Singh v The the Queen
[2022] NZCA 271
•28 June 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA34/2022 [2022] NZCA 271 |
| BETWEEN | SHARANJEET SINGH |
| AND | THE QUEEN |
| Court: | Gilbert, Mander and Fitzgerald JJ |
Counsel: | R P Chaudhry for Appellant |
Judgment: | 28 June 2022 at 9.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
After being provided with a sentence indication, Mr Sharanjeet Singh pleaded guilty in the Manukau District Court to charges of assaulting and threatening to kill his wife.[1] An application to be discharged without conviction was declined and he was sentenced to 120 hours’ community work and eight months’ supervision.[2]
[1]R v Singh DC Manukau CRI-2020-092-7048, 31 March 2021.
[2]Police v Singh [2021] NZDC 15082.
Mr Singh appealed his convictions on the basis his guilty pleas were the product of language difficulties resulting from him not having access to an interpreter, and that he was induced into pleading guilty by the illegitimate actions and influence of his lawyers. His appeal was dismissed.[3] Wylie J held Mr Singh understood English and no misunderstandings had arisen from any language difficulties.[4] Wylie J also determined Mr Singh made a free and voluntary decision to enter guilty pleas which was not vitiated by any counsel error or misconduct.[5]
[3]Singh v R [2021] NZHC 3388.
[4]At [27]–[28].
[5]At [36] and [41].
Mr Singh now applies to this Court for leave to bring a second appeal against conviction. He essentially advances the same grounds — that counsel failed to follow his instructions and neglected to provide him with language assistance to allow him to properly instruct counsel and understand the proceeding. He claims he therefore did not make an informed decision to plead guilty.
The Crown opposes the application for leave to appeal. It submits Mr Singh seeks to re-litigate two factual findings made by the High Court regarding his ability to understand and communicate with his lawyers in English and that he intentionally and voluntarily instructed his lawyers to enter guilty pleas.
Background
The charges arise out of a domestic dispute that occurred in the family home after Mr Singh accused his partner of infidelity. In the presence of their teenage son and the complainant’s mother, Mr Singh applied pressure to the complainant’s neck to the point she thought she was going to lose consciousness. After being pulled off the complainant, Mr Singh again confronted her, this time with a hammer and threatened to kill her before being disarmed.
The complainant suffered bruising and scratches to her neck which were documented in photographs taken by attending police officers. When spoken to by police, Mr Singh denied the offending, despite statements made by the complainant’s mother and son corroborating her account of what had occurred.
Procedural history
Mr Singh was legally represented throughout the criminal proceeding. He pleaded guilty following advice the prosecution was willing to reduce a charge of impeding breathing to one of male assaults female and a sentence indication, all of which he discussed with his counsel, Mr White. He signed a written instruction documenting that he wished to accept the sentence indication and plead guilty.
Almost a month later, Mr Singh advised he wished to apply to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. Initially, Mr Singh accepted the advice of his new counsel, Mr MacNeil, not to bring such an application. However, at Mr Singh’s insistence, an affidavit was prepared and the discharge application advanced. Judge Earwaker declined the application.
Appeal to High Court
Justice Wylie identified that Mr Singh’s appeal turned on whether he had properly understood the charges laid against him, the proposed resolution of the charges, and the pleas he subsequently entered.[6] The Judge reviewed the evidence adduced before him, including from Mr Singh himself and three of the lawyers who acted for him during the course of the criminal proceeding. The Judge also viewed a recorded interview police conducted with Mr Singh to gauge his command of the English language. After an exhaustive review of the evidence bearing on this issue, the Judge concluded that Mr Singh could understand English well. Wylie J was satisfied Mr Singh knew what was going on throughout his interactions with counsel and the Court, and had no difficulty communicating in English.[7]
[6]At [22].
[7]At [28].
Similarly, after reviewing the relevant evidence, including signed written instructions and contemporaneous file notes, the Judge found there was nothing to suggest Mr Singh had made anything other than a free and voluntary decision to enter guilty pleas.[8] The Judge determined he was well-capable of standing up to his lawyers if he genuinely thought he was being pressured into a course of action he did not wish to take. In reaching these conclusions, the Judge found Mr Singh to be “an entirely unsatisfactory witness” whose explanations and assertions “simply made no sense” and had “a distinct ring of implausibility about them”.[9]
Approach to applications for leave to bring a second appeal against conviction
[8]At [36].
[9]At [40].
Leave to bring a second appeal will only be granted where it involves a matter of general public importance, or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.[10] Mr Chaudhry, who advanced Mr Singh’s application on his behalf, contended that both limbs of the threshold test were satisfied in this case.
Applicant’s argument
[10]Criminal Procedure Act 2011, s 237(2).
Mr Chaudhry argued the High Court erred in finding that Mr Singh’s counsel had properly followed his instructions. He maintained there was cogent evidence of counsel error or misconduct. He submitted the High Court erred in concluding that Mr Singh was “well conversant in English”. Reliance was placed on a request for a Fiji Hindi interpreter that had been made in a case management memorandum filed at an earlier stage in the proceeding. A related submission was that the Court had erred in finding Mr Singh was properly able to instruct trial counsel without the assistance of an interpreter.
Mr Chaudhry submitted the Judge had erroneously applied the threshold for acceptable trial counsel conduct, and asserted counsel had failed to follow Mr Singh’s instructions. These failings, it was contended, amounted to a breach of Mr Singh’s right to receive a fair trial pursuant to the New Zealand Bill of Rights Act 1990. As a result, it was argued, a matter of general or public importance arose and a miscarriage of justice may occur if the appeal is not heard.
Discussion
We are satisfied no ground of general or public importance arises on the proposed appeal against conviction. Nor do we consider, having regard to the evidence available to the first appeal Court, any miscarriage of justice potentially arises from the dismissal of Mr Singh’s first appeal.
Wylie J correctly identified the relevant principles that govern the assessment of an appeal against conviction following a plea of guilty. In particular, that where an appellant fully appreciates the merits of their position and makes an informed decision to plead guilty, the conviction cannot be impugned.[11] Whether Mr Singh entered his plea because of a misunderstanding or mistake due to language difficulties or as a consequence of his counsel failing to follow his instructions were both questions of fact that Wylie J addressed and decisively rejected.
[11]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
We accept the prime submission of the Crown that this application for a second appeal simply seeks to re-litigate those factual issues. Neither gives rise to a question of general or public importance. Wylie J’s judgment involves the application of orthodox legal principles to findings of fact reached following a careful assessment of the evidence. It included the rejection of Mr Singh as a credible witness.
There was ample evidence available to the High Court to conclude Mr Singh was able to understand and communicate with his lawyers and provide them with informed instructions. Not only was there his lawyers’ evidence, but the Judge was able to independently make his own assessment from the recorded interview police conducted with Mr Singh. Other sources included the electronic communications that took place between Mr Singh and his counsel, all of which demonstrated not only his understanding of English but the informed nature of the decisions he made about the conduct of his case. Mr Singh’s reliance on an initial request that provision be made for a Fiji Hindi interpreter at his trial does not alter the strength of that conclusion.
Similarly, the signed written records of Mr Singh’s instructions to his counsel to seek a sentence indication and his subsequent decision to plead guilty on the basis of the indication provided show these were Mr Singh’s own decisions that he made on a free and voluntary basis. Apart from Mr Singh’s rejected assertions to the contrary, there is nothing to suggest he did not fully understand the decisions he was being called upon to make or the implications of taking those steps. Given the availability of eyewitnesses to his offending and the evidence of the injuries caused to his victim, it is unsurprising Mr Singh relinquished his right to trial in favour of pleading guilty to a lesser charge and obtaining credit. Mr Singh acknowledged in his evidence he knew he did not have to plead guilty and had the right to defend the charges.
Decision
There was a wealth of evidence available to the High Court to conclude that Mr Singh made an informed decision to plead guilty to the charges, and knowingly and voluntarily instructed his counsel to proceed on that basis. In the absence of Mr Chaudhry being able to articulate how Wylie J erred in his analysis of these factual issues and why this Court can, or should, take a different view of the evidence, we do not consider there is any reasonably available argument that a miscarriage of justice has occurred.
Result
The application for leave to bring a second appeal against conviction is declined.
Solicitors:
Chaudhry Legal, Auckland for the Applicant
Crown Law Wellington, for the Respondent
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