Singh v R - [2020] NZCA 411

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA175/2020
[2020] NZCA 411

BETWEEN	MANINDER SINGH Applicant
AND	THE QUEEN Respondent

Court:	Courtney, Wylie and Muir JJ
Counsel:	M J Mellin for Applicant J E Mildenhall for Respondent
Judgment: (On the papers)	11 September 2020 at 11.30 am

JUDGMENT OF THE COURT

ALeave to bring a second appeal is granted in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances.
BIn all other respects, leave to bring a second appeal is declined.

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REASONS OF THE COURT

(Given by Wylie J)

Introduction

Mr Singh was convicted following a judge-alone trial on one charge of driving with excess breath alcohol.[1] His application for a discharge without conviction was declined. He was fined $900, ordered to pay $130 in court costs and disqualified from driving for six months.[2] He appealed both the conviction and the refusal of the discharge to the High Court. On 3 March 2020, Katz J dismissed his appeal.[3]
[1]Police v Singh DC Manukau CRI-2018-092-9594, 7 March 2019.
[2]Police v Singh [2019] NZDC 10147.
[3]Singh v Police [2020] NZHC 368.
Mr Singh seeks to challenge both the conviction and the refusal to discharge him without conviction. He seeks leave to bring a second appeal pursuant to ss 237(1) and 253(1) of the Criminal Procedure Act 2011. In a minute dated 24 June 2020, Goddard J ruled that the application for leave should be determined on the papers and separately from the proposed appeal.[4]
[4]Singh v Police CA175/2020, 24 June 2020.
This Court must decline leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[5] The threshold is high.[6]

Factual background

[5]Criminal Procedure Act 2011, ss 237(2) and 253(3).

[6]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

The factual background is summarised in Katz J’s judgment. We adopt her summary as follows.[7]
[5] Mr Singh is an Indian national. He arrived in New Zealand in 2014. He is currently in New Zealand on a work visa valid until 10 April 2020. He would like to renew his visa and, in the longer term, seek permanent residence in New Zealand.
[6] … Around 11.50 pm on 7 August 2018, a police constable came upon a van that was unusually positioned on the side of a road in South Auckland. It was parked half on the road and half on the verge, on yellow lines. The constable gave evidence that the left indicator was flashing, the headlights were on, the key was in the ignition, and the engine was running. In the driver's seat was Mr Singh. He appeared to be asleep. The constable opened the van door, showed his ID, and removed the key from the ignition.…

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 R

Details

AGLC: Singh v R [2020] NZCA 411
Case: [2020] NZCA 411
Decision Date: 11 September 2020 at 11.30 am

CaseChat Overview and Summary

Maninder Singh appealed against his conviction and sentence for driving with excess breath alcohol, as well as the refusal to grant him a discharge without conviction. The Court of Appeal was asked to decide whether leave to bring a second appeal should be granted. The Court held that leave should be granted in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances, but in all other respects leave to bring a second appeal should be declined.

The Court of Appeal considered that the GPS data defence was extremely weak and unmeritorious, and thus not of general or public importance. The Court also held that the immigration consequences of the conviction did not raise any question of law of general or public importance. The Court did, however, find that there was a real possibility that a miscarriage of justice may have occurred in the trial in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances. The Court considered it appropriate to grant Mr Singh leave to bring a second appeal in regard to this issue.

Leave to bring a second appeal is granted in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances. In all other respects, leave to bring a second appeal is declined.

Orders