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…

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 Chahil v The Queen

Details

AGLC: Chahil v The Queen [2010] NZCA 253
Case: [2010] NZCA 253
Decision Date: 14 June 2010

CaseChat Overview and Summary

Rupinder Singh Chahil appealed against his conviction and sentence for kidnapping and aggravated wounding. The appeal against conviction was dismissed but the appeal against sentence was allowed, and the sentence was reduced from two years to 18 months imprisonment, with a reparation order of $5,000. However, Mr Haigh QC, counsel for Chahil, applied for the part of the judgment relating to the appeal against sentence to be recalled, on the basis that the Court had breached s 28 of the Sentencing Act 2002 by not providing the reparation reports to the parties and not giving him the opportunity to tender evidence relating to the reparation reports. The Court agreed to recall the judgment, as the registry had failed to send copies of the reparation reports to counsel. The panel considered the reports and other material but acknowledged that they should have checked that copies of the reports had been sent to Mr Haigh. The Court quashed all decisions previously made relating to Chahil's appeal against sentence and fixed a date by which Mr Haigh must tender any evidence relating to the reparation reports. A telephone conference will then be held to determine whether the adjourned appeal against sentence will proceed orally or on the papers. In the meantime, Chahil remains on bail on the existing terms.

The legal issues the Court was required to decide were whether the Court had breached s 28 of the Sentencing Act 2002 by not providing the reparation reports to the parties and not giving Mr Haigh the opportunity to tender evidence relating to the reparation reports. The Court found that it had indeed breached s 28 and recalled the part of the judgment relating to Chahil's appeal against sentence. The Court also had to determine what to do next, and decided to quash all decisions previously made relating to Chahil's appeal against sentence, fix a date for Mr Haigh to tender any evidence relating to the reparation reports, and hold a telephone conference with counsel to determine whether the adjourned appeal against sentence will proceed orally or on the papers. In the meantime, Chahil remains on bail on the existing terms.

The Court's reasoning was that the registry had failed to send copies of the reparation reports to counsel, which was a process error that must be corrected. The Court acknowledged that it should have checked that copies of the reports had been sent to Mr Haigh, and that the failure to do so was an error that needed to be addressed. The Court also considered that it would be wrong to hide behind 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. The Court therefore recalled the part of the judgment relating to Chahil's appeal against sentence and quashed all decisions previously made in that regard. The Court then fixed a date for Mr Haigh to tender any evidence relating to the reparation reports and scheduled a telephone conference with counsel to determine whether the adjourned appeal against sentence will proceed orally or on the papers. In the meantime, Chahil remains on bail on the existing terms.

The final orders were that the part of the judgment relating to Chahil's appeal against sentence was recalled and quashed, that Mr Haigh must tender any evidence relating to the reparation reports by a specified date, and that a telephone conference would be held with counsel to determine whether the adjourned appeal against sentence will proceed orally or on the papers. Chahil remains on bail on the existing terms.

Orders