Joshi v R
[2015] NZHC 2022
•26 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-009003 [2015] NZHC 2022
BETWEEN SANJAY KUMAR JOSHI
Appellant
AND
THE QUEEN Respondent
Hearing: 2 July 2015
Further submissions received up to 6 August 2015
Counsel:
P Kaye for Appellant
Z Johnston for RespondentJudgment:
26 August 2015
JUDGMENT OF ASHER J
This judgment was delivered by me on Wednesday, 26 August 2015 at 1 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
P Kaye, Auckland.
Meredith Connell, Auckland.
JOSHI v R [2015] NZHC 2022 [26 August 2015]
Introduction
[1] Sanjay Joshi applies to vacate guilty pleas entered on 10 October 2014 in the Auckland High Court and 16 October 2014 in the Manukau District Court. He was to be sentenced on all charges at the Auckland High Court in February 2015.
[2] His counsel, Mr Kaye, has put forward two broad grounds in support of the application. First, it is submitted that there are possible defences to the charges. Second, Mr Joshi asserts that he pleaded guilty “consequent to incompetent and disinterested legal advice”. Mr Joshi and his lawyer Mr Koya provided affidavits and were cross-examined and submissions were filed in writing after the evidence.
[3] Mr Joshi faced a large number of dishonesty charges. The charges fall under a variety of categories, which I outline:
(a) First, there are six charges where it is alleged Mr Joshi obtained large sums by deception by promising to persons who gave him funds to import on their behalf high end motor vehicles. The vehicles were never received and Mr Joshi used the funds for other purposes.
(b)Second, there are three charges where it is alleged that Mr Joshi persuaded people to give him funds which were meant to be for joint venture business purposes, but which he used for his own purposes.
(c) Third, there are nine charges where it is alleged that Mr Joshi placed false orders for automotive parts and tools from various companies and provided false invoices. He then arranged for parts to be delivered to his own premises.
(d) Fourth, there are also two charges of alleged false insurance claims.
(e) Finally there are miscellaneous charges, one of fraudulently obtaining
$17,600 from a friend (Nicola Tait), another of Mr Joshi fraudulently using his mother’s visa card to obtain vehicle finance for himself over his parents’ motor vehicles, and finally a receiving charge.
Approach
[4] Section 115(1) of the Criminal Procedure Act 2011 provides that a plea of guilty may by leave of the court be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
[5] The principles to be applied in an application of this type were summarised in R v Merrilees and R v Le Page.1 It has to be shown a miscarriage of justice will result if a conviction is not overturned. Where an appellant fully appreciates the merits of the situation and makes an informed decision to plead guilty, a conviction cannot be impugned. In R v Le Page it was said that a miscarriage will be indicated in three broad situations, namely:
[17] ...The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element…
[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged…
[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law...
[6] There can be a further situation where there is an error in trial counsel’s advice to an accused, for instance in relation to the non-availability of certain defences, or outcomes. A miscarriage can also be indicated where counsel wrongly, and perhaps negligently, induces a decision on the part of a client to plead guilty under the mistaken belief that no tenable defence could be advanced.
[7] Regret over the decision to enter a guilty plea is not the test. As was stated in
R v Merrilees:2
If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
1 R v Merrilees [2009] NZCA 59; R v Le Page [2005] 2 NZLR 845 (CA) at [16]–[19].
2 At [35].
The guilty pleas
[8] At the time of entering the pleas Mr Joshi was represented by a lawyer of almost 40 years experience, Mr Mohammed Isaac Koya. He has filed an affidavit. Mr Joshi filed a number of affidavits, and his father Surrinder Joshi has filed an affidavit. Mr Joshi, Mr Surrinder Joshi and Mr Koya were cross-examined.
[9] Mr Koya initially represented Mr Joshi in 2013. That relationship broke down because of fee payment issues in October 2013. Mr Koya obtained leave to withdraw as counsel. However, Mr Joshi later obtained legal aid and Mr Koya became his assigned counsel in November 2013. He represented Mr Joshi in relation to two jury trials in early 2014. On 24 July 2014 Mr Joshi instructed Mr Koya to defend all the charges. As he prepared for the major High Court trial, it is clear from Mr Koya’s evidence that he began to doubt Mr Joshi’s credibility, as Mr Joshi would tell him things and say things that did not come to fruition or did not appear to be true.
[10] Through 2014 at various times Mr Koya advised Mr Joshi to plead guilty to some or all of the charges. At times Mr Joshi would indicate a desire to plead guilty. He would then change his mind. Mr Koya tried to get Mr Joshi to read the documents disclosed as part of Police disclosure. Mr Joshi refused to do this, stating that he did not want other inmates in prison coming to appreciate the nature of the charges against him.
[11] Mr Koya in his affidavit recounted his efforts to understand the charges against Mr Joshi and to obtain instructions from Mr Joshi that might prove to be the basis for an arguable defence. There were indications by Mr Joshi that he would repay the people from whom he had taken money. Mr Koya encouraged him to do so. However, Mr Joshi did not come up with any money and did not repay anybody.
[12] As noted above, on 24 July 2014 Mr Joshi instructed Mr Koya to defend all the charges. He confirmed those instructions again on 29 September 2014. Mr Joshi sent a letter to Mr Koya on 4 October 2014 stating that he had no confidence in Mr Koya and he referred to a conversation where Mr Koya stated that he could not
successfully defend the charges. Mr Koya confirms that he had told Mr Joshi that he could see no hope of him defending the charges successfully.
[13] On 7 October 2014 Mr Joshi indicated to Mr Koya that he would plead guilty to three of the charges he faced. He wanted Mr Koya to negotiate the dropping of the remaining charges.
[14] On the morning of 10 October 2014 Mr Koya advised Mr Joshi that he should plead guilty to all of the charges before him. He stated to him that he would withdraw as counsel if his advice was not accepted. Mr Joshi after some discussion said that he would plead guilty to a number of the charges.
[15] The charges came up for call before Heath J on the morning of 10 October
2014. Mr Koya stated in open court that if Mr Joshi did not plead guilty to every charge he would be seeking leave to withdraw as counsel for the trial that was to take place on 3 November 2014. The Judge told Mr Joshi that there was no pressure on him to plead guilty and what he did at that point was his decision. There was also discussion before Heath J about the pending Manukau District Court charges and the fact that he would have to plead to those charges.
[16] Heath J asked Mr Joshi if he would plead to the High Court charges and Mr Joshi responded to the Judge that he agreed with what Mr Koya was saying. He stated, “I have absolutely no credibility, it’s been wiped.” He referred to himself not being alone and there being another “main person”. He stated:
I thought that there would be a way in which I could be able to defend it, but like I said, I’m not credible and I wouldn’t even be able to take the stand in which to say anything so …
[17] There was considerable discussion between Mr Joshi and the Judge. The Judge pointed out that if Mr Joshi pleaded guilty he would be accepted as being responsible. He checked that Mr Joshi understood. He gave Mr Joshi time to talk to Mr Koya and that time was taken.
[18] Mr Joshi then proceeded to enter pleas of guilty to the other charges in the Manukau District Court on 16 October 2014. There was a back-up fixture for the trial in that court for 16 February 2015.
[19] Although there were clearly ups and downs in his relationship with Mr Koya, Mr Joshi continued to retain Mr Koya, who began preparing submissions for sentence. On occasions he questioned Mr Koya’s actions, but on 19 November 2014 he gave him a written instruction stating that he required him to continue to act for him in the High Court matters. He stated in this letter, which had been prepared by Mr Koya, “I accept he has acted in my best interests to date”.
[20] On 16 December 2014 he sent a letter to Mr Koya with Christmas greetings. He stated:
Although I do not always show you the deserved amount of respect, I am most blessed to have you in my life. For this I am most thankful especially in this very difficult circumstances for me.
[21] However, he then proceeded to change lawyers, and on 19 February 2015 filed an application to vacate the guilty pleas. Mr Kaye was instructed to file that application, and appeared in support when it was heard.
The claimed defences
[22] The onus is on the applicant to clearly establish that he had an arguable defence.3 It is not necessary for the applicant to prove the defence would inevitably succeed, or even be highly likely to succeed. As the Court of Appeal stated in Cooper v R:4
In the context of considering the adequacy of advice about possible defences, various terms have been used to describe the nature of the defence required, including an “arguable defence”, a “tenable defence”, a “credible defence”, or a “discernible defence”. In a case involving Arms Act charges, Randerson J referred to a “reasonably arguable” defence which “ought to be heard”.
3 Sharp v District Court at Whangarei [1999] NZAR 221 (HC) at 233.
4 Cooper v R [2013] NZCA 551 at [20] (footnotes omitted).
[23] The Court considered the adequacy of advice cases cited to them all have the “common denominator” of a defence with some substance.5 Although the Court did not expressly comment on the merits or otherwise of the test applied in England by which the applicant must establish the defence would “quite probably” succeed, it appears the Court was inclined to not set the bar that high.
[24] Mr Joshi in his affidavit makes some very general assertions about defences. I do not propose going through all his assertions. For instance, in relation to the car import charges he stated:
All allegations concerning the import of vehicles and monies received can be addressed by the fact that Preston has failed to meet the obligations about contract.
He asserts that he was duped by others.
[25] Mr Joshi claims in relation to the joint venture charges that a Mr Bredenbeck has taken some of his property. He gives no further details of these matters. He makes many general denials, but they lack any detail, and amount to no more than putting the Crown to proof.
[26] There is one incident that shows the nature of Mr Joshi’s claimed defences. In relation to the shares he should have purchased for Nicola Tait, he claims that he did in fact purchase shares. He said to Mr Koya prior to 10 October 2014 that there was a share certificate in his name. However, the name of Tait or Joshi does not appear in the Mighty River Power database. Mr Joshi was cross-examined as to who held the shares for Nicola Tait. He insisted that they were held by a third party, but would not disclose the name of that party. He stated that if he had the opportunity of going to trial, that he would disclose the name of the person then. But despite requests he would not give a name before me. It was explained to him that he would have no opportunity of going to trial unless he succeeded in the present application, so it was in his interests to give all relevant information to the Court. He still declined to give that information.
[27] I was left in no doubt that he was refusing to give the name of the third party because there was no third party and he was deceiving the Court. The disclosure of any name would reveal that deception.
[28] In the end I am quite unable to see any defence to any of the charges. Mr Joshi cannot point to something lacking in the Crown case, nor can he put forward a positive defence with some substance. At best Mr Joshi can put the Crown to proof and hope that some holes may appear. However, something more than a
bare denial uncorroborated by evidence is required to justify the vacation of pleas.6
Legal representation
[29] It must be first said that the directness and competence of the advice and actions of Mr Koya is not directly at issue in this hearing. What is in issue is whether ultimately a miscarriage of justice might arise unless the plea is changed.
[30] Mr Koya gave evidence before me and was cross-examined by Mr Kaye. He had unsuccessfully represented Mr Joshi in the two jury trials in early 2014. The overwhelming concern that he developed was that Mr Joshi was unable to offer positive defences to the charges, and Mr Koya had intensive discussions with him on the charges, but none of the statements and explanations given to him by Mr Joshi appeared to be credible, once they were investigated. On occasions it was clear he had lied. It was on this basis that he had been recommending to Mr Joshi that he plead guilty.
[31] Mr Koya cannot be criticised for his firm expressions of opinion that guilty pleas were appropriate. In my assessment this was the only sensible advice that could be given to Mr Joshi, and in doing so Mr Koya fulfilled his duty to give firm and realistic advice to Mr Joshi about the pending trial and the prospects of success.
[32] It is all very well for a client to say to counsel that counsel is to put the Crown to proof. In this case Mr Koya had the proof before him in the extensive documentary evidence and briefs that had been provided by the Crown. He had
reviewed that disclosure and discussed the charges with Mr Joshi. In his assessment the defence case was hopeless, and that assessment was borne out in the course of the hearing of this application and Mr Joshi’s evidence.
[33] In these circumstances I accept that Mr Koya legitimately and reasonably reached the position that he could no longer continue to act for Mr Joshi unless he entered such pleas of guilty. Not only did he have no instructions on defences that could be run, but he was faced with a client who had lied to him and who he could no longer trust. The trial was scheduled for the following month, and Mr Joshi, if he had sought to do so, could have terminated Mr Koya’s instructions and sought new counsel in time. I accept that this would have been a difficult course, but in my assessment it would not have deterred Mr Joshi if he wanted to defend the charges. He showed a bold determination in the witness box.
[34] The transcript of the hearing before Heath J shows that Mr Joshi was being treated carefully by the Court and there was no direct pressure on him to enter pleas of guilty on that day. In a general sense he was in a pressured situation, but that is inevitable when a defendant faces serious charges. There was nothing unfair in the way in which he was advised and treated on the day of the pleas.
[35] It is to be noted that some six days later after ample time for reflection he entered pleas of guilty to the other charges in the Manukau District Court. Clearly Mr Joshi did not surrender to stress or pressure in the spur of the moment.
[36] Mr Joshi’s father Surrinder Joshi gave evidence. He had been in court when his son had entered pleas of guilty. He was endeavouring to support his son. His evidence appeared to me to confirm what Mr Koya had said about the conduct of the hearing on 10 October 2014. In relation to charges involving Marac Finance, Mr Joshi deposed that he had no involvement with that company at all, and that any dealings most likely would have involved his parents. When his father gave evidence, his father denied entering into any arrangement with Marac or any other finance company. His evidence appeared to be contradictory to that of his son, and provided no support for the application.
[37] Mr Joshi was experienced in the entering of pleas and in courts. He had already been through two trials that year. He spoke freely to Heath J, and Heath J was at pains to say to him that he was under no pressure and it was his decision as to what he should do. Ultimately when Mr Joshi indicated he would enter pleas of guilty, each charge was read to him and he was asked to plead to each charge. Some of the pleas of guilty were entered at the Manukau District Court, and there was no impending trial date in that court. In my assessment, Mr Koya’s conduct cannot be criticised, and Mr Joshi was not subject to unreasonable pressure.
Conclusion
[38] For the reasons given I am quite unable to discern any possibility of unfairness to Mr Joshi. The Crown appears to have been in a position to prove its case, and Mr Joshi has not put forward any credible defences. Mr Joshi was properly advised at the time he entered the guilty pleas. Mr Joshi understood the charges and the effect of guilty pleas. Mr Joshi made his choice freely, following careful and proper advice. There was, therefore, no miscarriage of justice.
Result
[39] The application is dismissed.
……………………………..
Asher J
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