Siddiqui v The Queen
[2019] NZCA 196
•31 May 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA558/2017 [2019] NZCA 196 |
| BETWEEN | MOHAMED SHAKEEL SIDDIQUI |
| AND | THE QUEEN |
| Hearing: | 8 May 2019 |
Court: | Courtney, Lang and Whata JJ |
Counsel: | D J Allan for Appellant |
Judgment: | 31 May 2019 at 10.30 am |
JUDGMENT OF THE COURT
AThe application to adjourn the hearing date is declined.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In 2014 Mr Siddiqui applied from the United States for a position as a psychiatrist at the Waikato District Health Board (DHB). He had tertiary qualifications, including a medical qualification, but was not qualified to practise psychiatry. In support of his application he provided two forged documents: an Illinois Department of Financial and Professional Regulations certificate and an American Board of Psychiatry and Neurology certificate. These qualifications actually belonged to another man with the same name. Mr Siddiqui also altered a scanned copy of an Indian passport in the name of Mohamed Siddiqui so that it appeared to be his own passport. He provided three written references, all from false email addresses, and an oral reference with the telephone number of his brother.
Mr Siddiqui obtained the position. He was granted temporary registration and a practising licence by the Medical Council of New Zealand using the forged license and certificate. He began work in January 2015. Concerns about his performance led to inquiries about his qualifications. In July 2015 he was charged with 13 counts of dishonesty, including forgery, using forged documents and obtaining by deception.
On the first day of trial, 14 March 2017, Mr Siddiqui pleaded guilty to four charges arising from his use of the forged documents. Prior to sentencing he applied unsuccessfully to vacate his guilty pleas.[1] He was sentenced to four years and three months’ imprisonment, which he served.[2] He was subsequently deported to India. Mr Siddiqui now appeals his convictions on the ground that he was acting under duress in entering the guilty pleas.
Adjournment application
[1]R v Siddiqui [2017] NZDC 19197 [Application to vacate guilty pleas].
[2]R v Siddiqui [2017] NZDC 21063 at [45] [Sentencing notes].
Prior to the hearing of the appeal Mr Siddiqui applied twice, unsuccessfully, for an adjournment of the appeal hearing.[3] That application was renewed on the morning of the hearing and refused. Given the unusual circumstances it is appropriate that we give our reasons for refusing the adjournment.
[3]Siddiqui v R CA558/2017, 5 April 2019 (Minute of Gilbert J) and Siddiqui v R CA558/2017, 18 April 2019 (Minute 2 of Gilbert J).
Mr Siddiqui was sentenced on 18 September 2017 and filed his notice of appeal on 27 September 2017. He had a provisional grant of Legal Aid to assess whether he had an arguable case. However, the appeal was not advanced expeditiously. A year later, in a memorandum dated 25 September 2018, Mr Siddiqui’s counsel, Mr Allan, confirmed that he had interviewed Mr Siddiqui and provided a letter to Legal Aid in support of a full grant on the basis that there was an arguable case. He also advised that Mr Siddiqui had been granted parole, effective from 26 September 2018 subject to the conditions that he be deported from, and not return to, New Zealand.
On 17 December 2018 Mr Allan advised that he had given Mr Siddiqui legal advice by email and that Mr Siddiqui had replied promptly by email from India. He said that once Mr Siddiqui had approved the proposed grounds of appeal a formal notice of grounds of appeal would be filed. Gilbert J issued a minute noting concern by counsel (presumably Crown counsel) about the delay in progressing the appeal and setting a timetable “by consent and in the expectation of strict compliance”.[4] The timetable required amended grounds of appeal to be filed no later than 25 January 2019 together with any waiver of privilege and any affidavits or other materials in support of the appeal to be filed and served no later than 1 March 2019.
[4]Siddiqui v R CA558/2017, 17 December 2018 (Minute 3 of Gilbert J) at [2].
Amended grounds of appeal were filed on 1 February 2019. The other timetable directions were not complied with at all. Gilbert J issued a minute on 14 March 2018 recording that Mr Siddiqui would not waive privilege and that the appeal would be argued largely on the basis of the record but that Mr Siddiqui would file an affidavit confirming the qualifications he held.[5] It appeared, however, that the Crown accepted the fact of his qualifications and Gilbert J recorded that “[t]he only outstanding issue concerns whether a further exhibit should be attached to the affidavit that is otherwise in final form.”[6]
[5]Siddiqui v R CA558/2017, 14 March 2019 (Minute 4 of Gilbert J).
[6]At [1].
An amended timetable required Mr Siddiqui’s affidavit to be filed and served no later than 15 March 2019 with any response from the Crown by 29 March 2019 and submissions by 8 and 15 April respectively.[7] On 15 March 2019 Mr Allan advised that his emails to Mr Siddiqui had gone unanswered. On 1 April 2019 he sought to adjourn the appeal hearing on the basis that Mr Siddiqui was in detention in the United States but that Mr Allan was unable to contact him directly and had no details about where he was being detained or when he might be released. The adjournment application was opposed by the Crown and refused by Gilbert J on the basis that Mr Siddiqui had been aware from 18 December 2018 that his affidavit needed to be filed and that strict compliance with the timetable was expected.[8] The Judge noted, moreover, that since the only purpose of the affidavit was to annex qualifications that Mr Siddiqui claims to have obtained and that the Crown accepts he held it was unclear what purpose would be served by filing the affidavit.[9]
[7]At [2].
[8]Siddiqui v R CA558/2017, 5 April 2019 (Minute 5 of Gilbert J) at [8].
[9]At [8].
On 15 April 2019 the Court Registry received a letter, apparently from Mr Siddiqui himself, explaining that he had been detained in the United States by Homeland Security since 10 February 2019, had no access to email or the internet and that making telephone calls was difficult. He claimed that his ongoing detention was dependent upon the appeal and requested further time. Gilbert J declined that request by a direction issued to the parties on 18 April 2019.
On 7 May 2019, the day before the appeal hearing, Mr Allan filed a memorandum advising that he had received instructions from Mr Siddiqui that day to advise the Court that neither Mr Siddiqui nor Mr Allan were ready for the appeal as a result of circumstances beyond Mr Siddiqui’s control. Mr Allan also advised that he had unsuccessfully tried to telephone Mr Siddiqui and, accordingly, could not finalise instructions regarding the exhibits for his affidavit or legal submissions. He drew to the Court’s attention that when Mr Siddiqui’s Legal Aid grant was confirmed in August 2018, following the Parole Board’s grant of parole, the Legal Aid grant was subject to the following qualification:
Such issues may include whether Mr Siddiqui’s eventual location affects his ability to instruct or otherwise professionally engage with his assigned Counsel.
Mr Allan submitted that Mr Siddiqui’s current detention limited his ability to communicate with counsel, which was the specific type of situation anticipated by the Legal Aid Grants Officer.
It is evident that Mr Siddiqui was in contact with Mr Allan until early February 2018. The only available inference is that Mr Siddiqui made the decision to leave India knowing that the timetable directions had not been complied with and that strict compliance with them was required. In any event, as Gilbert J previously observed, the only outstanding step was the completion of an affidavit annexing copies of qualifications Mr Siddiqui held, which was not in issue. All the information needed to advance the appeal was already before the Court. In these circumstances there was no basis on which to adjourn this very longstanding appeal further.
Appeal
Relevant principles
It is well recognised that an appeal against conviction following a guilty plea will only succeed in exceptional circumstances. Generally they are the categories identified in R v Le Page and Merrilees v R:[10]
(a)where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where on the admitted facts the appellant could not in law have been convicted of the offence charged;
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law; or
(d)where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes.
[10]R v Le Page [2005] 2 NZLR 845 (CA) at 849–850; and Merrilees v R [2009] NZCA 59 at [33]–[34].
Some care is required when considering the last category, on which Mr Siddiqui relies in this case. Erroneous advice by counsel, including about sentence, may vitiate a guilty plea but the advice must go to the heart of the plea so that it is not a true acknowledgment of guilt.[11] Where the appellant has fully appreciated the merits of his or her position and made an informed decision, the conviction will not be impugned. The fact that an appellant may feel that he or she is under pressure when making a decision will not generally be sufficient.[12]
[11]Tuira v R [2018] NZCA 43 at [81]; citing R v Saik [2004] EWCA Crim 2936 at [57].
[12]Hancock v R [2012] NZCA 292 at [32].
Finally, the overriding question is whether a miscarriage of justice resulted from the declinature of an application to vacate a guilty plea.[13] The appellant must therefore show a tenable defence in order to establish a miscarriage of justice.[14]
Application to vacate the guilty pleas
[13]Halpin v R [2018] NZCA 477 at [2]; and Whichman v R [2018] NZCA 519 at [36].
[14]Halpin v R, above n 13, at [20]; and Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [26].
By the time the case reached trial on 14 March 2017, Mr Siddiqui was represented by counsel, Mr Jonathan Temm. By then he had been in custody for over a year. On the morning of the trial there were negotiations over a possible plea which led to Mr Siddiqui pleading guilty to four charges and the Crown withdrawing the remaining nine. Mr Siddiqui ultimately pleaded guilty to:
(a)one charge of using forged documents to obtain a pecuniary advantage;[15]
(b)two charges of obtaining a benefit by deception;[16] and
(c)one charge of holding himself out as a health practitioner despite being unqualified.[17]
[15]Crimes Act 1961, s 257(1)(a).
[16]Section 240(1)(a).
[17]Health Practitioners Competence Assurance Act 2003, s 7(1).
By August 2017 Mr Siddiqui was represented by new counsel, Mr Bradford, who appeared for him on the application to vacate the guilty pleas. Mr Siddiqui and Mr Temm both filed affidavits, and gave evidence at the hearing of that application. However, Mr Siddiqui declined to waive privilege in respect of his communications with Mr Temm. Mr Siddiqui’s account was that Mr Temm telephoned him at about 10 am on 13 March 2017, the day before the hearing, and said that since he had not received the money he needed for the trial he would no longer be acting for Mr Siddiqui. Mr Siddiqui said that he understood from that that he was without counsel, with the trial starting the next day.
Mr Siddiqui claimed that, notwithstanding the state of affairs that he understood had existed as at 13 March 2017, Mr Temm came to see him prior to court starting on 14 March 2017 in the cells. Mr Siddiqui claimed that Mr Temm told him he was not Mr Siddiqui’s lawyer but that the Court had asked him to assist as amicus. There was no discussion of any options other than Mr Temm telling Mr Siddiqui that he could provide assistance but that Mr Siddiqui would still need to defend himself. Mr Siddiqui said that he was confused, that he was expecting money to arrive from his family (and in fact money did arrive in Mr Temm’s trust account on the afternoon of 14 March 2017). Then, Mr Siddiqui said that Mr Temm introduced the idea of a “plea bargain” and because of his state of mind he went along with things, hardly aware of what he was signing. Without proper legal advice, alone in a distant country, away from his family and fearful of another remand in prison he decided to plead guilty.
Mr Temm recalled two telephone calls on 13 March 2017 but says that he never told Mr Siddiqui he would not represent him at trial. From file notes, he recalled telling Mr Siddiqui that he could put the Crown to proof but could not do some other things which he could not elaborate on because Mr Siddiqui had not waived privilege. Mr Temm said that he had offered to drive to Spring Hill Prison that afternoon to discuss matters again with Mr Siddiqui but that Mr Siddiqui hung up on him.
Later that same day Mr Temm filed a memorandum with the Court which was subsequently attached to Mr Siddiqui’s affidavit in support of the application to vacate the guilty plea but which Mr Siddiqui claimed not to have known of at the time. In the memorandum Mr Temm stated that:
The basis on which Counsel can no longer continue to act is extensive but can be summarised that:
a.Counsel is not permitted to follow the instructions of the defendant for ethical reasons, particularly around the presentation to the Court of documents that are invalid or lack authenticity;
b.Counsel has been misinformed and misled by the defendant on critical issues and whilst this does not prevent the Crown being put to the proof, it does prevent any type of positive or affirmative defence being advanced with evidence being given by the defendant in Court;
c.There is a lack of confidence in the Counsel/client relationship which Counsel submits is such that Counsel can no longer act in the best interests of the defendant.
Mr Temm said that on the day of the trial, he discussed with Mr Siddiqui a proposed change to the charges, some minor amendments to statements that Mr Siddiqui had made, the issue of unpaid fees, the possibility of an adjournment and an application for legal aid, and the possibility of Mr Temm being appointed amicus. Mr Temm also said that he explained the memorandum of 13 March 2017 with Mr Siddiqui. Mr Temm then said that it was Mr Siddiqui who had initiated the idea of a plea bargain, which surprised him because Mr Siddiqui had always been clear about his intention to proceed to trial. Nevertheless, as a result of that suggestion Mr Temm consulted with the Crown and Mr Siddiqui over the course of the next 90 minutes or so. Mr Siddiqui was able to discuss the issues clearly, notwithstanding that he did look dishevelled and worn and that he went carefully through a written instruction by Mr Siddiqui to counsel that recorded:
I Mohamed Siddiqui am facing my trial today. My lawyer has sought leave to withdraw. He will not continue as my lawyer. He may continue as Amicus Curiae if the Court directed — but only with my consent.
Before I consider that, and any adjournment of trial and any legal aid assignment issue I have asked my lawyer to do a plea bargain.
I instruct my lawyer to discuss with the Crown a plea to some charges in the CCN. …
The Judge rejected Mr Siddiqui’s evidence on the key points.[18] Specifically, he did not accept that Mr Temm had raised the issue of fees as the only reason for no longer continuing to act.[19] The Judge considered that claim was inconsistent with Mr Temm’s memorandum of 13 March 2017 to the Court, which, he found, Mr Temm had discussed with Mr Siddiqui on 14 March 2017.[20] Mr Siddiqui’s refusal to waive privilege gave rise to an adverse inference on this issue.
[18]Application to vacate guilty pleas, above n 1, at [54].
[19]At [55].
[20]At [55].
The Judge concluded that Mr Temm was still acting for Mr Siddiqui on 14 March 2017 because there had been no need for him to withdraw and he had not actually pursued his application to withdraw as counsel after Mr Siddiqui raised the issue of pleading to some of the charges.[21] He found that Mr Siddiqui initiated the plea bargain process, was fully engaged in that process with Mr Temm, was able to adequately challenge and discuss all the aspects of the proposed plea bargain, and to competently instruct Mr Temm.[22]
[21]At [59].
[22]At [63].
In Mr Siddiqui’s affidavit in support of the application to vacate his plea he had also asserted that Mr Temm had not discussed sentence implications with him and, specifically, that “I now know a sentence of more than one year prison precludes me going back to my family in the USA”. The Judge was satisfied that the difficulties that Mr Siddiqui would face returning to the United States if he was sentenced to more than one year in prison was a matter that he had discovered after the plea was entered and was the reason that he now wished to vacate his guilty plea.[23] The Judge concluded that:
[74] Here Mr Siddiqui did not in my view enter guilty pleas in circumstances where the voluntariness of the entry of pleas was questionable. I reject the proposition that Mr Temm placed undue pressure on Mr Siddiqui to plead guilty or that there was any duress involved on Mr Temm’s part.
[75] … Mr Siddiqui had initiated those plea bargain discussions, had the benefit of competent counsel and was fully aware of what he was doing at the time he entered those pleas and did so on a voluntary and informed basis.
Grounds of appeal
[23]At [68].
Mr Allan raised three broad points in support of the appeal. The first was that the Court record itself shows that Mr Siddiqui was under some level of duress because of the tight time frame provided to prepare for trial. Secondly, Mr Siddiqui had a tenable defence. Thirdly, the Judge dealing with the application to vacate the guilty plea was unfairly influenced by the contents of Mr Temm’s memorandum of 13 March 2017.
We deal with the first two together. Mr Allan pointed out that, from the Court record, it was apparent that as late as 23 February 2017 there was no firm trial date. On that day Judge Connell determined applications by Mr Siddiqui for e-bail (unsuccessful) and applications by the Crown to extend time for filing an amended charge sheet and to offer hearsay evidence (successful).[24] As to the latter applications, the Crown was permitted to add three further charges and to adduce hearsay evidence by way of employment records of the referees relied on by Mr Siddiqui in making his original application for employment with the DHB.
[24]R v Siddiqui [2017] NZDC 5006; and R v Siddiqui [2017] NZDC 5074.
Mr Allan pointed out that at that stage the trial was still in the reserve trial category, without a fixed date. It appears not to have been until 9 March 2017 that the trial date of 14 March 2017 was confirmed. The decisions relating to the Crown’s pre-trial applications were delivered the following day, 10 March 2017. It is therefore reasonable to infer that the trial was brought on earlier and that neither Mr Siddiqui nor Mr Temm had adequate time to properly prepare.
We have difficulty accepting that the time frame for the trial precluded a fair trial such that Mr Siddiqui might have felt that he had no option but to plead guilty. Mr Temm’s affidavit refers to him taking instructions from Mr Siddiqui on 22 November 2016 and having numerous attendances in person with him. During those attendances they reviewed the entire Crown disclosure file, witness list and exhibits. Mr Temm received instructions on witnesses and the defence to be advanced. He acknowledged that there had been issues over payment for some time prior to trial but said that this did not prevent him from preparing for trial and that he did so on the basis that payment might or might not be made. He added that “[t]he predominant issue was the legal advice that I had given to Mr Siddiqui and his instructions to me as to the manner in which the trial defence was to be conducted”.
We are satisfied that Mr Temm would have been in a position to proceed and, given the Judge’s findings as to the reason that Mr Temm withdrew, it cannot fairly be said that the timing of the trial in itself affected Mr Siddiqui’s position. Even if the trial had been brought on at short notice, it would only be significant if Mr Siddiqui could point to a tenable defence that he was precluded from advancing by reason of the tight time frame.
In his affidavit in support of the application to vacate the guilty plea Mr Siddiqui did not mention any specific defence he might have advanced, a point that Judge Marshall identified:[25]
In submissions counsel for Mr Siddiqui states that it was his clear and strong desire to go to trial and that now that the Crown accept that he has a medical degree, he has a defence worthy of putting before the Court. It is further submitted that the fact he has not disclosed his defence cannot count against him at this stage and in this application. Further that what [Mr Temm] has disclosed to the Crown should also not count against Mr Siddiqui when considering the viable defence issue. I put the viable defence issue to one side at this time as a neutral factor. Mr Siddiqui has not put forward grounds for a viable defence and therefore that cannot operate in his favour … The mere fact he has medical qualifications is not of itself indicative of an arguable defence given the Crown case and lack of any specificity on the details of any defence.
(emphasis added)
[25]Application to vacate guilty pleas, above n 1, at [71].
Mr Allan argued that Mr Siddiqui would have been entitled, with the benefit of the Crown’s acknowledgment of his medical qualification, to have advanced a defence of claim of right in respect of the two obtaining by deception charges.[26] He was unable to go into any further detail about such a defence, in the absence of specific evidence from Mr Siddiqui and lack of instructions on the point.
[26]Crimes Act, s 240(1)(a).
The expression “claim of right” is defined in s 2 of the Crimes Act 1961 as follows:
claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
The Supreme Court confirmed in Hayes v R, that the belief is not required to be reasonable, nor reasonably held, but it must be honest or genuine in the sense that it was actually held by the defendant.[27]
[27]Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321 at [58]. See also Jardine v R [2016] NZCA 371 at [34].
It is not obvious how Mr Siddiqui intended to advance a claim of right defence. The essence of all the charges to which Mr Siddiqui pleaded is dishonesty. The deliberate use of the forged documents leads inevitably to the conclusion that Mr Siddiqui acted dishonestly, precluding an honest belief in his right to use the documents. It may be that he intended to rely on an honest belief that his genuine qualifications entitled him to practise psychiatry. That would not be a tenable proposition either because it is completely at odds with the use of qualifications belonging to someone else. We are therefore satisfied that the fact that Mr Siddiqui held some genuine qualifications could not have provided the basis for a tenable defence of claim of right in relation to the charges of obtaining by deception he pleaded guilty to.
Finally, Mr Allan argued that Mr Temm’s memorandum of 13 March 2017 was highly prejudicial to Mr Siddiqui and must have influenced the Judge in his assessment of Mr Siddiqui’s credibility and his decision to refuse the application to vacate the guilty plea. We can readily understand Mr Siddiqui’s concern about the tone of the memorandum. We agree that, although the memorandum did not contain any specific information about privileged communications, it unequivocally conveyed the tenor of those communications. However, the Judge was alert to Mr Siddiqui’s concern and referred to it in his decision.[28] But in the absence of any tenable defence, it is not possible to conclude that a miscarriage of justice resulted. Even if Mr Temm had said nothing at all about the circumstances that led him to withdraw, Mr Siddiqui’s lack of a tenable defence was an insuperable obstacle to him demonstrating that a miscarriage of justice would result if his guilty pleas were not vacated.
[28]See [30] above.
In the context of Judge Marshall’s findings which were made with the benefit of seeing both Mr Siddiqui and Mr Temm under cross-examination, there was no basis on which Mr Siddiqui could realistically assert that he was not properly advised or did not understand the nature of the charges to which he was pleading nor the likely effect of the charges. Mr Siddiqui was under no misapprehension as to the probable outcome of the guilty plea and could not demonstrate a tenable defence.
Result
The application to adjourn the hearing date is declined.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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