R v Chatha

[2008] NZCA 547

IN THE COURT OF APPEAL OF NEW ZEALAND

CA685/2007
[2008] NZCA 547

THE QUEEN

v

ARSHAD MAHMOOD CHATHA

Hearing:23 September 2008 and 30 October 2008

Court:Glazebrook, Rodney Hansen and Miller JJ

Counsel:A Shaw and A J Ellis for Appellant

N P Chisnall for Crown (on 23 September 2008)
N P Chisnall and B Vanderkolk for Crown (on 30 October 2008)

Judgment:10 December 2008 at 4.00 pm

JUDGMENT OF THE COURT

A        The appeal against conviction and sentence is dismissed.

BMr Chatha is to present himself at the Palmerston North High Court at 10.00 am on Monday 15 December 2008 to commence his prison term.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction  [1]
Procedural history  [8]
Factual background  [15]
The respective cases  [21]
Documents in Pakistan  [32]

Applications made for variation of bail  [34]
Evaluation  [47]

Requirement to be present at trial and bail  [50]

Background  [50]
Submissions  [57]
Evaluation  [62]

Recusal applications  [75]

Background  [76]
Submissions  [84]
Evaluation  [86]

Information about the trial process  [94]

Submissions  [96]
Evaluation  [98]

Right to legal representation  [104]

Background  [107]
Evaluation  [116]

Election not to call evidence  [130]

Background  [131]
Evaluation  [145]

Application for discharge  [154]
Complaints about summing up  [159]

Direction on Mr Chatha not giving evidence  [160]
Fair trial issues  [164]
Balance  [171]

Sentence appeal  [173]

Submissions  [173]
The legislation  [175]
Sentencing remarks  [176]
Evaluation  [185]

Result  [197]

Introduction

[1]       Mr Chatha was convicted on 21 August 2007, after a trial in the High Court at Wellington before MacKenzie J and a jury, of six counts pertaining to immigration fraud.  Those charges comprised:

(a)Five counts against s 229A of the Crimes Act 1961 of taking or dealing with a document with intent to defraud, each of which carries a maximum penalty of seven years imprisonment;  and

(b)One count against s 264 of the Crimes Act of possessing an implement for forgery, which carries a maximum penalty of ten years imprisonment.

[2]       Mr Chatha appeals against both his conviction and the sentence of two years imprisonment, which was imposed by MacKenzie J on 16 November 2007.

[3]       The conviction appeal is advanced on a number of grounds:

(a)Mr Chatha’s right to present his defence was wrongly impeded by Mr Chatha being refused permission to return to Pakistan to retrieve documents and to brief witnesses;

(b)MacKenzie J wrongly required Mr Chatha to be present at his trial and the conditions of bail imposed on Mr Chatha during the trial unfairly and/or unreasonably impeded Mr Chatha’s exercise of his right to present his defence;

(c)Ronald Young and MacKenzie JJ failed to consider Mr Chatha’s recusal applications;

(d)Information about the trial process was not provided to Mr Chatha at the proper times;

(e)Mr Chatha was not informed of his right to legal representation.  Further, the appointment of an amicus curiae was wrongly terminated;

(f)MacKenzie J failed to deal with an application for discharge on the charge of possessing an implement for forgery;

(g)MacKenzie J wrongly ruled that Mr Chatha could not give evidence in relation to the defence exhibits that had been tendered and received in evidence by the Court;

(h)MacKenzie J misdirected the jury in his summing up with regard to the defence exhibits and Mr Chatha’s decision not to give evidence.  MacKenzie J also wrongly directed that it was not part of the jury’s function to consider the issues of fair trial that Mr Chatha had raised before them.

[4]       As to sentence, Mr Chatha’s position is that MacKenzie J’s non-compliance with s 30 of the Sentencing Act 2002 rendered the sentence of imprisonment imposed by the Court unlawful.  In any event, the sentence was manifestly excessive and/or wrong in principle.

[5]       The Crown’s position is that none of the grounds of appeal against conviction are sustainable.  As to sentence, the Crown submits that s 30 of the Sentencing Act was complied with and that the sentence was within the range available to the sentencing Judge.

[6]       The hearing of the appeal began on 23 September 2008.  As Mr Chatha had only filed his affidavit that morning, however, the hearing was adjourned part-heard to give the Crown the opportunity to file evidence in reply.  Accordingly, an affidavit by Mr Murray, who was the assistant prosecutor at Mr Chatha’s trial, was filed on 8 October 2008.  Mr Murray appended to that affidavit the notes he made in the course of the trial.  A reply affidavit from Mr Chatha was filed on 28 October 2008.  Neither party sought leave to cross-examine the deponents on their affidavits.  The submissions were concluded at the resumed hearing on 30 October 2008.

[7]       Before dealing with the issues in the appeal, we set out the procedural history, the factual background and the respective cases as presented to the jury.

Procedural history

[8]       Mr Chatha was first committed for trial in the District Court, where his trial was scheduled to begin on 27 March 2006.  A number of pre-trial rulings were made and applications for leave to appeal to this Court with regard to those rulings were lodged by Mr Chatha.  As those applications had not been dealt with by this Court, the trial did not proceed on 27 March 2006.

[9]       On 28 March 2006, Wild J ordered that the case be transferred to the High Court.  He said: 

[2]     For the Crown, Mr Vanderkolk does not oppose transfer.  The Crown accepts that, rightly or wrongly, there is a substantial level of grievance embedded in the matters which have led to these charges against the accused.  Although I do not consider that these charges warrant the attention of the High Court, in the unusual circumstances of this case I am prepared to make the transfer order sought by the accused.

[10]     When Mr Chatha’s applications for leave to appeal in relation to the pre-trial rulings that had been made in the District Court were called in this Court on 31 May 2006, Mr Chatha sought an adjournment.  That was declined.  Mr Chatha then abandoned the applications and they were accordingly dismissed.  In a Minute issued on 13 June 2006, this Court noted that, broadly speaking, many of the issues which had been dealt with by the District Court could be revisited in the High Court.

[11]     Mr Chatha took up that invitation and filed a number of pre-trial applications in the High Court.  These were dealt with by MacKenzie J in a judgment of 18 July 2006.  Mr Chatha then, on 28 July 2006, applied for leave to appeal directly to the Supreme Court against MacKenzie J’s judgment.  He abandoned that application on 11 September 2006.

[12]     On 15 November 2006 Mr Chatha’s application for a change of venue to Wellington was granted and his projected trial date of 27 November 2006 in Palmerston North was vacated.  This was on the grounds of adverse publicity relating to theft charges on which he was later summarily convicted.

[13]     The trial before MacKenzie J (which is the subject of this appeal) began in Wellington on 13 August 2007 and ended on 21 August 2007. 

[14]     This appeal was set down to be heard on 21 May 2008 but was adjourned so that Mr Chatha could decide whether to instruct counsel.  Leading up to the hearing of the appeal various timetable orders for the filing of full grounds of appeal, affidavits and submissions were breached.  We do not understand any breaches to be the fault of counsel.

Factual background

[15]     In December 1999 Mr Aurang Zeb entered New Zealand under a Pakistani passport in the name of Mohammed Zeb, containing particulars which were false.  Mr Zeb was Mr Chatha’s brother-in-law, Mr Chatha having been married to Mr Zeb’s sister at a ceremony in Pakistan in January 1995.  Mr Chatha assisted Mr Zeb to complete the immigration formalities at Christchurch airport in December 1999 and also assisted him in the completion of the two applications.

[16]     In June 2000, an application to work in New Zealand was lodged on behalf of Mr Zeb.  That application contained the details in the false passport under which Mr Zeb had entered the country.  Later in the same month, an application for residence in New Zealand was lodged on behalf of Mr Zeb, again containing the details from the false passport and also containing a number of other family details which were false. 

[17]     Mr Zeb subsequently pleaded guilty to offences relating to the false documents.  Three of the charges on which Mr Chatha was convicted related to the assistance he provided to Mr Zeb.

[18]     Two of the other counts related to two Pakistani passports which were delivered to Mr Chatha by courier in April 2000.  One of these was for a woman who was named in the passport as Kineez Begum.  The photograph was of another woman, who is Mr Chatha’s aunt.  The second passport was in the name of Jahan Zeb, but contained a photograph of a person not known by that name, who was a brother of Mr Chatha’s friend.

[19]     These two passports were located at Mr Chatha’s house hidden under the waterbed bladder in Mr Chatha’s bedroom when a search of his house was conducted in April 2004.  At the same time, an unused rubber stamp was located purporting to be that of a person who Mr Chatha knew to be a doctor in a medical centre in Pakistan.  That stamp was the subject of the count of possession of an implement for forgery.

[20]     Mr Chatha’s offending was discovered as a result of his own disclosures to authorities.  The first disclosure occurred in May 2000, when he sent an anonymous letter to the Land Transport Safety Authority alerting it to the falsity of the information concerning Mr Zeb.  The second disclosure occurred when Mr Chatha sent a copy of the two false passports to the New Zealand Immigration Service (NZIS) in November 2001, again in an attempt to alert authorities to Mr Zeb.  Unfortunately for Mr Chatha, these disclosures backfired and led to the charges against him.

The respective cases

[21]     The summary of the respective cases that follows is based on MacKenzie J’s summary of those cases in his summing up.

[22]     The Crown case at trial was that Mr Chatha knew that the passport used by Mr Zeb, in the name of Mohammed Zeb, was false when Mr Chatha assisted him at Christchurch airport in December 1999.  The Crown maintained that Mr Chatha had been aware of Mr Zeb’s real name from the time of Mr Chatha’s wedding in 1995 and thus that he was aware that the details in the passport which Mr Zeb was using were false.  The Crown submitted that, while Mr Chatha’s role in legal form was a secondary one of being a party to his offending, he was in fact the instigator of the offending.

[23]     The Crown also asserted that Mr Chatha assisted Mr Zeb to fill out the applications for a work permit and for a residence permit, knowing that the information in them was false.  The Crown said that it was Mr Chatha who had the dealings with the New Zealand Immigration Service (NZIS) and gave or sent the applications to them.  By doing so, he intentionally aided or abetted Mr Zeb in leading the NZIS to believe that the statements in the documents were true and thereby to allow Mr Zeb to work and reside in New Zealand. 

[24]     As for the two Pakistani passports in the name of Kineez Begum and Jahan Zeb, the Crown case was that these were obtained by Mr Chatha and delivered by courier to him at his home some time in April 2000.  The passports were false, in that the name of the person whose photograph appeared in each passport was different from that shown on the passport.  The Crown invited the jury to draw the inference that Mr Chatha intended that the passports would be deliberately and dishonestly used to lead the NZIS to believe that they were genuine passports and to admit the bearer of those passports into New Zealand.

[25]     With regard to the rubber stamp, the Crown case was that this stamp purported to be that of a person whom Mr Chatha knew to be a doctor at the Jinnah Medical Diagnostic Centre in Sialkot, Pakistan.  The Crown invited the jury to draw the inference that Mr Chatha intended to use the stamp for the purpose of making a document supposedly made by Dr Ahmed and that such a false document could have been used in support of an application to the NZIS. 

[26]     Mr Chatha’s case, on the other hand, was that he was an innocent party whose only involvement in these matters was to disclose Mr Zeb’s offending.  Mr Chatha submitted further that the charges against him resulted from the family discord which arose from his having disclosed Mr Zeb’s actions to the New Zealand authorities.  Mr Chatha also suggested that the charges against him may have been politically motivated.

[27]     Mr Chatha maintained that the Crown had not proved that he knew that Mr Zeb’s name was Aurang Zeb and not Mohammed Zeb.  He also said that the applications for a work permit and for residence were substantially completed by Mr Zeb in his handwriting and that it was Mr Zeb who was responsible for the forms.  In Mr Chatha’s submission, Mr Zeb was a person who was able to understand that the information which he was giving was false.  Mr Chatha suggested that Mr Zeb had a motivation to downplay his own role in the events surrounding his applications and that he may have been motivated by a wish not to jeopardise his status in New Zealand.  In Mr Chatha’s submission, Mr Zeb had a plan to implicate him from the outset. 

[28]     Mr Chatha also submitted that Mr Zeb and two other Crown witnesses were not credible.  This was based on earlier untrue statements made by those witnesses and, with regard to Mr Zeb, the fact that he had committed immigration offences in New Zealand and also in Australia, the latter unconnected with Mr Chatha. 

[29]     As to the charges involving the two false passports, Mr Chatha submitted that he did not obtain those passports and that he had no intention to defraud.  He said that Mr Zeb’s mother is known as Kineez Begum, as well as Kineez Fardooz and that she had used the former name on the electoral roll in Pakistan.  As to the passport in the name of Jahan Zeb, Mr Chatha submitted that there is a real person of that name who is Mr Zeb’s cousin. 

[30]     On count six, relating to the stamp purporting to belong to a Dr Ahmed, Mr Chatha submitted that there was no evidence that Dr Ahmed was approved by the NZIS and that therefore he, Mr Chatha, could not have intended to use the stamp to defraud the NZIS. 

[31]     The jury, by its verdicts, must have accepted the essential elements of the Crown case.

Documents in Pakistan

[32]     Mr Chatha’s first ground of appeal is that he was impeded in his preparation of his defence by not being allowed to go back to Pakistan to brief witnesses and retrieve documents.

[33]     Mr Chatha says in his affidavit filed in support of his appeal:

2.Almost in all my pre-trial memoranda and submissions, I repeatedly requested the District Court and High Court Judges to allow me to go to Pakistan to get my defence related documents and witnesses.  But, no one tried to understand my difficulties in respect to preparation of trial.

3.There were a number of documents in Pakistan that I needed access to such as Mr Zeb’s birth record in Jourian Kalan Union Council, Mr Zeb’s Pakistan Identity Card record in Sialkot Regional Identity Card Office, Mr Zeb’s record in Sialkot Passport Office, Mr Zeb’s record in Police Certificate Office, Mr Zeb’s record in Sialkot Electoral Role Office, and in particular to his use of the name Mohammed Zeb prior to the time that I assisted with his various immigration and work related application.  Most of these documents were in Urdu.

4.As we are only three family members consisted of my parents and me.  I was the only one who could obtain those documents and records by physically going to Pakistan.  My parents could not help me in that respect because they are elderly, illiterate, not in good health and do not know how to deal with Pakistan authorities.

5.I lived in New Zealand since 1992 and only visited Pakistan in about 1994/95 and then 1999.  I had lost contacts in Pakistan.  In addition, the system in Pakistan is not as easy as in New Zealand to obtain documents.

Applications for variation of bail

[34]     Mr Chatha first raised this issue on 26 October 2005 before the District Court when he applied for a variation of bail conditions.  That application and others were the subject of a judgment of Judge Dawson on 7 November 2005.

[35]     Mr Chatha had submitted that he had to go to Pakistan for a number of reasons:  to get married, to visit his aunt’s grave, to accompany his father to Pakistan, to see to some property issues and “to obtain documents from Pakistan concerning Mr Zeb to assist him in defending [the] charges”.

[36]     The Crown opposed the application.  It submitted that the delays in having the charges go to trial had all been of Mr Chatha’s making.  They also pointed out that the allegations against Mr Chatha were that he travelled to New Zealand from Pakistan with Mr Zeb for the purpose of getting Mr Zeb and others into New Zealand under the Family Reunification Scheme.  The Crown submitted that there was a risk of additional offending if Mr Chatha was allowed to go to Pakistan.

[37]     Judge Dawson was not persuaded that the circumstances outlined by Mr Chatha outweighed the risk of further offending and the bail conditions remained unchanged.

[38]     The question of going to Pakistan to retrieve evidence came up again before Ronald Young J on 23 May 2006.  The Judge commented that it was difficult to see why Mr Chatha needed to go to Pakistan at that stage, given that the original trial had been due to start in March 2006.  Ronald Young J said, however, that Mr Chatha could file an application within seven days to vary his bail conditions:

[7]       … However, I have told Mr Chatha that it is a matter for him to apply for an order varying his bail to allow him to go to Pakistan.  He will need to explain in detail why he needs to go, what guarantee the Court will have that he will return and expressly how the evidence he hopes to obtain in Pakistan will be relevant to his defence, and why it cannot be dealt with by him arranging for an agent in Pakistan to himself obtain the evidence.  If such an application is to be made it should be made immediately.  He has seven days within which to make that application.

[39]     In a minute of 1 June 2006, Ronald Young J indicated that Mr Chatha’s application for variation of bail, which he had filed, did not cover the matters set out in his minute of 23 May 2006.

[40]     Mr Chatha’s application for a variation of bail conditions was heard, along with various other pre-trial matters, by MacKenzie J on 6 July 2006.  Mr Chatha submitted that his application should be granted to enable him to travel to Pakistan to investigate matters relevant to the preparation of his defence, including finding defence witnesses from Pakistan and Australia who had previously dealt with Mr Zeb and his family.  According to Mr Chatha, there was no-one available to make these inquiries for him. 

[41]     Mr Chatha’s reasons for wishing to visit Pakistan were that there were family property issues which required his presence there and that a marriage had been arranged for him.  As to the seriousness of the charges and the likelihood that he would not return to face trial, Mr Chatha submitted that Mr Zeb has already been dealt with on similar charges and been sentenced to 200 hours’ community work.  Mr Chatha submitted that his offending could not be regarded as more serious than Mr Zeb’s and the interests of justice were such that a variation of bail ought to be granted.

[42]     In his judgment of 18 July 2006, MacKenzie J refused Mr Chatha’s application for variation of bail (HC PMN CRI 2004-054-4551).  He noted that an earlier application to vary bail conditions had been refused by Judge Dawson.  MacKenzie J also referred to the minutes of Ronald Young J.  MacKenzie J said that he did not consider the information which Mr Chatha had provided as sufficient to justify allowing Mr Chatha to depart from New Zealand.

[43]     As to the submission that Mr Chatha had to travel to Pakistan to get married, the Judge considered that this increased the risk that Mr Chatha would not return to face trial.  Furthermore, the Judge said that the fact that Mr Chatha apparently has contacts in Pakistan which are sufficient to enable an arrangement for marriage to be arranged on his behalf pointed against the conclusion that there was no-one in Pakistan whom Mr Chatha could instruct to undertake inquiries relevant to his defence.  The Judge was not satisfied that a case for variation of bail as sought had been made out.

[44]     On 11 September 2006, Mr Chatha made a further complaint to Ronald Young J that he would not get a fair trial on the basis that he could not obtain overseas witnesses and documents.  The Judge said:

[6]     Secondly, Mr Chatha’s complaint about overseas witnesses and their presence is a matter entirely for him.  I have already identified what he needed to do.  He has chosen no to do so, and he will understand the consequence which is of his own making.

[7]     Thirdly, as far as the obtaining of overseas documents are concerned, again this is a matter entirely within his ability to control.  I have already made observations regarding that to Mr Chatha and it is a matter for him to choose to act in the way that better suits his case.  I have previously encouraged Mr Chatha to apply for Legal Aid, but I note he has not done so.

[45]     When Mr Chatha’s projected trial date of 27 November 2006 was vacated and a change of venue to Wellington granted by Wild J, Mr Chatha, at that stage (unsuccessfully), renewed his application to travel abroad in order to prepare his defence.  Wild J observed that Mr Chatha had already been told in two separate minutes by Ronald Young J what he (Mr Chatha) needed to do if he genuinely believed that he must go to Pakistan to obtain documentation. 

[46]     The issue of access to documents in Pakistan was brought up again on the second day of the trial, 14 August 2007.  Mr Chatha said that he needed documents from Pakistan to present his defence.  His parents had not been able to get them because they were illiterate and he did not have anyone else.  The Judge said in his ruling (HC PMN CRI 2004-054-4551):

[1]     Mr Chatha there have been numerous applications during the course of this trial where you have said that you need to obtain documents from Pakistan.  Those applications have been ruled upon and you have been given explicit directions as to what is required of you if that documentation were to be obtained.  This trial is now underway.  It will proceed, and it will proceed to a conclusion.  You must deal with the matter on the basis of the documentation which is now available to you.  Do I make that clear.

Evaluation

[47]     The issue of documents and possible witnesses in Pakistan was considered on numerous occasions.  Very explicit instructions had been given to Mr Chatha by Ronald Young J regarding the matters that needed to be addressed before any variation of bail would be considered.  The material filed by Mr Chatha did not adequately deal with those matters.  In addition, Mr Chatha’s assertions that it was not possible for him to arrange for his contacts in Pakistan to retrieve the documents and source witnesses for him were not accepted by MacKenzie J or Judge Dawson.  Nothing further has been placed before us to show that their assessment was wrong.

[48] More importantly, it seems from the extracts from Mr Chatha’s affidavit, set out at [33] above, that the documents and witnesses Mr Chatha wished to find relate to his assertion that Mr Zeb had been using the name Mohammed Zeb before his entry into New Zealand. The real issue, however, was not whether Mr Zeb had been using the name Mohammed at an earlier stage (although that may be relevant to the relative culpability of Mr Chatha and Mr Zeb). It was whether Mr Chatha, when helping Mr Zeb with the documents, knew that Mohammed was not Mr Zeb’s name and that the other details given by Mr Zeb were not correct. It does not seem to us that the documents Mr Chatha said that he wished to source from Pakistan would have shed light on that question.

[49]     This ground of appeal must fail.

Requirement to be present at trial and bail

Background

[50]     On the first day of Mr Chatha’s trial, 13 August 2007, MacKenzie J stated (before arraignment and in the absence of the jury) that Mr Chatha was required to remain in court for the whole of the trial, although he had a choice whether or not he took an active part.  Mr Chatha replied that he was not being given justice by the Court or the prosecution.  He said that there were two options for the Court:  to leave him in Wellington in custody or to let him go to Palmerston North as he was running for the mayoralty and had media interviews there.  The Judge said that Mr Chatha was not to return to Palmerston North during the trial.  The Judge also said that all of the matters raised by Mr Chatha as to the fairness of the trial had been considered pre-trial and that the trial would proceed.

[51]     At the end of the first day of the trial Mr Chatha was denied overnight bail.  MacKenzie J said:

The position is that you were well aware that this trial was to take place and had the responsibility to order your affairs so that you would have the material that is necessary.  I am not prepared to grant bail on terms that would enable you to return to Palmerston North overnight.  You will have to make arrangements for your papers to be brought here.

[52]     The Judge said that, if Mr Chatha was able to make satisfactory arrangements for an address in Wellington for the rest of the trial, he would consider bail the next day for the rest of the trial.  Mr Chatha subsequently was bailed to a hotel in Wellington but was allowed to return to Palmerston North for the weekend (18 and 19 August 2007). 

[53]     Mr Chatha complains both about the conditions while he was in custody and the conditions of bail.  He says in his affidavit filed in support of his appeal that he did not eat lunch in the court cell on the first day of his trial because he was not offered suitable food.  Further, he did not reach his cell that night until 10.00 pm and was not able to eat dinner because it had pork in it.  He says that his stay in prison was generally unsatisfactory:

40.     Due to back pain, diabetic, stress, skin problems and other health related problems, without medications, and being in a new place, I could only sleep at 3 am but prison staffs awoke me at 6am.  I did not have time for breakfast, nor had time for shower, nor facilities for toothbrush or shave.  After going through a long prison process again, when I reached in the court cell at about 9am, I requested to prison staff for a shower.  He directed me to a very cold shower and gave me a razor to shave.  My cloths [sic] were smelly.  I was not only hungry and painful in my back and head but also half sleepy throughout the day and mentally exhausted.

[54]     Further, Mr Chatha says that, as a result of being refused bail, he did not have his medication or essential documents that had been left in Palmerston North.  Mr Chatha acknowledges that some of the defence exhibits that he produced during cross-examination had been brought by his wife from Palmerston North.  He says, however, that, as his wife was new to the house, she was not familiar with all his trial documents and files.  In addition, being Chinese, she had very limited English and this restricted her ability to bring from Palmerston North all of the documents that he needed. 

[55]     Mr Chatha complains further that, even once he had been bailed to the hotel in Wellington, he was unable to leave his room because of the bail conditions and was thus deprived of his medication all week.  Mr Chatha also complains about the bail conditions for the weekend in Palmerston North.  He says his sleep was disturbed and he was unable to prepare his evidence, reach his witnesses and properly prepare his documents:

74.The bail condition was a total curfew and restricted my total movements outside the house.  If it was easier to check compliance in Palmerston North, as Mr Vanderkolk [the Crown prosecutor] stated, then it was somewhat ridiculous to keep me under curfew in a hotel in Wellington.  However, Police gave me very hard time in those nights and one night they came twice at my house about mid night and then about couple of hours later.  So my and my family members sleep was disturbed.

75.The bail condition gave me only 2 minutes to go out which was practically impossible.  As a result, of this bail condition, I was not able to prepare my defence witnesses and could not go out to photocopy the documents.  So, I spent whole time in home and sorted out my defence exhibits, which I brought to the Court on Monday 20 August 2007.

[56]     Mr Chatha also notes difficulties he encountered in preparing his closing address due to his bail conditions and his father’s illness:

83.In the afternoon, the prosecution gave its closing address but I requested the Judge to give me time until Tuesday morning so that I could prepare my submission for my closing address to jury.  The Judge insisted that I should prepare the same after noon, which was too much stressful.

84.Eventually the Judge adjourned the matter until Tuesday 21 August 2007.  My mother and wife stayed with me in the Hotel and I could not prepare my submission for the jury.  However, I decided to wake up early and prepare.  My father was alone at home.  As he had two by-passes and one heart valve replacement, he was very stressed during that time.  As he was alone at home, he suffered with chest pain early in the morning on the Tuesday 21 August 2007.  He was taken to hospital by about 5 a.m.  As he could not speak English and look after himself and my wife was on restricted licence and was with me in Wellington and mother could not drive, so at about 5:10 a.m I rushed to Palmerston North Hospital with my t-shirt, sleeping trouser and sandals.  When I reached Hospital, I found that my father had wrong name and details on his forearm and hospital staffs had completely wrong person on their computer record and they were treating him wrongly.  I corrected the information, stayed with my father for about 15 minutes and rushed back to Wellington.  On the way, I called the Court and left message that I was about half an hour to an hour late.

85.I went to the Court with my t-shirt, sleeping trouser and sandals, did not have shower and shave and addressed to jury as I was.  I was in very bad state of mind about what just happened to my father.  I could not concentrate on my own case.  Looking back I should have asked for an adjournment but I did not think of that as my mind was in such a mess.  While addressing to the Jury I was all over.  I did not have proper structure and my mind was with my father health situation.

Submissions

[57]     On behalf of Mr Chatha, Mr Ellis submits that the warrant of commitment used to imprison Mr Chatha in Rimutaka Prison on 13 August 2007 (the first day of the trial) was unlawful and, accordingly, Mr Chatha was arbitrarily detained.

[58]     Further, Mr Ellis submits that there was no reason not to grant bail during the trial as Mr Chatha had an absolute right not to appear at his trial:  see generally, R v Jones (Anthony) [2003] 1 AC 1 (HL) and R v van Yzendoorn [2002] 3 NZLR 758 (CA). Mr Chatha had heralded that he wished to avail himself of that right. The trial Judge thus arbitrarily detained Mr Chatha on 13 August 2007 when he directed that Mr Chatha was required to remain in Court for the duration of the trial.

[59]     In addition, Mr Ellis submits that Mr Chatha’s imprisonment on the first day of trial and the subsequent bail conditions unreasonably impeded Mr Chatha’s right to present his defence to the charges.  Mr Chatha was not able to return to Palmerston North to uplift papers and documents essential to his cross-examination of Crown witnesses. 

[60]     Mr Ellis also complains that the direction given to the jury by the Judge with regard to the issue of bail was unfair.  Before Mr Chatha’s cross-examination of Mr Zeb, on 14 August 2007, the following exchange took place.

Mr Chatha

Your Honour put me in custody in the prison and I was not given my medication there and I was denied proper sleep my health is not good at this time because I was not given a change to prepare myself adequately whatever I will do now that will all be in my head because I don’t have things with me because they are in Palmerston North I wasn’t given a chance to go to Palmerston North.

The Court

Ladies and gentlemen.  I’ll just explain to you that as is a quite usual practice Mr Chatha was required to remain in custody overnight as he is on trial.  I should explain to you that that is normal and does not reflect upon Mr Chatha adversely in any way.

[61]     The Crown submits that the Judge had the power to require Mr Chatha to attend his trial.  In light of Mr Chatha’s indication that he would not remain in Court for the trial, it was reasonable for MacKenzie J to deny him bail on the first day of trial.  Further, Mr Chatha knew the trial was starting that day and should have brought any papers and medication he needed with him.

Evaluation

[62]     Mr Ellis relies primarily on the House of Lords case of Jones for the proposition that accused persons have a right to absent themselves from their trial.  Jones concerned an accused who had voluntarily absented himself from his trial by absconding.  The trial had already been postponed on a prior occasion because of Mr Jones’ absence.  On the second occasion, the Crown made a successful application for the trial to proceed in Mr Jones’ absence, even though Mr Jones was no longer by that stage represented by counsel.  The Judge took the view that Mr Jones was deliberately frustrating the prosecution’s attempts to try him.  Mr Jones was convicted.

[63]     The House of Lords dismissed Mr Jones’ appeal, holding that a Judge has a discretion to commence a trial in the defendant’s absence, in the same way as there is a discretion to continue a trial in the absence of a defendant who had been present at the start of the trial.  Any power to commence or continue a trial in the absence of an accused had, however, to be exercised with great caution and it was usually desirable that the defendant should be represented even if he or she had voluntarily absented him or herself.

[64]     There is nothing in Jones that can be translated as recognising a right for an accused to absent him or herself from trial. Indeed, the opposite is the case. Lord Bingham of Cornhill referred, at [6], to the fact that, in trials on indictment, courts require defendants to be present at their trial. This obligation was also referred to by his Lordship at [10]. He said that the real issue in Jones was whether the decision of:

… a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial … violate[s] his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.

[65]     Lord Nolan and Lord Hoffmann agreed with the reasons given by Lord Bingham (although the latter also agreed with Lord Rodger of Earlsferry).  While not explicitly dealing with the point, none of the other Judges in Jones suggested any change to the position whereby accused persons are required to be present at their trial unless excused by the Judge.

[66]     Mr Ellis also referred to this Court’s decision in van Yzendoorn. In that case, this Court said, at [17], that the right to be present at trial is not an obligation on the Court or the accused to ensure he or she is present in all circumstances. An accused can waive his or her right to be present. The Court, however, referred with approval to a statement that the discretion to continue a trial in the absence of the accused must be exercised sparingly and said that it can never be exercised if an accused’s defence could be prejudiced by his or her absence. This case therefore is not authority for the proposition that there is an absolute right to absent oneself from trial or for the proposition that a Judge cannot require an accused to be present during his or her trial unless (exceptionally) he or she is excused or excluded by the Judge (for example for medical reasons or misbehaviour). It is merely authority to the same effect as Jones. 

[67]     The right of an accused to be present at his or her trial does not, in our view, encompass a right to absent him or herself from the trial.  To the contrary, it carries an obligation to be present.  Absenting oneself voluntarily runs the risk that a trial may be carried on in one’s absence but the discretion to do so is only exercised with caution and is subject to the absolute right to a trial that is as fair as circumstances permit and that would lead to a just outcome (see at [14] of Jones). However, an accused who voluntarily chooses not to exercise the right to be present (and who cannot be located) cannot complain about the inevitable consequences of a trial held in his or her absence (see at [11] of Jones).

[68]     MacKenzie J was thus correct when he told Mr Chatha that he was obliged to be present at his trial.  MacKenzie J was also correct to tell Mr Chatha that, whether or not he participated in his trial once he was there, was a decision for him to make:  see, for example, R v Lee [2006] 3 NZLR 42 at [51] (CA). If an accused is present at his or her trial any decision not to participate is a decision that is taken with full knowledge of the evidence and the case being put by the prosecution. Such a decision can be changed at any time in the course of the trial. As pointed out by the Crown, in this case Mr Chatha, despite his earlier protestations, chose to participate in the trial by cross-examining witnesses, producing documents and making a closing address.

[69]     It follows from the fact that Mr Chatha had an obligation to be present at his trial that MacKenzie J did not arbitrarily detain Mr Chatha when he required him to remain in Court for the duration of his trial.  It also follows that MacKenzie J was entitled to deny Mr Chatha bail overnight on the first day of trial, in light of Mr Chatha’s indication that he would not participate in his trial and his strongly expressed wish to return to Palmerston North that evening.  We accept the Crown’s submission that a Judge who perceives that there is a real risk that an accused person will fail to appear, thus potentially requiring the trial to be aborted, cannot be said to have erred in refusing bail.

[70]     Further, we do not accept the submission that Mr Chatha’s right to present his defence was impeded.  Mr Chatha knew that his trial was to commence in Wellington on 13 August 2007.  We accept the Crown submission that Mr Chatha should have come prepared with the documents he needed for the trial and his medication.  As stated by this Court in R v Hill [2004] 2 NZLR 145 at [60] – [61], even self-represented accused persons should not assume that they will be granted bail during the course of their trial. This is particularly the case when the trial is taking place in another centre. In any event, we do not accept that Mr Chatha was unable to arrange for his wife or his parents to bring the necessary medication to Wellington. The same applies to the documents which, given the forthcoming trial, we would have expected to have been readily accessible.

[71]     Mr Chatha’s assertion that he was unable to prepare his evidence over the weekend in Palmerston North is also not accepted.  He was at that stage in his own home, presumably with full access to his documents and medication.  With regard to other witnesses, these should have been contacted before the trial and Mr Chatha’s bail conditions did not prevent the use of a telephone.  In any event, Mr Chatha had had plenty of time to prepare his case before trial.  We would have expected him to have done so in time for the original projected trial date in the District Court (March 2006) or, at the latest, before the next projected trial date in November 2006. 

[72]     As to Mr Chatha’s alleged difficulties in preparing his closing address, we note that no hospital records were produced with regard to his father.  Mr Chatha could have applied for an adjournment if he thought he needed one but did not.  Further, despite the alleged difficulties, Mr Chatha delivered a lengthy closing address, which the Judge was able to summarise.

[73]     Finally, we do not accept that the direction given by the Judge on 14 August 2007 (above at [46]) was unfair.  Given the comments made by Mr Chatha in the presence of the jury, the direction was a standard one and quite proper.

[74]     This ground of appeal fails.

Recusal applications

[75]     The next ground of appeal is that recusal applications made by Mr Chatha were not properly dealt with.

Background

[76]     Mr Ellis took as his starting point a minute of Ronald Young J of 11 September 2006.  Before Ronald Young J on 11 September 2006 Mr Chatha had complained in the following terms that he would not get a fair trial:

[4]     Mr Chatha complains that he will not get a fair trial because he does not believe he will get a neutral jury, a neutral Judge, and insultingly suggests he cannot see the difference between the prosecution and judiciary.  He says his rights of disclosure have been breached and that the judiciary favour the prosecution.  He says that his rights to obtain overseas witnesses and their presence at trial are breached and that he cannot obtain overseas documents.  He says there is no doubt the judiciary wants to convict him and the trial is just, in his words, “a drama and waste of public money”.  He requests a sentencing date and he be sent to prison, otherwise he says, that he should have his rights to prepare his defence along with a neutral and impartial Judge from out of the country being from the United Nations.

[5]     The only matters that I need to deal with relate to specific issues impinging on potential fair trial matters.

…

[8]     Mr Chatha knows the trial will proceed on 27 November 2006.  Mr Chatha’s request to be sent to prison now is an absurdity.  Mr Chatha well knows that he has not yet been tried, let alone has any decision made if he was convicted on what the appropriate penalty might be.

[9]     Mr Chatha will be tried of course by an impartial Judge and jury as is the custom in New Zealand.

[77]     This was not Mr Chatha’s first intimation of concern about the impartiality of the judiciary.  For example, in his judgment of 18 July 2006, MacKenzie J noted that one of the grounds of an earlier change of venue application dealt with in the Palmerston North District Court was Mr Chatha’s “assertion of a loss of faith in the District Court judiciary and the Court staff in Palmerston North”.

[78]     Mr Ellis then referred to three memoranda of Mr Chatha, dated 6 July 2007, 9 August 2007 and 19 August 2007. 

[79]     In his memorandum of 6 July 2007, Mr Chatha said:

1.This is a case where the government agencies have been and are trying to cover up and hide their own corruption, negligence and breach of duties.  The Judiciary is favour those.

2.It has been said previously and is being said even now that the judiciary has been and is giving side and favouring prosecution throughout which makes the accused unable to defend his charges because the accused has not been given his basic and fundamental rights to a fair hearing, hearing by an impartial court, present a defence, examine the witness for the prosecution, bring defence witnesses and adequate facilities to prepare defence because the accused was not given adequate disclosure, access to overseas defence witnesses and overseas documents necessary for the trial, as well as a neutral defence counsel (In New Zealand, prosecution generally influence the legal aid defence counsels not to bring material facts related to case in the trial to get innocent people convicted and thus make a big mockery to the justice system;  the appeals fail because the cases have been damaged by the defence counsels in the trials).

3.The accused requests the trial judge to come in a police uniform so that the public could see the actual and true face of New Zealand judiciary which is not independent contrary to the Constitution Act 1986 but mere a section of the New Zealand Police.  The basic principles of the colonial law and power are “Law of Jungle”, “Abuse of Power” and “Abuse of Human Rights” and New Zealand is not exception to those.  So far the accused has the following concerns about the trial:

(a)The prosecution intends the accused to be convicted and the trial judge will honour that intention.

(b)The court staffs will call those people to select the jury from, to who prosecution influence easily behind the doors.

(c)The trial judge will pressure the jury to convict the accused.

(d)The trial judge will interpret the law in such a way and in such a tone and, will twist it if need be, in such a way that would favour prosecution.

(e)The trial judge will interfere the cross examination of the accused to prosecution witness where it goes against the prosecution.

(f)The trial judge will favour the prosecution where the matters go against the accused.

[80]     In his memorandum of 9 August 2007 Mr Chatha said:

1.The Judiciary and Prosecution (two in one) have not given the accused his rights and facilities to prepare his defence, which makes him unable to take part in the trial:

a.Lack of disclosure from the prosecution that was essential for deposition hearing and for the trial.

b.The accused has not been given access to overseas documents related to trial which were essential for the deposition hearing and the trial.

c.The accused has not been given access to overseas witnesses who were essential for the deposition hearing and for the trial.

d.The accused has not been given a neutral defence counsel (as the prosecution previously influenced the defence counsels, judge Rea and Justice Wild to convict the accused who was 100% innocent) and the accused could not afford to pay his own lawyer who asked $10,000 to represent the accused.  The accused is suffering with stress related health conditions, asthma, cholesterol, psoriases, stomach ulcer, back pain and recently diagnosed with diabetic.

2.Both the Judiciary and the Prosecution have controlled the accused to conduct his defence according to their ways and their wants, which is unacceptable to the accused because the accused right of autonomy to prepare his defence on his own way has been taken away.

…

6.The Judiciary and Prosecution know very well that had you given me my full defence rights, the prosecution would not have won even the first step (deposition hearing).  That is why you deprived of me from my defence rights so that prosecution could manipulate the system and win.

7.The basic principle of fair Justice System is that both sides must be given equal opportunities before trial to prepare themselves and then bring them in the courtroom to fight with full rights and then an impartial judge and/or jury decides who wins.  In this case, Justice System has given prosecution four hands and four legs and tide [sic] up the accused exiting two hands and two legs with many ropes.  This is neither a fair trial nor an impartial judiciary.

…

9.The accused will come on 13 August 2007 to the High Court Wellington as promised to His Honour Justice Young in the last call over but will neither take part in selection of jury and the trial nor will sit in the courtroom until his full defence rights are given to him.  The Court either put the accused in custody outside the courtroom or can ask him to attend at the time of verdict (which will definitely be conviction/s as already planned).

[81]     Mr Chatha says that he made a further oral request during the trial for MacKenzie J to recuse himself but that was not recorded.  He thus gave a handwritten request to the Court.  This was dated 19 August 2007 but was handed to the Court the following day.  (Mr Chatha says in his affidavit of 28 October 2008 that it was handed in on the afternoon of 20 August 2007.)  The memorandum said:

May it please the Court

1.As previously and today raised issues to his Honour the trial Judge that this is not a fair trial.

2.The Judge dealt with this matter in Pre trial and gave rulings which were at that time favouring prosecution.  The accused said to the Judge at that time before his decision that he was giving side to the Prosecution.  The same Judge must not be appointed for the trial again.

3.The Judge put the accused in custody in the first night when an important and main witness was to be cross-examined next days.  As a result, the accused was made unable to prepare for cross-examined.  No medicine, no food and kept awake almost most of the night.  The hotel room could be arranged by the accused but no such opportunity given.

4.The Accused is self-representing and kept in a hotel without any facilities to prepare for the trial which is unfair.

5.The Judge is giving full side to the Prosecution which has been previously mentioned to him.

6.The Accused is not given access to overseas witnesses and documents necessary for the trial.

7.The accused has been and being treated by the Judge unfairly and it is a total abuse of Power, Process and Law of Jungle, and breaches of accused’s fair trial rights.

8.As a protest, the Accused did not choose the Jury, didn’t take part in the trial and did not have defence witnesses;  so no defence rights and facilities given.

[82]     In his affidavit filed in support of his appeal Mr Chatha says in relation to the memoranda of 6 July 2007 and 9 August 2007:

22.It was in my mind that once I would raise my breach of defence and fair trial rights to Justice Mackenzie [sic] on 13 August 2007, he would recues [sic] himself and adjourn the hearing until appointment of a neutral judge, obtaining my defence facilities/rights and getting a defence lawyer.

[83]     Mr Chatha, also in his affidavit, says that his objection to MacKenzie J as trial Judge was because he considered that the Judge had favoured the prosecution during the hearing of the pre-trial applications (resulting in MacKenzie J’s judgment of 18 July 2006) and that he had already made up his mind at that stage.

Submissions

[84] With regard to the minute of Ronald Young J of 11 September 2006 (see at [76] above), Mr Ellis submits that Mr Chatha had a right to have his cultural views about the fairness of the New Zealand judicial system recognised and considered carefully and that he should have been treated with courtesy in accordance with his right to freedom of expression. Mr Chatha’s submissions should not have been labelled “insulting” by Ronald Young J.

[85]     In Mr Ellis’ submission, MacKenzie J’s conduct in ignoring and/or failing to rule on the matters raised in Mr Chatha’s memoranda of 6 July, 9 August and 19 August 2007 amounted to a serious breach of Mr Chatha’s right to a fair hearing at common law, under s 25(a) of New Zealand Bill of Rights Act 1990 (Bill of Rights) and under art 14(1) of the International Covenant on Civil and Political Rights 999 UNTS 171 (1966) (ICCPR).  In Mr Ellis’ submission the trial was void because the recusal applications were not dealt with.  When faced with a recusal application, a Judge does not have the option of doing nothing:  see Brosseau v Ranzau 911 S W 2d 890, 892 (Tex App – Beaumont 1995) and In Re Rio Grande Valley Gas Co 987 S W 2d 167, 178 (Tex App – Corpus Christi 1999).

Evaluation

[86]     The complaint about Ronald Young J is without foundation.  It was open for the Judge to consider that Mr Chatha was being deliberately offensive in his attacks on the New Zealand criminal justice system.  The label “insulting” in that context could be a rebuke or descriptive of the manner in which the submission was put.  Either way, the comment was appropriate (and even mild).  If Mr Chatha genuinely believed the allegations he was putting forward, this does not render them any more justifiable or the Judge’s reaction to them inappropriate.  There is no reason for judges to pander to generalised attacks on the whole of the criminal justice system in New Zealand, however genuinely the views are held.

[87]     Turning to MacKenzie J’s alleged failures with regard to recusal applications, we do not consider that, properly read, Mr Chatha made recusal applications in the memoranda of 6 July and 9 August 2007.  It is one thing to complain about what Mr Chatha saw as incorrect decisions and make generalised comments about the unfairness of the New Zealand criminal justice system.  It is another to say that these complaints amount to a recusal application.  Even if the memoranda of 6 July and 9 August 2007 can be seen as recusal applications, however, the Judge did rule at the commencement of the trial that, despite the issues that had been raised by Mr Chatha, the trial would proceed.  The matters raised by Mr Chatha were thus considered by the Judge. 

[88]     As to the memorandum dated 19 August 2007, we accept that this can be construed as a recusal application.  According to the contemporaneous notes of the trial made by Mr Murray, the application was dealt with by the Judge (contrary to Mr Ellis’ submission).  Mr Murray’s notes record that the Judge indicated to Mr Chatha that the Judge who dealt with pre-trial applications was not precluded from being the trial Judge.  MacKenzie J explained that this was a regular occurrence and the fact that he was the trial Judge was a matter of judicial rostering. 

[89]     In his reply affidavit of 28 October 2008, Mr Chatha says that the Judge’s ruling referred to by Mr Murray cannot have been in response to his (Mr Chatha’s) memorandum dated 19 August 2007 as that memorandum was not filed until the afternoon.  However, even if that is the case, the Judge’s ruling noted by Mr Murray was clearly in response to an application made by Mr Chatha.  If it was not in response to the memorandum dated 19 August 2007, then it must have been in response to an oral application (and Mr Chatha maintains he had made an earlier oral application in the course of the trial).  If he had already dealt with the oral recusal application, the Judge did not need to deal with any subsequent application made on the same grounds.

[90]     We do not accept that mere failure to deal with a recusal application (and in particular one without any merit) can render any subsequent actions in a trial void.  The position as to recusals outlined in the cases relied on by Mr Ellis apply to civil matters in Texas and result from the mandatory terms of the Texas Rules of Civil Procedure.  These Rules provide that, on a recusal application being filed, the judge must either recuse him or herself or ask the presiding judge of the administrative judicial district to assign a judge to hear the recusal motion.  In the meantime, the Judge must take no further action in the case:  Brosseau v Ranzau at 892. There is no such rule in New Zealand in either the criminal or civil context.

[91]     We accept the Crown submission that judges should not be required to respond in full to each and every allegation of judicial bias, however clearly without merit and whether or not advanced for purposes of delay and disruption (as the Judge could legitimately have considered Mr Chatha’s applications to have been).  It is important that there be judicial discouragement of intemperate allegations of bias and blatant forum shopping: Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 at [35] and [66] (CA). This applies especially to repeated allegations on the same grounds as occurred in this case.

[92]     Mr Ellis has (quite rightly) not sought to argue that any recusal application should have succeeded.  In the criminal context it is important to bear in mind, when assessing allegations of bias, that it is the jury’s role (and not the judge’s) to act as fact-finders.  Even when assessed against what might be a more exacting civil standard, in this case there were no grounds at all on which MacKenzie J should have recused himself.  The fact that MacKenzie J had found against Mr Chatha in relation to pre-trial matters was not a ground for recusal: Muir at [98] – [101] and R v Chatha [2008] NZLR 466 at [30] – [31].

[93]     We conclude that all recusal applications were appropriately dealt with.  Even had that not been the case, given they were totally without merit, any failures would not have led to a miscarriage of justice.  This ground of appeal fails.

Information about the trial process

[94]     At 9.53 am on the first day of the trial, in the absence of the Judge, the Registrar handed to Mr Chatha an explanation of the trial process.  The first four pages dealt with jury selection matters and the course of the trial, and the last page was the notice required by s 364 of the Crimes Act.  This section provides:

364    Caution to accused when undefended

Where on arraignment any accused person who is not defended by counsel pleads not guilty, the Court shall cause to be handed to him, before the evidence for the prosecution is heard, a written statement in the following words, or in words to the like effect, that is to say:

When the evidence against you has been heard, you will be asked whether you wish to give evidence yourself or to call witnesses. You are not obliged to give or call evidence but, if you do, that evidence may be used against you. You should consider in particular whether evidence which you can give is relevant and will assist you in your defence. If you do not give evidence no person other than the Judge and yourself may comment on that fact.

[95]     As to the jury list, the Crown received this on 8 August, but we do not have an exact date for when Mr Chatha received this information.  We have, however, received a memorandum from Mr Shaw setting out the outcome of a discussion he had with the Registrar at Mr Chatha’s trial.  Mr Galbraith confirmed that an undated letter bearing Mr Chatha’s address and enclosing a copy of the jury list has been located in the High Court file.  The Registrar was unable to state exactly when Mr Chatha would have received the letter but he stated that the letter ought to have been  received on or about the Wednesday of the week before the trial if he had followed usual practice.

Submissions

[96]     In an argument made for the first time at the hearing of 30 October 2008, Mr Shaw submits that the first four pages of the explanation of the trial process should have been given to Mr Chatha at least a week before trial.  In his submission, handed out as they were, there was not enough time for Mr Chatha to read and absorb them and they would have swamped the compulsory s 364 notice.

[97]     Further, Mr Shaw submits that the s 364 notice should have been given to Mr Chatha on arraignment in open court and not before the jury was empanelled.  In addition, the jury list should have been provided to Mr Chatha at the same time as it was provided to the Crown and the Crown should not have had the opportunity to conduct jury vetting. 

Evaluation

[98]     It would be preferable for information on the trial process to be provided to accused persons who are representing themselves in advance of the trial.  There is, however, no evidence before us as to whether or not Mr Chatha had been given information on the trial process before the notice was handed to him by the Registrar.

[99]     There is, however, no statutory requirement that a self-represented accused be provided with advance information about the trial process.  In addition, there is nothing in the evidence before us to suggest that Mr Chatha would have acted any differently, had the explanatory material been provided earlier.  Nor does he maintain that he did not understand the trial process and from the record he took an active part in the trial.  Even if Mr Chatha was not given information about the trial process until the morning of the trial, no miscarriage of justice could have resulted.

[You] have elected to represent yourself in these proceedings, that has been your choice.

[196]   We infer from the Court record that MacKenzie J was satisfied as to the matters set out in s 30(2) of the Sentencing Act.  We also consider that he was clearly entitled to be so satisfied.  A sentence of imprisonment was thus available.  As to the sentence itself, we can discern no error of principle in the Judge’s analysis.  The Judge’s conclusions about Mr Chatha’s culpability relative to that of Mr Zeb (summarised above at [176]) were open to him.  If anything, the Judge gave too much weight to the factors pointing towards home detention.  Further, the actual sentence imposed was in fact very lenient, given the finding of the Judge in his sentencing remarks at [6] that Mr Chatha’s motivation was for financial gain:  R v Hassan [2008] NZCA 402 at [31].

Result

[197]   The appeal against both conviction and sentence is dismissed.

[198]   Mr Chatha was, somewhat surprisingly, granted bail pending appeal (as Robertson J noted in his minute of 29 May 2008).  Bail was continued by the Court (without objection from the Crown) until the release of this judgment.  The result of the appeal means that Mr Chatha must now serve his sentence of imprisonment.

[199]   Mr Chatha is to present himself at the Palmerston North High Court at 10.00 am on Monday 15 December 2008 to commence his prison term.

Solicitors:
Crown Law Office, Wellington