Dheil v The Queen - [2019] NZSC 153

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 106/2019
[2019] NZSC 153

BETWEEN	HARJIT DHEIL Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	J H M Eaton QC and E J Watt for Applicant S K Barr for Respondent
Judgment:	20 December 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Harjit Dheil, was convicted of blackmailing Amrit Singh (Amrit) after a District Court jury trial. The conduct constituting the offence was threatening Amrit that a woman would be paid to make a complaint against him of sexual misconduct unless he withdrew an employment complaint against the applicant’s company, Dheils Ltd. The applicant’s co‑defendant, Gurchetan Singh (Gurchetan) was acquitted.
The applicant appealed unsuccessfully against conviction and sentence to the Court of Appeal.[1]
[1]Dheil v R [2019] NZCA 416 (Stevens, Venning and Dunningham JJ) [CA judgment].
The factual background is set out in the Court of Appeal judgment and it is not necessary for the purposes of the present application to repeat it here.[2]
[2]At [4]–[13].
The applicant seeks leave to appeal to this Court. He seeks to advance four grounds of appeal if leave is granted. We will consider them one by one.

Section 22A of the Evidence Act 2006

The Crown case was that Gurchetan, acting at the request of the applicant, conveyed the applicant’s threat to Amrit. Gurchetan communicated with the applicant by telephone during the course of his discussion with Amrit and a letter drafted by the applicant was emailed to Gurchetan who provided it to Amrit to sign. The letter said that Amrit had resolved his employment complaint with Dheils Ltd. Amrit signed this at the end of his discussion with Gurchetan.
Amrit recorded some of the conversation between Gurchetan and him on his mobile phone. The first proposed ground of appeal relates to the admissibility of the recording of the conversation.
The recording was ruled to be admissible by the District Court.[3] A pre‑trial appeal to the Court of Appeal against that decision failed.[4] In its pre‑trial judgment, however, the Court of Appeal recorded that the issue of admissibility of the recording may need to be revisited at trial.[5] Although an application to revisit the admissibility of the recording was made at the first trial of the applicant and Gurchetan (unsuccessfully), no such application was made at the retrial, at which the applicant was convicted. However, the applicant’s appeal to the Court of Appeal was advanced on the basis that the trial Judge, Judge Dawson, ought to have revisited the pre‑trial ruling. The Court of Appeal rejected this.[6]
[3]R v Dheil [2016] NZDC 13850 at [51].
[4]D (CA425/2016) v R [2016] NZCA 566 at [14].
[5]At [14]. See also at [12].
[6]CA judgment, above n 1, at [28].
The applicant seeks to argue on appeal to this Court that the Court of Appeal was wrong. He says the pre‑trial ruling of the Court of…

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 Dheil v The Queen

Details

AGLC: Dheil v The Queen [2019] NZSC 153
Case: [2019] NZSC 153
Decision Date: 20 December 2019

CaseChat Overview and Summary

Harjit Dheil appealed against his conviction for blackmailing Amrit Singh, arguing that a recording of a conversation between Amrit and Gurchetan Singh, his co-defendant, was wrongly admitted as evidence. The conversation was recorded by Amrit, and the Crown case was that Gurchetan conveyed Dheil's threat to Amrit. Dheil argued that the Court of Appeal erred in not revisiting the admissibility of the recording, given that the Crown's case had changed from conspiracy to joint principal liability. The Supreme Court found that the application was fact-specific and did not meet the criteria for leave to appeal. The Court was not satisfied that the failure to revisit the pre-trial ruling would cause a miscarriage of justice, as the exception to the co-conspirator's rule could still apply based on the Crown's case as advanced at trial.

The Court of Appeal had found that there was no reason to revisit the pre-trial ruling, as both Dheil and Gurchetan had given evidence and were cross-examined. Thus, anything relayed in the recorded evidence about what Gurchetan or Dheil said was not a hearsay statement. Dheil argued that the Court was wrong to make this observation and sought to advance an argument against that as his second ground of appeal. However, the Supreme Court did not express a view on this point as it had already concluded that the first ground of appeal did not have sufficient prospects of success.

Dheil also argued that the trial Judge failed to provide a hearsay direction in relation to the recording and failed to identify the limitations of the evidence, particularly the fact that Dheil was not present when the statement was made and so not in a position to challenge what was being said. The Court of Appeal did not address this point in its judgment. The Supreme Court found that this was an essentially fact-specific issue that did not give rise to any matter of public importance justifying the grant of leave. Nor did the Court consider that, in the context of the particular trial, any miscarriage arose from the absence of a direction.

The Supreme Court dismissed the application for leave to appeal, finding that the criteria for leave to appeal were not met. The Court was not satisfied that the failure to revisit the pre-trial ruling or the trial Judge's directions in relation to the recording would cause a miscarriage of justice. The Court concluded that the application was fact-specific and did not meet the criteria for leave to appeal.

Orders