Singh v Police
[2016] NZHC 543
•31 March 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-454-13 [2016] NZHC 543
BETWEEN RAVINDRA PAL SINGH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 October 2015 Counsel:
R D Mulgan for Appellant
E M Fitzherbert for RespondentJudgment:
31 March 2016
JUDGMENT OF CLARK J
This judgment was delivered by me at
3:00pm on 31 March 2016
SINGH v NEW ZEALAND POLICE [2016] NZHC 543 [31 March 2016]
Introduction
[1] Mr Singh, a flight instructor,1 was convicted in the District Court on three charges of assault.2 Two convictions under the Crimes Act 1961 were entered following a trial. The third conviction, under the Summary Offences Act 1981, was entered following a guilty plea.
[2] This is an appeal against conviction.
Procedural background
[3] As described by Mr Mulgan, counsel for the appellant, the procedural background has followed an unusually tortuous course. The trial was heard over four days between 29 October and 21 December 2012. The appeal process has been similarly drawn out. On 22 October 2013 a hearing of Mr Singh’s appeal commenced with Mr Singh acting for himself. When it became apparent that Mr Singh was relying on evidence that had not been before the District Court the Judge adjourned the appeal to permit Mr Singh to take the necessary steps to adduce fresh evidence.
[4] Various issues about the admission of fresh evidence led to that hearing being further adjourned and further delays. On 1 December 2014 Dobson J gave judgment dismissing Mr Singh’s application to adduce fresh evidence.3
[5] The appeals against the two Crimes Act convictions were set down for hearing on 28 October 2015. At the hearing one of the appeals was abandoned.
[6] Consequently, although the written submissions were directed to Mr Singh’s
appeal against two convictions for assault on two complainants the appeal proceeded only in respect of the conviction for assault on Mr Illyas Valiyapeediyekal.
1 At the time of the alleged assaults Mr Singh was also the director of the Wings Flight Training
Academy, an aviation training school that closed in December 2011.
2 Police v Singh DC Palmerston North CRI-2011-054-3470, 21 December 2012.
3 Singh v Police [2014] NZHC 3039.
Factual background
[7] Because the appeal rests largely on the argument that what was alleged against Mr Singh could not feasibly have occurred it is necessary to set out in some detail the context in which the assault took place.
[8] Mr Valiyapeediyekal was studying for a commercial pilot licence. On
25 June 2011 Mr Singh was flying with Mr Valiyapeediyekal to determine if he could fly solo. Mr Valiyapeediyekal was doing a number of circuits touching down briefly and taking off again, a manoeuvre referred to as “touch and go”.
[9] Mr Singh was shouting “speed and centre line, speed and centre line”4 during the flight. Mr Valiyapeediyekal said Mr Singh was not happy with his flying and was shouting at him. Mr Valiyapeediyekal looked at Mr Singh. Mr Singh suddenly slapped him on the side of his face with an open palm saying “eyes only on centre line”.5 The slap was strong enough to dislodge the aircraft headset and microphone from Mr Valiyapeediyekal’s head.
[10] Although the airport control tower cleared Mr Valiyapeediyekal to land the aircraft Mr Valiyapeediyekal was unable to repeat the control tower’s clearance because the communication gear had been knocked from his head. Mr Valiyapeediyekal said Mr Singh was angry with him because he was not replying to the control tower. Mr Singh banged Mr Valiyapeediyekal’s head into the side window.6 Mr Singh then realised the microphone was knocked from Mr Valiyapeediyekal’s head and replaced it.
[11] Mr Valiyapeediyekal was shaken. He asked to terminate the flight and land the aircraft. Mr Singh denied him this and insisted on another circuit. On landing Mr Singh confirmed to Mr Valiyapeediyekal he could fly solo.7
[12] Mr Valiyapeediyekal suffered no physical injury but felt threatened and intimidated.
4 Police v Singh, above n 2, at [43].
5 At [44].
6 At [44].
7 At [44].
District Court judgment
[13] Although the Judge heard a great deal of evidence she considered the allegations were narrow and turned on an assessment of credibility and feasibility.8
[14] Mr Singh denied the assault and insisted it was implausible that he would have said “speed and centre line” so far out from touchdown.9 He maintained that the assault Mr Valiyapeediyekal described was not feasible. This argument was “based on a reconstruction” of the point at which Mr Singh would usually say to a student, “speed and centre line”.10
[15] Essentially Mr Singh’s position was that at the time he uttered the words “speed and centre line” to Mr Valiyapeediyekal the plane would have been too close to the runway for an assault to have occurred and for a trainee pilot to have regained composure then control and land the plane as in fact happened. He said the fact
Mr Valiyapeediyekal did land the plane added weight to his position.11
[16] The Judge noted that Mr Valiyapeediyekal was consistent and firm despite English being his second language and that on a number of occasions he corrected statements put to him by counsel.
[17] The Judge expressly accepted Mr Valiyapeediyekal’s evidence about the
feasibility of landing the plane immediately after the alleged assault.12
[18] Addressing various attacks on Mr Valiyapeediyekal, the Judge considered his
credibility intact. He “showed a certain integrity.”13
[19] The Judge accepted Mr Valiyapeediyekal’s evidence:14
Accordingly, I find that the allegations of intentional application of force,
namely Mr Singh slapping [Mr Valiyapeediyekal’s] face and pushing his
8 At [18].
9 At [26].
10 At [49].
11 At [26].
12 At [49].
13 At [50].
14 At [52]–[53].
head into the plane door did occur. I find that they were sufficiently far out from landing, for those events to have occurred and for [Mr Valiyapeediyekal] to regain composure, re-establish control of the aeroplane and land. Therefore I find that charge of assault in respect of [Mr Valiyapeediyekal] proved.
The appeal
[20] Mr Mulgan submitted that:
(a) The weight of the evidence did not support Judge Binns’ findings.
(b)The Judge erred in treating the issue as turning primarily on witness credibility because credibility is secondary to the gateway issue of feasibility. Witness credibility only comes into play when feasibility has been established.
(c) The allegation of assault if not technically impossible is at least highly implausible. This proposition has three elements:
(i)The nature of the assault would have resulted in loss of control of the aircraft.
(ii)It would have been difficult to regain control of the aircraft making it “highly unlikely” the assault, as described by Mr Valiyapeediyekal, could have occurred.
(iii) After such a disturbance so close to landing, standard practice
would be to abort the landing and “go around”.
[21] For the respondent, Ms Fitzherbert emphasised that the Judge, having heard and considered all of the evidence, was entitled to prefer Mr Valiyapeediyekal’s account to that of other witnesses. Ms Fitzherbert invited me to consider the notes of evidence in order to appreciate the extent and nature of the evidence which, necessarily, was not apparent from the concise oral judgment which the Judge was constrained to deliver.
[22] As to the “gateway” argument Ms Fitzherbert submitted that the relationship between feasibility of the account and the credibility of Mr Valiyapeediyekal was not a “two step” process, as Mr Mulgan had put it, but an interrelationship. There was no evidence that the allegations were technically implausible. The evidence of the witnesses characterised as experts did not go that far.
Approach to appeal
[23] The informations were laid before 1 July 2013. Accordingly, the appeal is a general appeal under s 115 of the Summary Proceedings Act 1957. Such appeals proceed by way of rehearing on the basis of the evidence in the court below.
[24] A general appeal under s 115 requires the appellate court to reach its own assessment of the merits of the case. The appellate court is justified in interfering with the decision under appeal only if it considers that decision is wrong. In cases such as the present it is long established that where the court below has assessed credibility and made important credibility findings the appeal court will hesitate to disturb findings of fact or fact and degree.
[25] These principles were most recently and authoritatively summarised by the
Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.15
Analysis
The “expert” witnesses
[26] It is necessary to address at the outset the nature of the evidence given by two witnesses, Ms Gupta and Mr Rowland. For the purpose of the appeal Mr Mulgan characterised Ms Gupta and Mr Rowland as expert witnesses. Mr Mulgan submitted that the Judge had erred in rejecting unrebutted expert evidence that the assault as alleged was technically impossible or at least highly implausible.16
[27] The first point is that the evidence of neither witness was to such unambiguous effect.
15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5].
16 Submissions of the Appellant at [47].
[28] The second point is that Ms Gupta and Mr Rowland were not independent of
Mr Singh.
[29] Although the Code of Conduct for expert witnesses in sch 4 of the High Court Rules applies only in civil proceedings17 in R v Hutton the Court of Appeal observed:18
[T]he obligations of an expert witness in a criminal case do not differ from those of an expert witness in a civil case, in the sense that, in both contexts, the witness must not be an advocate for any party but must assist the Court impartially on matters within his or her area of expertise … This Court summarised the relevant principles … as follows: … an expert has an overriding duty to assist the Court impartially on relevant matters within an expert’s area of expertise; and … an expert is not an advocate for any party.
[30] Ms Gupta a flight instructor, studied under Mr Singh beginning in 2007 and
has trained pilots since 2009. She worked at Mr Singh’s Academy until it closed in
2011.19 On (at least) two occasions Judge Binns interrupted Ms Gupta when her evidence transgressed from factual matters to opinion bordering on character endorsement of Mr Singh.20 It transpired in cross-examination that Mr Singh was also Ms Gupta’s landlord.21 She described him as “one of the best instructors”.22
[31] Mr Rowland is a senior instructor with a great deal of experience as both a pilot and instructor. He described his significant role with Mr Singh’s Academy purchasing aircraft for Mr Singh and providing advice on the maintenance of those aircraft.23 As did Ms Gupta’s evidence Mr Rowland’s evidence, at times, bordered on character endorsement:24
We saw and knew him as a man of integrity and we had a very successful association with him when we had no other choice of instructors and we appreciated this.
17 Evidence Act 2006, s 26; R v Seu CA81/05, 8 December 2005 at [81]; Adams on Criminal
Law —Evidence (online looseleaf ed, Westlaw) at [EA26.01(4)].
18 R v Hutton [2008] NZCA 126 at [169]–[170], cited in Adams on Criminal Law — Evidence
(online looseleaf ed, Westlaw) at [ED14.01(1)].
19 Notes of evidence taken before Judge J A Binns at 94, line 13.
20 At 92, line 2 and 93, line 2.
21 At 139, line 1.
22 At 92, line 29.
23 At 308, lines 25–30.
24 At 307, line 30.
[32] These preliminary observations are not intended to discredit the expertise of Ms Gupta or Mr Rowland both of whom are experienced instructors. Rather, the observations respond to the contention that the Judge erred in rejecting unrebutted evidence of experts. It is questionable whether the witnesses maintained the professional impartiality required for their evidence to be regarded as truly expert.
[33] Of greater moment, perhaps, is that their evidence was based on reconstructed and hypothetical scenarios which can be assumed to have been of limited assistance to the Judge in light of her assessment and conclusions about the key evidential point. I turn now to address the feasibility ground of challenge and the key evidential point.
Feasibility ground of challenge
[34] The feasibility arguments are factually intense. The assault was said to have occurred following Mr Singh’s “speed and centre line” instruction. The argument is that it was highly unlikely that the assault described by Mr Valiyapeediyekal occurred because a disturbance in the cockpit at the time such an instruction is usually given would not allow sufficient time for recovery and safe landing of the aircraft. Accordingly, the earliest point an instructor would likely give the “speed centre line” instruction was a focal point of the evidence.
[35] Mr Valiyapeediyekal said he thought the altitude was “[m]aybe 600 feet” when the incident occurred.25 In cross-examination he rejected counsel’s suggestion that it would be “about 300 feet from the ground, 200 feet from the commencement of the strip”.26 The call was given, he said, “after I turned to final approach”. The instruction was given, he reiterated, when he had “just turn[ed] to finals and it was a long downwind so there is a lot of time to land and our aircraft are small not big and it is slow … only … 70 knots”.27 Mr Valiyapeediyekal was insistent that the altitude was more than 400 feet.28 His evidence on this point remained firm under cross-
examination.
25 At 40, line 26.
26 At 40, lines 2–11.
27 At 41, line 8
28 At 41, line 19.
[36] Mr Singh’s evidence was that uttering “speed centreline” was a “gentle reminder”29 to students given before landing “in the last 500 feet or so, or below that”.30 Critically, at this point in Mr Singh’s evidence, the Judge checked that he had in fact said “the last 500 feet”.31 Mr Singh confirmed he said “after 500 feet on the final approach [meaning] starting 500 feet or below”.32
[37] Mr Singh said the reminder might become critical at 300 feet because at that stage, if the aircraft is not aligned properly it is unlikely to land.33 Mr Mulgan relied on this passage for his submission that Mr Singh said it would be more usual to give the reminder at around the 300 foot mark.34 But as the passages set out immediately above demonstrate that was not the thrust of Mr Singh’s evidence.
[38] Ms Gupta and Mr Rowland likewise based their evidence on a hypothetical reconstruction of the situation. Mr Rowland said he would give that instruction “often and as needed” during an approach.
[39] Ms Gupta’s evidence was that the instruction could be given at an altitude of between 300 and 400 feet.35 She acknowledged though that this figure was based on a “generalised size of a circuit” and that she did not know the specifics of the situation.36 Mr Rowland’s evidence on the point was opaque notwithstanding questions from the Judge.37
[40] On Mr Singh’s own evidence, the instruction could have first been given at
500 feet. It also seems that the instruction might be repeated at lower altitudes: Mr Rowland described it as a part of the “patter”.38 Mr Valiyapeediyekal said it was
600 feet. The Judge accepted the figure of 600 feet.39
29 At 240, lines 10–15.
30 At 240, line 25.
31 At 240, line 29.
32 At 241, lines 1–5.
33 At 241, lines 15–20.
34 Submissions of the Appellant at [37].
35 Notes of evidence taken before Judge J A Binns at 131, line 17.
36 At 130, line 24.
37 At 312, line 9 et seq.
38 At 311, line 18.
39 Police v Singh, above n 2, at [49].
[41] As to the rate of descent Mr Singh’s evidence was based on an instruction issued at 300 feet or lower. At that stage the aeroplane would be travelling, he said, at 70 knots, descending at “four to 500 feet per minute” with only “four to six seconds before landing”.40
[42] I make three observations about this proposition.
[43] First, the proposition is internally inconsistent. It is implausible to suggest that descending at a rate of 400 to 500 feet per minute from an altitude of 300 feet would leave only four to six seconds before landing.
[44] Second, as discussed above at [36] 500 feet is the altitude at which the instruction is usually first given. And Mr Valiyapeediyekal’s evidence is that he was flying at possibly 600 feet when Mr Singh issued the instruction.
[45] Third, the proposition is contradicted by other witnesses. Ms Gupta’s
estimated rate of descent was significantly slower: 100 to 200 feet per minute.41
Even from an altitude of 400 feet the time to touchdown could be between one and a half or two minutes, or perhaps more.42 Mr Rowland said that 500 feet would be “only minutes” (plural) from touchdown.43
[46] The question is: at 500 feet from landing (when, on Mr Singh’s own evidence the instruction may have issued) was it feasible that Mr Valiyapeediyekal could recover from the assault and safely land the aeroplane? I turn now to the question of loss of control.
[47] Mr Mulgan submitted that Ms Gupta’s claim that “the aircraft would go out of control” in the scenario put to her was not opposed by any other expert witness.44
40 Notes of evidence taken before Judge J A Binns at 241, line 26.
41 At 125, line 24.
42 At 132, line 14.
43 At 312, line 12.
44 Submissions of the Appellant at [34].
[48] Ms Gupta was asked what would happen if both the student and instructor took their arms and hands off the controls during the final approach.45 This was hypothetical. Mr Valiyapeediyekal did not suggest that his hands left the controls. His evidence was that the first slap dislodged the microphone so that he did not reply to the tower46 and that when Mr Singh realised the microphone had been knocked off he replaced it on Mr Valiyapeediyekal’s head.
[49] Accordingly, Ms Gupta’s evidence falls far short of establishing that, in the circumstances described by Mr Valiyapeediyekal, the aircraft would have become uncontrolled.
[50] Mr Rowland’s evidence was similarly inconclusive on the question of loss of control. He was asked about the likelihood of overshooting or landing in the event of a 10 second interference some 600 feet from out from landing. Mr Rowland candidly acknowledged that it was an “incredibly awkward hypothetical question”.47
When pressed Mr Rowland said it was not an easy question but at a push he would
be surprised if composure could be achieved so as to successfully complete the approach and land.48
[51] Under cross-examination Mr Rowland agreed many variables would need to be taken into account to determine whether it would be possible to regain control of the aeroplane in the circumstances.
Proof of assault
[52] Assault is defined in the Crimes Act 1961:
assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning
45 Notes of evidence taken before Judge J A Binns at 125, line 17.
46 At 6.
47 At 313, line 11.
48 At 314, line 13.
[53] In this case, the assaults were relatively minor, there was no evidence of physical injury or harm and there were no witnesses. Proof of the elements of the offence turns almost entirely on a credibility assessment of the various witnesses.
[54] In my view there is no proper basis for the submission that the Judge gave inappropriate weight to Mr Valiyapeediyekal’s account. The evidence of Ms Gupta and Mr Rowland was unhelpful on the issue of whether the assault was unlikely to have occurred because the actual circumstances of the assault could not be reconstructed.
[55] Mr Valiyapeediyekal’s evidence was that he was possibly at 600 feet, coming in slow because of a long downwind due to traffic, the aircraft was small and slow, there was plenty of time to land and Mr Singh’s reminder was given well before touch and go.49
[56] The Judge regarded this evidence as reliable. The Judge formed an entirely favourable view of Mr Valiyapeediyekal for whom English is a second language. Interpreters were not used. The Judge commented on the difficulty for Mr Valiyapeediyekal in understanding long questions or complex propositions but he clearly impressed her with his consistent and firm responses. And she appraised
Mr Valiyapeediyekal as having a certain integrity.50
[57] The Judge’s assessment of Mr Valiyapeediyekal’s evidence and demeanour was available to her. The Judge was entitled to prefer Mr Valiyapeediyekal’s account particularly in light of the implausible calculations of descent rate that Mr Singh’s evidence entailed.
[58] I have identified no basis for disagreeing with the Judge’s assessment of the
merits or her finding that the charge of assault was proved.
49 At [49].
50 At [50].
Result
[59] The appeal is dismissed.
Karen Clark J
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