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9 Apr 2024

Man from India fights to get back to daughter in NZ after two trials and 427 days in prison

1:07 pm on 9 April 2024

By Ric Stevens, Open Justice reporter of NZ Herald

18072016 Photo: Rebekah Parsons-King. Wellington High Court.

Photo: RNZ / Rebekah Parsons-King

A computer engineer from India slapped his wife during an argument over cooking rice, setting off a chain of events which put him in prison for 427 days and forced him to leave the country.

The man is now trying to return from India, in the hope that he can see his 9-year-old daughter in New Zealand, even though his now ex-wife doesn't want him to contact the girl.

Since assaulting his wife in January 2019, the man has also been accused of serious sexual offending against her. He was tried for it twice before eventually being found not guilty.

But he still did not have a completely clear slate - he admitted to the January 2019 assault charge and that conviction put his hopes to live and work in New Zealand into jeopardy.

The man, identified in a court decision only as Mr K, has now successfully had the conviction for assault in a family relationship quashed, potentially making it possible for him to return.

Mr K and his family came to New Zealand in June 2016, when their daughter was 2, and he worked here as a computer engineer under an essential skills work visa.

He planned to apply for permanent residency in February 2019, but shortly before then, he got into an argument with his wife over cooking and struck her several times.

According to a summary of facts, to which K pleaded guilty, he slapped her once on the left cheek and twice on the right cheek. As she tried to leave, he struck the back of her body.

The couple separated soon afterwards, and in May 2019, K admitted a charge of assault on a person in a family relationship.

K applied for a discharge without conviction on that charge, hoping to avoid being deported.

Before the sentencing hearing, however, K's wife made allegations that he had sexually abused her. He was charged with unlawful sexual connections and attempted unlawful sexual connection.

He was convicted of those charges after a jury trial.

However, the sexual convictions - but not the assault - were quashed by the Court of Appeal.

The Court of Appeal record states that K said his wife fabricated the allegations to defeat his chances of obtaining a discharge without conviction on the assault charge, while she was seeking permanent residency for herself and their daughter.

K was released following the Court of Appeal decision after spending 427 days in prison. He had been serving a sentence of three years and nine months.

A retrial was ordered, and this time it was heard by a judge alone, without a jury.

K was eventually acquitted on May 22 last year.

By that time, however, his work visa had expired.

He left New Zealand soon afterwards, without being able to make contact with his daughter, whom he had not seen since he was first imprisoned in November 2020.

His ex-wife had forbade all contact with the child, including sending cards and gifts.

Regarding the original assault charge, K was advised there was no hope of a discharge without conviction once the more serious charges had been laid.

He had been sentenced to one month in prison for the assault after he was first convicted on the sex charges.

Although that sentence has now been served, he applied to the High Court for a discharge without conviction for the assault, hopeful that it would revive his chances of being able to return to New Zealand.

Justice Rebecca Ellis granted him that discharge in the High Court at Wellington.

"In the rather unusual circumstances of this case I consider that the consequences of a conviction for Mr K would be disproportionate to the gravity of the relevant offence," Justice Ellis said.

"His conviction for assault is therefore quashed. He is discharged without conviction instead."

The discharge means that K now has no convictions on his record and will not have to disclose his offending during a visitor or work visa application, or when applying for residence.

An immigration lawyer told the High Court that, with the discharge, an application to obtain another visa is likely to succeed.

* This story originally appeared in the New Zealand Herald.

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