Singh v The Queen
[2021] NZHC 3388
•10 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000389
[2021] NZHC 3388
BETWEEN SHARANJEET SINGH
Appellant
AND
THE QUEEN
Respondent
Hearing: 6 December 2021; further submissions filed on 7 July 2021 Appearances:
R Chaudhry for Appellant
M R L Davie for Respondent
Judgment:
10 December 2021
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 10 December 2021 at 11.30 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Chaudhry Legal, Manukau Crown Law, Wellington
SINGH v R [2021] NZHC 3388 [10 December 2021]
Introduction
[1] On 31 March 2021, the appellant, Sharanjeet Singh, pleaded guilty to assaulting and threatening to kill his wife. The pleas were entered before Judge Earwaker in the District Court at Manukau after he had given a sentence indication to Mr Singh.1 At the time, Mr Singh was represented by Christopher White, an experienced criminal lawyer.
[2] Mr Singh was subsequently sentenced by Judge Earwaker to 120 hours’ community work, together with supervision for a period of eight months.2 At this point he was represented by Kyle Macneil, a solicitor practising in Manukau.
[3] Mr Singh now appeals his convictions. Essentially, he argues that he should not be held to his guilty pleas because he did not have an interpreter at the time. He also claims that he was pressured into pleading guilty by Mr White.
Relevant background
[4] Mr Singh is a 30 year old Fijian national. He has been in New Zealand since 2017 on a work visa. He initially worked as a truck driver.
[5] In 2020, Mr Singh was living with the complainant, their two children and the complainant’s mother at an address in Otahuhu, Auckland.
[6] On the evening of Wednesday 15 July 2020, Mr Singh and the complainant were at home together with their children and the complainant’s mother. Mr Singh and the complainant had a heated argument. Mr Singh accused her of infidelity. The argument went on for several hours and resulted in the complainant sleeping in her son’s room.
[7] At around 9.30am the next morning (on 16 July 2020), Mr Singh stormed into the bedroom to continue the argument. The complainant’s mother and the complainant’s son, then aged 11, were both in bed with the complainant. Mr Singh
1 R v Singh DC Manukau CRI-2020-092-007048, 31 March 2021.
2 Police v Singh [2021] NZDC 15082.
yelled at the complainant and demanded documents he thought she was hiding from him. Mr Singh then jumped on top of the complainant. He put both of his hands around her neck and began to apply pressure. He used his full body weight to stop her from getting away. As a result of the pressure on her neck, the complainant started to feel weak. She thought she was going to lose consciousness. The complainant’s mother and the son were yelling at Mr Singh to stop. Eventually, they managed to pull him off the complainant.
[8] Mr Singh then left the bedroom but he returned shortly thereafter with a hammer. He stood over the complainant on the bed and waved the hammer around. He said: “I’m going to finish you off, I’m going to kill you”. The son ran over to Mr Singh and managed to get the hammer off him. Mr Singh then left the room.
[9] As a result of the attack, the complainant suffered bruising to her neck, throat and face and sustained scratches to her neck. A police witness observed red marks around the complainant’s neck and photographs taken of the complainant at the time showed red marks, bruising and scratches. According to Mr Singh, she was taken to hospital. Medical records noted bruising to her neck.
[10] The police attended the address and arrested Mr Singh. Mr Singh denied that the couple had argued; he said that the complainant was making it all up and asserted that the police had arrived for no reason.
[11] The complainant gave a statement to the police detailing the offending. So did the complainant’s mother and the son. Mr Singh gave a lengthy interview to the police in which he reiterated his denials.
Evidence filed in support of the appeal
[12] Mr Singh filed an affidavit in support of his appeal. He asserted that he is not very well educated and that while his English is passable, he has no prior knowledge of criminal proceedings, has never been questioned by the police and has not appeared in Court before on any other matter. He said that his primary language is Hindi. He explained that he was initially represented by a lawyer assigned to him by Legal Aid Services – Ms Winterstein. He terminated Ms Winterstein’s retainer and then privately
engaged another lawyer, Mr Khan. He then engaged yet another lawyer, Mr Kashyap. He did not however ultimately retain Mr Kashyap because of his proposed fees. Mr Singh then applied for legal aid again and Mr White was assigned to act for him. He said that he met Mr White in Court on the day that his case was listed for hearing and that Mr White suggested that he plead guilty. He said he informed Mr White very clearly that he had not acted as alleged, that the complainant was in a relationship with somebody else and that she had self-harmed and then blamed him. He said that Mr White represented him in Court on only one occasion and that one of the charges was reduced from impeding breathing/suffocation to male assaults female. He said that he did not recall giving Mr White any instructions to negotiate a charge reduction and that he did not agree to plead guilty as part of any resolution. He said that he asked Mr White to file an application on his behalf under s 106 of the Sentencing Act 2002, seeking a discharge without conviction. He said that Mr White refused to do so and then asked to be excused from representing him any further. He said that he was then advised by Mr Macneil, who was also assigned to him by Legal Aid Services. He said that Mr Macneil suggested that he should plead guilty as the charges had been reduced and told him that if he did not take the offer to resolve matters, the charges would proceed to trial. He said that Mr Macneil advised him that if he was convicted, his immigration status would be adversely affected. He said that Mr Macneil initially declined to file a s 106 application for discharge without conviction on his behalf, but later did so. He noted that that application was refused and that he was sentenced on
20 July 2021. He said that after sentencing, he engaged his current lawyer, Mr Chaudhry.
[13] Mr Singh was cross-examined by Mr Davie, for the Crown. I refer to aspects of the cross-examination below.
[14] Mr Davie had filed affidavits from Ms Winterstein, Mr White and Mr Macneil. Each of them was cross-examined by Mr Chaudhry. I deal with their evidence below as well. For present purposes, I note as follows:
(a)Ms Winterstein was assigned by the legal aid authorities to act for Mr Singh on 10 February 2021. The matter was allocated a trial to commence on 31 March 2021. Ms Winterstein was unable to appear
on that date because she had a prior commitment in the Youth Court. She sought an adjournment but that request was declined. Mr White was then appointed. Ms Winterstein introduced Mr Singh to him. She appeared briefly on 31 March 2021 and sought leave to withdraw as counsel. Leave was granted.
(b)Mr White was assigned to act for Mr Singh on 29 March 2021. He spoke to Mr Singh on 30 March 2021 and met with Mr Singh on 31 March 2021. They had a discussion about the case. Mr White sought the sentence indication. Judge Earwaker gave the indication and then stood the matter down. Mr White discussed the sentence indication in private with Mr Singh. According to Mr White, Mr Singh accepted it. Mr Singh was then brought back into Court and rearraigned. Mr White entered guilty pleas to two charges – male assaults female and threatening to kill – on Mr Singh’s behalf. Mr Singh telephoned Mr White on 20 April 2021, saying that he wanted to apply to the Court for a discharge without conviction under s 106. Mr White arranged for Mr Singh to have a new legal aid lawyer assigned who could apply for a discharge without conviction and/or address the matter in an appeal against sentence. Mr White subsequently filed a memorandum with the Court seeking leave to withdraw. Leave was granted.
(c)Mr Macneil began acting for Mr Singh on 27 April 2021. He spoke to him by phone and met him in person. They discussed the application for a discharge without conviction. He advised Mr Singh not to bring such an application. Initially Mr Singh accepted this advice, but later that month he instructed Mr Macneil to file the application. Application was made on 27 May 2021. Mr Macneil obtained an affidavit from Mr Singh. Mr Macneil appeared on 15 June 2021, but the matter was then adjourned to 20 July 2021 so that the Judge could consider the application for a discharge without conviction. Mr Macneil appeared on 20 July 2021. Judge Earwaker declined the s 106 application and went on to sentence Mr Singh.
(d)Shortly thereafter, Mr Singh instructed Mr Chaudhry.
The appeal
[15] Mr Singh appeals his conviction under s 229 of the Criminal Procedure Act 2011. Pursuant to s 232, the Court must allow the appeal if it is satisfied that a miscarriage of justice has occurred for any reason. A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting a trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.
[16]In the present case, Mr Singh entered guilty pleas to the two charges.
[17] It is only in exceptional circumstances that an appeal against conviction will be entertained following a plea of guilty. An appellant must show that a miscarriage of justice will result if the 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.3 A miscarriage of justice can arise in at least three broad situations:4
(a)First, where the appellant did not appreciate the nature of or did not intend to plead guilty to the charge. In such situations, the plea is vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element;
(b)Secondly, where, on the admitted facts, the appellant could not in law have been convicted of the offence charged; and
(c)Thirdly, where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.
3 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
4 At [17]-[19]; R v Merrilees [2009] NZCA 59 at [33]-[34]; Penniket v R [2016] NZCA 154 at [4]-
[8].
[18] There is a fourth situation – where trial counsel errs in the advice given as to the non-availability of certain defences or potential outcomes. Counsel can act wrongly or negligently and induce a decision on the part of a defendant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.5
[19] In the present case, Mr Singh relies on the first category – primarily on the basis that his primary language is Hindi.
Submissions
[20] Mr Chaudhry, on behalf of Mr Singh, asserted that Mr Singh was denied the right provided by s 24(g) of the New Zealand Bill of Rights Act 1990 to have the free assistance of an interpreter. He submitted that Mr Singh cannot understand or speak English and that there is nothing in the affidavits of the various lawyers who acted for him recording that they asked him whether or not he was comfortable conversing in English. He referred to the case management memorandum filed in the proceeding (filed by Mr Khan) where it was noted that a Fijian Indian interpreter would be required. He criticised the actions of all counsel, and in particular, Mr White. He noted that Mr Singh maintained his denials when he first spoke to Mr White on 30 March 2021 and again when he met Mr White on 31 March 2021. He submitted that there were several factors that influenced Mr Singh in pleading guilty – that he would receive the maximum available discount for an early guilty plea, that he would not go to prison and that a s 106 application would be filed on his behalf. He further argued that there were exceptional circumstances which require that Mr Singh should be allowed to vacate his plea. First, he argued that Mr Singh was not asked whether he understood the charges in a language familiar to him. Secondly, he submitted that language and interpretation issues were not considered, and thirdly, he argued that Mr Singh was induced by the availability of a discount for an early guilty plea to discuss resolution. He said that thereafter counsel took it upon themselves to discuss with the prosecution how the matter might be resolved. He argued that Mr White acted without authority in seeking the sentence indication and that once the indication was received, he induced Mr Singh to accept the indication and subsequently refused
5 Penniket v R, above n 4, at [7].
Mr Singh’s instructions to file a s 106 application. He criticised Mr Macneil for filing the application and then making oral and written representations to the Court in relation to the application notwithstanding that Mr Singh, in a pre-sentence report, had maintained his innocence.
[21] Mr Davie, for the Crown, argued that the appeal must fail because there were no exceptional circumstances. He accepted that there was no interpreter involved but argued that the Court can be confident on the evidence that Mr Singh spoke and understood English, that he understood the nature and quality of his decision to enter the guilty pleas, and that he made a free and voluntary decision to do so. He referred to the evidence of Mr White and the other lawyers who represented Mr Singh and to the documentary record. He submitted that Mr Singh was represented throughout by counsel, that he was competently advised and that the decision as to whether or not to enter the guilty pleas was left to him. He argued that there is no basis for revisiting the guilty pleas, and that they were informed, considered and entirely reasonable given the strong Crown case.
Analysis
[22] This case turns on whether or not Mr Singh properly understood the charges laid against him, the proposed resolution of the charges and the pleas that he entered.
[23] Mr Singh in his affidavit deposed that his primary language is Hindi. He nevertheless accepted that he has passable English. It was put to him in cross- examination that he can speak English quite well. He responded:
Yeah not 100%, I would say 60% yeah I am able to handle the basic words such as how are you and how are things.
[24] Ms Winterstein only saw Mr Singh on one occasion – on 31 March 2021. She spent a relatively short time with him – she said:
It would have been five minutes at most.
She met Mr Singh simply to introduce him to Mr White. She was not able to express an opinion about Mr Singh’s English. She said that he spoke as though English was his second language and that his speech was “very conversational”. She said:
In terms of any legal matters I wouldn’t be confident that he would have had that understanding.
She also had one telephone discussion with Mr Singh. She said that he appeared to understand what she was telling him on the telephone. She also told me that Mr Singh never told her that he required an interpreter.
[25] Mr White spent substantially more time with Mr Singh. He spoke to him by telephone on 30 March 2021 and met him at the Manukau District Court on 31 March 2021. They went to an interview room. They discussed the case, including the Crown summary of facts and the resolution which had been proposed by the Crown to Ms Winterstein. Mr White said:
At all times Mr Singh communicated with me in fluent English, and I could tell from his responses to me that he rapidly comprehended everything I said to him.
[26] Mr Macneil gave evidence that Mr Singh seemed to understand and speak English well. He said that Mr Singh was forthright in giving his views, discussing applications and speaking about his situation generally. He said that he did not doubt Mr Singh’s command of the English language.
[27] There are a number of other matters which point to Mr Singh’s understanding of English:
(a)When Mr Singh was arrested on 16 July 2020, he spoke to the police in English.
(b)When he gave an interview to the police on 16 July 2020, he spoke in English. I have watched parts of the DVD interview in an endeavour to gauge Mr Singh’s command of the English language.
(c)Mr Singh communicated with Ms Winterstein by email in February
/March 2021. His emails were in English. He raised various topics – for example, in an email on 28 February 2021, he told Ms Winterstein that he wished to plead guilty and also to apply for a s 106 discharge without conviction.
(d)Ms Winterstein responded to Mr Singh in English and Mr Singh replied to her, again in English, without suggesting that he did not understand her replies.
(e)Mr Singh spoke with Mr White not only on 30 and 31 March 2021 but also subsequently. All of their conversations were in English. They covered a range of topics – the proposed resolution, the sentence indication, the pleas, the s 106 application and Mr Singh’s immigration situation.
(f)At the sentence indication hearing on 31 March 2021, Judge Earwaker spoke in English. Mr Singh was present. He did not indicate that he did not understand. Nor did he ask for an interpreter.
(g)Once the sentence indication was accepted, Mr Singh was rearraigned. The charges were read out in English and Mr White entered guilty pleas on Mr Singh’s behalf. Mr Singh did not indicate that he did not understand what was going on or that he required an interpreter.
(h)Mr Singh met with Mr Macneil for about an hour on 3 May 2021. He spoke to Mr Macneil in English. They also conversed in English either in person or over the phone without incident or any apparent misunderstanding on various subsequent occasions. There was no suggestion made by Mr Singh at the time that he did not understand Mr Macneil or that he required an interpreter.
(i)At the s 106 application hearing and sentencing on 20 July 2021, Judge Earwaker spoke in English. Mr Singh did not indicate that he was unable to understand what was being said; nor did he ask for an interpreter.
(j)Mr Singh has signed a number of documents in English, including a file note where he recorded his acceptance of the sentence indication and that he would enter guilty pleas. He also signed an affidavit for the
s 106 application hearing dated 9 June 2021 and both that application and his affidavit in these appeal proceedings are in English.
[28] I am not persuaded that Mr Singh did not understand English. The DVD recording in particular is telling. Mr Singh answered the questions put to him by the interviewing officer without hesitation. There is nothing in the interview to suggest that Mr Singh did not understand English or that he could not communicate in English. When he was cross-examined about the DVD interview, Mr Singh said that the interviewer was from India, that he spoke Hindi and that he explained matters to him in Hindi. I did not find a single instance of this occurring when I watched parts of the DVD. Mr Singh’s DVD interview, his correspondence and documents and his discussions with counsel, all in English, clearly indicate that he could understand English well and that he could and did communicate in English. I am more than satisfied that Mr Singh knew what was going on and that he appreciated his predicament.
[29] I now turn to consider the guilty pleas. Mr Singh says that he was induced by Mr White to enter the pleas.
[30] The possibility of entering guilty pleas was first raised by Mr Singh in an email he sent to Ms Winterstein on 28 February 2021. At the same time, he raised the possibility of a s 106 discharge. Ms Winterstein responded that there was no issue with this and advised Mr Singh that he was entitled to make such application but that there was no guarantee it would succeed. She explained to Mr Singh that they would need to meet to discuss what the consequences of convictions would be for him and to get the paper work ready. Mr Singh responded later in the day, saying that if there was no guarantee then maybe he would not “go for it”. Ms Winterstein responded:
There are no guarantees with anything that you decide to do. You might be found guilty or you might be found not guilty. You might get your discharge or you might not. There is positives and negatives in anything that you decide. You just have to let me know ASAP what your end decision is so I can let the Court and the Crown know.
Ms Winterstein was dealing with the Crown prosecutor, Charlotte Best. On 16 March 2021, Ms Best sent additional documents to Ms Winterstein and enquired whether
there was scope for resolution of the matter. Ms Winterstein responded, advising that Mr Singh had been somewhat equivocal. On 18 March 2021, Ms Winterstein received an email from Ms Best advising that the Crown was prepared to amend the charge laid of strangulation to one of male assaults female for the purposes of resolution but would proceed with the threatening to kill charge. Ms Winterstein spoke to Mr Singh. She explained to him that she would need to seek an adjournment because she had Youth Court commitments. She also indicated to him that this would allow her time to complete a brief of evidence, to have him sign any written instructions and to discuss the proposed resolution of the matter. She said that Mr Singh agreed to her suggestion that she apply to adjourn the trial.
[31] Mr White communicated with the Crown prosecutor by email on 30 March 2021. They discussed the trial, witness logistics, disclosure, resolution and adjournment of the trial. Mr White was aware from the file that the Crown had offered to resolve the matter as noted above. Mr White said that sought and received confirmation that the resolution proposal was still “on the table”. Mr White communicated with Mr Singh by email, text messages and telephone. On 30 March 2021, Mr Singh told Mr White that he wanted to decline the proposed resolution, that he did not assault his wife and that she and her mother were lying. Mr Singh and Mr White met in person at 9.30 am. They discussed the file. Mr White told Mr Singh that a discount would be available if guilty pleas were entered. They discussed resolution and the possibility of obtaining a sentence indication. Mr Singh said that he nevertheless wanted to defend the charges. Mr White then said as follows:
I stood up to leave the interview room and return to the Courtroom. Mr Singh stopped me and said with urgency in his voice, “No, No – I don’t want a trial”. He then instructed me to seek a sentence indication on the proposed charge resolution.
Mr White was cross-examined about this. He said that he remembered Mr Singh’s words, because Mr Singh had only a few minutes earlier told him that he did not wish to resolve matters and instead proceed to trial. While Mr Singh said in cross- examination that Mr White was lying, I am satisfied that Mr White’s recollection is accurate. He made a contemporaneous file note recording:
Instruction: seek SI [sentence indication].
[32] The sentence indication was obtained. The Judge then stood the matter down. Mr White gave evidence that he and Mr Singh discussed the sentence indication in private. Mr White accepted that he told Mr Singh that he had over 30 years’ experience. They discussed the credibility contest that would ensue at any trial. Mr White said that he was:
… very aware not to pressure [Mr Singh] whether to accept or reject the resolution because in the end it was up to him whether he had a trial or not.
Mr Singh decided to accept the sentence indication. Mr White again made a file note:
Accept SI.
Mr White then handwrote the following file note:
I Sharanjeet Singh instruct my lawyer Chris White that I accept the sentence indication given today.
I plead guilty to male assaults female and threatening to kill. I accept the contents of the summary of facts.
Dated 31 March 2021.
This instruction was signed by Mr Singh. Mr Singh was then rearraigned and Mr White entered guilty pleas on his behalf. I do not have the District Court file and it is unclear if convictions were then entered. Mr Singh was however remanded on bail and a pre-sentence report was directed.
[33] On 8 April 2021, Mr White emailed a reporting letter to Mr Singh, advising that he would be sentenced on 15 June 2021. He told Mr Singh that the probation service would interview him and that that interview provided him with the opportunity to explain why he did what he did, to express remorse for it and to talk about his background and his plans for the future.
[34] On 20 April 2021, Mr Singh telephoned Mr White. He told him that he wanted to apply for a discharge without conviction under s 106. Mr White advised Mr Singh that this issue had not been raised when the pleas were entered, that the Judge may have already entered convictions and that it might be better dealt with it by way of an appeal against sentence. He said that he would arrange for Mr Singh to have a new
legal aid lawyer who could apply for a discharge without conviction and/or address the point in any sentence appeal.
[35] Mr Singh asserts that he went along with what his lawyers instructed him to do. He said that he had no money, was not in a position to hire anybody and that all the lawyers assigned to him said:
Oh just go guilty.
He said that he was told that if he pleaded guilty he would get a 25 per cent discount. When it was put to him that he did not have to plead guilty, he responded:
Yes, I’m accepting that but I could have – I’m accepting that yes, it was in my right to go guilty or not guilty but I was at that stage where I was dealing with legal aid lawyers and they would only work up to that level. I have no money, there was a time in my life at that time that I felt so helpless that I could have even ended my life.
[36] There is nothing to suggest that Mr Singh made anything other a free and voluntary decision to enter the guilty pleas. Having observed Mr Singh, I am confident that he was more than capable of standing up to his lawyers if he genuinely thought that he was being pressured. I note that Mr Singh instructed Mr Macneil to make a s 106 application; Mr Macneil advised him against him doing so but Mr Singh overruled him and told him to make the application in any event. Further, Mr Singh retained and then dismissed a number of lawyers, most recently Mr Macneil.
[37] In his affidavit, Mr Singh asserted that Mr Macneil discussed the pleas with him and told him to accept the resolution offer made by the Crown. He was clearly mistaken in this regard. It is curious that Mr Singh now asserts that Mr White induced him to enter the pleas, whereas in his affidavit he seemed to think it was Mr Macneil who entered the pleas. This also suggests that there was no inducement by or pressure from Mr White. If there was, Mr Singh would have remembered it.
[38] Even on his own evidence, Mr Singh did nothing to indicate that he disagreed with his decision to enter the pleas or that he wanted to seek to reverse them. Rather, his efforts were focused on getting a s 106 discharge. Contrary to Mr Singh’s assertions, Mr Macneil is adamant that Mr Singh did not suggest to him that he did
not commit the offences, that he wished to withdraw his guilty pleas or that he planned to defend the charges. Rather, in support of the application for a s 106 discharge, Mr Singh signed an affidavit, acknowledging that he assaulted his wife and threatened to kill her on 16 July 2020. He went on to apologise for his actions and to acknowledge that what he did was unacceptable. Mr Singh also instructed Mr Macneil as to what he said had occurred and why. Mr Macneil’s submissions recorded Mr Singh’s acknowledgement of the assault and his regret for his actions.
[39] Mr Singh was interviewed by the Department of Corrections for the purpose of completing the pre-sentence report. In the course of that interview, Mr Singh disputed the police summary of facts, stating that the assault and threat did not happen and that he did not touch his wife. As a result, Mr Macneil met with Mr Singh and discussed the pre-sentence report with him. Mr Macneil told Mr Singh that the Court would likely view the comments as indicating a lack of remorse, which could lead to a more adverse sentencing outcome. Mr Singh explained to Mr Macneil that there had been a misunderstanding between him and the probation officer and that he did not intend to say that he had not physically assaulted the complainant. Mr Macneil annotated his copy of the pre-sentence report noting that the comments that Mr Singh said had not been intended, and recording that what was stated in parts of the pre- sentence report was a mistake. Mr Macneil, based on his instructions from Mr Singh, advised Judge Earwaker at the hearing on 15 June 2021 that the statements in the pre- sentence report were the product of a misunderstanding and that Mr Singh did not deny that he had committed the offending. He made the same comments, again based on Mr Singh’s instructions to him, in a sentencing memorandum he filed with the Court. The memorandum recorded as follows:
The dispute to the police summary of facts was due to a misunderstanding. Mr Singh misheard what the probations had asked him and therefore responded to parts of a conversation that was not happening, however probations used that statement as a denial of all the events that occurred on the night.
For clarity Mr Singh does not dispute the summary of facts or that the assault occurred as can be seen from the affidavits filed in support of the application.
When Mr Singh and Mr Macneil met on 20 July 2021, Mr Singh told Mr Macneil that he wanted to get the sentencing over and done with. He did not suggest to Mr Macneil
that he had not offended, that he wished to withdraw his guilty pleas or that he planned to defend the charges.
[40] I accept the evidence of Ms Winterstein, Mr White and Mr Macneil. I do not accept the evidence of Mr Singh. In my view, he was an entirely unsatisfactory witness, lying in an attempt to protect his immigration status. His assertions were contrary to contemporaneous documentation. Some of his explanations and assertions simply made no sense. Others had a distinct ring of implausibility about them.
[41] I am not persuaded that there was any counsel error, that Mr Singh did not appreciate the nature of the charges against him and that he did not intend to plead guilty to them. Rather, it is clear to me that Mr Singh fully understood the decision he was being called upon to make when he decided to plead guilty to the charges. He made that decision voluntarily. His pleas are not vitiated by any misunderstanding or mistake. There was no pressure improper or otherwise from Mr White or other counsel assigned. All counsel acted appropriately.
[42] The convictions cannot be impugned. There was no miscarriage of justice. The appeal is dismissed.
Wylie J