Singh v Police

[2025] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-589

[2025] NZHC 598

BETWEEN

AMAR PREET SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 March 2024
Appearances:	J Hudson and D Bousfield for Appellant J Bragg for Respondent
Judgment:	21 March 2025

JUDGMENT OF BECROFT J

[Appeal against conviction]

This judgment was delivered by me on 21 March 2021 at 3pm.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau J Hudson, Barrister, Auckland

SINGH v NEW ZEALAND POLICE [2025] NZHC 598 [21 March 2025]

What this appeal is about

[1]    On 21 February 2024, Mr Amar Singh was found guilty1 on one charge of assaulting his wife with intent to injure2 following a Judge-alone trial before Judge N Tahana.

[2]    At the subsequent sentencing hearing,3 he was convicted and discharged, rather than discharged without conviction which was the sentence advanced by his lawyer.

[3]    He appeals against his conviction. While an appeal against sentence was also filed, in the course of this hearing, it became clear that the sentence appeal was not pursued with any vigour.

[4]    Mr Singh’s appeal was filed out of time. His counsel explains this was because they were waiting to receive a copy of the Judge’s oral judgment. The Crown does not oppose the grant of an extension of time, and I grant it accordingly.

[5]As to his conviction, Mr Singh contends:

(a)the Judge failed to engage with Mr Singh’s evidence and made no explicit finding rejecting his evidence, let alone providing any reasons for doing so;

(b)the Judge erred in failing to correctly consider Mr Singh’s claim of self- defence and incorrectly put a “gloss” on the law, particularly in terms of her comments that at the time he alleged that his wife was attacking him, Mr Singh had “no major concerns” and could have “retreated”.

[6]Mr Singh therefore submits his conviction should be quashed.

[7]    The police argue that there is no error in the District Court decision and the conviction must stand.

1      NZ Police v Singh [2024] NZDC 4364.

2      Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.

3      NZ Police v Singh [2024] NZDC 20222.

The case against Mr Singh

[8]    The charge arose out of an argument between Mr Singh and his wife of seven years (whom in this judgment I will call Mr Singh’s wife or Ms X). The argument escalated into a physical altercation leaving Ms X with bruises and Mr Singh with scratches.

[9]    The allegations were that after Ms X put her hands on Mr Singh’s shoulders, he pushed her to the ground. There, he hit her on the head continuously. On a scale of force from one to 10 (10 being the hardest), she said the hits were at force 10.

[10]   Mr Singh’s position was that he was acting reasonably in his own defence. He pushed his wife away and to the ground in order to defend himself as he was shocked with what was going on. They were in their own home in Papakura late at night, he did not have time to leave, and it was not practicable to go elsewhere. He denied hitting his wife on the head. He said some of her injuries may have occurred when her head hit the ground (which his wife did not dispute). Also, he had significant scratches on his neck and arms, and swelling to his forehead, he said caused by his wife and indicative of her own aggression. Mr Singh gave evidence to this general effect.

[11]   There were photographs of both parties. The only other witness was the attending police officer who recorded Ms X’s statement on a mobile phone.

[12]The defended hearing was relatively short and narrowly focussed.

The District Court decision

[13]   It is not disputed that Judge Tahana correctly directed herself as to the standard of proof, the key issues and the law generally as to self-defence.

[14]    For the record, I note that she dismissed another charge Mr Singh faced described as “the impeding breathing charge”.4 In the Judge’s view, Ms X’s evidence on this point was uncertain; she could not remember some of it; and confirmed in court

4      Crimes Act, s 189A.

“she wanted the charges against [Mr Singh] dropped”. The Judge was left in a position of being “very unsure about what the real position was”.

[15]   With regard to the assault with intent to injure charge, it was clear that the evidence between Mr Singh and his wife was diametrically opposed. It was mutually exclusive in the sense that the evidence of each of them could not both be true.

[16]   The Judge’s findings were shortly expressed, and it necessary to set them out in full:

[9]        Although I considered parts of Ms X’s account was inconsistent, there are aspects of her evidence which I do accept. Her evidence was that you pushed her after she had placed her hands on your shoulders. That caused her to fall over and while she was down, you started hitting her continuously. She says that while she was on the floor, which was the majority of the time, that each time she tried to get up you would push her back down. In terms of the force applied, she said on a scale of one to 10 it was about a 10, each of the hits.

[10]      She said towards the end she was trying to get away and that you prevented her from even going to the toilet, but eventually she was able to go to her room where she lay down with your child and eventually called the police. Under cross-examination it was put to her that she was angry and that she was screaming at you. She strongly rejected that and said that she was upset. She also strongly disputed that you had to defend yourself.

[11]      Your evidence was that your partner was the aggressor and that you only ever touched her to prevent her from coming at you. On the details of what happened that night and having considered all of the evidence, I am sure that your partner's account is accurate. In particular I find that you did hit her repeatedly. That is consistent with the medical evidence and also with the photographs showing bruises and markings to her temple area, her arms, scalp and back.

[12]      She was also very clear and consistent in her account of that incident and she was not shaken under cross-examination. Her account was also consistent with the observations made by Constable Sloane, who noted that your partner was very upset. She was clearly shaken up and she observed the markings to her face the following morning. Your partner also never attempted to exaggerate or embellish any of the evidence. In respect of the hits to the face, she said she could not remember whether it was a closed fist or an open fist.

[13]      I also found that parts of her evidence had a real ring of truth. As an example, she referred to you trying to stop her from making a call to anyone. She said that you offered her water and comments along the lines of: "We should just leave it for the benefit of our children and their future." That kind of detail is something that can be recalled because it is more likely to have occurred and as I say, had a ring of truth to it.

[14]      So I am satisfied that you did intentionally hit your partner. I am also sure that you did intend to cause her injury and I reach that finding by inference and in particular, given the duration of this incident, it certainly lasted more than minutes on both your account and your partner's. Also the continued and repeated nature of the attack and the fact that it was to your partner's face and head.

[15]      Those are facts which I find proven. From that one can infer that you must have intended to cause her injury and she did in fact suffer injuries, which is reflected in the medical evidence and the photographs.

[17]   Her Honour then dealt with the question of self-defence in four brief paragraphs, as follows.

[18]   As to the circumstances as Mr Singh believed them to be, the Judge noted that she questioned Mr Singh herself on this point by asking “What was running through your mind at the time that your partner was coming at you?” The Judge noted that although Mr Singh said he was shocked, there was no evidence that he was scared or had any major concerns despite his evidence that his wife was the aggressor. Importantly, she noted that he made no attempt to leave despite that being an available option.

[19]   Given those factors, her Honour said she was sure Mr Singh was not acting in self-defence.

[20]   If she was wrong on that point, she was quite clear the prosecution had excluded beyond reasonable doubt that the force Mr Singh used by repeatedly hitting his wife was reasonable having regard to the circumstances as he believed them to be.

Law on appeal

[21]   A first appeal court must allow an appeal against conviction if satisfied that in a Judge-alone trial, the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred or that there has been a miscarriage of justice for any other reason. A miscarriage of justice means “any error, irregularity, or occurrence” in or affecting the trial that created a “real risk” that the outcome was affected.5

5      Criminal Procedure Act 2011, s 232.

Did the Judge provide adequate reasons and sufficiently address Mr Singh’s credibility?

The law

[22]   Since at least the 1980s, the Court of Appeal has made clear the importance of properly addressing credibility issues and providing reasons for credibility findings, and reasons generally. In R v Awatere,6 the Court ruled:

… we have concluded that it would be both undesirable and impractical to lay down an inflexible rule of universal application that would result in what Laskin CJC has described as an “indiscriminate requirement for reasons”. Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal.

[23]   The issue was addressed a day later in R v MacPherson.7 There, the appellant sought to postulate a refinement to the principle, namely that reasons be given as to why a party is disbelieved. There, Somers J (minority) stated:

In the simple case of two witnesses giving divergent evidence of the same matter a statement (if it be the case) that one is preferred will be sufficient in a civil case. In a criminal case the acceptance of prosecution evidence needs to be accompanied by the rejection of the evidence for the defence. For acceptance of the one does not discount the possibility of the truth of the other. But the enunciation of the fact is itself a reason as to why a finding is reached.

In this case the Judge accepted the police and rejected the accused. That was itself a reason. But he added others. No more was required.

[24]   However, the majority preferred the more general view in Awatere rather than Somers J’s more strict view—although the majority agreed that sufficient reasons had been provided to meet any reasonable test.

[25]   Much more recently, in the context of conviction appeals under s 232(2)(b) of the Criminal Procedure Act 2011, the Supreme Court addressed the kind of reasons which first instance Judges should provide:8

[Reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.

6      R v Awatere [1982] 1 NZLR 644 (CA) at 649.

7      R v MacPherson [1982] 1 NZLR 650 (CA) at 653.

8      Sena v Police [2019] NZSC 55; [2019] 1 NZLR 575, at [36]–[37].

Reasoning which consists of a conclusory credibility preference is unlikely to suffice.

…

In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

Lack of reasons in this case?

[26]   Mr Hudson’s well-reasoned and thoughtful proposition was that, in this case, the Judge did not even go as far as explicitly rejecting Mr Singh’s evidence, let alone providing any reasons for so doing. In his view, the Judge simply focussed on her reasons for believing Ms X. Mr Hudson submits that Mr Singh is left in the position of not knowing whether the Judge understood his evidence, nor whether, and for what reason, she rejected it.

[27]   I have reflected on this submission, as it is the one point of real concern in this appeal. It is self-evident that the Judge did not say she rejected Mr Singh’s evidence, and she did not explain why. On the face of it, this is a significant issue.

[28]   However, in my view, the context and nature of the competing evidence needs to be remembered. Mr Singh and his wife presented totally opposite accounts. So, in this case, acceptance of Ms X’s evidence, especially as to whether Mr Singh continuously hit her, absolutely implies rejection of Mr Singh’s. There can be no halfway house. It is not a situation where both could be believed. By clear implication, it simply must be that the Judge rejected Mr Singh’s account.

[29]   It is also important to note the Judge provided relatively detailed reasoning for why she accepted the complainant’s evidence. Judge Tahana said it was consistent with the medical evidence; that Ms X was clear and consistent in her account and unshaken under cross-examination; it was consistent with observations made by the attending constable; that Ms X never attempted to exaggerate or embellish any of the

evidence and that, for instance, in respect of the hits to the face, she acknowledged she could not remember whether it was closed or an open fist. The Judge also found that parts of her evidence had a real “ring of truth”.

[30]   The Judge acknowledged Mr Singh’s case and that his evidence was that his wife “was the aggressor and that [he] only ever touched her to prevent her from coming at [him]”. It is also clear that she understood his case, given how she described Ms X’s answers in cross-examination, rejecting that she was angry; that she was screaming at Mr Singh; and while she was upset that she strongly disputed Mr Singh was acting in self-defence.

[31]   The Judge then, without further commenting on Mr Singh’s evidence, simply stated “I am satisfied that you did intentionally hit your partner”.

[32]   In the circumstances of this case, it must be that the Judge is to be taken as rejecting Mr Singh’s evidence. Hers was an oral decision delivered immediately after the evidence which was of narrow ambit and the credibility contest was plain. I am prepared to conclude that in assessing the evidence of Mr Singh’s wife and why she believed it, and accepting her rejection of his case as it was put to her in cross- examination, the Judge must necessarily have rejected Mr Singh’s evidence. Any other conclusion regarding the Judge’s reasoning would be illogical, if not irrational. I note that as I understand it, Mr Singh’s case was a relatively simple one quite at odds with his wife’s. Judge Tahana simply had to have rejected Mr Singh’s evidence in order to accept his wife’s evidence.

[33]   I am reinforced in this conclusion by the Judge’s later rejection of the self- defence issue raised by Mr Singh. Mr Singh’s assertion of self-defence was at the heart of his evidence. In the particular circumstances of this case, by explicitly rejecting Ms Singh’s self-defence case, the Judge was implicitly rejecting his entire narrative.

[34]   I also note that sometimes it is very difficult, when faced with two people giving opposite versions of an incident, to articulate why one person’s evidence is to be rejected. It is much easier to set out why the other person’s evidence is accepted.

It may simply be, as I suspect here was the case, that Mr Singh’s wife’s evidence was compelling, reliable, considered, honest and accurate and that, therefore, her husband’s evidence must be rejected.

[35]   I must say that, in my view, the Crown’s submissions rather overstated what the Judge did do. The Judge did not explicitly follow the approach laid down in Sena as she did not explicitly make credibility findings about Mr Singh’s evidence.

[36]   In this case, with great respect, the Judge should have been explicit. The Judge should have recorded that she rejected Mr Singh’s evidence, with at least general reasons for doing so. It need not have been more than saying his account was not reliable or not credible, and that she was sure Ms X’s evidence was clearly to be accepted and preferred and that she had no doubts about that. It may be that there were features of his evidence that pointed to unreliability and, if so, she should have mentioned them.

[37]   However, in these circumstances, her failure to do so does not render the judgment flawed, or at least not sufficiently flawed, to justify this Court’s interference.

[38]   By a fine margin, I am of the view that the decision should stand. I add that it is no justification for the Judge’s approach to say that it doubtless occurred in a busy suburban District Court. But it does explain the pressures that District Court Judges are under in these circumstances and why the Judge’s decision was so brief. And I have considerable sympathy for the Judge in this case.

Self-defence?

[39]   I understand Mr Hudson’s concerns regarding the Judge’s approach in apparently suggesting that Mr Singh needed to have “major concerns” or to be “scared” as imposing a gloss on the law which required the appellant to meet a more stringent test than envisaged by s 48 of the Crimes Act 1961. I do not necessarily interpret her comments in that way. Rather, I think that the Judge was using those two aspects—that is, that Mr Singh had no major concerns nor professed to be scared, and did not walk away—as simply indicating that on his view of the circumstances, he was not acting in defence of himself.

[40]I do not need to form a conclusive view on this point.

[41]   However, I consider that the Judge was correct in concluding that the police had disproved beyond reasonable doubt that Mr Singh's use of force was reasonable. Given her factual findings that Mr Singh, indeed, did hit his wife continuously to the head, no other conclusion was possible. The Judge was clear on this point when she said, “your response, hitting her repeatedly, in my view was not reasonable in the circumstances”.

Should self-defence have been addressed first?

[42]   I raise one further point in regard to the Judge’s approach to self-defence which was not an appeal ground. This relates to the Judge’s approach in determining Mr Singh had the necessary intent to injure before addressing the issue of self-defence.

[43]   In a jury trial context, this approach was deprecated in Tobin v R9. In that case the Judge had directed the jury on self-defence after the elements of the charge. The Court observed:

But the effect of the summing up was that by the time the jury came to consider self-defence it had already reached the conclusion that Mr Tobin had deliberately injured Mr Morris, intending to cause him grievous bodily harm. In our view there was a real risk that the jury’s assessment of the defence of self-defence was adversely influenced by that conclusion.

[44]   There is of course a much-reduced risk of this sort of adverse influence in the case of a Judge-alone hearing in the District Court. Nevertheless, a prudent approach would be to consider the issue of self-defence before the important issue of the intention to cause the complainant injury was addressed. Otherwise, there may be a perception that even a Judge sitting alone could be influenced in his/her decision as to self-defence by the Judge’s prior conclusion that the necessary intention to injure existed.

9      Tobin v R [2020] NZCA 66.

[45]   I also note the comments by Radich J in Downes v R10 where this very argument was raised. On appeal, the High Court concluded that the District Court Judge had, in fact, first considered self-defence and then turned to the issue of intention. Accordingly, Radich J concluded, “I can see no error under this head”. But the implication is that the conclusion might have been different if it had been the other way around. Addressing self-defence in the way suggested by the Court of Appeal in Tobin, albeit in a Judge-alone case, is a logically more appropriate approach. As I say, Mr Hudson did not seek to rely on this point, and in the circumstances, I take the issue no further. In this case I do not see there has been any miscarriage of justice.

Result of conviction appeal

[46]   This interesting and well-argued appeal must fail. I dismiss the conviction appeal.

Sentence appeal

[47]   As indicated, Mr Hudson responsibly indicated that he did not wish to advance the sentence appeal further. He accepted that any mischaracterisation of Mr Singh’s offending by the Judge—by noting that he “punched” his wife, when the evidence was that a closed fist may not have been used, was not a sustainable argument. Given that Mr Singh’s wife said the force of the hitting was at level 10 (on an ascending scale of one to 10), then Mr Hudson must be right. Whether the force was applied by punching or hitting with an open palm is of no moment. The sentence appeal is also dismissed.

Becroft J

10     Downes v R [2023] NZHC 3739.