Singh v Police - [2023] NZHC 1838

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…

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 [2023] NZHC 1838
Case: [2023] NZHC 1838
Decision Date: 17 July 2023

CaseChat Overview and Summary

Kamaljeet Singh (Mr Singh) appealed his conviction for indecently assaulting a female over the age of 16 years on the basis that he was erroneously advised that a discharge without conviction was the assured outcome of a guilty plea. The appeal was dismissed by Harland J in the High Court at Christchurch. The key issues were whether Mr Singh's English comprehension impacted on his understanding of the advice given to him, whether Mr Singh was advised about the prospect of requesting a sentence indication, and whether Mr Singh had a tenable defence. The court found that Mr Singh's understanding of English was sufficient for him to understand the consequences of his actions and the advice given by his lawyer. Although Mr Singh was not advised about the possibility of seeking a sentence indication, this alone did not amount to a miscarriage of justice. Mr Singh's affidavit filed in support of his application for a discharge without conviction, which effectively admitted to the offending, weakened any tenable defence he may have had. The court concluded that Mr Singh's decision to plead guilty was sufficiently informed to enable the conviction to stand.

Orders