Singh v Police - [2014] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-454-13 [2014] NZHC 3039

BETWEEN
RAVINDRA PAL SINGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 November 2014

Counsel:

R Mulgan for appellant
D R Davies for respondent

Judgment:

1 December 2014

RESERVED JUDGMENT OF DOBSON J

The appeal and the complaints

[1] This judgment deals with an application by the appellant for leave to adduce fresh evidence on the hearing of his appeal against two convictions for assault.

[2] At the relevant time, the appellant (Mr Singh) was the head of a flying school in Palmerston North. The two complainants were students at the school seeking qualification as pilots.

[3] A summary trial proceeded before Judge J A Binns in the District Court at Palmerston North over four days between August and December 2012. At its conclusion, her Honour found the appellant guilty of one charge of assault against each of the two complainants, Ms Vijay and Mr Illyas Valiyapeediyekal (referred to
throughout the proceedings as Illyas).1

1 Police v Singh DC Palmerston North CRI-2011-054-3470, 21 December 2012.

[4] Mr Singh was represented at the District Court hearing by Mr Thackery, but initiated an appeal acting on his own behalf. On 22 October 2013, a hearing of his appeal commenced before Simon France J with Mr Singh acting for himself. As recorded in a minute issued by France J on that day, Mr Singh relied materially on evidence that had not been before the District Court. The Judge adjourned the appeal, providing directions for Mr Singh as to the necessary steps in any attempt to adduce fresh evidence on appeal.

[5] The appeal was then allocated a further hearing for 5 February 2014, but before that Mr Singh sought an adjournment. It appears from a minute issued by Collins J on 3 February 2014 that, at that time, Mr Singh was instructing Mr Thackery to appear for him on the appeal.

[6] Since being granted the further adjournment, Mr Mulgan has been instructed and affidavits reflecting the proposed new evidence have been filed.

[7] The general rule for admission of fresh evidence on an appeal is that it has to be fresh in the sense that it was not reasonably available at the time of trial, as well as being credible and material to the outcome. None of the new evidence proposed in this case qualifies as “fresh” in the usual sense. However, that requirement does not need to be present if the evidence was not adduced at trial because of counsel error. That ground is invoked here. A consideration of whether it applies might logically be considered at the outset. However, given the extent of the proposed new evidence and the issues to which it relates, it is appropriate to revert to the claims of counsel error after describing the proposed evidence in the context of the issues to
which it relates.2

[8] Ms Vijay alleged that there was a pattern of assaults against her by Mr Singh…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v Police

Details

AGLC: Singh v Police [2014] NZHC 3039
Case: [2014] NZHC 3039
Decision Date: 1 December 2014

CaseChat Overview and Summary

In Singh v Police, the appellant, Mr Singh, sought leave to adduce fresh evidence on appeal against his convictions for assault. The case arose from allegations made by two students at the appellant's flying school, Ms Vijay and Mr Illyas, who claimed that the appellant had assaulted them during flight training. Mr Singh denied the allegations and argued that the complainants had conspired to make false accusations against him. The appeal hearing before France J was adjourned to allow Mr Singh to seek leave to adduce fresh evidence. The proposed evidence related to the credibility of the complainants, including the process for allocating instructors to students, the payment of fees by Ms Vijay, and derogatory comments made by Mr Illyas on Facebook. The court considered whether the proposed evidence was fresh, credible, and material to the outcome, and whether counsel error explained its absence from the trial. The court concluded that the proposed evidence was not fresh since it could have been adduced at trial with reasonable diligence. While some aspects of the conduct of trial counsel could be criticised, the court was not satisfied that there was a sufficient level of incompetence to justify assessing the materiality and cogency of the new evidence as fresh. Additionally, the proposed evidence lacked the material degree of cogency and materiality required to justify the granting of leave for it to be adduced on the appeal. Therefore, the application for leave to adduce fresh evidence was dismissed.

Orders