Chahil v The Queen

[2010] NZCA 253

IN THE COURT OF APPEAL OF NEW ZEALAND

CA534/2009
[2010] NZCA 253

BETWEENRUPINDER SINGH CHAHIL

Appellant

ANDTHE QUEEN

Respondent

Hearing:14 June 2010

Court:Chambers, Winkelmann and Miller JJ

Counsel:J Haigh QC for Appellant

M A Woolford for Respondent

Judgment:14 June 2010 

Reasons:18 June 2010

JUDGMENT OF THE COURT

AThe judgment in [2010] NZCA 244 is recalled but only to the extent that orders C, D and E are quashed.

B            The appeal against sentence by Rupinder Singh Chahil (CA534/2009) is adjourned for further consideration by a panel comprising Justices Chambers, Potter and Miller on Justice Potter's return from sabbatical leave. 

CPending the adjourned hearing of the appeal against sentence, Rupinder Singh Chahil is bailed on the same terms as previously, namely:

(a)He must live at the address of 45 Westerham Drive, Botany Downs, Manukau;

(b)He must not, either directly or indirectly, communicate with or contact or attempt to communicate with or contact the complainants or any relative of the complainants;

(c)His passport is to remain surrendered to the Registrar of the Auckland District Court, and he is not to apply for any passport;

(d)He must personally attend at the Court of Appeal at every time and place to which a hearing time may be allocated in respect to the above matters.

D            Rupinder Singh Chahil is to file and serve any evidence under s 28 (3) of the Sentencing Act 2002 on or before 28 June 2010. 

REASONS OF THE COURT

(Given by Chambers J)

[1]        Rupinder Singh Chahil and three others appealed against convictions and sentences arising from a kidnapping which took place on 10 and 11 June 2007.  A panel comprising Chambers, Potter and Miller JJ heard the appeals.  That panel delivered its decision on 10 June 2010.[1]  The Court dismissed Rupinder Singh Chahil’s appeal against conviction for kidnapping but allowed his appeal against his conviction for aggravated wounding.  We allowed the appeal against sentence, substituting 18 months’ imprisonment for the two years’ imprisonment the trial judge, Judge Aitken, had imposed.  We also ordered Rupinder Singh Chahil to pay reparation of $5,000 to one of the kidnap victims, Bashan Singh. 

[1]     Chahil v R [2010] NZCA 244.

[2]        Immediately after we delivered the judgment and before the judgment was perfected by entry on the criminal register,[2] Mr Haigh QC, for Rupinder Singh Chahil, applied to have that part of the judgment which dealt with Rupinder Singh Chahil’s appeal against sentence recalled.  Mr Haigh submitted that the Court had breached s 28 of the Sentencing Act 2002 in that the Court had failed to provide copies of the reparation reports to the parties and had failed to give him the opportunity to tender evidence relating to the reparation reports prior to the delivery of the 10 June decision. 

[2]     For the relevance of that latter point, see R v Smith [2003] 3 NZLR 617 (CA) at [28] and R v Nakhla (No 2) [1974] 453 (CA). 

[3]        The Court, on receiving the application to recall, immediately took steps to arrange a hearing.  There was urgency as Rupinder Singh Chahil, who had been on bail pending the termination of his appeal against conviction and sentence, was due to present himself at the Auckland High Court by no later than noon on 14 June 2010 to commence his sentence of imprisonment.  A hearing was therefore duly arranged for 9.30 am on 14 June.  But there was a problem.  By that time, Potter J had gone overseas on sabbatical leave.  A recall application requires a bench of at least three judges.  Accordingly, in order that Mr Haigh’s application could be heard before noon on 14 June, a new Judge, Winkelmann J, was drafted onto the panel.  At the start of the hearing, both Mr Haigh and Mr Woolford, for the Crown, accepted the panel, now comprising Chambers, Winkelmann and Miller JJ, was properly constituted.  We do not need to resolve whether, generally speaking, a recall panel must or should be the same as the panel whose decision is sought to be recalled.  That is because in this case the doctrine of necessity dictated the panel had to be reconstituted if Mr Haigh’s application was to be determined before the 10 June decision took effect.[3] 

[3]     The doctrine of necessity is normally referred to in the context of judicial bias: see, for example, Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Oxford, 2009) at 99-100 and Reference re Remuneration of Judges of the Provincial Court (PEI) [1998] 1 SCR 3 at [4]-[7]. But the doctrine’s underlying principle, namely that a judge or panel of judges, even if not the “ideal” judge or panel, is better than no judge at all, applies in the present situation.

[4]        Accordingly, the present panel commenced hearing Mr Haigh’s application.  As already indicated, the basis for the complaint was this Court’s failure to comply with s 28.  We need to explain briefly how it came about that this Court was seeking reparation reports in the first place.  One of Mr Haigh’s complaints at the hearing of the appeal was that Judge Aitken had failed to seek reparation reports and had failed to order a sentence of reparation.  This submission was not advanced in a spirit of contrition.  Rupinder Singh Chahil was in a financial position to pay reparation and wanted to pay reparation in the hope that this would lead to a sentence of home detention rather than imprisonment or, at the very least, to a shorter term of imprisonment.  Judge Aitken had determined that there had to be a sentence of imprisonment, that the sentence could not be less than two years, and that in those circumstances it was inappropriate to order reparation as well.  Mr Haigh submitted that this reasoning effectively put the cart before the horse.  The panel saw some merit in Mr Haigh’s submission and, for that reason, sought reparation reports.  Such reports are generally required before a sentence of reparation may be imposed.[4]  Rupinder Singh Chahil offered to pay $15,000 reparation, $5,000 to Bashan Singh and $10,000 to the other kidnap victim, Akbar Singh. 

[4]     Sentencing Act, s 33.

[5]        The Court duly received the reports.  The panel considered them and other material we had sought at the appeal hearing.  The panel then delivered its decision.  It now transpires as an indisputable fact that the registry did not send out copies of the reports to counsel.  Accordingly, Mr Haigh had no opportunity to comment on the reports or to tender evidence in relation to them.  The Court’s omission was undoubtedly a process error.  In our view, that error must be corrected.  In saying that, we have not overlooked s 28(4), which provides that “failure to give a copy of any report in accordance with this section does not affect the validity of the proceedings in a court or of any order made or sentence imposed by a court”.  It would be wrong to hide behind that subsection, particularly in circumstances where one of the original panel is not present and is not able to express an opinion as to the extent to which her concurrence with the 10 June judgment was or was not influenced by the contents of the reparation reports.  Thus, we recall that part of the 10 June judgment that dealt with Rupinder Singh Chahil’s sentence appeal. 

[6]        For the benefit of the parties, we provide an explanation for the Court’s error.  (We do not attempt to excuse the error.)  Case officers in this court, unlike their counterparts in the District Court and High Court, are not used to calling for reparation reports.  The particular case officer was not aware of the statutory obligation to give the report to Rupinder Singh Chahil and his counsel.[5]  The panel, for its part, had received two sets of submissions from Mr Haigh after the appeal hearing.  These dealt with some other matters on which we had requested assistance.  The panel erroneously assumed that Mr Haigh’s failure to say anything about the reparation reports indicated his client’s acceptance of them.  What they said was not, after all, unexpected.  One victim accepted the proffered $5,000; the other rejected reparation on the basis that he did not consider Rupinder Singh Chahil should be able to buy his way out of jail, a stance he had earlier adopted in the victim impact statement which was before the Court at the hearing of the appeal.  The panel should have checked that copies of the reports had been sent to Mr Haigh. 

[5]     See s 28(1).

[7]        So the 10 June judgment is in part recalled.  Where do we go from here?  Mr Haigh submitted that, while from necessity the application to recall had to be considered by the current panel, the rehearing of Rupinder Singh Chahil’s appeal against sentence should be heard by the original panel, even if this meant some delay until Potter J returned from leave.  This was for two reasons.  First, he needed time to gather and tender evidence relevant to assertions made by the victims in the reparation reports, assertions with which Rupinder Singh Chahil did not agree.  Secondly, in any event, it was most desirable that the panel which had sat through the original appeals should complete their task.  Mr Haigh submitted that Potter J was to be away for only a month.  Until she returned and the panel could reconvene, Rupinder Singh Chahil should continue on bail on the terms which currently prevail. 

[8]        Mr Woolford was disposed to agree to the course Mr Haigh had suggested.  We too think it appropriate. 

[9]        Accordingly, we quash all decisions previously made relating to Rupinder Singh Chahil’s appeal against sentence.  We fix a date by which Mr Haigh must tender any evidence relating to the reparation reports.  As soon as that evidence is to hand, Chambers J will hold a telephone conference with counsel, at which it will be determined whether the adjourned appeal against sentence will proceed orally or on the papers.  If the former, a resumed hearing dated will be fixed. 

[10]       In the meantime, Rupinder Singh Chahil remains on bail on the existing terms. 

Solicitors:

Crown Law Office, Wellington