Legal Research
Cases
Singh v The King

Singh v The King

Case [2023] NZCA 220 9 June 2023

Admissibility of Evidence

Causation

Judicial Review

Criminal Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA508/2022
[2023] NZCA 220

BETWEEN	DONALD DEV KUMAR SINGH Appellant
AND	THE KING Respondent

Hearing:	16 February 2023
Court:	Katz, Whata and Davison JJ
Counsel:	J E L Carruthers for Appellant M R L Davie for Respondent
Judgment:	9 June 2023 at 9:00 am

JUDGMENT OF THE COURT

The appeal is dismissed
____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

TABLE OF CONTENTS

Para No

The appeal]

Facts]
The trial ]

The evidence [8]
The Crown case]
Defence case]
Summing up]
Right to silence8]
Intoxication]

Intoxication]

Law]
Analysis]

Right to silence]

Argument]
Analysis]

No miscarriage]

Result]

Mr Donald Dev Kumar Singh appeals against conviction on one charge of wounding with intent to cause grievous bodily harm.[1] He claims:
(a)The Judge gave the jury an incomplete intoxication direction, failing to inform them that they had to take Mr Singh’s intoxication into account when deciding whether he acted with the required intent.
(b)The prosecutor breached s 32 of the Evidence Act 2006, dealing with the right to silence, which was not cured by the Judge.

The appeal

[1]Crimes Act 1961, s 188(1).

The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. Section 232 of that Act relevantly provides that the Court must allow the appeal, inter alia, if a miscarriage of justice has occurred for any reason.[2] A miscarriage of justice is defined as “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”.[3]
[2]Criminal Procedure Act 2011, s 232(2)(c).
[3]Section 232(4).
A miscarriage is something more than an inconsequential or immaterial mistake or irregularity.[4] There must be a real risk that the outcome was affected. This “requires consideration of whether there is a reasonable possibility another verdict would have been reached”.[5] An appellant “does not have to establish a miscarriage in the sense that the verdict actually is unsafe”; “[t]he presence of a real risk that this is so will suffice.”[6] The focus is on “realistic rather than theoretical possibilities”.[7]

Facts

[4] R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26]–[30]; and Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [38]–[48].

[5]Misa v R, above n 4, at [48].

[6]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J (footnote omitted); and see Tuia v R [1994] 3 NZLR 553 (CA) at 555.

[7]Misa v R, above n 4, at [46], quoting Wiley v R, above n 4, at [28].

The facts upon which Mr Singh was found 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 The King

Details

AGLC: Singh v The King [2023] NZCA 220
Case: [2023] NZCA 220
Decision Date: 9 June 2023 at 9:00 am

CaseChat Overview and Summary

The appellant, Donald Dev Kumar Singh, appeals against his conviction for one count of wounding with intent to cause grievous bodily harm. The appeal hinges on two issues: whether the trial judge provided an inadequate direction to the jury on the issue of intoxication, and whether the Crown breached the appellant's right to silence under s 32 of the Evidence Act 2006. The Crown Law Office represented the Crown in this appeal. The Court of Appeal dismissed the appeal, finding that neither issue caused a miscarriage of justice.

On the intoxication issue, the appellant contended that the trial judge did not fully direct the jury on how to consider intoxication in assessing intent. The Court found that the judge did not err in omitting a full intoxication direction, as there was insufficient evidence to suggest the appellant was so intoxicated that he could not form the requisite intent. The Court noted that the appellant's detailed account of events contradicted the notion that he was too intoxicated to form intent. Furthermore, the Court found that the Crown's case on intent was strong due to the nature of the injuries inflicted. The Court concluded that there was no real possibility of a different verdict had the full intoxication direction been given.

On the right to silence issue, the appellant argued that the Crown breached his right to silence by heavily cross-examining him on his failure to identify the complainant as the assailant. The Court found that the Crown's cross-examination invited the jury to infer guilt from the appellant's silence, which was a breach of s 32 of the Evidence Act. However, the Court held that this error did not cause a miscarriage of justice. The Court noted that the inconsistencies in the appellant's pre-trial accounts would have been obvious to the jury, and the failure to identify the complainant was just one of many inconsistencies. Additionally, the judge gave a fulsome direction on the proper use of inconsistent statements, which mitigated the impact of the failure to give a right to silence direction. The Court concluded that the strong evidence against the appellant and the careful directions given by the judge ensured that the trial did not miscarry.

Orders