Singh v The King
[2023] NZHC 2168
•14 August 2023
NOTE: PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER
18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-57
[2023] NZHC 2168
BETWEEN LAKHBIR SINGH
Appellant
AND
THE CROWN
Respondent
Hearing: 7 August 2023 Appearances:
M L Dillon for Appellant
J T Lewis and R L Mann for Respondent
Judgment:
14 August 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 14 August 2023 at 3.30 pm
Registrar/Deputy Registrar
Solicitors:
Hamilton Legal, Hamilton
SINGH v R [2023] NZHC 2168 [14 August 2023]
[1] On 21 July 2022, following a Judge-alone trial conducted in the Hamilton District Court before Judge P Crayton,1 Lakhbir Singh was convicted of two charges of assaulting a child.2 Mr Singh appeals against those convictions. He submits that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice occurred.3 In particular, he submits that the Judge’s conclusion that Mr Singh was the offender described by the complainants, was not open to him on the evidence.
[2] The Crown opposes Mr Singh’s appeal, on the basis the Judge was correct to determine it was Mr Singh who committed the offending.
[3] The appeal is required to be conducted by way of rehearing. The applicable approach is that adopted in Austin, Nichols & Co Inc v Stichting Lodestar.4 Under that approach:5
If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But … [s]ince it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.
Uncontested facts
[4] On 1 March 2020, nine-year old KS and her younger brother visited her friend, eight-year old MVS, at MVS’s home, arriving not long after midday. They went walking nearby. An Indian man, sitting in his parked grey car, started talking to MVS and KS. The man asked what school they went to and invited them to get into his car. The girls declined. The man grabbed both of them by their wrists. MVS and KS broke free and ran back to MVS’s house. As they did so, the man followed in his car, blowing kisses at the girls, and gesturing with his fingers that he was watching KS’s brother. The children ran into the house, immediately alerting MVS’s mother, who called Police.
1 R v Singh [2022] NZDC 7095.
2 Crimes Act 1961, s 194(a). Maximum penalty: 2 years’ imprisonment.
3 Criminal Procedure Act 2011, s 232(2)(b).
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
5 Sena v Police, above n 4, at [38] (footnote omitted).
District Court decision
[5] Judge Crayton found Mr Singh not guilty on two charges of kidnapping. The two charges of assaulting a child were brought as alternatives to the kidnapping charges.
[6] When giving judgment, and prior to turning to his assessment of the evidence, the Judge recorded his awareness of the variety of matters that inform the assessment of credibility and reliability.6 On the issue of identification, the Judge reminded himself of s 126 of the Evidence Act 2006 and the special need for caution before finding a defendant guilty in reliance on the correctness of identification evidence.7
[7] The Judge then made mention of the accounts the children gave to MVS’s mother upon their arrival home, as outlined in the mother’s evidence, as follows:
[36] The complainants and the child witness spoke with the mother of MVS, TP. They were, as she said, all speaking at once and agreeing with each other. In essence the detail they provided was as follows:
(a)That the male had a silver/grey car which was small like a Swift.
(b)That there was a black and red pizza delivery bag in the rear of the car.
(c)That there was red stuff in the car.
(d)That there was something hanging from the rear-view mirror that had two axes crossing over.
[37] The witness TP described the children as being “really panicky, loud, talking a million miles a minute.”
[38] The complainant MVS provided the following evidence to her mother, that the incident had occurred near the intersection of Wellington and Galloway Street around 135 Galloway Street. Second, that he had fabric or material on his head. Third, that he was Indian. Fourth, that he was wearing green shorts and flip-flops.
[8] The Judge then turned to the children’s evidence given by way of video record of interviews conducted on 4 and 6 March 2020 (in the complainants’ cases), and
6 R v Singh, above n 1, at [20]–[27].
7 At [34].
2 August 2020 (in the brother’s case). Judge Crayton also surveyed the evidence given at trial.
[9]Next, the Judge turned to the other evidence, as follows:
[47] The circumstantial evidence to place the defendant’s movements at a relevant time came from a number of sources, including the admitted facts:
(a)Firstly, that the defendant left 29 Ohaupo Road at 1316 to deliver pizza.
(b)Second, that he made the delivery at 1323 to 135 Galloway Street. This evidence is that it is at the bottom of a cul-de-sac leading from Galloway Street as shown on photograph 1, the Google Map exhibit.
(c)Third, that a vehicle similar to the defendants is recorded on security cameras passing 125 Galloway at 1321 heading in the direction of 135 and Wellington Street. Although there are other cars of a similar colour passing there is no evidence to substantiate any other person stopping for a prolonged period.
(d)Next that the defendant’s cellphone location data places him in the vicinity of Galloway and Brown Street which borders the park between 13.27 and 13.34 on the day in question. That corresponds to the area marked as 137 Galloway Street, the entry to the cul-de-sac where 135 is located and potentially covers as shown in the photo book the area of 149A Galloway Street.
[48] First, that the 111 call was made by TP at 1350 hours and next that enquiries made by police with Restaurant Brands and the driver for NIA database identifies the defendant was the only person working at that time in that area who matched the description as presented and his image is shown at photograph 2 which is photograph of his driver’s licence from April 2019 so 11 months before this incident and it identifies the colour of the turban being black and facial hair on sides, chin and a moustache.
[49] The defendant’s vehicle was examined on 16 March 2020 so 15 days after the alleged incident. It is a grey/silver Nissan Tiida. It has Makers logos on the front, back and on the wheels shown in photographs 3 and 5 to 8. Hanging from the rear mirror was a badge or emblem showing two crossed axes with a circle and sickle shown in photograph 12. On the rear seat was a red/black delivery bag, photograph 11 and there was some tape on the rear of the vehicle which was not red tape and which is described by the police officer in his evidence.
[10]In weighing up that evidence and finding identity proven, the Judge said:
[53] If the only evidence available was the description of the male alone I would not be able to be sure that it was the defendant, however, that is not the situation. There is the vehicle description which corresponds, in general terms
and in specific, and there is the location data and verified delivery data placing the defendant at the scene for a prolonged period at the relevant time.
[54] In the circumstances this is a series of coinciding pieces of evidence which drawn together as both identification and circumstantial evidence lead me to conclude that the defendant and his vehicle were at the scene and that he was the person who spoke to each of the complainants and the witness on 1 March 2020.
Mr Singh’s submissions
[11] For Mr Singh, Mr Dillon accepted that the evidence of the three child witnesses was in general agreement. However, there were significant variations in important respects related to: the location at which the offending occurred; the offender’s personal appearance; and vehicle he was driving.
[12] As to location, while KS mentioned Galloway Street, MVS named various streets in Hamilton East when offering her account by way of video record.
[13] As to appearance, neither MVS nor KS were questioned about what the offender may have been wearing on his head. Only KS’s brother’s video interview indicated the offender was wearing a turban such as that seen in Mr Singh’s driver licence photograph taken 11 months prior to the offending. Further, MVS’s evidence referred to the offender having tattoos on his face, arm and leg, whereas the police officer in charge confirmed otherwise, having seen Mr Singh’s face and arms without tattoos.
[14] As for the vehicle, two of the children mentioned only a grey four-door seater, whereas MVS specially identified a [Suzuki] Swift with tape on it to hold it together and various items loose in the passenger areas. She also mentioned a “large clock” in the car and what she described as a quantity of “blood”. In fact, Mr Singh’s vehicle, photographed by Police on 16 and 18 March 2020, was a grey Nissan Tiida, four-door hatchback, as described by Judge Crayton (above), without a large clock or blood.
[15] Mr Dillon submitted that where there was evidence that coalesced around Mr Singh as the offender, the Judge relied upon it. However, where the evidence indicated that Mr Singh was not the offender, the Judge opted to reconcile those aspects to Mr Singh’s prejudice. Mr Dillon submitted that, having obtained driver
information from Restaurant Brands indicating that Mr Singh was present delivering on behalf of Pizza Hut in the vicinity of Galloway Street during the early afternoon in question, there was a failure by police to further investigate, which may have identified other suspects, including persons seen on CCTV driving similar vehicles along Galloway Street that afternoon. The child witnesses were not invited to, and therefore did not, give evidence identifying Mr Singh on a photo board montage.
Crown submissions
[16] For the Crown, Mr Lewis highlighted the significance of the admitted facts taken into account by Judge Crayton. Mr Lewis referred in particular to photographs taken on 18 March 2020 of what I infer, given the admitted facts, is the “locations” application in operation on Mr Singh’s iPhone, as depicted in photographs produced by consent at the trial. Cropped versions of these photographs appear below:
Assessment
[17] In my view, Judge Crayton did not err in his assessment of the evidence to such an extent that a miscarriage of justice occurred. In the context of this case, I consider it important (as it appears the Judge did also) that the children immediately upon their return to MVS’s home on 1 March 2022 offered her mother an account with a series of key themes. Once MVS’s mother gave evidence of that account, it could be relied upon for its truth.8 Those themes (as set out at paragraph [36] of Judge Crayton’s judgment) were that:
(a)the offender had a silver/grey car which was small like a Swift;
(b)there was a black and red pizza delivery bag in the rear of the car;
(c)there was red stuff in the car; and
(d)there was something hanging from the rear-view mirror that had two axes crossing over.
[18] It can be seen there was little detail given immediately regarding the offender’s appearance. The appearance of the vehicle he was in was more compelling. I put aside the “red stuff” as a neutral factor. Although MVS later described it on video interview as “blood”, I do not consider that aspect to point positively away from Mr Singh. MVS’s mother’s interpretation of MVS’s initial account did not go that far. Indeed, KS’s brother later described it on video interview as “like pepperoni sauce”. Similarly, while MVS later called the car a “Swift”, her mother described her initially saying only that it was “like a Swift”. That aspect, and the fact of the black and red pizza bag and the mirror ornament with crossed weapons found in Mr Singh’s car, establish clear links to Mr Singh.
[19] On location, while Mr Singh criticises MVS’s subsequent naming of various streets in Hamilton East as the location of the offending, it should be recalled that when interviewed she was eight-years old. As the Judge explained (see para [38] of
8 Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [13] and [39].
Judge Crayton’s judgment above), MVS’s mother was able to establish in conversation with MVS the very particular location she had in mind. She observed it on Google Maps and found it to correspond with the area outside 135 Galloway Street. There is no suggestion in the evidence that MVS’s mother was aware of the location application’s record of Mr Singh’s presence at the relevant time for around seven minutes in that very space. I find the extraordinary connection between these aspects of the evidence on the question of location to be highly compelling.
[20] In summary, the account the children gave to MVS’s mother, together with the evidence of Mr Singh being present for around seven minutes during the relevant time in the very location where they reported the offending, provided a sufficient basis for the Judge’s finding that Mr Singh was shown beyond reasonable doubt to be the offender. I do not consider the subsequent variations in the evidence of the children to be other than those that might be expected.
Result
[21] There being no error in evidential assessment to the extent that a miscarriage of justice occurred, it follows that the appeal is dismissed.
Johnstone J
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