Singh v Police

[2023] NZHC 1858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-35

[2023] NZHC 1858

BETWEEN

REGINAL RAJ SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 July 2023
Appearances:	R Chaudhry for Appellant H Watts for Respondent
Judgment:	18 July 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 18 July 2023 at 11:00 am.

Registrar/Deputy Registrar

Solicitors:Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Chaudhry Legal, Manukau City

SINGH v NEW ZEALAND POLICE [2023] NZHC 1858 [18 July 2023]

Introduction

[1]                  On 29 June 2022, after a Judge-alone trial,1 Reginal Raj Singh was convicted by Judge Field of criminal harassment2 under s 8(1)(b) of the Harassment Act 1997 (the Act). On 25 January 2023, he was sentenced by Judge Moses to 80 hours community work and nine months’ supervision. He now appeals against conviction and sentence.

Factual background

[2]                  Mr Singh was previously married to the complainant. Their separation was acrimonious. At about 11.40 am on 28 July 2020, the complainant was driving along Cavendish Drive in Manukau when she noticed a black Ford Ranger following her. The complainant then attended a nail appointment. After she left the appointment, the complainant noticed the same black Ford Ranger following her on Diorella Drive, Manukau.

[3]                  She stopped her car and got out to ascertain the Ford Ranger’s number plate and to take a photograph of it. The complainant said to the female passenger, “can you stop following me” to which the passenger replied, “I’m not following you bitch”. The complainant then identified Mr Singh as the driver. Mr Singh then put down his window and yelled in Hindi “[y]ou and your friend Thakur wait and watch see what I do”. Mr Singh then drove off.

[4]                  In explanation, Mr Singh said he was in the area with friends viewing an open home but denied making any threats to the complainant.

Offence of criminal harassment

[5]                  The offence of criminal harassment under s 8 of the Act, as charged in this case, is as follows:

(1)Every person commits an offence who harasses another person in any case where—

1      Police v Singh [2022] NZDC 12250.

2      Harassment Act 1997, ss 8(1)(b) and (2). Maximum penalty: two years’ imprisonment.

…

(b)the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—

(i)that other person’s safety; or

(ii)the safety of any person with whom that other person is in a family relationship.

(2)Every person who commits an offence against this section is liable, on conviction, to imprisonment for a term not exceeding two years.

[6]“Harassment” is defined in s 3 of the Act as follows:

3Meaning of harassment

(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.

(2)To avoid any doubt,—

(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:

(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.

…

[7]“Specified act” is set out in s 4 of the Act:

4Meaning of specified act

(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

(a)watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, employment, or any other place that the person frequents for any purpose:

(b)following, stopping, or accosting that person:

(c)entering, or interfering with, property in that person’s possession:

(d)making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):

(e)giving offensive material to that person or leaving it where it will be found by, given to, or brought to the attention of that person:

(ea)giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:

(f)acting in any other way—

(i)that causes that person (person A) to fear for his or her safety; and

(ii)that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety.

…

[8]“Safety” is defined in s 2 of the Act to include a person’s mental well-being.

[9]Combining these sections, to prove criminal harassment there must be:

(a)“a pattern of behaviour that is directed against that other person”. That requires that there be a “specified act” (as defined) on at least two separate occasions which are done “to the other person” (as defined); and

(b)those acts must be done with the intent set out in s 8(1)(a) or the knowledge set out in s 8(1)(b).

[10]              The charging document alleged that on 28 July 2020, Mr Singh harassed the complainant  by  following  her  in  a  vehicle,  having  already  been  warned   on  17 November 2019 for taking unsolicited photographs of [the complainant] and then warned on 24 May 2020 for following her in a vehicle, knowing that the harassment was likely to cause [the complainant], given her particular circumstances, to reasonably fear for her safety.

District Court decision

[11]              At the outset of his oral decision, Judge Field outlined the meaning of harassment as set out in s 3 of the Act and proceeded to explain the elements involved in a charge laid under s 8 of the Act. He said s 8 makes it an offence to harass another person where the person intends that harassment to cause the other person to fear for their safety (which is the mens rea required under s 8(1)(a), but not s 8(1)(b) under which Mr Singh was charged). The Judge referred to the required standard of proof whereby he must be satisfied beyond reasonable doubt the  acts  occurred and that Mr Singh had the relevant state of mind. On Mr Singh’s state of mind, Judge Field said that he had to know that he would affect the mind of the complainant and intended to affect her mind.

[12]              The Judge then referred to a pattern of behaviour by Mr Singh, noting that it took place in the context of a separation that had not remained amicable. In particular, the complainant said that she became aware of Mr Singh taking a significant interest in her whereabouts and movements, including taking photographs of her and clamping a vehicle. The Police argued that the behaviour demonstrated a particular state of mind of Mr Singh and that it must be viewed in the context of their past relationship.  Judge Field also recognised that Mr Singh and the complainant lived reasonably close to each other at one point and worked in the same general area, therefore, it would not be unreasonable for some encounters to occur from time to time.

[13]              However, the Judge noted the complainant’s argument that Mr Singh’s behaviour went beyond chance encounters and that he was keeping track of her movements, which led her to contact the Police regarding the incidents in April and July of 2020, and a Police officer speaking to Mr Singh. The Judge noted that evidence of complaints cannot substantiate the offending alone but said they can support the establishment of consistency and credibility of the complainant. Therefore, the Judge found that it was proper for the Court to take into account the Police officer’s evidence of the complaints made by the complainant.

[14]              When questioned by an officer, Mr Singh had denied that he had been following and harassing the complainant but acknowledged taking a video of her with

the intention of recording that she was in breach of the lockdown during COVID-19. The Judge found that justification disingenuous and was satisfied that the intention of Mr Singh was at least to irritate the complainant and let her know she was being watched.

[15]              In respect of the evidence that Mr Singh clamped the complainant’s vehicle, the Judge further determined that regardless of why he did it, it would certainly have had the effect of distressing the complainant and it can hardly be argued that Mr Singh did not have that in mind when clamping the vehicle, or even photographing it. Judge Field said that these incidents could not be viewed in isolation.

[16]              The Judge was satisfied that Mr Singh had acted in a manner that demonstrated a pattern of behaviour towards the complainant designed to distress her. It was against this background that the Judge then considered the alleged offending on 28 July 2020 that was the subject of the charge.

[17]              The circumstances were that the complainant was driving to a nail appointment when she says she met Mr Singh at a set of lights, and it appeared he was driving in the opposite direction to her as she turned left. However, she then says she recognised his car in her rear-view mirror. The complainant attended her nail appointment, which took some time and when she exited, she saw two vehicles, one of which she recognised as being driven by Mr Singh’s best friend. The complainant approached one of the vehicles and it is agreed that she became angry and there was an exchange between herself and another woman.

[18]              The Judge noted the defence position on this incident was that it was a chance encounter because Mr Singh was in the area visiting a property. The defence produced evidence of a property for sale. The prosecution suggested that it was unlikely to have been a coincidence or chance encounter and that Mr Singh was aware of this. They say it was orchestrated or arranged with the intention of letting the complainant know that she was still under observation, an intention that was a theme emerging from the evidence.

[19]              The Judge acknowledged that Mr Singh may have been visiting a property and stopped at a playground but found that it was too much to expect the Court to accept that it was a chance encounter. There were too many coincidences in the evidence given by the complainant and the Judge was of the view that they pointed to a course of conduct designed by Mr Singh and known by him to cause distress to the complainant. The Judge accordingly convicted Mr Singh.

Law on appeal

[20]              First appeals against conviction, such as this conviction appeal by Mr Singh, are determined under s 232 of the Criminal Procedure Act 2011. Relevantly under that provision:

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

(3)The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

Discussion

[21]              Although counsel for Mr Singh advanced a number of grounds of appeal, I am of the view that the appeal can be dealt with quite shortly.

[22]              The charging document refers to warnings given to Mr Singh on 17 November 2019 for taking unsolicited photographs of the victim and on 24 May 2020 by

following her in a vehicle. The warnings themselves are not specified acts. The summary of facts prepared by the Police refers to warnings given on two other dates:

On 21/09/2019 the Defendant was issued a formal caution for Criminal Harassment after he took unsolicited photographs of [the complainant and a third person], then delivered the photographs on a USB to [the third person’s] mail box at his home address.

The Defendant made several phone calls to [the third person] and his wife over a three month period. Making up to four or five calls a day.

On 11/04/2020 the Defendant was given a verbal warning for following [the complainant] in her vehicle to her destination, then parked on the opposite [side] of the road and began filming her with his cell phone.

[23]              Although it was quite clear that the incident on 28 July 2020, when the complainant was attending a nail appointment, was the subject of the charge of harassment, it is unclear which other incident or incidents were relied on to establish a pattern of behaviour that made the nail appointment incident harassment.

[24]              As to the first alleged incident of taking unsolicited photographs of the complainant and a third person that was allegedly the subject of the formal warning received on 21 September 2019, counsel for Mr Singh notes that no evidence of the incident, or the warning, was led at trial. Counsel for the Crown seems to acknowledge the lack of evidence when she submits that even in the absence of evidence of the September incident, having regard to the incidents in the evidence highlighted by the Judge—on 11 April 2020 and 28 July 2020 (the index offending)—and the wheel- clamping incident, there was sufficient evidence of harassment before the trial Judge to convict Mr Singh of the charge.

[25]              The complainant did give evidence of Mr Singh following her and filming her with his cell phone on 11 April 2020. However, the only reference made by the Judge to the incident on 11 April 2020 was as follows:

[4]    The complainant says, however, that the defendant knew more about her and her movements than can be explained by a mere casual meeting or encounter in the street. She says, and she invites the Court to draw the inference, that he was keeping watch on her movements and following her from time to time to do this and she gave instances of a number of occasions where, for example, in the carpark at the Manukau Centre, I think it was, he was following or is said to have been following her to ascertain where she had parked her vehicle. This has led her to contact the police and make complaints

about the matters that occurred in April and in July. This resulted in Constable Afoa speaking to the defendant and he referred to a conversation that he had with the defendant concerning an incident on 11 April 2020. This was as a result of a complaint made by the complainant.

…

… So I have referred to these issues only to point out that the incidents themselves cannot be viewed in isolation and the incidents I am talking about of course are those on 11 and, in particular, 28 July 2020.

[26]              The wheel-clamping incident is not included in the charging document or the summary of facts. It is referred to by the Judge as follows:

[6] There was also the clamping of the vehicle and there had been no valid reason given for that. He acknowledges that. The prosecutor says that it was simply done out of spite and whether that is correct or not certainly would have had the effect of distressing the complainant and it can hardly be argued that the defendant did not have that in mind when clamping it or, indeed, when photographing the vehicle. …

[27]              Whether one or two specific acts in addition to the index offending are to be relied upon as establishing a threshold for a finding of harassment, a Judge must turn his or her mind to whether the specific acts are proven. Here, the Judge made no reference to the alleged incident on 21 September 2019 (summary of facts) and only a reference in passing to the alleged incident on 17 November 2019 (charging document). It seems that the warning on 24 May 2020 (charging document) was for the incident on 11 April 2020 (summary of facts) among others. It was again referred to only in passing by the Judge.

[28]              The incident upon which the Judge goes furthest is the wheel-clamping incident, which is not specified in the charging document or the summary of facts. The Judge referred to the prosecutor’s submission that it was simply done out of spite, but makes no finding—“whether that is correct or not”. He says it would have the effect of distressing the complainant and it could hardly be argued that he did not have that in mind when clamping it.

[29]              The focus in s 8(1)(b) is, however, on the defendant’s knowledge that the harassment is likely to cause the complainant to reasonably fear for her safety. At the start of his judgment, the Judge mistakenly referred to an intention that harassment caused the complainant to fear for her safety (mens rea element under s 8(1)(a)). Then

in reference to the incident on 11 April 2020, the Judge stated that he was satisfied that Mr Singh took the photographs with the intention of, at least, irritating her or letting her know that the vehicle was under observation. Then in reference to the wheel- clamping, the Judge said it would have the effect of distressing the complainant.

[30]              After reviewing in a broad way, the prior incidents, before going on to consider the index offending, the Judge said he was satisfied they demonstrated a pattern of behaviour towards the complainant designed to distress her.

[31]              As to the index offending, the Judge found the meeting was orchestrated with the intention of letting the complainant know she was still under observation. He concluded it was a course of conduct designed by Mr Singh and known by him to cause distress to the complainant. Distress is a relevant factor under s 16 of the Act which gives the Court power to make a restraining order, but not in terms of s 8(1)(b), under which Mr Singh was charged.

[32]              The Judge made reference mistakenly to an intent to cause the complainant to reasonably fear for her safety, an intent to irritate her, an intent to let her know the vehicle was under observation, and an intent to cause her distress when the mens rea requirement which needed to be proved was knowledge that his actions would be likely to cause the complainant to reasonably fear for her safety.

[33]              I am therefore of the view that there has been a miscarriage of justice in that the two prior specified acts alleged in the charging document (and those specified in the summary of facts) were not proved in that the Judge did not make a specific finding about them, nor did he consider the requisite mens rea requirements in each case. It is not enough to submit that there was ample evidence from which the Judge could conclude all the elements of a charge under s 8(1)(b) had been made out, notwithstanding his lack of express reference to the specified acts alleged to constitute a pattern of behaviour amounting to harassment. Specific focus and findings were required.

Result

[34]              The appeal against conviction and sentence is allowed. Mr Singh’s conviction for criminal harassment  and  the  sentence  of  80  hours  community  work  and  nine months’ supervision is quashed. There will be no order for a re-trial because of the length of time since the alleged offences.3

Woolford J

3      H v R [2022] NZSC 42; [2022] 1 NZLR 21 at [29]–[37].