Lane Neave, solicitors of Christchurch. She explained that, in that letter, Mr Forster has a residence class visa which allows him to remain in New Zealand indefinitely but subject to travel conditions which expire on 10 March 2019. She referred to ss 161(1)(a)(iii) and 161(1)(b) Immigration Act 2009. She said that, with a residence class visa, Mr Forster would be liable for deportation with a conviction on the charge which he faced and Immigration New Zealand, upon becoming aware of his conviction, would be likely to write to him pointing out that, with his conviction, he would be liable for deportation so that he would have to make submissions as to why deportation should not proceed. If the Minister or the appropriate officer with delegated authority decided he would be deported, Mr Forster would have to appeal to the Immigration and Protection Tribunal. To succeed on an appeal, he would have to demonstrate that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand and it would not be contrary to the public interest to allow him to remain in New Zealand. If he was to be deported, it would be difficult for him to obtain a visa or entry permission to return to New Zealand.

[73]	Immigration could become concerned on their own initiative. There would be a particular risk in their obtaining and acting on information as to a conviction if Mr Forster were to travel from New Zealand at any time and they were to make some enquiry as to whether he had a conviction on his return.

[74]	Section 161(1)(b) could render Mr Forster liable for deportation if he was convicted in New Zealand for an offence for which he could be liable to imprisonment for a term of two years or more if the offence was committed within five years of his being granted a residence class visa. A conviction would thus create real uncertainty and anxiety as to Mr Forster’s ability to remain in New Zealand permanently, creating risks for him in his employment and in his current relationship.

[75]	Despite all that, had I upheld his conviction, I would not have interfered with the Judge’s decision refusing him a discharge. The reference which Mr Forster produced with his affidavit showed the Judge had been correct in sentencing Mr Forster on the basis he had a supportive employer who valued him as an employee and regarded him as having a long-term future with his company. A conviction is not going to put Mr Forster’s employment or his current relationship in jeopardy.

[76]	The complainant was hurt in the incident. Any form of domestic violence, even at the lower end of the spectrum, is a serious matter. In the particular circumstances of this case, it would not have been appropriate for the Court to grant a discharge to avoid Immigration New Zealand carrying out its legislative functions in determining whether to serve a deportation notice.

[77]	Had he been convicted, this was not a situation where the general consequences of a conviction would have justified a discharge. The Judge addressed the application in the manner he was required to do.

[78]	I make no further comment with regard to the alternative submission as to the sentence that was imposed being manifestly excessive.

[79]	Mr Forster’s appeal is allowed. His conviction is quashed. The charge against him is dismissed.

Solicitors:
Todd & Walker, Queenstown
Raymond Donnelly & Co., Christchurch.