Singh v The Queen - [2021] NZSC 10

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 94/2020
[2021] NZSC 10

BETWEEN	KUL VANT SINGH Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	M J Dyhrberg QC and H G de Groot for Applicant B C L Charmley for Respondent
Judgment:	24 February 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Dr Singh, was convicted after a jury trial on one charge of sexual violation by unlawful sexual connection (committed by way of digital penetration).[1] He was sentenced to a term of imprisonment of two years and 10 months.[2]
[1]He was acquitted on a second charge of sexual violation by unlawful sexual connection, which involved an allegation that he inserted an object into the complainant’s vagina.
[2]R v Singh [2019] NZDC 20579 (Judge Tinimiraka Clark).
The applicant appealed against his conviction to the Court of Appeal, but that appeal was dismissed.[3] He now seeks leave to appeal to this Court against his conviction.
[3]Singh v R [2020] NZCA 487 (Collins, Mallon and Ellis JJ) [CA judgment].
At the time of the offending, the applicant was a practising medical doctor. The complainant had consulted a female doctor working in the same practice as the applicant about a vaginal discharge. After that consultation, the applicant conducted his own examination of the complainant, and the offending occurred during the course of that consultation.
In her evidential video interview, the complainant said that in the course of his physical examination the applicant “kept touching every, inside my vagina, not the area outside; completely inside … he kept touching everywhere …”.
At the trial, the complainant initially answered in the negative when asked by the prosecutor whether the applicant’s finger or fingers went inside her. She said the applicant pressed on the area around her vagina, and that he was rubbing around her vagina area. She said she did not think the applicant’s finger went inside her. The prosecutor then sought to clarify with the complainant what she meant by the word “vagina”. She answered: “The area between my legs”. Some more questions followed, but the answers did not give greater specificity as to what the complainant meant when she referred to her vagina.
The following exchange between the prosecutor and the complainant then took place:
Q Did he touch you at any point between the lips of your vagina?
A Yes he did.
We will call this the first question. After this question, the trial Judge intervened and warned the prosecutor about the need to avoid asking leading questions. However there was no objection from defence counsel about this question. The next question and answer were:
Q Where did he, where did he touch you in relation to your genitalia?
A On the lips and also a bit inside as…

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 Queen

Details

AGLC: Singh v The Queen [2021] NZSC 10
Case: [2021] NZSC 10
Decision Date: 24 February 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Dr Kul Vant Singh, who was convicted of sexual violation by unlawful sexual connection, against the decision of the Court of Appeal. The Court of Appeal had dismissed Dr Singh's appeal against his conviction, which was for digital penetration during a medical examination. Dr Singh argued that the Court of Appeal erred in determining that the crucial evidence was elicited by the second question, rather than the first question, which he claimed was leading and contravened s 89 of the Evidence Act 2006. Dr Singh argued that leave should be granted on the basis that a point of public importance relating to the eliciting of evidence by a leading question arises and also on the basis that a miscarriage of justice will occur if leave is not granted.

The Supreme Court found that there was room for debate about the Court of Appeal's conclusion that it was the second question, not the first question, which elicited the complainant's evidence of penetration. However, the court did not consider that the case raised a point of public importance, as Dr Singh argued. Rather, it turned on the specific and unusual facts of the case. The court also did not consider that the miscarriage ground was made out, as it was clear from an analysis of the transcript of the evidential video interview and the trial transcript that the complainant's evidence-in-chief reflected confusion between the complainant and the prosecutor as to what was meant by the term "vagina". The court found that it was obvious that the prosecutor would seek to resolve the apparent inconsistency between the accounts and there was no impediment to the prosecutor doing that.

The Supreme Court dismissed the application for leave to appeal, finding that the grounds for leave were not made out. The court emphasised the importance of ensuring that the evidence given by a complainant is consistent and that any confusion as to what was meant by the term "vagina" should have been clarified at an earlier stage. The court did not see any real possibility that, whatever course the prosecutor followed, the complainant's evidence-in-chief would have ended without her giving evidence consistent with that of her evidential video interview as to penetration. The court also noted that Dr Singh's defence was not that he had undertaken non-penetrative touching around the area of the complainant's vagina, but rather that he did not conduct any vaginal examination at all. The court was not satisfied that the grounds for leave were made out and therefore dismissed the application for leave.

Orders