R v Goel
[2022] NZHC 3575
•20 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-018-632
[2022] NZHC 3575
THE KING v
VIVEK GOEL AMAR SINGH
Hearing: On the papers Appearances:
A M Toohey, S J O’Brien and S A Croxford for Crown J R Rapley KC for Defendant Goel
C J Lange for Defendant Singh
Judgment:
20 December 2022
REDACTED JUDGMENT OF OSBORNE J
(Application for sentencing via AVL)
This judgment contains redaction of personal or sensitive information.
This judgment was delivered by me on 14 December 2022 at 4.00 pm
Registrar/Deputy Registrar Date:
R v GOEL [2022] NZHC 3575 [20 December 2022]
[1] The defendants were last week remanded in custody for sentencing on 22 March 2023, having been found guilty by a jury and convicted of various corruption, bribery and deception offences. Both Mr Goel and Mr Singh apply to appear by audio-visual link (AVL) at their sentencings.
Background
[2] The charges of which the defendants were convicted (they were not convicted on all charges) relate to a period when Mr Goel was an official at the Westland District Council (the Council) and Mr Singh had been a consultant providing consultancy services to the Council.
[3] The defendants’ trial took place at Christchurch over an eight week period in October to December 2022.
The legislation
[4] The Courts (Remote Participation) Act 2010 (the Act) makes provision for the use of AVL in proceedings.
[5] The empowering provision in relation to AVL for a sentencing matter is s 8(2) of the Act, as informed by s 8(3). Those provisions read:
8Use of audio-visual links in criminal procedural or sentencing matters
...
(2)AVL may be used for the appearance of a participant in a sentencing matter if—
(a)AVL is available; and
(b)the participant is in custody; and
(c)a judicial officer determines that the use of AVL is not contrary to the interests of justice.
(3)Before making a determination under subsection (1), (1A), or (2), the judicial officer or Registrar (as the case may be) must take into account the criteria specified in sections 5 and 6.
...
[6] Accordingly, the criteria to be taken into account under s 8(3) of the Act are those set out in ss 5–6 of the Act, which provide:
5General criteria for allowing use of audio-visual links
A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:
(a)the nature of the proceeding:
(b)the availability and quality of the technology that is to be used:
(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—
(i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and
(ii)the level of contact with other participants:
(d)any other relevant matters.
6Additional criteria for allowing use of audio-visual links in criminal proceedings
A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular,—
(a)the ability of the defendant—
(i)to comprehend the proceedings; and
(ii)to participate effectively in the conduct of his or her defence; and
(iii)to consult and instruct counsel privately; and
(iv)to access relevant evidence; and
(v)to examine the witnesses for the prosecution; and
(b)the level of contact the defendant has with other participants; and
(c)any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.
Mr Goel’s application
[7] Mr Goel applies for permission to appear at his sentencing through AVL from a prison in Auckland.
[8] I treat the application as simply a request to appear by AVL — the facility at which Mr Goel will be held pending sentence (whether in Auckland or elsewhere) is a matter for the Department of Corrections (Corrections).
[9] For Mr Goel, Mr Rapley KC explains that Mr Goel is currently housed at Christchurch Men’s Prison. Mr Goel’s parents live in Auckland and were living with Mr Goel. Mr Goel is a solo father of three children, [REDACTED]. Mr Rapley explains that Mr Goel has no support in terms of friends or family in Christchurch and wishes to transfer to an Auckland prison so that he can receive visits from his children and parents.
[10] For Mr Goel, Mr Rapley refers to the criteria set out in ss 5 and 6 of the Act. In terms of the criteria under s 6(a) of the Act, Mr Rapley submits that Mr Goel will be able to participate effectively in the sentencing process if he appears by AVL and will still be held publicly accountable. Mr Rapley notes that Mr Goel was cooperative throughout the trial, including in relation to the arrangements for witnesses to give their evidence by AVL. Mr Rapley records that it will assist in Mr Goel’s application to transfer to an Auckland prison if this Court permits him to appear by AVL. It would also mean that Mr Goel, once in Auckland, would not have to be transported back to Christchurch with the costs and disruptions associated with such an exercise.
[11] Mr Rapley notes that Mr Goel’s rehabilitative steps, mental health and overall general welfare will be assisted by his being allowed to receive visits from his family.
[12] Accordingly, in Mr Rapley’s submission, it is in the interests of justice that Mr Goel be permitted to appear at his sentencing by AVL.
[13] Mr Rapley referred me to this Court’s decision in R v Johnson.1 In Johnson, the defendant was held in custody at Whanganui prison pending his sentencing on a manslaughter charge in the High Court at New Plymouth. The defendant wished to appear at his sentencing by AVL to avoid the impact that travel to and from Court would have on his chronic back pain. The principal issue, as identified by Cull J, was whether any adverse impression arose through the defendant being sentenced remotely on a serious charge of manslaughter and the inability of the victim to confront him.2 Her Honour concluded that the exacerbation of the defendant’s condition by travelling to Court for sentencing in these circumstances outweighed any adverse impression being drawn from his remote participation.3 The defendant’s application to attend his sentencing remotely was therefore granted.4
[14] Mr Rapley notes that, in this case, there is no suggestion there is a need for any victim to confront Mr Goel.
Discussion
[15]I will first consider the criteria under ss 5 and 6.
[16] In terms of the nature of the proceeding (under s 5(a)), the remaining aspect of the proceeding is a sentencing hearing in relation to convictions for a range of corruption offences, including the bribery of an official. Such proceedings are rare in New Zealand and are of significant social and public importance. The physical appearance of the defendant in Court to receive his sentence in such circumstances has a value in the advancement of justice.
[17] The considerations arising under s 5(b)–(c) are on, the facts relating to this case, neutral.
[18] In terms of the criteria in s 6(a), it is clear that Mr Goel would be able to comprehend the sentencing hearing and to participate effectively in that context.
1 R v Johnson [2022] NZHC 2347.
2 At [8].
3 At [10].
4 At [11].
[19] In terms of s 6(b), Mr Goel’s contact with other participants is not of moment here.
[20] In terms of s 6(c), I do not view a possible AVL hearing as a situation likely to create an adverse impression of a nature that may require mitigation.
[21] I recognise that, were Mr Goel to remain held in custody in Canterbury until his sentencing in March 2023, there would be an impact on the welfare of Mr Goel himself and of his family members. That said, I do not have evidence that a request by Mr Goel to be transferred to an Auckland prison in the meantime would be denied.
[22] On balance, and having regard to the significance of Mr Goel’s convictions, I am not satisfied that the interests of justice are in favour of permitting Mr Goel to appear at his sentencing by AVL.
[23]Mr Goel’s application will be refused.
Mr Singh’s application
[24] Mr Singh’s application is parallel to that of Mr Goel, in that all Mr Singh’s family also live in the Auckland area. Mr Lange explains that Mr Singh has also requested a transfer to a prison in Auckland. Mr Lange states that Corrections have asked if Mr Singh would agree to appear (at his sentencing) by AVL and that Mr Singh consents to so appearing.
[25]Referring to the ss 5 and 6 criteria, Mr Lange submits:
(a)Section 5(a) — as Mr Singh is represented, the sentencing hearing will proceed by way of consideration of written submissions and any further oral submissions, and the Act expressly contemplates that sentencing hearings will be able to be conducted by AVL for defendants who are in custody;
(b)Section 5(b) — the necessary technology is available;
(c)Section 5(c) — the use of AVL will not affect the rights of the parties, with there not being any credibility or reliability issues arising for sentencing;
(d)Section 5(d) — it appears likely that a direction for Mr Singh’s participation by AVL will facilitate his transfer to an Auckland prison;
(e)Section 6(a) — the use of AVL technology will not affect Mr Singh’s rights associated with the hearing;
(f)Section 6(b) — consideration of the level of contact between the defendant and other participants does not arise; and
(g)Section 6(c) — there is no scope for an adverse impression arising through Mr Singh’s participation by AVL.
[26] Mr Lange refers also to s 16 of the Act which makes it clear that appearance by a defendant at a proceeding by AVL (to the extent it is authorised by the Act) fulfils the corresponding legal requirements relating to a person’s appearance in a proceeding.
[27] Mr Lange observes that the Act expressly contemplates that at sentencing a defendant in custody may appear by AVL if the use of AVL is not contrary to the interests of justice. He observes that such use of AVL is now not uncommon for sentencing, and that, in this case, there are no interests of justice factors that require the defendant to appear in person.
Discussion
[28] While the submissions made for Mr Singh are in slightly different terms to those for Mr Goel, the considerations are directly parallel.
[29] I therefore similarly conclude in relation to Mr Singh that the interests of justice in relation to this particular sentencing require that Mr Singh appear in person. To the extent that Mr Lange’s submissions, in relation to the criterion under s 5(a) of
the Act (the nature of the proceeding)), focussed on the fact that a sentencing hearing is involved, the “nature of the proceedings” imports broader considerations. This sentencing is to be in relation to convictions in a criminal proceeding where the prosecution related to bribery and corruption of an official. Furthermore, when considering the interests of justice more broadly, I am not satisfied on the information provided that a requirement for either of the defendants to attend their sentencings in person will in fact preclude in the meantime their transfer to an Auckland prison.
[30]Mr Singh’s application will therefore be declined.
Orders
[31] I refuse the applications of the defendants dated 16 December 2022 for orders that each appear by AVL for his sentencing.
Osborne J
Counsel:
A M Toohey and S J O’Brien for Crown
J R Rapley KC, ChristchurchC J Lange, Barrister, Christchurch
Copy to: Serious Fraud Office, Auckland
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