Momi v The The Queen
[2022] NZCA 199
•20 May 2022
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA392/2021 [2022] NZCA 199 |
| BETWEEN | JATINDER SINGH MOMI |
| AND | THE QUEEN |
| CA335/2021 | ||
| BETWEEN | AMANDEEP SINGH | |
| AND | THE QUEEN | |
| CA396/2021 | ||
| BETWEEN | RAVJOT SINGH DHILLON | |
| AND | THE QUEEN | |
| Hearing: | 29 March 2022 |
Court: | Gilbert, Woolford and Dunningham JJ |
Counsel: | R M Mansfield QC and J Oliver-Hood for Appellant in CA392/2021 |
Judgment: | 20 May 2022 at 9 am |
JUDGMENT OF THE COURT
AMr Momi’s appeal against conviction in CA392/2021 is dismissed.
BMr Momi’s appeal against sentence in CA392/2021 is dismissed.
CMr Singh’s appeal against conviction in CA335/2021 is dismissed.
DMr Dhillon’s application to adduce further evidence in CA396/2021 is granted.
EMr Dhillon’s appeal against the refusal to discharge him without conviction in CA396/2021 is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Following a trial by jury in the High Court at Auckland, Messrs Momi and Singh were each found guilty of:
(a)wounding with intent to cause grievous bodily harm to Hardeep Hayer (Mr Hayer) (charge 1);
(b)wounding with intent to cause grievous bodily harm to Manpreet Singh (Mr Manpreet Singh) (charge 2); and
(c)assault with intent to injure Gursharan Singh (Mr Gursharan Singh) (charge 3).
Mr Dhillon was found guilty on charge 3.
Lang J sentenced Mr Momi to five years and nine months’ imprisonment and Mr Amandeep Singh to four years and nine months’ imprisonment.[1] The Judge declined Mr Dhillon’s application to be discharged without conviction and sentenced him to 100 hours’ community work.[2]
[1]R v Momi [2021] NZHC 1384 [Sentencing judgment].
[2]R v Dhillon [2021] NZHC 1454 [Dhillon judgment].
Mr Momi appeals against his conviction on all three charges, contending the jury’s verdicts were unreasonable.
In the event his conviction appeal is dismissed, Mr Momi appeals against his sentence arguing that the starting point of eight years, six months’ imprisonment which the Judge adopted was manifestly excessive. He contends the starting point ought to have been the same as for Mr Amandeep Singh, namely seven years’ imprisonment. He observes that the Crown did not seek to differentiate between him and Mr Amandeep Singh at sentencing.
Mr Amandeep Singh also appeals against his conviction on all three charges. He contends that a miscarriage of justice occurred as a result of what the prosecutor said to the jury in his closing address about identification evidence which was signalled in opening, but not given in evidence.
Mr Dhillon accepts the jury’s verdict but appeals against the Judge’s refusal to grant him a discharge without conviction. He accepts the decision is unimpeachable on the basis of the information that was before the Judge. However, he applies to adduce further evidence in support of his appeal which he says demonstrates that the consequences of a conviction are significantly more serious than the Judge understood. The Crown does not oppose the introduction of this further evidence but maintains that a discharge without conviction would not be an appropriate outcome in all the circumstances.
Crown case
On the evening of Monday, 3 July 2017, a number of young men, including the three complainants (Mr Hayer, Mr Manpreet Singh and Mr Gursharan Singh), gathered at an address in Mt Wellington, Auckland. Mr Hayer, Mr Gursharan Singh and another young man, Manjinder Manes, were visiting from Christchurch and staying with their friend, Mr Manpreet Singh, at another address. They all arrived at the Mt Wellington address early in the evening, around 5 pm. Mr Momi arrived later with two of his friends, Dhanveer Thind (referred to by his nickname “Tinker”) and Parminder Chahal.
Late in the evening, all or some of Mr Momi’s group became involved in a heated argument with all or some of Mr Manes, Mr Gursharan Singh and Mr Hayer. As a result, Mr Momi and his two friends left the party. As they left, one of them made a comment to the effect of “we will see you soon”.
Approximately half an hour later, around midnight, Mr Hayer, Mr Manpreet Singh, Mr Gursharan Singh and two or three others decided to get takeaways. As they left the house, they saw two cars parked on the other side of the street. Eight to 10 people, some of whom were armed with weapons including a cricket bat and a bamboo pole, got out of these cars and walked towards them. A frenzied attack ensued. Mr Hayer was struck with one or more of the weapons and sustained a fractured skull with an open wound that required urgent medical attention. He also received other injuries to his body. Mr Manpreet Singh was also struck with one or more of the weapons and sustained an open wound to his head and other injuries to his body. Mr Gursharan Singh was also attacked but sustained only minor grazes and bruising to his face and arm.
Police arrived quickly in response to various 111 calls and blocked the street. Mr Momi, Mr Dhillon and three others were apprehended as they were attempting to leave in one vehicle (belonging to Mr Dhillon). This vehicle was found to contain a cricket bat, a metal rod, two types of piping, a bamboo pole and a slightly broken wooden stick. Mr Amandeep Singh was in his vehicle with Mr Thind and three others when he was also stopped. No weapons were found in this vehicle.
Following forensic analysis of the weapons and the appellants’ clothing:
(a)Mr Momi’s DNA was found in a blood stain on the handle of the cricket bat.
(b)Mr Manpreet Singh’s DNA was found in a blood stain on the metal pole.
(c)Mr Momi’s fingerprint was found on the bamboo pole.
(d)Both Mr Hayer’s and Mr Manpreet Singh’s blood was found on the bamboo pole.
(e)Mr Manpreet Singh’s DNA was found in a blood stain on the wooden stick.
(f)Both Mr Hayer’s and Mr Manpreet Singh’s blood was found on Mr Momi’s clothing.
(g)Both Mr Hayer’s and Mr Manpreet Singh’s blood was found on Mr Amandeep Singh’s clothing.
The Crown case against Mr Momi and Mr Amandeep Singh on charges 1 and 2 (wounding with intent to cause grievous bodily harm to Mr Hayer and Mr Manpreet Singh) was advanced on the alternative bases that they were either principal parties in terms of s 66(1) of the Crimes Act 1961, or secondary parties under s 66(2) in that the intentional infliction of grievous bodily harm was a probable consequence of the prosecution of an agreement or understanding that they would inflict physical injury on one or more of the persons they had been arguing with at the address.[3]
[3]Mr Dhillon also faced these charges. In R v Momi HC Auckland CRI-2017-004-6762, 23 April 2021 (Ruling No 1) Lang J ruled at the conclusion of the Crown case that the case against Mr Dhillon on charges 1 and 2 could only be put to the jury on the basis that he could be found liable as a secondary party, but not as a principal offender. The jury found Mr Dhillon not guilty on these charges.
The case against Mr Momi and Mr Amandeep Singh on charge 3 was ultimately put to the jury only on the basis they were liable as secondary parties under s 66(2). Charge 3 was advanced against Mr Dhillon on the basis that he was either a principal party or a secondary party.
Mr Momi’s appeal against conviction
Mr Mansfield QC, for Mr Momi, argues there was insufficient evidence to sustain the verdicts on either basis. The claimed evidential deficiency extends to both the actus reus of the offence and the requisite intent.
In assessing the adequacy of the evidence, Mr Mansfield says the Court should bear in mind the significant delay of nearly four years between the brief, violent melee spanning some five to 10 minutes that took place in July 2017 and the eventual trial in April 2021. Mr Momi was not responsible for this delay. The trial was originally due to commence in February 2019 but had to be adjourned because of late disclosure of significant evidence due to police oversight and tardiness. The trial was rescheduled for April 2020 but had to be postponed for a further year due to COVID-19-related issues. Mr Mansfield makes the fair point that this delay will have affected the reliability of the eyewitnesses’ recall and evidence. Unsurprisingly, the eyewitnesses gave somewhat inconsistent accounts of what occurred.
Principal liability on charges 1 and 2 — s 66(1)
In closing, Crown counsel referred to the evidence of two eyewitnesses in particular — Bhupinder Pal and Manjinder Manes — to identify Mr Momi as having caused the serious injuries to Mr Hayer and Mr Manpreet Singh founding charges 1 and 2. Mr Mansfield submits the evidence of these witnesses was essential to the Crown’s case against Mr Momi on these charges but could never amount to proof beyond reasonable doubt that he wounded Mr Hayer and Mr Manpreet Singh with intent to cause them grievous bodily harm.
Mr Pal lived at the Mt Wellington address with several others. His evidence included the following extracts. In the first, he describes what he saw when he went outside to investigate the shouting he heard after the complainants and others left to get takeaways:
AOkay yeah, when it just started so they was looking for – shouting and they were asking the names of three guys especially that came from Christchurch. So they’re looking for them. So they just going towards their car. And when they get there so they just start hitting everyone over there. So it was [Mr Manpreet Singh] and the other two guys was there. And they just ask Snejit[[4]] to go inside because they was their common friend, they said we don’t want to say anything to you. So they just starting hitting on the four guys, [Mr Manpreet Singh] and the other three friends. So they were just swinging whatever they have in their hands. So they were just swinging and not looking anything so it’s all happening. After that the – everyone like running around was happening on the street.
[4]Snejit Brar was one of those who lived with Bhupinder Pal at the Mt Wellington address.
Mr Pal stated that three or four of the attackers used weapons:
ASo as I can see there was like I can recognise three, four guys have in their hands as I remember so one of them like has some rods and one bat I can see but they have other wooden sticks or something as well so like at least three, four guys having something in their hands I see.
When asked about Mr Momi’s involvement, Mr Pal said:
Q. … What is anything could you see Momi doing during this encounter?
A.So when just fighting just started I see Momi was hitting I don’t know to whom he – he was just going to hit someone when they were just around the car. It can be [Mr Hayer] or [Mr Manpreet Singh] both of them ‘cos they was on same side so maybe one of them he was hitting so.
Q. And how did he do the hitting?
A. He had something in his hand. I don’t know it was bat or something so he was just hitting and swinging it so.
(Emphasis added.)
Mr Mansfield argues that the italicised evidence was critical to the Crown case but was plainly insufficient to prove to the requisite standard that Mr Momi struck Mr Hayer and Mr Manpreet Singh.
Mr Manes’ evidence added little to the Crown case that it was Mr Momi who struck the blows causing the injuries to Mr Hayer and Mr Manpreet Singh which were the basis of charges 1 and 2:
Q. Who was fighting?
A.Like when we get out of the car kind of like [Mr Manpreet Singh] and [Mr Gursharan Singh] and they were in front of us yes and they I think they been attacked and I didn’t see like who were the people who attacked maybe the other six people and I don’t know.
Q.So I just need to be clear whether you saw the attack happen or you had come afterwards.
A. I come afterwards I was at the back walking.
Q.Well tell me exactly what it is that you can see as you were walking over.
A.When was I walking and I think [Mr Thind] and that people I don’t know they have I see some weapons in their hands like a rod or stuff and they were attacking I think [Mr Hayer] got attacked, I just see [Mr Hayer] got attacked?
Q.So you saw [Mr Hayer] getting attacked by [Mr Thind] and what was it you mentioned before.
A.Yeah I think I mentioned it was [Mr Momi] that time in the statement but I ask [Mr Hayer] like if he’s –
Q.Let’s just – Mr Manes its just important that we from your own memories as best you can tells us what you could see or saw or heard.
A. Yeah.
…
Q.So I’ll come back to the question I had which I asked just before which was so we’ve talked about the person with the glasses, we talked about [Mr Thind] and we talked about the person with the turban. We’ll talk about other people that you can remember or if you can. [Mr Momi], what was he, where was he?
A.He was there as well. I think that time when I see him I think he was talking to [Snejit] Brar at that time.
Under cross-examination by Mr Momi’s trial counsel, Mr Manes stated:
Q.When he asked you, you said: “I think I mentioned [Mr Momi] in my statement but,” and you didn’t say any more. Now I want to know about what you saw that night. Were you mistaken?
A.Yes. From the back, from the back I’m thinking like it was [Mr Momi]. But when I then sat by [Mr Hayer] and he said no it wasn’t.
Q. Okay, don’t tell me what [Mr Hayer] told you.
A. Mhm.
Q. I just want to know what you remember?
A. From the back I think it’s [Mr Momi], that’s why I just said.
Q. Would you accept that you might be mistaken about that?
A. I might have been.
The Judge specifically directed the jury in his summing up that they could not rely on Mr Manes’ evidence to find that Mr Momi was directly involved in the attack because his identification evidence was too unreliable:
I want to give you an example of this. You will recall that [Crown counsel] in his closing referred to the fact that Mr Manes had identified Mr Momi as having been one of the persons involved in the attack, and if you go back and read the evidence of Mr Manes, and it is between pages 107 and 109 if you are interested, you will find that all of the factors to which I have referred come into play. First, he said that he thought that the person known as [Tinker], whom we know as Mr Thind, was the person who was attacking one of the complainants. Then later on in cross-examination by [Mr Momi’s trial counsel], he referred to the fact that he had said in an earlier statement that it was [Mr Momi] who was doing this, and then he said “Well actually I only thought it was [Mr Momi] because somebody else told me that”. Well all of those things raise real warning bells for you because firstly, we have got the witness changing his evidence about who it was. And also in addition he said to [Mr Momi’s trial counsel], I think, “Well I said in my statement I thought it was [Mr Momi] because I saw the back of his head”. Well seeing the back of somebody’s head is not a particularly strong basis on which to make an identification, and then of course, we have the fact that the witness has been talking to other people as several of the witnesses here acknowledged they had done. After this event they discussed what had happened clearly and they told each other what they thought they had seen. So all of those factors call into question the validity of that identification. I have to tell you that you could not rely on Mr Manes’ evidence to find that Mr Momi was involved directly in the attack as he says because his identification evidence is simply too unreliable.
The Judge’s assessment of the unreliability of Mr Manes’ evidence was obviously correct and his clear directions to the jury were entirely appropriate.
We accept Mr Mansfield’s submission that Mr Pal’s evidence was also not sufficient to prove to the required standard that Mr Momi dealt the blows that caused the serious injuries to Mr Hayer and Mr Manpreet Singh forming the basis of charges 1 and 2. We note that the Judge reached a similar view, stating when sentencing Mr Momi:[5]
[18] I am satisfied beyond reasonable doubt that you were involved in the planning of this attack and that you were also physically involved in it. The DNA and fingerprint evidence suggest you used the cricket bat as a weapon in doing so. It is obviously not possible to determine whether you personally inflicted any of the blows that caused the injuries to the two complainants who were the subject of the two most serious charges. Had the Crown been able to establish that fact, I am satisfied a starting point of around nine to ten years imprisonment would have been appropriate. …
[5]Sentencing judgment, above n 1.
It follows that we accept this aspect of Mr Mansfield’s argument. In reaching this conclusion, we do not overlook Mr Steele’s submissions for the Crown that other evidence supported the contention that Mr Momi was involved in the assault. This included: Mr Hayer’s evidence that he recognised three of the people attacking him as those he had seen earlier in the night; the fact that Mr Momi was in the car in which the weapons were found; his fingerprint was on the bamboo pole; his blood was on the handle of the cricket bat; and both Mr Hayer’s and Mr Manpreet Singh’s blood was found on his clothing. This evidence clearly implicates Mr Momi in the attack but, as the Judge found, it does not prove that Mr Momi inflicted the particular blows founding charges 1 and 2.
We therefore do not need to address the second limb of Mr Mansfield’s argument on principal liability. We turn now to consider whether the jury’s verdicts are sustainable on the alternative basis that Mr Momi was a secondary party to the offending.
Secondary party liability on charges 1, 2 and 3 — s 66(2)
In closing to the jury, Crown counsel described the Crown’s case under s 66(2) as follows:
So the Crown case is in this case there’s a group of three that got into an argument with the Christchurch guys at the party. They went away. They collected seven of their mates. Collected various weapons and formed a common intention to inflict physical injury on the complainants. These three defendants they were part of that common intention or agreement and the offences that were committed by that group were all probable consequences of their agreement.
Building on these statements made by Crown counsel in closing, Mr Mansfield submits that it was essential to the Crown’s case for it to prove the fact of the argument and the specific actors involved, in particular that “the group of three” was Mr Momi and his two friends, and “the Christchurch guys” were the complainants — Mr Hayer, Mr Manpreet Singh and Mr Gursharan Singh. He submits that if the evidence could not satisfy the jury beyond reasonable doubt that those individuals all engaged in the argument, the Crown case under s 66(2) could not succeed. We do not accept this submission. The fact of the argument and who was involved in it provided important context, but these matters did not form essential elements of the offence. The Crown therefore did not have to prove there was an argument or establish precisely who was involved in it. Nor was it necessary for the Crown to prove the identity of all parties to the alleged agreement or understanding to inflict physical injury. Rather, the Crown only had to prove the essential elements of the offence, including that Mr Momi entered into an agreement or understanding with one or more of the other named individuals to carry out the unlawful purpose.
There is no challenge, nor could there be, to the Judge’s identification, in his appropriately tailored question trail, of the essential elements of the offence that the Crown had to prove to the required standard. The questions for the jury to determine party liability on charge 1 were:
1.Are you sure that Mr Momi entered into an agreement or understanding with one or more of the persons named in Charge One [Mr Thind, Mr Amandeep Singh, Lovepreet Kumar, Mr Dhillon, Harpreet Singh, Parminder Chahal and Jaskarandeep Singh] to carry out an unlawful purpose, namely the infliction of physical injury on one or more of the persons Mr Momi had met earlier on 3 July 2017 at [the address]?
…
2.Are you sure that Mr Momi and the person(s) with whom he entered into that agreement or understanding agreed to assist each other in carrying out that unlawful purpose?
…
3.Are you sure that one or more of the persons with whom Mr Momi entered into that agreement or understanding wounded [Mr Hayer] in the course of carrying out the common unlawful purpose?
…
4.Are you sure that the person(s) who wounded [Mr Hayer] intended to cause him really serious bodily injury?
…
5.Are you sure that Mr Momi knew (ie actually appreciated) that it was a probable consequence of carrying out the unlawful common purpose that one or more of the persons with whom he entered into the agreement or understanding:
(a) would wound a person or persons whom they had met earlier that evening at [the address]; and
(b) that he/they would do so with intent to cause that person really serious injury?
…
Next, Mr Mansfield submits that the Crown case as put in closing (quoted at [29] above) was premised on the basis the Crown was only required to prove that there was “a common intention to inflict physical injury on the complainants”, but this was not sufficient to establish the requisite intention on charges 1 and 2, which involved wounding with intent to cause grievous bodily harm. There is nothing in this submission. The quoted passage of the Crown closing refers to the unlawful purpose (question 1 in the question trail), not to the actual offence that was the foreseen probable consequence of carrying it out (questions 4 and 5).
Finally, Mr Mansfield submits there was insufficient evidence to sustain the jury’s verdict for secondary party liability on the required intention element. He refers to the test formulated by the Supreme Court in Ahsin v R for secondary party liability under s 66(2), namely that the Crown must prove that the defendant:[6]
… intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
[6]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [102(e)].
Mr Mansfield says there was simply no evidence to prove that what he says started as a spontaneous melee as a result of a minor argument would result in the infliction of grievous bodily harm on any of the complainants. He argues that no such intention can be inferred from the circumstances, including that a cricket bat and other similar weapons were used.
We disagree. In our assessment, there was ample evidence from which inferences could be drawn on the issue of intent to justify the jury’s verdicts on charges 1 and 2. This included the heated argument that indisputably took place, the threat that was made when Mr Momi and his friends left the address having been told to leave, the fact they gathered seven others to form a group of 10, they obtained numerous weapons including a cricket bat and a bamboo pole, they waited outside the address for some time and immediately attacked the complainants as they left the address, repeatedly striking them on their heads and bodies with such force as to cause the very serious injuries sustained by Mr Hayer and Mr Manpreet Singh, including a fractured skull. Mr Steele also drew our attention to the evidence that one of the attackers stated during the assault “we’re going to kill you guys”.
For these reasons, we dismiss Mr Momi’s appeal against conviction.
Mr Amandeep Singh’s appeal against conviction
Mr Amandeep Singh’s appeal against conviction is focused narrowly on a single point that he claims caused a miscarriage of justice. The Crown opened to the jury on the basis that one of the complainants identified Mr Amandeep Singh at the scene as one of the attackers. This signalled evidence was not given, and the Judge did not permit the Crown to adduce the identification through the police officer to whom it was made.[7] Crown counsel acknowledged in closing that this aspect of its case had not unfolded as expected. However, Mr Carruthers, for Mr Amandeep Singh, submits that in the course of doing so, Crown counsel effectively reminded the jury of the identification, reinforcing the fact that it had been made. Mr Carruthers argues this may well have influenced the jury in finding Mr Amandeep Singh guilty. He submits that Mr Amandeep Singh plausibly addressed the other strands of the Crown case against him.
[7]R v Momi HC Auckland CRI-2017-004-6762, 29 April 2021 (Ruling No 2) [Ruling No 2].
In opening, Crown counsel summarised the case against Mr Amandeep Singh as follows:
The next person we have down on the Contents page there is Mr Amandeep Singh, who is a defendant in this trial. He was located again at the scene where the police stopped the vehicles at the end of the street. He was located in the vehicle that didn’t contain any of the weapons but, importantly, he was identified by one of the complainants as having taken part in the attack. The piece of evidence that may assume some significance about Mr [Amandeep] Singh’s appearance on the night is the fact that on the night he is seen wearing a turban and is the only person at the point of arrest who had a turban on. He also had what is almost certainly the blood of one of the complainants on his clothing the Crown says.
…
So as is probably apparent by me running through the list of individuals involved there’s a lot of different types of way of evidence in the way in which individuals are being identified. So I just want to group that evidence for you, so you know how it is going to come out. The first of those is what I will call identification by circumstances and the fact that all ten of these, all of these individuals are caught leaving the scene in the vehicles and two of whom are actually in the vehicle, two of these defendants were in the vehicle where all the weapons are.
…
The first [bucket of evidence] is what I will call identification by circumstances. It is the fact that these people arrived in vehicles and then left in the vehicles and were stopped very shortly after the attack at the end of [the street]. So that is a, what the Crown will say is a compelling circumstance to point towards those individuals having been involved. The second bucket of evidence is really what I call direct identification. It is identification by one of the complainants of each of the defendants and of those, those eight people that I told you about. That identification was made at the scene to a police officer. His name is Detective Thomas Malcolm and you will see him at various points through the trial seated at the back of the Court. He is not present now, but he is the Officer in Charge of this investigation. He was one of the early responders to the complaint. So you will hear that the identification made by that complainant included three defendants here today.
(Emphasis added.)
The complainant who was expected to give this evidence was Mr Manpreet Singh (although the jury was not told this in opening). However, despite being pressed by Crown counsel, Mr Manpreet Singh said he could not identify the attackers and could not recall making any identification at the scene or in his statement to the police the next day. The following exchange occurred near the outset of his evidence‑in‑chief:
Q. Okay, well first of all had you seen any of these eight to 10 people before? Before those cars pulled up and you said you were then attacked and you’d seen eight to 10 people come out. Had you seen any of those eight to 10 people before?
A. No. It was very dark.
Crown counsel returned to the topic the following day:
Q.… Yesterday we got to the part of the evidence where you were out on the street and in and around the cars. You were about to tell us what sort of happened next. Before we do that I want to go back in time to cover just some other evidence what you have covered and just ask you some question about that. Do you recall giving evidence yesterday about the argument in the house earlier on in that evening?
A. Yeah.
Q. And who was it who was arguing, who was the argument between?
A. I told you like the boys from Christchurch our friends they was arguing with a couple of guys who came over. I don’t remember who (inaudible …).
Q. Do you know the names of the people who came over?
A. I don’t know the name.
Q. Is it a case that you’ve never known their names or you knew them and have perhaps forgotten about.
A. I think I knew one of the guy name but I think I was mixing with other guy so that’s why I’m not pretty sure who was who.
Q. You’ve provided the police a statement in this proceeding is that right?
A. Yes I did.
Q. And that statement was taken the day after this incident on the 4th of July 2017?
A. Yes.
Q. And when you made that statement were the events that took place on that night fresher in mind than they are now?
A. (inaudible)
Q. Would it help to have — be able to have a look at that statement to help refresh your memory about the names of the people who were there.
A. Yeah. Do you want to have a look?
Q. Just a few formalities first Mr [Manpreet] Singh. Can I just get you to confirm that that’s your name on the front page?
WITNESS REFERRED TO STATEMENT
A. Yeah that’s me.
Q. And this is your New Zealand Police statement?
A. Yes.
Q. On the bottom right-hand corner of all pages is a – all seven pages your initials?
A. Yeah.
Q. And can I confirm that the final page has your signature.
A. Yeah.
Q. Its dated the 4th of July 2017.
A. Yes.
Q. And just above that signature it says: “I confirm the truth and accuracy of the statement. I make the statement with the knowledge that it is to be used in Court proceedings. I am aware that it is an offence to make a statement that is known by me to be false or intended by me to mislead”.
A. Yeah.
Q. Where I would like you to read please is if you turn to page 2 of that statement.
A. Page number 2 yes.
Q. And the paragraph that I’d like you to look at is about half way down the page and it starts with two of three guys. If you could just read that to yourself please.
A. I should read.
Q. So read it to yourself the paragraph there its two lines it begins with the words two of the three guys.
A. Yes.
Q. Just let me know once you’ve done that.
A. Yeah I done.
Q. Now having had a look at your statement that you gave to the police the next day has that assisted your memory at all in being able to name people who were involved in the argument.
A. Yes like I remembered these two names a bit familiar ‘cos I hear from other people.
Q. Just need to be clear what are the names you’re talking about.
A. As by my statement is saying like there was a guy one was guy was called Momi and another guy called Tinker [Mr Thind].
Q. And I just need to be clear because of something you said is that – did you learn those names yourself or did someone else tell you about them?
A. Someone else.
Q. Can you remember what they looked like?
A. I think the both guys the both of guys they’re not here now both of them.
Q. So just focusing on the two of the three guys can you describe them at all to me. Do you have any memory about what they look like?
A. Man its four years I can’t remind that now.
Later in evidence-in-chief, Crown counsel attempted to adduce the expected evidence that Mr Manpreet Singh identified Mr Amandeep Singh and the other appellants as attackers when speaking to the police at the scene:
Q. So you had a conversation with police?
A. Yes.
Q. And getting an ambulance and going to hospital?
A. Yeah.
Q. Do you recall at all having any conversation about the incident that had taken place and what had happened?
A. Sorry again?
Q. Did you have any conversation with police about what had just happened?
A. I think police asking us, yeah, like how you got – how you got bleeding and things that’s what police were asking something to us.
Q. And now we’re going back a long time. Do you have any memory about what you told them?
A. No.
Q. Do you know whether you spoke to them who was involved.
A. I don’t know what the police that day. …
Counsel left it there and moved to another topic.
Crown counsel later attempted to adduce Mr Manpreet Singh’s scene identification evidence through the police officer to whom it was made. The Judge did not permit this because there would be no opportunity to cross-examine Mr Manpreet Singh about it:[8]
I acknowledge the Crown’s argument that counsel for the defendants will be able to cross-examine the detective, and make submissions to the jury, about factors relevant to the circumstances in which the identifications were made. This does not address the issue relating to the value of cross-examination in circumstances such as the present. The detective cannot give evidence about why Mr [Manpreet] Singh identified the defendants. In the absence of any ability to cross-examine Mr [Manpreet] Singh on this issue the visual identification evidence would effectively be admitted unchallenged.
[8]Ruling No 2, above n 7, at [5].
In closing, Crown counsel referred back to the categories of evidence he had described in opening:[9]
You might recall going back to last Monday in my opening address I laid out to you what I said were really four categories of evidence that I’d invite you to focus on during the trial as identifying the involvement of each of these defendants in the attack. Now despite nearly four years between the events that night and the trial much of that evidence played out as I foreshadowed to you last Monday and [it’s] those categories that will be the focus on the first part of the address. …
After discussing the first category of evidence, described as identification by circumstances, counsel turned to the second category, direct identification. Counsel fairly acknowledged that the identification evidence he had signalled in opening had not been given and told the jury they must put his earlier reference to this out of their minds:
The second, is direct identification and this is a part of the evidence I have to fairly accept the evidence did not playout how I opened. I opened and I said that there would be various identifications made at the scene by a complainant. You heard [Mr] Manpreet Singh not remembering what he said at the scene and so it’s really important that you ignore everything that I said about that particular piece of evidence in my opening. It is absolutely critical that this trial is fair to everyone and what I say is not evidence. It’s what the witnesses say that’s evidence. And there’s no evidence of that having been made at the scene. His Honour will direct on that point in his summing-up but I want you to hear it from me first so you can put that out of your mind.
[9]The closing address was given on Wednesday, 28 April 2021. The opening had been given on Monday the previous week, 19 April 2021.
Mr Dickinson, trial counsel for Mr Amandeep Singh, also emphasised this deficit in the Crown case in his closing address:
One of the main things that [the] prosecution opened its case on was the scene identification. The prosecution got out in front of this in the closing address that you just heard by saying that it didn’t happen, and it certainly didn’t. You were told when the Crown opened the case that there would be evidence of a complainant identifying who was involved at the scene. And that evidence doesn’t exist, it’s not in this trial.
However, prior to the summing up, Mr Dickinson raised with the Judge his concern that Crown counsel had inadvertently prejudiced Mr Amandeep Singh by informing the jury that it was Mr Manpreet Singh who had made the identification at the scene, whereas in opening the jury was simply told that this evidence would be given by one of the complainants. The concern was that the jury would have the impression that Mr Manpreet Singh made the identification at the scene, but just could not remember doing it. Following discussion with counsel the Judge determined that the best course, endorsed by Mr Dickinson after reflecting on the matter overnight, was to make it clear there was no scene identification and to give a clear warning about the dangers of identification evidence. This was done.
Early in his summing up, the Judge gave detailed, tailored directions, to guide the jury in their assessment of the reliability of the evidence generally before turning to the identification evidence in particular. As to the identification evidence, the Judge instructed the jury as follows:
Now these issues become particularly pronounced or acute when you are considering evidence given by witnesses that identify what particular people were doing at a particular time. We call this identification evidence, and all the lawyers have referred to that. Now you need to know that there is a need for special caution before you find any of the charges proved in reliance on the correctness of the identification made by a witness of a defendant and his actions. Now this flows from the fact that a miscarriage [of] justice can occur when a jury relies on a mistaken identification to bring in a guilty verdict. A miscarriage of justice arises because it is a wrong verdict because there has been a misidentification of the defendant in question. You also need to bear in mind the possibility that a witness who identifies a defendant as having done something, may be a convincing witness, even though they are mistaken. The fact that several witnesses give the same evidence about identification does not take matters much further either, because several witnesses can be mistaken just as one witness can be.
So before you accept any evidence of a witness who identifies one or more of the defendants doing anything or committing a particular act, you need to look at all the circumstances in which the identification occurred. How well, if at all, did the witness know the person they identified? Over what period did the identification take [place]? Was it seconds or was it minutes? And in this case, this as you know, [was] a very fast-moving series of events. Thirdly, what were the conditions like when the identification was made? Well here of course you have got the issues that I have already raised in relation to the fact that it was at night and the only lighting was provided by streetlights. Fourthly, were there any other factors that might affect the reliability of the identification? And here is where we run up against the same issues I have already referred to. You have got fast-moving events, you have got people running about, you have got acts of violence being committed in a very short space of time. So all of those issues are going to need to be factored into account when you consider the evidence given by witnesses identifying particular defendants as having done something.
The Judge then provided a specific example, referring to Mr Manes’ evidence. We have already quoted this passage from the summing up at [24] above.
Later, in the final part of the summing up where the Judge summarised the case for the Crown and for the defence, the Judge told the jury:
The Crown acknowledges that perhaps the eye witness identification is the weakest aspect of its case. …
…
And of course it is accepted by the Crown that on the night in question at the scene there is no evidence of any identification of the defendants by any of the complainants. [Crown counsel] acknowledged that in his closing address. The most you get in terms of identification is some reference and statements taken the next day.
Mr Carruthers echoes the concerns raised by Mr Dickinson. Although he acknowledges that Crown counsel’s good intentions cannot be faulted, the way the matter was dealt with was somewhat awkward. Counsel reminded the jury of his claim in opening that one of the complainants had identified Mr Amandeep Singh at the scene as being one of the attackers. By then referring to Mr Manpreet Singh’s inability to recall what he had said at the scene, Mr Carruthers submits that counsel was effectively reassuring the jury that the identification had been made and the only reason it did not come out in the evidence was because Mr Manpreet Singh could no longer recall making it. Mr Carruthers argues that it would have been difficult for the jury to ignore the information that Mr Amandeep Singh had been identified on the night as being one of the attackers. He argues that Mr Amandeep Singh was prejudiced in two ways. First, he did not have the opportunity to cross-examine Mr Manpreet Singh on the circumstances in which he had made the identification. Secondly, he points to the well-recognised risk that juries frequently give disproportionate weight to identification evidence. Mr Carruthers says there was arguably a third factor, also raised by Mr Dickinson, caused by identifying Mr Manpreet Singh as the complainant who had made the scene identification. This is because one of the photographs in the photo-booklet produced in evidence showed Mr Manpreet Singh pointing something out while to talking to the police at the scene.
Mr Carruthers says that this placed trial counsel and the Judge in a difficult position. He does not suggest error on the part of either, but he says the Judge’s direction “did not tackle the potential impact of what was not in evidence”. Mr Carruthers submits, and we agree, that the case is analogous to those where a jury is inadvertently given prejudicial information. Whether this gives rise to a miscarriage of justice will depend on the nature of the information, the circumstances in which it was given to the jury, its potential to influence the jury and any corrective measures taken.[10]
[10]Edmonds v R [2015] NZCA 152 at [24]; and Pulemoana v R [2019] NZCA 293 at [50] citing R v Weaver [1968] 1 QB 353 (CA) at 359–360.
Despite Mr Carruthers’ thoughtful submissions, we are not persuaded there is a real risk that justice has miscarried as a result of this issue.
It was entirely proper for the Crown’s opening to signal the primary evidence the jury were expected to hear. The reference to the expected identification evidence as forming an important plank of the Crown case was appropriate. Mr Carruthers does not contend otherwise.
Witnesses failing to come up to brief is not an infrequent occurrence, although this will not always be apparent to the jury. In this case, we consider it would have been obvious to the jury, including from the passages of the evidence quoted at [39] above, that Mr Manpreet Singh, one of the first to give evidence and one of the principal complainants, did not provide the assistance the Crown was expecting on the issue of identification. This was a comparatively short trial. Such evidence having been promoted in opening as an important part of the case against Mr Amandeep Singh, we consider it was appropriate for Crown counsel to make it clear in closing that there was no such identification evidence. The acknowledgement was both clear and fair:
… it’s really important that you ignore everything that I said about that particular piece of evidence in my opening. It is absolutely critical that this trial is fair to everyone and what I say is not evidence. It’s what the witnesses say that’s evidence. And there’s no evidence of that having been made at the scene. His Honour will direct on that point in his summing-up but I want you to hear it from me first so you can put that out of your mind.
As noted, the defence capitalised on the Crown’s failure to adduce this evidence, characterising it as “[o]ne of the main things that [the] prosecution opened its case on”.
Importantly, the Judge’s directions to the jury were clear. His reliability directions concerning visual identification evidence cannot be faulted. Having given standard directions that they must decide the case on the evidence, he stated that it is “accepted by the Crown that on the night in question at the scene there is no evidence of any identification of the defendants by any of the complainants”. We are not persuaded there was any real risk the jury would have ignored these very clear directions, strayed outside the evidence and taken account of information they were told to put out of their minds.
We therefore dismiss Mr Amandeep Singh’s appeal against conviction.
Mr Momi’s appeal against sentence
In setting the starting point, the Judge identified four aggravating features: there was a significant degree of premeditation including assembling of a group of eight to 10 men with various weapons and two vehicles;[11] the violence was inflicted by a large number of assailants on a smaller number of victims; the offending involved attacks to the head using various weapons; and the injuries inflicted on two of the complainants were really serious, though not life-threatening.[12] Taking account of these aggravating features, the Judge considered the offending attracted a starting point at the upper end of Band 2 (five to 10 years’ imprisonment) or the lower end of Band 3 (nine to 14 years’ imprisonment) identified by this Court in R v Taueki.[13]
[11]Sentencing judgment, above n 1, at [9].
[12]At [10].
[13]At [15], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA) at [34].
The Judge considered Mr Momi’s culpability was greater than that of Mr Amandeep Singh:
[17] Mr Momi, I consider your position to be somewhat different to that of Mr [Amandeep] Singh. You were present at the address when the initial verbal altercation occurred, and you were present when threats were made to the effect that you would return. Several of the eyewitnesses also named you as being actively involved in the attacks on the victims. Your DNA and blood‑stained fingerprint were also identified on a cricket bat found in one of the vehicles as you attempted to leave the scene. Witnesses described the cricket bat being used to assault the complainants.
[18] I am satisfied beyond reasonable doubt that you were involved in the planning of this attack and that you were also physically involved in it. The DNA and fingerprint evidence suggest you used the cricket bat as a weapon in doing so. It is obviously not possible to determine whether you personally inflicted any of the blows that caused the injuries to the two complainants who were the subject of the two most serious charges. Had the Crown been able to establish that fact, I am satisfied a starting point of around nine to ten years imprisonment would have been appropriate. As matters stand, however, I am satisfied your involvement warrants a starting point of eight years six months imprisonment.
[19] I do not consider any uplift is required to reflect the charge relating to the third complainant. You were found guilty as a party to that offending and there is no evidence you were actively involved in any form of assault on him. Furthermore, the injuries the third complainant suffered were relatively minor. I therefore consider a starting point of eight years six months imprisonment is sufficient to reflect your culpability on that charge as well.
From the starting point of eight years and six months’ imprisonment, the Judge allowed three discounts together totalling two years and nine months. The discounts were as follows:
(a)12 months for Mr Momi’s previous good character (he was aged 24 at the time of the offending, had no previous convictions and was described by the Judge as a “model resident” up until this offending);[14]
(b)18 months for the undue delay between the time of arrest and trial;[15] and
(c)three months to recognise the added stress caused to Mr Momi while serving a sentence of imprisonment given the prospect of deportation.[16]
[14]At [23].
[15]At [27].
[16]At [28].
These discounts resulted in an end sentence of five years and nine months’ imprisonment.[17]
[17]At [29].
The Judge explained why he considered Mr Amandeep Singh’s culpability was lower, justifying a lesser starting point of seven years’ imprisonment:
[20] Mr [Amandeep] Singh, you were not present at the address when the initial argument occurred. It can therefore be inferred that you were one of the persons summoned by Mr Momi and his associates to return to the scene armed with weapons. It is not known how you got there. Nevertheless, the jury’s verdict makes it clear that you were at the very least a party to a plan to inflict violence on those with whom Mr Momi and his associates had been arguing earlier in the evening. You also knew the intentional infliction of really serious harm on the victims could well happen. You would have known that because of the number of persons who went to the address and the nature of the weapons they took with them. I sentence you on the basis that you were party to the offending although I have no doubt you played an active part in it. I consider a starting point of seven years imprisonment is appropriate in your case on the two most serious charges.
Mr Mansfield submits that the Judge was wrong to conclude that Mr Momi had any active involvement in the initial argument and the Judge’s statement that “[s]everal of the eyewitnesses also named you as being actively involved in the attacks on the victims”[18] is factually incorrect. The only such evidence came from Mr Pal. Mr Mansfield submits that there was no reasonable basis to adopt a higher starting point for Mr Momi than for Mr Amandeep Singh and notes that the Crown did not seek to distinguish between them for the purposes of setting the starting point.
[18]At [17].
Contrary to Mr Mansfield’s submission, the Judge did not say that Mr Momi was actively involved in the argument; he merely found that Mr Momi was present during the argument and when the threats were made.[19] Whether the Judge made any error about the number of eyewitnesses who identified Mr Momi as being actively involved in the attacks is immaterial. The important point is that the Judge found it to have been established beyond reasonable doubt that Mr Momi was actively involved in the attack.[20] There was ample evidence to support that conclusion, as we have already discussed. That the Crown did not seek to differentiate between Mr Momi and Mr Amandeep Singh in their submissions on the appropriate starting point is not determinative. It is obviously the Judge’s responsibility to make the necessary factual findings consistent with the jury’s verdicts and determine the appropriate sentencing outcome.
[19]At [17].
[20]At [18].
Given the Judge’s findings, the starting point he adopted towards the upper end of Band 2 in Taueki is unimpeachable. We also consider the Judge was entitled to assess Mr Amandeep Singh’s culpability as being lower, for the reasons he gave. Mr Amandeep Singh was not present at the Mt Wellington address when the argument occurred and when the threats were made. The Judge was entitled to conclude that Mr Amandeep Singh was one of those summoned by the group who were present, including Mr Momi. Of particular importance was the Judge’s finding, well-supported by the evidence, that Mr Momi was not only involved in the attack, his participation involved the use of a weapon. This may well have been the bamboo pole rather than the cricket bat, but this is immaterial for sentencing purposes.
For these reasons, we are not persuaded the Judge erred in setting the starting point for Mr Momi. There being no other challenge to the sentencing assessment, the appeal against sentence is dismissed.
Mr Dhillon’s appeal against the refusal to grant a discharge without conviction
Taking account of all relevant matters, the Judge assessed the overall gravity of Mr Dhillon’s offending as low:[21]
This reflects the fact that Mr Dhillon has no previous convictions and appears to have been a model resident up until the time of the present offending. Furthermore, I consider the jury found Mr Dhillon guilty as a party to a relatively minor assault and it cannot be shown that he caused any injury to the complainant himself. The offending is aggravated only by the fact that Mr Dhillon was prepared to be part of a group attack on the complainant and that he did so knowing one of the members of the group was using a stick as a weapon.
[21]Dhillon judgment, above n 2, at [12].
The Judge was not persuaded to grant Mr Dhillon’s application for a discharge without conviction because the Judge considered the consequences of a conviction were low to very low.[22] The Judge’s reasons were set out in the following paragraphs of his judgment:
[13] Mr Dhillon is concerned that any conviction may affect his current and future employment as a truck driver. He is presently employed by a company that carries out work on contract for a nationwide courier company.
[14] The evidence that Mr Dhillon may lose his current employment is relatively vague. He has produced an email from his employer’s Operations Director, who states that he understands he will have to let Mr Dhillon go if he sustains a criminal conviction. He says that the organisation for which Mr Dhillon’s employer carries out work on contract “is very strict around who is around their freight”.
[15] However, it is not immediately clear why a courier company would consider the present conviction may impact on Mr Dhillon’s suitability to continue in his employment. He has accrued a stable employment history over the last seven years and is clearly highly thought of by his present employer. Furthermore, the present offending does not involve allegations of dishonesty or any other attribute that might be inherently incompatible with his occupation as a courier driver. In addition, Mr Dhillon’s employer (and any future employer) will have the benefit of my sentencing remarks as well as this judgment. These, together with the sentence of community work that I imposed, confirm the relatively low level of Mr Dhillon’s offending. Finally, even if Mr Dhillon does lose his current employment I do not consider the conviction will hinder him obtaining alternative employment as a truck driver for another employer given his employment record to date.
(Footnote omitted.)
[22]At [16].
As noted, Mr Dhillon does not challenge the Judge’s assessment based on the material that had been placed before him, which he accepts was somewhat vague. However, he applies to adduce further evidence in support of the appeal. He says this further evidence shows that the consequences of the conviction are far more serious than the Judge appreciated. The Crown does not oppose the introduction of this further evidence. In the circumstances, we grant Mr Dhillon’s application to adduce it.
The new evidence is an affidavit from Mr Dhillon sworn on 10 March 2022. He states that he has been employed as a truck driver with Cargo Plus for the past seven years and that this employment has continued to the date of the affidavit despite the conviction. We understand that Mr Dhillon’s direct employer was Mills Transport Ltd and that it contracts with Cargo Plus. Mr Dhillon explains that his work for Cargo Plus requires a security pass issued by the Civil Aviation Authority to enable him to enter the air side of the airport to drop off and pick up freight. Mr Dhillon says that his pass has now expired and he is not able to reapply for one. Mr Dhillon annexed to his affidavit a letter from Mills Transport advising that because of his conviction and consequent inability to apply for an airport pass, his employment must be terminated with effect from 31 March 2022.
To support his contention that he will “struggle” to obtain other employment because of the conviction, Mr Dhillon attaches a letter dated 18 October 2021 from another transport company, Malwa Transport Ltd, advising him that he was an unsuccessful interviewee for a driver position with that company:
Thank you for taking the time to interview with us for the Class 5 (swing lift) driver position. Although your experience and background are impressive, we regret having to inform you that we have selected another candidate whom we feel is a better job match for us at this time.
You have not passed your criminal record check as you also mentioned in you[r] CV. You have a conviction for assault with intent to injure and [t]his is [a] serious conviction. So, [d]ue to our company policies and hiring procedures [we are] not able to offer [you a] class 5 job at this stage. We appreciate your interest in our company, and the time it took for you to go through this process. Again, thank you for participating with us in the process. We wish you success in your career pursuit.
We do not accept Mr Hintze’s submissions for Mr Dhillon that this further evidence materially alters the assessment as to the consequences of the conviction. The Judge accepted that Mr Dhillon may lose his current employment as a result of the conviction,[23] so the fact this has now occurred is not a particularly material change. We consider the Judge’s assessment as to Mr Dhillon’s employment prospects remains correct, notwithstanding the letter from Malwa Transport. The letter is dated 18 October 2021, while Mr Dhillon was still employed with Mills Transport and five months prior to the completion of the affidavit. Although Mr Dhillon’s application for a position with Malwa Transport was unsuccessful, the rejection letter is not altogether discouraging. Despite disclosing the conviction in his CV, Mr Dhillon was afforded an interview and appears to have missed being selected because another candidate was considered to be a “better job match for [the company] at this time”. The conviction does not appear to have been an insurmountable obstacle. The letter states that the job could not be offered “at this stage”.
[23]At [13]–[16].
More significantly, there is no evidence Mr Dhillon has made any other applications for employment in the 12-month period since his conviction or that he has been rejected because of it. We accept that the conviction is a blemish on Mr Dhillon’s otherwise untarnished record that may count against him when he applies for employment, depending on the particular role. However, it is not at all clear how his conviction, especially given the circumstances, could reasonably be viewed as being generally incompatible with his vocation as a truck driver. Like the Judge, we do not consider the consequences of a conviction for Mr Dhillon have been shown to be out of all proportion to the gravity of his offending. Far from it. It follows that his appeal must also be dismissed.
Result
Mr Momi’s appeal against conviction in CA392/2021 is dismissed.
Mr Momi’s appeal against sentence in CA392/2021 is dismissed.
Mr Singh’s appeal against conviction in CA335/2021 is dismissed.
Mr Dhillon’s application to adduce further evidence in CA396/2021 is granted.
Mr Dhillon’s appeal against the refusal to discharge him without conviction in CA396/2021 is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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