The Queen v Ramend Charan

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/00
CA462/00

THE QUEEN

RAMEND CHARAN
SAMUEL GLASSIE MARSTERS

Hearing:	11 June 2001
Coram:	Gault J Anderson J Randerson J
Appearances:	B J Hart and K Maxwell for Appellant Charan K R Smith for Appellant Marsters K Raftery for Crown
Judgment:	30 July 2001

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the Appeals

Each appellant was convicted by a jury of the following offences committed on 21 October 1998 –
[a]Unlawfully entering a dwelling house at 30 Douglas Crescent, Hamilton with intent to commit a crime therein – Crimes Act 1961, s 242.
[b]Unlawfully detaining Nicholas Kim Crocker with his consent obtained by duress with intent to hold him to service – Crimes Act 1961, s 209(1)(c).
[c]With menaces, demanding from Chandar Prakash for himself or for any other person a motor vehicle and cash with intent to steal it – Crimes Act 1961, s 239.
[d]With menaces, demanding from Prem Siwan Goundar for himself or any other person a motor vehicle and cash with intent to steal it – Crimes Act 1961, s 239.
Mr Charan appeals against his conviction on all four counts, and Mr Marsters against his conviction on the third and fourth counts.
Each appellant was sentenced to concurrent terms of imprisonment of 4½ years in respect of the demanding with menaces, 2 years for the detention, and 6 months for the unlawful entry. They appeal against the sentences of 4½ years imprisonment.

Nature of the Offences

In 1998 Mr Charan owned and operated a number of car sales yards in Hamilton city. Sometimes his business took him to Japan to obtain used car stock. At various yards he employed the three complainants. Although Mr Crocker stopped working for Mr Charan in about June 1998, he kept in touch with the other two.
Mr Prakash and Mr Goundar were Fijian Indians who had been sponsored by Mr Charan for work permits so they could be employed by him in his yards. In about September 1998 they had a falling out with Mr Charan over their work permits and employment. They stopped working for him and shifted from accommodation which he had organised at the beginning of their employment into a house at Mt View Road, Hamilton. Mr Crocker in fact helped them with their shift there.
By 21 October 1998 Mr Crocker was still living at the address he had when employed by Mr Charan, and which he shared with his mother. Mr Prakash and Mr Goundar, however, were living at the new address which would not have been known to Mr Charan. At about 10 p.m. on that date, someone knocked on Mr Crocker’s door and called his name. Although he did not recognise the voice, he assumed the speaker knew of him and he opened the door a short distance to see the caller. The door was then pushed open, knocking Mr Crocker off balance, and a man pressed his way into the house. He was joined after a short time by another man. One was the appellant, Mr Marsters, and the other has not been identified. He was not Mr Charan. Mr Marsters told Mr Crocker they needed to speak to him about Ramend. He said Mr Crocker had been talking about Ram and that was to stop. Mr Marsters accused Mr Crocker of helping Prem and Chandar and he wanted to know where those two men were. He said Ramend was angry that Mr Crocker had been helping the other two and he wanted it to stop.
Mr Crocker was intimidated by the men. Mr Marsters told him that they had been sent to do him over and he was lucky that more dangerous people, such as the Outcasts and other gangs, had not been sent round to do it. He said that the other two men had been talking and doing things against Ramend and they were to go back to Fiji. The men wanted to know where Prem and Chandar were living. Mr Crocker said they indicated he could do it the easy way or the hard way, the easy way being going with them to show where the former employees lived.
Still feeling frightened for his own safety, he used his car to drive Mr Marsters to the Mt View address. He noticed that the other man followed in a white Toyota Supra. He pointed out the residence of Mr Prakash and Mr Goundar. On the trip from Douglas Crescent to Mt View, Mr Marsters spoke about his connection with Mr Charan. He said that someone had previously paid him to go and visit Ramend on another matter and that he was a business partner of Ramend and that is why he had come to see Mr Crocker.
As Mr Marsters got out of the car he warned Mr Crocker not to do anything like telling the police and that there would be people watching him. He said that Mr Crocker’s house had been watched and Chandar and Prem had been seen visiting him. He told Mr Crocker that he was to ring Ramend and apologise, although Mr Crocker did not know what he had to apologise for. He told Mr Marsters that he thought that Ramend was out of the country, and Mr Marsters told him to telephone the lady at the tyre shop. Mr Crocker knew that the lady was Sara Samuels, Ramend’s niece. Mr Marsters then got out of the car and Mr Crocker drove home. The white Toyota Supra had arrived before Mr Crocker left and had parked outside a neighbouring house. The offences in relation to Mr Prakash and Mr Goundar occurred shortly after that.
Before testifying about the events of the evening of 21 October 1998, Mr Prakash gave evidence of the background of his dealings with Mr Charan. He told how Mr Charan had sponsored him and a friend of his to come to New Zealand but had required him to pay a cash bond of $2500 which was to be deducted from his weekly wages. Later there was a dispute over Mr Prakash’s right to work. Mr Prakash thought that Mr Charan had been implicated in the immigration difficulties. He fell out with Mr Charan and wanted back money that had been deducted for the so-called bond. The relationship between Mr Charan, as sponsor and employer, and Mr Prakash, as the worker, became very strained.
Mr Goundar described his dispute with Mr Charan. It also involved the revocation of his work permit as well as the fact that his employment contract for two years had been ended prematurely. Mr Goundar believed that he was owed wages for the two years.
On the night of 21 October 1998 Mr Prakash’s wife answered a knock at the door and Mr Prakash went to see who was there. A man whom he had never seen before said that he was looking for those people working for Mr Charan. Mr Prakash said he called Prem and asked him if he knew the man standing at the door, and the man said to Prem a couple of times “you know me”. He walked into the lounge and sat down. He then said to Mr Prakash and Mr Goundar that they were putting pressure on his friend Ramend and that if Ramend wanted them to go back to Fiji they had better go back to Fiji. His manner had become growling and heavy and he said they had better apologise to the man the next morning. If they did not then he was going to come back to their place. He said that Ramend had sent him to hurt them but he was not going to do that. He told them that they were to call Ramend and apologise to him. Then he asked Mr Goundar for a car but Mr Goundar pretended he did not have one. The man then demanded $5000 from each of them. He got them to go out on the verandah and called up a man from the shadows to witness their agreement to pay $5000. He repeated that stipulation in front of the other man and made them shake his hand on the agreement with the other man witnessing. The two offenders then left.
There is an issue about the role of Mr Marsters in that episode. Mr Prakash could not identify the man who came into the house and there are discrepancies between his description to the police at the time and the characteristics of Mr Marsters. Mr Goundar, however, was clear that the man who came into the house was Mr Marsters, whom he had seen the previous year in an incident with Mr Charan at work.
In the earlier incident Mr Marsters had gone to Mr Charan’s car yard in the company of a former employee, Herb Lightfoot, and another. Mr Goundar could not hear what was going on but he saw Herb Lightfoot come and get a pen and writing page. He later saw Herb leave in his own car but the other two men left in one of Mr Charan’s cars from the yard, and then Mr Charan called the police.
There had indeed been such an incident on 1 October 1997. In complaining about the incident to the police, Mr Charan had made a statement in writing. He described a man called Herbert Lightfoot and another man called Sam Marsters, as well as a third man called Sean Dali. The trio, led by Herb Lightfoot, had menacingly demanded $260,000 from Mr Charan and had frightened him into writing an acknowledgement that he would pay Herb Lightfoot. Sam Marsters had been at the forefront of the incident and had been the one who insisted on the agreement to pay being written and signed. He also noticed and helped himself to a solid gold bracelet which Mr Charan was wearing and he put it on his own wrist, commenting that this could be part of the payment.
There is a probative coincidence in Mr Marsters using the technique of an agreement by coercion in relation to Mr Charan and the coerced agreement involving Mr Prakash and Mr Goundar. Furthermore, a fingerprint of Mr Marsters was lifted by the police from the opening edge of the painted doorframe adjacent to the verandah at the Mt View address.
The gold bracelet was restored to Mr Charan in unusual circumstances. When he was in Japan in October 1998 Mr Charan discussed the bracelet in a telephone conversation with his niece, Mrs Samuels. He asked her to ring a pager number and leave a message on it for the return of the bracelet, which she did. Later a man came into the work premises and asked for Mr Charan. On being told that Mr Charan was out of the country the man presented a package and asked her to give that to Mr Charan. The package contained the bracelet. Mr Samuels said that he also had been given a set of paging numbers by Mr Charan and had been asked to call a Sam Marsters. Mr Samuels assumed this was in connection with the gold bracelet that had been taken. Sam Marsters got in touch with Mr Samuels, who told him to get in touch with Ramend and gave him Mr Charan’s hotel number in Japan. On 18 October 1998 a telephone call lasting one minute 20 seconds was received on Mr Marsters’ cellphone from Japan. Whether it originated in Japan or was routed through Japan cannot be established from Telecom records, but in all the circumstances it is unreasonable to think it was a call to Mr Marsters from anyone other than Mr Charan. The evidence showing attempts by Mr Charan to establish communication with Mr Marsters and the return to Mr Charan of the bracelet which Mr Marsters had stolen a year previously admit of no other reasonable possibility. That conclusion is reinforced by a wish Mr Charan expressed to the police in November 1998 that they take no further action on his complaint about the bracelet.

Mr Marsters’ appeal

The first ground of appeal is that the jury’s verdict inculpating Mr Marsters in respect of Counts 3 and 4 was unreasonable and could not be supported having regard to the evidence because of the unsatisfactory nature of the identification evidence. Reliance was placed on the discrepancy between Mr Prakash’s description and Mr Marsters’ characteristics. Nor could Mr Goundar identify Mr Marsters in Court, notwithstanding the evidence suggesting that the man inside the house was dealing with Mr Prakash and Mr Goundar for a lengthy period. It was acknowledged that Mr Marsters went to the Mt View property, such acknowledgement being unavoidable having regard to the evidence of Mr Crocker and the fingerprint lifted from the entry door to the house. It was submitted, however, that the possibility had not been excluded that Mr Marsters remained outside the house and the unidentified man was the one who went inside.
Counsel for Mr Marsters further submitted that there was insufficient evidence to inculpate his client as a party to the offending by the man inside the house because there was an insufficient evidential basis for the jury to conclude that Mr Marsters must have known the type of offence intended and in fact committed; nor to conclude that Mr Marsters and the other man had a common purpose and knew the probable consequence of such was the commission of the actual offences inside the house.
A second ground of appeal on behalf of Mr Marsters is that the trial Judge misdirected the jury by invoking the paradigm of different types of participation by persons involved in an armed bank robbery. The illustration was appended to a direction by the trial Judge in these terms:-
To be a party, the steps that you take or fail to take must be deliberate and for the purpose of assisting the offence. It does not matter if your involvement is only slight. Simply being present is not enough. A bystander, onlooker or spectator will not become a party. You cannot become a party by accident. You must be actively involved.

Decision on Mr Marsters’ appeal against conviction

We intend to deal first with Mr Marsters’ appeal because of the facility with which it can be disposed of.
Whilst it is generally preferable to illustrate legal principles, such as complicity as a party, by reference to the factual issues in the case rather than a hypothesis, there is no question of the jury having been misdirected in this case. The legal principles were clearly and correctly stated, and there is no realistic possibility of the jury having been misled, misinformed, or confused by the bank robbery analogy.
Whether Mr Marsters was in fact the man inside the Mt View property was entirely a jury issue and the jury could properly accept Mr Goundar’s evidence that the man in his house was the man he had seen in Mr Charan’s office the previous year. Further, the fingerprint shows that Mr Marsters was at one stage at the entrance door with his hand on the doorframe. That is consistent with him being the man who entered the house.
In any event, there was abundant evidence to implicate Mr Marsters as a party should the man inside the house have been someone else. This is not a case of Mr Marsters waiting patiently on the periphery of the action, innocently ignorant of what was happening inside. Both Mr Marsters and the unknown man had coerced Mr Crocker into leading them to Mr Prakash and Mr Goundar. They were plainly out to deal with those two complainants and to use scare tactics to achieve this. Both men were present on the verandah when the coerced arrangement was recited and confirmed by handshakes.
There is an entirely adequate evidential basis for convicting Mr Marsters on Counts 3 and 4 without imputing to him what was said and done by the man inside the Mt View house. Yet that conduct can properly be imputed to him by virtue of the principle that if two or more persons act in pre-concert, the actions and utterances of one are admissible against the others if done or said in furtherance of that joint agreement.
The principle is usually invoked to prove counts of conspiracy but is not limited to such offences. A recent exposition of the principle and its components is to be found in the decision of this Court in R v Morris CA135/01, 11 July 2001. That judgment iterates that before the acts or declarations of one alleged conspirator will be admitted as evidence against any other alleged co-conspirators, there are two threshold issues for judicial determination. One is whether the evidence shows that there was in fact a conspiracy of the type alleged, and the other is whether it shows that the persons said to be its members, or at least some of them including the accused, were in fact members of the conspiracy. There are differing views as to whether the evidential test is on the balance of probabilities or on the existence of reasonable evidence. In practice the result tends to be the same and this case is no exception. Yet the existence of a conspiracy and an accused’s participation in it must be shown to the requisite standard without use of hearsay, although evidence which would be inadmissible hearsay for some purposes may be admissible to prove the existence of an agreement or combination to engage in an illegal common enterprise. As this Court noted in R v Morris, paragraph [17]:-
But statements made by other persons about what they are intending to do, against the background of their statements about what they have done, are not hearsay if received as evidence of their state of mind at the time of speaking, and thus of their purposes and intentions at that time. Such statements are received not to prove the truth of the participation of someone not a party to the conversation, but as facts from which the existence of the agreement or combination to engage in an illegal common enterprise may be shown. … The existence of a conspiracy can thus be shown by their statements, including what they have said about the accused.
Mr Marsters coerced Mr Crocker in relation to the other two complainants and their dealings with Mr Charan. His own words and conduct showed that that is why and how he was working with the other unidentified man. If it was the other man who went into the Mt View residence, then his intention also, indicated by his words and conduct even in the absence of his accomplice, were concerned with those two complainants’ relationship with Mr Charan and their alleged obligations to him. The evidential threshold in respect of the existence of pre-concert to coerce the two employees to pay money or hand over cars and the involvement of Mr Marsters and the other man in that concerted action was clearly surpassed.
Mr Marsters’ appeal against conviction must be dismissed.

Mr Charan’s appeal against conviction

The first ground of appeal is concerned with the Judge’s ruling as to the admissibility against Mr Charan of Mr Marsters’ statements, and of the Judge’s directions to the jury as to the use which could be made of such statements.
The ruling on admissibility was made before trial on an application brought by the Crown pursuant to s 344A of the Crimes Act 1961. He identified the correct principles, indicated by authorities such as R v Buckton [1985] 2 NZLR 257; R v Tauhore [1996] 2 NZLR 641; and R v Uea CA211/89, 12 December 1989. It is not argued on behalf of Mr Charan that the wrong principles were invoked, but rather that the evidence in respect of their application was wrongly assessed.
Evidence relevant to the Judge’s determination included not only that traversed so far in this judgment but also that Mr Charan, in various letters to Mr Prakash and Mr Goundar, was demanding their addresses and had not been told of them. Since Mr Crocker had been an employee and had not changed his address since leaving employment, Mr Charan would know how to get hold of him and that he could be expected to know the address of his two friends.
Looking at the evidence in the round, the Judge was satisfied that in combination it showed on the balance of probabilities that a common intention existed.
When directing the jury on the use that could be made of Mr Marsters’ statements, the Judge said:-
The next special care that you need to take is in relation to the 1998 incident, and in this case the concern is that you need to be particularly careful when considering Mr Charan’s case, because usually what anyone said in Mr Charan’s absence would not be available for you and would not be admissible against him. The reason for that is because, strictly speaking, it is what we lawyers call ‘hearsay’. That is, something that is said in a person’s absence. That means the person has not had the opportunity of saying “Hey, hold it, that’s not right.” He has not heard it said so he has not had the opportunity of correcting it. So when you consider Mr Charan’s case, take special care with what it is alleged that Mr Marsters has said against him. It is admissible. It is relevant. But just be careful. And if it is the only evidence that you find that connects Mr Charan with this offence, it would not be safe to convict only on that evidence. You would need more than just what Mr Marsters is alleged to have said. Now the obvious reason for that is that someone could make up a lie and say it, and the person about whom the lie was told would never have the chance to correct it. So all I am suggesting is, just be a little bit cautious with it. It is relevant. It is admissible in the case against Mr Charan, but be careful with it.

The challenge to the admissibility of statements by alleged co-conspirators asserts inadequacy in a number of respects. These include the issue whether the man inside the Mt View premises was Mr Marsters or the third man, and whether there was in any event sufficient evidence to demonstrate a common intention between Mr Marsters and Mr Charan.
The international telephone call to Mr Marsters was plainly admissible. A telephone call received by Mr Marsters from Japan in circumstances indicating no other connection by Mr Marsters with Japan than Mr Charan’s presence there with the latter trying to arrange a line of communication with Mr Marsters through his niece and her husband, is plainly admissible to prove, by reasonable inference, that the person who telephoned Mr Marsters was in fact Mr Charan. That inference is reinforced by the return to Mr Charan of the gold bracelet which Mr Marsters had stolen a year previously, followed closely by Mr Charan’s expressed wish to the police that they take no further his complaint about the theft of the bracelet.
We have already dealt with the cogency of the evidence establishing Mr Marsters’ complicity in the events at Mt View Road, whether as the man inside the house or the witnessing accomplice on the verandah, and it is unnecessary to repeat our views with specific reference to the submissions of Mr Charan’s counsel in that respect.
Earlier in this judgment we held there was sufficient evidence to show pre-concert between Mr Marsters and the third man. Their common purpose was to coerce Messrs Prakash and Goundar into apologising to Mr Charan, returning to Fiji, paying for Mr Marsters’ strong arm involvement by money or moneys worth, and to intimidate Mr Crocker in order to find out where the other two complainants lived so that principal objective could be achieved. The issue therefore is whether there is a sufficient evidential basis for finding on the balance of probabilities that Mr Charan was also implicated in that criminal common purpose.
Evidence, extraneous to Mr Marsters and his associate except to the extent that their words and conduct could be invoked to show their common intention, included the following:-
[a]Mr Charan knew that Mr Marsters was prepared to threaten and coerce a person to get an agreement from them for someone else’s benefit and to help himself to something valuable in the process.
[b]Mr Crocker, whose address would have been known to Mr Charan, was used to reveal the address of the other two complainants.
[c]Mr Charan had been trying to find out the address of the other two but without success.
[d]He must have been attempting to find out their address for some purpose in relation to them.
[e]At about the relevant time, Mr Charan and Mr Marsters must have come to some arrangement about the bracelet which was returned.
[f]The bracelet was stolen from Mr Charan in the course of a strong-arm situation such as that used against the three complainants.
[g]A common factor among the three complainants and Mr Marsters, apparently the only one, was association with Mr Charan.
[h]The incident occurred proximately to the falling out between Messrs Prakash and Goundar, on the one hand, and Mr Charan, on the other.
[i]The advice to return to Fiji coincided with what Mr Charan was trying to persuade Mr Prakash and Mr Goundar to do.
[j]At about the relevant time Mr Charan was trying to make contact with Mr Marsters and, by reasonable inference, did so with an international telephone call.
There was plainly a sufficient basis to admit Mr Marsters’ statements for the purpose of showing Mr Charan’s complicity.
For these reasons we think the learned District Court Judge’s decision was amply justified.
Nor are we persuaded that there was any appealable inadequacy in the Judge’s directions to the jury on the issue of how the statements could be used. The submission was that in the particular circumstances of the case the trial Judge should have given a stronger warning to the jury regarding the care to be taken with the statements of Mr Marsters and, if appropriate, his associate. Counsel referred to the Court’s direction in R v Walters [1989] 2 NZLR 33, at p38, that:-
When appropriate they [the jury] should be helped by a warning from the Judge to the effect that it would be dangerous and unfair to convict the accused merely on statements made by others when he was not there.
However, this Court also observed in that case that there is no general rule and that it will always be a question of what the particular facts require in the interests of justice. Of course, in the present case the evidence against Mr Charan was not restricted merely to statements made by others when Mr Charan was absent, as we have observed earlier in this judgment.
The trial Judge used cautionary terms such as “take special care”; “but just be careful”; “just be a little bit cautious”; and he explained why. In the circumstances of this case the direction was sufficient.
The appellant by counsel also challenges the Judge’s directions on parties, but his submissions leave us no more persuaded than those of counsel for Mr Marsters that there was any error in that respect. The submission was founded on the hypothesis of the man inside Mt View being the unidentified person, but for reasons already traversed in this judgment it is immaterial to the issue of complicity as between Mr Marsters, Mr Charan, and the third man who actually went inside that dwelling.
However one dissects the case, the corpus remains the same. The law was correctly identified, applied, and directed upon; the evidence was sufficient to meet legal thresholds and to support the jury’s verdicts.
Mr Charan’s appeals against conviction must also be dismissed.

Appeals against sentence

The appeal against sentence by Mr Marsters is founded on the submission that the starting point of 5½ years imprisonment adopted by the Judge was too high having regard to the absence of actual physical violence, the relatively short period of the offending, and the doubt whether the man in the house was Mr Marsters. In view of what we have already held, that last point warrants no further consideration.
The appeal against sentence by Mr Charan also contends that the Judge’s starting point of between 5½ and 6 years imprisonment is excessive having regard to the absence of actual physical violence. It is further submitted that the circumstances of the appellant were given insufficient weight. These circumstances include Mr Charan’s prior history and good record, including the absence of any previous convictions. Counsel also expressed concern over the impact of the conviction in relation to Mr Charan’s status in relation to the Department of Immigration, and of the long term effects on Mr Charan’s business interests.
The sentencing Judge had a good deal of information before him, including testimonials in support of Mr Charan, but also distressing Victim Impact Reports by the three complainants. These victims have suffered significant emotional and psychological effects from the threats made to them.
The Judge referred to these effects, not only on the three victims but on Mr Crocker’s mother, an older person who now feels very insecure and concerned about the incident in the house where she lived with her son. Mr Crocker is now living in Australia because of his concerns about repercussions. Mr Prakash and Mr Goundar were rightly regarded by the Judge as being in a vulnerable group because of their minority and immigrant status in New Zealand. The offences to them occurred in the house where at least one lived with his wife and children. The Judge correctly characterised the offence as “mean in conception”.
In his sentencing notes the Judge expressed his view, confirmed by the jury’s absence of doubt in this respect, that Mr Charan was the organiser of a pre-planned and deliberate event where he hired Mr Marsters to commit the offences. As for that man, he found that Mr Marsters was the person in the house. He saw no basis for distinguishing the culpability of either appellant.
The Judge considered that deterrence was a very significant feature of the sentencing because “this sort of stand-over enforcement tactics has no place in New Zealand society”. He held that victims need to know that they can and will be protected by New Zealand Courts where such conduct occurs.
He considered the personal circumstances of the appellants, but expressed the view that the Crown case against Mr Charan was a strong one and the jury’s conclusion was inevitable.
The Judge accepted that there was no physical violence in the case, but noted that if there had been other charges would have been laid. He held that the nature of the presence and the threats had its own sinister effect which the victims plainly took seriously.
He referred to various cases where 6, 5, and 4½ years had been imposed, but considered it dangerous to draw parallels to cases because no two cases would be exactly alike. In the result he imposed the sentences referred to at the outset of this judgment.
We are not persuaded that the sentences were excessive or otherwise inappropriate in either case. The Judge was right to condemn the conduct in question and to emphasise the need for a sentence which would deter potential offenders and reassure potential victims, including the particularly vulnerable such as immigrant or other minority communities.
We also think the Judge was quite right to give rather limited weight to the absence of violence. As he indicated, if actual violence had occurred, even more serious charges would have been laid. Even without more physical violence there is something very sinister about people threatening others as mercenary enforcers of someone’s will. We are not disposed to interfere with the trial Judge’s assessment of the degree of criminality in the particular case.
For the reasons given, the appeals against conviction and sentence are dismissed.

Solicitors

K R Smith, Wellington, for Appellant Marsters
Crown Solicitor, Auckland

[2001] NZCA 279

30 July 2001