Singh v Police
[2023] NZHC 1838
•17 July 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-176
[2023] NZHC 1838
BETWEEN KAMALJEET SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 April 2023 Appearances:
S J Shamy for the Appellant
S J Mallet and G C Collett for the Respondent
Judgment:
17 July 2023
JUDGMENT OF HARLAND J
Introduction
[1] On 14 June 2022, Mr Singh pleaded guilty to a charge of indecently assaulting a female over the age of 16 years on 5 December 2021.1 He was convicted and sentenced to home detention.2 There are subsequent immigration consequences for Mr Singh. He now appeals his conviction on the grounds that he entered a guilty plea to the charge based on erroneous advice that he would be discharged without conviction. It is submitted this gives rise to a miscarriage of justice.
The appeal
[2]The issues on appeal can be distilled as follows:
1 Crimes Act 1961, s 135. This offence carries a maximum penalty of seven years’ imprisonment.
2 Police v Singh [2022] NZDC 21766.
SINGH v POLICE [2023] NZHC 1838 [17 July 2023]
(a) whether the advice given to Mr Singh was erroneous because he was led to believe a discharge without conviction would be the assured outcome following his guilty plea;
(b) whether it may be inferred that Mr Singh’s English comprehension impacted on his understanding of the advice given to him;
(c) whether Mr Singh was advised about the prospect of requesting a sentence indication; and
(d) whether Mr Singh has a tenable defence.
[3] In support of his appeal, Mr Singh filed four affidavits; two from him,3 one from his ex-partner Isobel Laulu, and one from Meiyu Lam his flatmate who was at the address when the offending is said to have occurred.
[4] For the Crown, an affidavit was filed by Mr Singh’s lawyer, Mr Fletcher, dated 24 March 2023. The Crown submits Mr Singh made an informed choice to plead guilty to the charge and it can be inferred that he understood it was for the Judge to determine his application, meaning a successful outcome was never guaranteed.
[5] Each of the deponents of the affidavits, except for Ms Laulu, were cross- examined at the appeal hearing. The applicable legal principles will be considered in my analysis of the appeal’s merits.
The offending
[6] The incident that led to the charge being laid occurred on 5 December 2021. There were various appearances before Mr Fletcher was assigned to act for Mr Singh on 26 May 2022.
[7] When Mr Singh pleaded guilty to the charge on 14 June 2022, he did so on the basis of a Summary of Facts and that he would be applying for a discharge without conviction.
3 Dated 20 March and 28 March 2023.
[8] The Summary of Facts was produced as Exhibit 2 during the appeal hearing. I set it out below:
[Handwritten at the top of the Summary of Facts]
“Kam” I wish to plead guilty and seek a s.106 discharge [signature of Kamaljeet Singh]
10 June 2022.
NZ Police
SUMMARY OF FACTS
POLICEKamaljeet SINGH DOB 13/04/1995 PRN 80898129
CHARGE Indecently Assaults Female Over 16
Crimes Act 1961 Section 135 Penalty: 7 Years Imprisonment
INTRODUCTION
On Saturday the 4th of December 2021 the victim […] attended a party at her friends address at Rue Grehan, Akaroa.
The defendant Kamaljeet SINGH also attended this party, he is unknown to the victim.
The victim went to sleep in a room she had been staying in at the Rue Grehan address at about 3:30am on Sunday the 5th of December 2021.
The victim went to sleep alone, nobody else was staying in the same room with her, nor did she invite anyone else to sleep in the same bed with her.
The defendant was not invited to stay at the address, the defendant left the party on the Saturday night at about midnight.
CIRCUMSTANCES
On Sunday the 5th of December 2021 at about 9:00am the defendant arrived back at the Rue Grehan address.
The defendant went to the same room where the victim was staying and got into in the same bed as her and lay up against the back of her body.
The victim was only wearing bottom underwear at the time.
The defendant started kissing the victim’s right cheek and placed his arm around the victim’s bare stomach.
This woke the victim up.
The defendant then moved his arm up the victim’s stomach and touched the victims left breast.
The victim turned around and recognised the defendant from the party the previous night.
The victim told the defendant to get out of the bed. The defendant got out of the bed and left the scene. DEFENDANT COMMENTS
The defendant declined to comment.
The defendant has previously appeared before the Court.
[9] The handwritten words at the top of the Summary of Facts were added by Mr Fletcher and signed by Mr Singh before he entered his guilty plea to the charge.
District Court Judge’s decision
[10] Mr Singh applied for a discharge without conviction which was opposed by the Police. The Police submissions opposing his application were included in a memorandum dated 1 November 2022. It is not clear if these submissions were provided to Mr Singh before his application was heard on 4 November 2022.
[11] On 4 November 2022, the District Court Judge had the following information before him:
(a) the Summary of Facts;
(b) an affidavit from Mr Singh dated 20 August 2022, which addressed the offending, the consequences of it for him and what he had done to address his alcohol issues;
(c) an affidavit from Ms Tiffen dated 26 August 2022. Ms Tiffen is a partner in a law firm where she specialises in immigration law. She expressed the opinion that a conviction for indecent assault would be highly likely to result in Mr Singh being unable to lawfully remain in New Zealand;
(d) submissions from Mr Fletcher in support of the application for discharge without conviction;
(e) a memorandum by the Police opposing the application;
(f) a Provision of Advice to Courts report (PAC report) dated 18 August 2022;
(g) Mr Singh’s previous conviction list which includes one previous conviction of careless use of a motor vehicle in respect of which he was sentenced on 11 May 2018 and ordered to pay a fine of $200 and court costs; and
(h) a victim impact statement in which the victim stated she was left “in a state of shock” and described the indecent assault as horrific. She felt her personal space has been violated.
[12] The Judge referred to indecent assault as being a serious criminal offence not only because of the maximum penalty provided for it by Parliament but also because, at the time of the offending, it was an offence to which the three strikes regime applied.
[13] The Judge considered there were a number of aggravating factors relating to the offending. He said:
[6] … The victim was alone and asleep in the room. She was vulnerable. You did not have her consent to touch her and you did not try to get her consent. The assault included kissing the victim’s cheek and touching her bare skin on her back and stomach. You have then touched her breast. It is unclear whether she was wearing a bra or not but that probably makes little difference.
[14] The Judge then referred to the impact on the victim which he described as substantial. He noted that she was entitled to be safe in her friend’s home and he considered that the assault constituted a breach of trust. The Judge noted that Mr Singh had access to the house only because he had been invited to the party the night before and had been trusted to behave appropriately. The Judge considered Mr Singh had breached that trust.
[15] The Judge then referred to the explanation Mr Singh had offered in his affidavit. He said:
[8] You offered the explanation that you went back to the house in an effort to find your wallet, keys and medication. That does not mitigate the offending at all. You also said you had drunk a lot of alcohol the night before. Again, this is not a mitigating factor. Section 9(3) of the Sentencing Act 2002 expressly provides that voluntary consumption of alcohol or drugs is not to be regarded as a mitigating factor.
[16] The Judge adopted a starting point of two years’ imprisonment. He applied a 15 per cent deduction for Mr Singh’s guilty plea. The Judge also considered Mr Singh’s recognition of “dangerous drinking habits”, in respect of which he had sought alcohol counselling, and his previous good character justified a deduction of 10 per cent. Although the Judge noted that Mr Singh wanted to apologise to the victim and to make an emotional harm reparation to her, he observed that an emotional harm payment could be interpreted as an attempt to place a price on the victim’s dignity and privacy.
[17] Taking into account the deductions for guilty plea and other factors, the end term of imprisonment was one of 18 months. This, the Judge said, was an indication of how he saw the gravity of the offending in terms of s 107 of the Sentencing Act 2002 (the Act).
[18] In relation to the consequences of conviction, the Judge first referred to Mr Singh’s immigration status and Ms Tiffen’s opinion about what the consequences of a conviction could be for him. After referring to several cases dealing with that issue, the Judge accepted that it was highly likely that Immigration New Zealand would seek to deport Mr Singh if he was convicted, but that would be subject to an appeal on
humanitarian grounds. The Judge recognised that Mr Singh’s prospects of success in such an appeal would not be great.
[19] The Judge then assessed the consequences for Mr Singh in relation to his future employment, observing that the offending was totally unconnected with his employment but noted that Mr Singh’s employer would be entitled to have regard to it whether he was convicted or not. The Judge placed little or no weight on this potential consequence.
[20] With reference to the general effect on Mr Singh’s prospects for future employment, the Judge considered he could take that factor into account but only to a limited extent.
[21] Overall, when weighing the gravity of offending against the consequences of conviction, the Judge noted the consequences would be “clearly very serious” for Mr Singh but he was nonetheless not satisfied that the consequences of conviction would be out of all proportion to the gravity of his offending. The Judge said:
[28] ... You are likely to be deported from this country. It must be recognised, however, that it is the intention of the Immigration Act that criminal offending should have this consequence. A visa holder who is convicted of a criminal offence, particularly a serious offence such [12] the one you have committed, can properly be regarded as no longer of good character, which is an essential attribute for the grant of visas. While there will be many cases such as yours where the offending is minor or moderate and deportation will be properly seen as an excessively harsh consequence of conviction, in this case, the offending is serious and morally repugnant.
[29] I note that in s 161 of the Immigration Act, convictions are dealt with in three categories. The first category is where the maximum penalty is three months or more. That was the relevant provision in Yu’s case. The middle category is where the maximum penalty is two years or more. The third and highest category is where the maximum penalty is five years [or] more. Your case falls into that highest category.
[30] Having regard to all the circumstances, I am not satisfied that the consequences of conviction would be out of all proportion to the gravity of your offending. Thus, the test in s 107 of the Sentencing Act is not met and the application for discharge without conviction is declined. You will be convicted.
[22] Mr Singh’s application for a discharge without conviction was declined. He was convicted and sentenced to home detention for a period of nine months.
Principles on appeal
[23] An appeal such as this is an appeal against conviction, which is determined under s 232 of the Criminal Procedure Act 2011.
[24] Section 232 provides that the court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”4, or that “a miscarriage of justice has occurred for any reason.”5 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.6 In this section, a trial includes a proceeding in which the appellant pleaded guilty.7
[25] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.8 If this Court reaches a different view on the evidence, it follows the trial judge erred and the appeal must be allowed.9 The onus is on the appellant to show that an error occurred.
[26] In this case, the appeal is advanced under s 232(5) but, in particular, the part of the subsection relating to a miscarriage of justice that has occurred for any reason. This is because the appeal is not connected to the judgment of the District Court, rather, it challenges the advice given to plead guilty to the charge.
[27] Where a conviction follows a guilty plea, the appeal threshold has been described in the following terms.10
… it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. ...
4 Criminal Procedure Act 2011, s 232(2)(b).
5 Section 232(2)(c).
6 Section 232(4).
7 Section 232(5).
8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
9 At [38].
10 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[28]The exceptional circumstances include four broad categories:11
(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 errs in the advice given as to the non-availability of certain defences or potential outcomes.12
[29] The last category is engaged in this case. Of this category, the Court of Appeal in R v Merrilees said:
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[30] If it is alleged that trial counsel erred in the advice given as to the non- availability of certain defences or potential outcomes, the cases establish that an appellant must raise a defence of some substance13 or, as was more recently expressed by the Court of Appeal, a “real case for the defence must be established”.14 This does not elevate the threshold but, rather, requires there to be more than the mere assertion of a possible defence.15
11 At [17]-[19].
12 R v Merrilees [2009] NZCA 59 at [34], cited with approval in Richmond v R [2016] NZCA 41 at
[16] and Nixon v R [2016] NZCA 589 at [8].
13 Cooper v R [2013] NZCA 551 at [19]-[21]; Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR
699 at [26]; Penniket v R [2016] NZCA 154 at [7].
14 Nixon v R, above n 12, at [11].
15 Nixon v R, above n 12, at [11], citing Penniket v R, above n 13, at [8].
[31] In Su’a v R, the Court of Appeal accepted that a miscarriage of justice for the purposes of a conviction appeal following a guilty plea could include erroneous advice regarding sentencing outcomes.16
[32]This was developed in Whichman v R, where the Court held:17
[41] An appeal based on trial counsel error in advising as to sentence raises a number of distinct thresholds, all of which must be crossed before a guilty plea should be vacated and the consequent conviction quashed. Those thresholds are these:
(a) first, the advice given was erroneous;
(b) secondly, there is or was a genuine prospect of acquittal at trial had the plea not been entered; and
(c) thirdly, there is credible evidence that but for the erroneous advice, the guilty plea would not have been entered.
[33] I was also referred to T v R.18 This case concerned an appeal against a conviction and sentence following T’s guilty plea to one count of performing an indecent act with intent to insult or offend, contrary to s 126 of the Crimes Act 1961.19 The defendant in that case had applied for a discharge without conviction and permanent name suppression, both of which were declined. The ground for the appeal was that a miscarriage of justice had arisen because of the process leading to the entry of the defendant’s guilty plea. On appeal, it was argued that T’s decision to plead guilty was affected, first, by the failure to advise on and seek a sentence indication and, second, because the Crown, having previously indicated it would not oppose the application for a discharge, then opposed it.
[34] After referring to authorities which outline that the disappointed hope of a discharge without conviction will not give rise to a miscarriage of justice nor is the failure to seek a sentencing indication, on its own, sufficient,20 the Court concluded that the combination of circumstances in T’s case gave rise to a miscarriage because
16 Su’a v R [2017] NZCA 439 at [11]. The Court accepted this comes within the fourth category in
R v Merrilees, above n 12 at [33]-[34].
17 Whichman v R [2018] NZCA 519 at [41].
18 T (CA662/2012) v R [2013] NZCA 550.
19 Maximum penalty two years’ imprisonment.
20 T v R, above n 18, at [35].
of the change in approach to the application for discharge by the Crown and the lack of advice that a sentencing indication could be sought.
[35] Mr Shamy submitted that this case was relevant because Mr Singh was not given the advice that he could request a sentence indication. This, in combination with Mr Singh’s ability to understand English, resulted in the possibility he did not understand his application for a discharge without conviction was not assured, and so the appeal should be allowed.
Discussion
[36] I first address the advice given to Mr Singh by Mr Fletcher before analysing whether Mr Singh’s understanding of English, impacted on how he interpreted the advice he received. I then consider whether he has a tenable defence to the charge.
The advice given to Mr Singh
[37] Mr Fletcher was approached by Mr Singh via a text on 24 April 2022 asking whether he could provide him with legal services. He was then in touch with the law firm that had previously acted for Mr Singh and was advised that Mr Singh had pleaded not guilty plea to the charge and a case review hearing had been allocated in June 2022.
[38] Mr Fletcher then met with Mr Singh on about 29 April 2022. The meeting was short, Mr Singh was advised that he should apply for legal aid and that if granted, Mr Fletcher would want to review what the Police were alleging. Mr Fletcher forwarded Mr Singh a legal aid application which, once completed, he then filed for Mr Singh.
[39] Mr Fletcher was assigned to act for Mr Singh on 26 May 2022. At around this time, he contacted Mr Singh’s previous lawyer and asked to see the disclosure provided by the Police. When it was received, Mr Fletcher printed it out and worked off the electronic pdf format. He read the file over the weekend of 5-6 June and wrote to Mr Singh that weekend setting out his advice. At some point, he became aware that the case review hearing was on 14 June 2022.
Advice letter 8 June 2022
[40] Mr Fletcher’s letter of advice to Mr Singh dated 8 June 2022 was annexed to Mr Fletcher’s affidavit. The letter records that the allegation against Mr Singh was that he entered the complainant’s room in the morning, got into bed with her and touched her breasts, after which he was told to leave. The letter explained the legal meaning of “assault” and “indecent”. Mr Fletcher’s advice, although not expressed in this way, was that no legal issue arose, rather, the case against Mr Singh would involve the Court assessing the facts.
[41] Mr Fletcher then outlined his summary of what Mr Singh told him had happened. Based on this, he said:
You have said that the events did not happen. You have said that you did indeed go into the room while you were looking for some reflux medication you had lost the night before. You have said you did not get into bed with her. In other words, she is making this up for some reason of her own. I do note she mentioned this to your flatmates before the Police. I also note that you are unaware of a vendetta against you and that the only reason she has made this up is because she may be after “money”.
[42]Mr Fletcher then outlined the options Mr Singh had, which were to:
· Plead guilty to the charge as laid;
· Continue to defend the charges by Judge alone;
· Endeavour to alter your plea to trial by Jury.
The latter option would prove to be difficult, but no [sic] impossible as we are still at early days.
[43]Mr Fletcher then said:
I consider that the case against you, I am forced to say, is strong. As the evidence now stands I consider the chances of a scuessful [sic] defence are not strong. A vagie [sic] suggestion that she is doing this to get money is simply unlikely to be accepted by the court- even on the lesser standard of “beyond a reaosnble [sic] doubt”. There is slsigtht [sic] risk that if the trial goes ahead evidence could come out of some form of penetration that could lead to much more serious charges.
This is not a case where a defended hearing will create a positive narrative. It is not as though this happened after you had been given a potential invitation to intimacy-the evidence is that this was the morning after the party and that you were not given any suggestion of her wanting you to join her.
There is also evidence that you went into another ladies [sic] room.
[44]In conclusion, Mr Fletcher said:
I do not think there is a realistic chance of a successful defence I regret to say. The choice is yours, however - my obligation is to do all I can for you. I do consider, however, that should we defend the charges a dangerous narrative will be created, you will lose the “discount” for a guilty plea and you will be convicted.
[45] Mr Fletcher invited Mr Singh to make an appointment to see him so they could go through the options.
[46] In cross-examination, Mr Shamy highlighted that none of the disclosure identified the prospect of penetration.
Meeting with Mr Singh
[47] Mr Fletcher then met with Mr Singh. He accepted that he would have said something along the lines that pleading guilty would be the best option, but he was not sure how far he explained the criminal justice process to Mr Singh. He does not accept he told Mr Singh to plead guilty. Rather, he said he told Mr Singh the case against him was very very strong after which Mr Fletcher said Mr Singh agreed he would plead guilty.
[48] Mr Fletcher’s advice was that Mr Singh could apply for a discharge without conviction but did not accept that at any stage he said the outcome of Mr Singh’s application for a discharge without conviction was certain. He did recall making it clear that a great deal of work would need to be done to prepare the application for discharge without conviction, including obtaining advice from an immigration lawyer about Mr Singh’s position, arranging for an alcohol assessment and organising character references for Mr Singh.
[49] Mr Fletcher did not accept that Mr Singh was under extreme pressure and stress to plead guilty. To the contrary, his evidence was that he made it clear this was a matter that needed much care. He recalled advising Mr Singh that the discount for a plea of guilty would be beneficial for Mr Singh.
[50] Mr Fletcher also said that he had no reservations about Mr Singh’s ability to comprehend his advice. Mr Fletcher considered Mr Singh’s understanding of English was good, he knew Mr Singh worked in a call centre dealing with IT issues, he considered Mr Singh to be an intelligent person and on no occasion did he observe Mr Singh struggling to understand what he was saying.
[51] Once Mr Fletcher was told Mr Singh would plead guilty, he arranged for Mr Singh to sign the summary of facts as set out above.
[52] At the case review hearing on 14 June 2022, Mr Singh pleaded guilty to the charge based on the Summary of Facts he accepted.
Preparation of affidavit
[53] Next, Mr Fletcher prepared Mr Singh’s application for a discharge without conviction. He drafted an affidavit for Mr Singh which he sent to Mr Singh by email just after midday on 24 August 2022. Mr Fletcher’s submissions and Mr Singh’s pre- sentence report were also enclosed in the same email.
[54] Mr Singh initially deposed in the affidavit he filed in support of this appeal that the draft affidavit prepared by Mr Fletcher was not sent to him. In his second affidavit, filed in support of this appeal, Mr Singh accepted that the affidavit, his pre-sentence report and Mr Fletcher’s proposed submissions had been sent to him, but he stated that he had not opened the email or read the contents of it.
[55] Mr Fletcher annexed to his affidavit an example of an email chain from Mr Singh’s gmail account to him on 14 September 2022, which responds to Mr Fletcher’s email enclosing further draft submissions and inviting Mr Singh’s comments. Mr Singh replied:
As I said you know what you are doing and I am happy with your work so far as I know you are ‘DWC GURU’. I’m grateful I’m in good hands with you.
However under my name you have mentioned my role at IT engineer which I’m not sure is a big deal or not but my current role is Customer Delivery Lead. Please change it if needed thanks again.
Kind regards Kam
[56] There was some cross-examination about whether Mr Fletcher had referred to himself as a “DWC GURU”. He thought that he may have. I am not persuaded that this is important in the context of the appeal.
[57] Mr Singh’s affidavit was signed at Mr Fletcher’s chambers. Mr Fletcher believed he told Mr Singh that signing an affidavit was a “big deal”. Certainly, in his letter to Mr Singh enclosing the affidavit, he said:
Please make any changes to the affidavit. It must be TRUE and Correct. The Police will check. Send back to me as a word document and I will have the material ready to sgn [sic] at lunchtime tomorrow.
[58] Mr Fletcher said Mr Singh was left in the boardroom to read the affidavit and he was told that, if there were changes that needed to be made, he should let Mr Fletcher know. Mr Fletcher sat in his office while this was occurring but said he could see Mr Singh reading the affidavit. When Mr Singh said he was ready to sign the affidavit, Mr Evans from Mr Fletcher’s office witnessed the affidavit in Mr Fletcher’s presence.
The sentencing hearing
[59] The hearing took place on 5 December 2022 with the result and Judge’s reasoning for his decision outlined above at [10]-[22].
Appeal options
[60] After the hearing, Mr Fletcher said he advised Mr Singh that he could appeal and suggested a meeting. Mr Fletcher outlined that he met with Mr Singh for about an hour and outlined his appeal options. Mr Fletcher said that at no stage during this meeting did Mr Singh say that he had been forced to plead guilty or that he did not understand Mr Fletcher’s advice. Mr Fletcher said this was only raised when Mr Singh changed lawyers.
[61] Mr Fletcher then filed Mr Singh’s appeal. He wrote to Mr Singh on 13 November 2022 recording this. As well, in this letter, Mr Fletcher recorded his advice that the case against Mr Singh was “absolutely overwhelming”. In relation to the
application for discharge without conviction, he said “the case law was very much against us, but I tried to overcome it with the evidence we had”.
Was the advice given to Mr Singh erroneous?
[62] Although the cases categorise the advice given as “erroneous advice”, this carries with it the idea that the advice was somehow wrong. In certain circumstances, as the cases have recognised, an omission to provide advice can, depending on the circumstances, also be considered as part of the assessment about whether a miscarriage of justice had occurred.
[63] In this case, Mr Shamy submitted that Mr Fletcher omitted to advise Mr Singh about the possibility of seeking a sentence indication prior to entering his guilty plea. This, coupled with uncertainties about whether Mr Singh understood the process sufficiently because English is not his language of origin, carries with it the inference that he did not fully understand the consequences of entering his guilty plea. The latter point is also relevant to Mr Singh’s contention that he had been assured that, if he pleaded guilty, he would receive a discharge without conviction. Because all of these points, apart from the one dealing with the lack of advice about a sentence indication concern Mr Singh’s understanding of English, I deal with this issue first.
Was Mr Singh’s understanding of English sufficient for him to make informed
decisions about the progress of his case?
[64] Mr Singh came to New Zealand in 2015 and completed a diploma in system support, which was a two year qualification. He was employed with Spark in a call centre. He was required to speak English, Hindi, Punjabi and, at times, the other local Indian language he spoke. In September 2019, he undertook a test about his ability to understand English, which he passed.
[65] No interpreter was requested at any of the Court hearings. However, I infer from Mr Singh’s answers in cross-examination that he may not have been aware that this could have been organised. Certainly, there is no suggestion that this was a topic raised by Mr Fletcher with him because Mr Fletcher considered Mr Singh had an
excellent understanding of English and had no reason to suspect during his interactions with Mr Singh that there was a need for an interpreter.
[66] Mr Singh said he did not have a good understanding of legal processes and protocols even though he had been to court before when he was charged with careless use of a motor vehicle. In cross-examination, he said that he did not understand what a penalty meant but, given the way he expressed himself in the emails attached to Mr Fletcher’s affidavit, I do not consider his response about this to be plausible, especially given that later in cross-examination, when referring to the advice Mr Fletcher had given him, Mr Singh thought he remembered that Mr Fletcher had explained the penalty.
[67] In relation to the application for discharge without conviction, Mr Singh said he acted on Mr Fletcher’s advice that this was the best thing to do but he said he did not understand Mr Fletcher to say that it was not guaranteed. He understood that his application would be decided by a Judge and that he would have to gather evidence to support his application. Even though he did not know what an affidavit was, he understood that there had to be some sort of evidence provided to the Court. In my assessment, Mr Singh is a reasonably educated man. It is not at all credible for him to suggest that he understood that, by making an application, he would be guaranteed the outcome he sought. He would have been aware by the time he got to Court that the Police were opposing his application.
[68] As well, in the affidavit he filed in support of his application for discharge and in relation to the charge, Mr Singh said:
[2] … The words do not exist how ashamed I am of my behaviour. How I acted was horrific and I am sickened and disgusted by my behaviour. I am genuinely sorry to the young lady concerned and want to apologise to her from the very bottom of my heart …
…
[5] I have pleaded guilty indecent assault. After I had a long talk with my lawyer, I pleaded guilty immediately. I feel absolutely terrible about what has happened. It was a stupid, foolish thing to do after a party. I now realise that I have a severe problem with alcohol, and I am fixing that - I wish I could fix everything.
[69] Further, in his affidavit when referring to what he did when he returned to the address in the morning, Mr Singh deposed:
[17] As I wandered around looking for my items, I peaked into the bedroom and saw the young woman there. What happened next makes me sick to think about. I think I was in her bed for a really short time - it felt less than a minute, and I think it was. After she protested, I immediately realised what I had done. It was a shocking moment of clarity, and I knew I should not be there. I immediately apologised and said something like “I should not be here”. I am so sorry, and I think I said those words then.
[70] Mr Singh then referred to the fact he had been to alcohol counselling and provided a report from Odyssey House to that effect.
[71] In his initial affidavit filed in support of his appeal, Mr Singh said that he did not open the email Mr Fletcher sent him attaching his draft affidavit intended to be filed before the District Court. This strikes me as surprising and is contrary to Mr Fletcher’s evidence that he did liaise with Mr Singh by email and Mr Singh would reply by email. It is also consistent with Mr Singh’s reply email to Mr Fletcher on 14 September 2022 where he suggested a change to his employment title. As well, Mr Singh had an opportunity at Mr Fletcher’s office to read through this affidavit before he initialled and signed it.
[72] Mr Singh said he trusted Mr Fletcher, who had described himself as a “DWC guru”. He said:
But my understanding was, whatever he is doing is for my betterment, like it’s sort of - it’s my good in that, I was finding, like it’s my - like, whatever he’s doing my lawyer, is good for me and I shouldn’t be questioning him because he is saying I am guru - guru in my understanding, my - it just means the teacher - teacher is like, you know everything better than - so obviously I am immigrant and I understand that he had better understanding, so I should just go with him at that stage instead of asking him questions or making any changes.
[73] It cannot be suggested that Mr Fletcher made up the contents of the affidavit presented to the District Court. While I accept that he had instructions to prepare the affidavit and, even though the words used in it may have been crafted by him, I have no hesitation in accepting that they encapsulated what Mr Singh told Mr Fletcher.
[74] I do not accept that Mr Singh’s understanding of English was a barrier to him being aware of what was in the affidavit prepared for the District Court. Neither do I accept he swore the affidavit accidentally. At no stage did Mr Singh ask for any aspects of the affidavit to be explained to him and I accept Mr Fletcher’s evidence that he appeared to read through it. My impression of Mr Singh is that he was very able to answer questions put to him in cross-examination and capable of requesting further information when he did not understand something.
[75] In my view, this is not a case where a “mental red-flag cultural alert system” applies.21 The affidavit did not contain complex language, nor did it refer to difficult legal concepts where there may have been a need for further explanation. In my view, Mr Singh’s understanding of English was enough for him to understand what he was including in his affidavit, which is at odds with the basis of the defence he now wishes to run, a point I return to shortly.
Inadequate advice about options
[76] Of more concern is the fact that Mr Singh was not advised of the option that he could seek a sentence indication before entering his guilty plea. I accept that, had Mr Singh been provided with this option and had the sentence indication provided an outcome different from that which he expected, he could well have decided to continue with his not guilty plea to the charge. The question is whether this, of itself, can amount to a miscarriage of justice.
[77] I have already referred to T v R in which the Court of Appeal concluded that there had been a miscarriage of justice because a sentence indication had not been sought by counsel for the defendant.22 However, the lack of advice about the sentence indication was not the only reason the Court of Appeal concluded there had been a miscarriage of justice. It was the combination of the Crown’s agreement that it would not oppose the application for discharge together with the lack of advice about a sentence indication that persuaded the Court to make the finding it did. I observe as well that the charge in that case was a less serious charge than that faced by Mr Singh.
21 Deng v Zheng [2022] NZSC 76, [2022] 1 NZLR 151 at [78].
22 T v R, above n 18.
[78] Mr Shamy put to Mr Fletcher that his advice about Mr Singh’s chances of success on his application for a discharge without conviction was wrong. An email from a law clerk (at that time a student) working in Mr Fletcher’s Chambers was put to him. The opinion expressed in the email expressed the view that certain cases seemed to indicate the chances of Mr Singh obtaining a discharge without conviction were not good at all. Mr Fletcher did not agree with this opinion and did not consider it necessary to advise Mr Singh about the contents of it. I see nothing wrong with this approach and I therefore do not consider Mr Fletcher’s advice was inadequate as a result.
Does Mr Singh have a tenable defence?
[79] Mr Singh contends that the offending did not occur at all. Had he pleaded not guilty and the case proceeded to trial, whether his defence succeeded or not would depend on the Court’s finding about the credibility of the complainant if Mr Singh elected not to give evidence. If he did elect to give evidence, then Mr Singh’s credibility would also be assessed by the Judge.
[80] Mr Singh said he and his flatmates, Ms Lam and India Meo, attended the “Crate Day” party in Akaroa on the Saturday evening. He and his flatmates went to other accommodation after the party and stayed there overnight.
[81] Mr Singh suffers from reflux. He said he woke on Sunday morning feeling uncomfortable and went back to the house where the party had been as he thought he may have dropped his reflux medication there. He said he looked through the house for his medication and went into the bedroom where the victim was, leaving the door partially open. The room was not well enough lit to see clearly as it was still relatively dark. He could not see his medication. He did not think he spoke to the person in the bed and, if they had said something to him, he would have simply apologised and left.
[82] Ms Lam attended the party at Akaroa with Mr Singh and another flatmate Ms Meo. Ms Lam said that she went back to the house where the party had been held early the next morning to look for Mr Singh and Ms Meo so that she could get a ride back to Christchurch. When she arrived at the house, Faith Robinson, who she had met at the party, was awake so she asked her if she could use the bathroom. Ms
Robinson directed her to an ensuite in a bedroom which was through the room where she later found out later that the complainant was sleeping. Although she could see that someone was sleeping in the room, she did not recognise that person as being the complainant.
[83] Ms Lam said that, shortly afterwards, Mr Singh arrived and asked where the bathroom was. She pointed out the door of the bathroom where the ensuite was through the bedroom. She said Mr Singh went into the room but was not in there for very long. Ms Lam said she remained seated in the lounge which was next door to the bedroom where the ensuite was while Mr Singh went in. She said she did not hear anyone speaking while Mr Singh was in the room.
[84] Mr Shamy referred to the statement of Ms Robinson made to the Police. It transpires that she is the other young woman whose room Mr Singh was alleged to have entered that morning. In her statement, according to Mr Shamy, Ms Robinson said she woke up and noticed her bedroom door open and that Mr Singh lurking around in her room. She said she was startled and confused as to why he was in her room and in her house at that time of the morning. As soon as he saw that she was awake, Ms Robinson said Mr Singh moved quickly out of her room.
[85] In support of his argument that there is and was a viable defence that is not fanciful, Mr Shamy submitted that there are a number of issues which bear on the credibility of the complainant in this case:
(a) the evidence from Ms Robinson that when Mr Singh entered her room, the door was left open. Mr Shamy submitted someone wanting to commit a sexual offence would not leave the door open;
(b) there were other people in the house, including Ms Robinson, and Ms Lam being right outside the door of the room the complainant was in;
(c) there was no indication of any sexualised activity or attempts at such when Mr Singh entered Ms Robinson’s room;
(d) Ms Lam, who was seated right outside the door, heard nothing being said from inside the room;
(e) the complainant says that Ms Robinson told her that, when Mr Singh was in her bedroom, he said he was looking for a phone but in Ms Robinson’s statement she says Mr Singh said nothing; and
(f) everyone had been drinking heavily which may have affected the complainant’s memory.
[86] Based on the above, there is a tenable defence. As Mr Fletcher noted, however, this would depend on the Judge’s assessment of the credibility of the prosecution witnesses assuming that Mr Singh decided not to give evidence and, even if Ms Lam gave evidence, what the Judge would make of that and how that would impact on the other evidence the Judge heard. But, to establish that a miscarriage of justice occurred, the advice to plead guilty must have been a result of erroneous advice from counsel that goes to the heart of that plea because a plea in such circumstances is not a true acknowledgement of guilt.23
[87] The difficulty Mr Singh faces is that, in the affidavit he filed in support of his application for discharge, he effectively admitted what he had done (although he did not admit to touching the complainant’s breast) and he expressed considerable remorse for what had happened. I have also accepted that Mr Fletcher would have prepared the affidavit after obtaining instructions from Mr Singh. I do not consider Mr Singh accidentally or mistakenly swore the affidavit and I do not accept that he did not fully appreciate the contents of it because his understanding of English was not good enough.
[88] Even if there was a genuine prospect of acquittal at trial had the plea not been entered, because of the view I have taken about Mr Singh’s first affidavit and that I consider he signed it knowing what it included, I am satisfied that there are not grounds for it to be excluded. Neither am I satisfied that the failure to advise of the sentence indication option would have impacted Mr Singh’s decision to enter a guilty plea to the charge. Mr Fletcher’s advice was based on the evidence he understood the Police would be calling, which he considered was strong. Although Mr Shamy referred to various points that could be raised in cross-examination, this does not change the fact
23 Siddiqui v R [2019] NZCA 196 at [14].
that, ultimately, the credibility of the complainant would be a significant matter for the Judge to assess with the same risks attached to that, which I am satisfied Mr Fletcher explained to Mr Singh.
Conclusion
[89] I am not satisfied that sufficient grounds have been advanced to justify the conviction being overturned. Mr Singh’s case is not one of the exceptional circumstances where, following the entry of a plea of guilty, an appeal against conviction should be entertained.
[90] In T v R, the Court of Appeal held that the failure to give advice about a sentence indication, of its own, would not be sufficient to amount to a miscarriage of justice.24 As well, Mr Singh’s first affidavit weakens any tenable defence he may have had prior to his sentencing hearing. In addition, I do not find it credible that Mr Singh did not understand there was no certainty attached to his application for discharge without conviction. In my view, Mr Singh’s decision to plead guilty was sufficiently informed to enable the conviction to stand.
Result
[91]The appeal is dismissed.
Harland J
Solicitors:
S J Shamy, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.
24 T v R, above n 18, at [35].
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