MOMI v R [2022] NZCA 199

MOMI v R [2022] NZCA 199 [20 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA392/2021[2022] NZCA 199BETWEEN JATINDER SINGH MOMIAppellantAND THE QUEENRespondentCA335/2021BETWEEN AMANDEEP SINGHAppellantAND THE QUEENRespondentCA396/2021BETWEEN RAVJOT SINGH DHILLONAppellantAND THE QUEENRespondentHearing: 29 March 2022Court: Gilbert, Woolford and Dunningham JJCounsel: R M Mansfield QC and J Oliver-Hood for Appellant inCA392/2021JEL Carruthers for Appellant in CA335/2021O R Hintze for Appellant in CA396/2021HDL Steele for RespondentJudgment: 20 May 2022 at 9 amJUDGMENT OF THE COURTA Mr Momi's appeal against conviction in CA392/2021 is dismissed.B Mr Momi's appeal against sentence in CA392/2021 is dismissed.C Mr Singh's appeal against conviction in CA335/2021 is dismissed.D Mr Dhillon's application to adduce further evidence in CA396/2021 isgranted.E Mr Dhillon's appeal against the refusal to discharge him without convictionin CA396/2021 is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a trial by jury in the High Court at Auckland, Messrs Momi andSingh were each found guilty of:(a) wounding with intent to cause grievous bodily harm to Hardeep Hayer(Mr Hayer) (charge 1);(b) wounding with intent to cause grievous bodily harm to Manpreet Singh(Mr Manpreet Singh) (charge 2); and(c) assault with intent to injure Gursharan Singh (Mr Gursharan Singh)(charge 3).[2] Mr Dhillon was found guilty on charge 3.[3] Lang J sentenced Mr Momi to five years and nine months' imprisonment andMr Amandeep Singh to four years and nine months' imprisonment.1 The Judgedeclined Mr Dhillon's application to be discharged without conviction and sentencedhim to 100 hours' community work.2[4] Mr Momi appeals against his conviction on all three charges, contendingthe jury's verdicts were unreasonable.1 R v Momi [2021] NZHC 1384 [Sentencing judgment].2 R v Dhillon [2021] NZHC 1454 [Dhillon judgment].[5] In the event his conviction appeal is dismissed, Mr Momi appeals against hissentence arguing that the starting point of eight years, six months' imprisonment whichthe Judge adopted was manifestly excessive. He contends the starting point ought tohave been the same as for Mr Amandeep Singh, namely seven years' imprisonment.He observes that the Crown did not seek to differentiate between him andMr Amandeep Singh at sentencing.[6] Mr Amandeep Singh also appeals against his conviction on all three charges.He contends that a miscarriage of justice occurred as a result of what the prosecutorsaid to the jury in his closing address about identification evidence which wassignalled in opening, but not given in evidence.[7] Mr Dhillon accepts the jury's verdict but appeals against the Judge's refusal togrant him a discharge without conviction. He accepts the decision is unimpeachableon the basis of the information that was before the Judge. However, he applies toadduce further evidence in support of his appeal which he says demonstrates thatthe consequences of a conviction are significantly more serious than the Judgeunderstood. The Crown does not oppose the introduction of this further evidence butmaintains that a discharge without conviction would not be an appropriate outcome inall the circumstances.Crown case[8] On the evening of Monday, 3 July 2017, a number of young men, includingthe three complainants (Mr Hayer, Mr Manpreet Singh and Mr Gursharan Singh),gathered at an address in Mt Wellington, Auckland. Mr Hayer, Mr Gursharan Singhand another young man, Manjinder Manes, were visiting from Christchurch andstaying with their friend, Mr Manpreet Singh, at another address. They all arrived atthe Mt Wellington address early in the evening, around 5 pm. Mr Momi arrived laterwith two of his friends, Dhanveer Thind (referred to by his nickname "Tinker") andParminder Chahal.[9] Late in the evening, all or some of Mr Momi's group became involved in aheated argument with all or some of Mr Manes, Mr Gursharan Singh and Mr Hayer.As a result, Mr Momi and his two friends left the party. As they left, one of them madea comment to the effect of "we will see you soon".[10] Approximately half an hour later, around midnight, Mr Hayer,Mr Manpreet Singh, Mr Gursharan Singh and two or three others decided to gettakeaways. As they left the house, they saw two cars parked on the other side ofthe street. Eight to 10 people, some of whom were armed with weapons including acricket bat and a bamboo pole, got out of these cars and walked towards them.A frenzied attack ensued. Mr Hayer was struck with one or more of the weapons andsustained a fractured skull with an open wound that required urgent medical attention.He also received other injuries to his body. Mr Manpreet Singh was also struck withone or more of the weapons and sustained an open wound to his head and other injuriesto his body. Mr Gursharan Singh was also attacked but sustained only minor grazesand bruising to his face and arm.[11] Police arrived quickly in response to various 111 calls and blocked the street.Mr Momi, Mr Dhillon and three others were apprehended as they were attempting toleave in one vehicle (belonging to Mr Dhillon). This vehicle was found to contain acricket bat, a metal rod, two types of piping, a bamboo pole and a slightly brokenwooden stick. Mr Amandeep Singh was in his vehicle with Mr Thind and three otherswhen he was also stopped. No weapons were found in this vehicle.[12] Following forensic analysis of the weapons and the appellants' clothing:(a) Mr Momi's DNA was found in a blood stain on the handle of the cricketbat.(b) Mr Manpreet Singh's DNA was found in a blood stain on the metalpole.(c) Mr Momi's fingerprint was found on the bamboo pole.(d) Both Mr Hayer's and Mr Manpreet Singh's blood was found onthe bamboo pole.(e) Mr Manpreet Singh's DNA was found in a blood stain on the woodenstick.(f) Both Mr Hayer's and Mr Manpreet Singh's blood was found onMr Momi's clothing.(g) Both Mr Hayer's and Mr Manpreet Singh's blood was found onMr Amandeep Singh's clothing.[13] The Crown case against Mr Momi and Mr Amandeep Singh on charges 1 and2 (wounding with intent to cause grievous bodily harm to Mr Hayer andMr Manpreet Singh) was advanced on the alternative bases that they were eitherprincipal parties in terms of s 66(1) of the Crimes Act 1961, or secondary parties unders 66(2) in that the intentional infliction of grievous bodily harm was a probableconsequence of the prosecution of an agreement or understanding that they wouldinflict physical injury on one or more of the persons they had been arguing with atthe address.3[14] The case against Mr Momi and Mr Amandeep Singh on charge 3 wasultimately put to the jury only on the basis they were liable as secondary parties unders 66(2). Charge 3 was advanced against Mr Dhillon on the basis that he was either aprincipal party or a secondary party.Mr Momi's appeal against conviction[15] Mr Mansfield QC, for Mr Momi, argues there was insufficient evidence tosustain the verdicts on either basis. The claimed evidential deficiency extends to boththe actus reus of the offence and the requisite intent.[16] In assessing the adequacy of the evidence, Mr Mansfield says the Court shouldbear in mind the significant delay of nearly four years between the brief, violent melee3 Mr Dhillon also faced these charges. In R v Momi HC Auckland CRI-2017-004-6762,23 April 2021 (Ruling No 1) Lang J ruled at the conclusion of the Crown case that the case againstMr Dhillon on charges 1 and 2 could only be put to the jury on the basis that he could be foundliable as a secondary party, but not as a principal offender. The jury found Mr Dhillon not guiltyon these charges.spanning some five to 10 minutes that took place in July 2017 and the eventual trial inApril 2021. Mr Momi was not responsible for this delay. The trial was originally dueto commence in February 2019 but had to be adjourned because of late disclosure ofsignificant evidence due to police oversight and tardiness. The trial was rescheduledfor April 2020 but had to be postponed for a further year due to COVID-19-relatedissues. Mr Mansfield makes the fair point that this delay will have affectedthe reliability of the eyewitnesses' recall and evidence. Unsurprisingly, theeyewitnesses gave somewhat inconsistent accounts of what occurred.Principal liability on charges 1 and 2 — s 66(1)[17] In closing, Crown counsel referred to the evidence of two eyewitnesses inparticular — Bhupinder Pal and Manjinder Manes — to identify Mr Momi as havingcaused the serious injuries to Mr Hayer and Mr Manpreet Singh founding charges 1and 2. Mr Mansfield submits the evidence of these witnesses was essential tothe Crown's case against Mr Momi on these charges but could never amount to proofbeyond reasonable doubt that he wounded Mr Hayer and Mr Manpreet Singh withintent to cause them grievous bodily harm.[18] Mr Pal lived at the Mt Wellington address with several others. His evidenceincluded the following extracts. In the first, he describes what he saw when he wentoutside to investigate the shouting he heard after the complainants and others left toget takeaways:A Okay yeah, when it just started so they was looking for – shouting andthey were asking the names of three guys especially that came fromChristchurch. So they're looking for them. So they just going towardstheir car. And when they get there so they just start hitting everyoneover there. So it was [Mr Manpreet Singh] and the other two guyswas there. And they just ask Snejit[4] to go inside because they wastheir common friend, they said we don't want to say anything to you.So they just starting hitting on the four guys, [Mr Manpreet Singh]and the other three friends. So they were just swinging whatever theyhave in their hands. So they were just swinging and not lookinganything so it's all happening. After that the – everyone like runningaround was happening on the street.[19] Mr Pal stated that three or four of the attackers used weapons:4 Snejit Brar was one of those who lived with Bhupinder Pal at the Mt Wellington address.A So as I can see there was like I can recognise three, four guys have intheir hands as I remember so one of them like has some rods and onebat I can see but they have other wooden sticks or something as wellso like at least three, four guys having something in their hands I see.[20] When asked about Mr Momi's involvement, Mr Pal said:Q. What is anything could you see Momi doing during this encounter?A. So when just fighting just started I see Momi was hitting I don't knowto whom he – he was just going to hit someone when they were justaround the car. It can be [Mr Hayer] or [Mr Manpreet Singh] bothof them 'cos they was on same side so maybe one of them he washitting so.Q. And how did he do the hitting?A. He had something in his hand. I don't know it was bat or somethingso he was just hitting and swinging it so.(Emphasis added.)[21] Mr Mansfield argues that the italicised evidence was critical to the Crown casebut was plainly insufficient to prove to the requisite standard that Mr Momi struckMr Hayer and Mr Manpreet Singh.[22] Mr Manes' evidence added little to the Crown case that it was Mr Momi whostruck the blows causing the injuries to Mr Hayer and Mr Manpreet Singh which werethe basis of charges 1 and 2:Q. Who was fighting?A. Like when we get out of the car kind of like [Mr Manpreet Singh] and[Mr Gursharan Singh] and they were in front of us yes and they I thinkthey been attacked and I didn't see like who were the people whoattacked maybe the other six people and I don't know.Q. So I just need to be clear whether you saw the attack happen or youhad come afterwards.A. I come afterwards I was at the back walking.Q. Well tell me exactly what it is that you can see as you were walkingover.A. When was I walking and I think [Mr Thind] and that people I don'tknow they have I see some weapons in their hands like a rod or stuffand they were attacking I think [Mr Hayer] got attacked, I just see[Mr Hayer] got attacked?Q. So you saw [Mr Hayer] getting attacked by [Mr Thind] and what wasit you mentioned before.A. Yeah I think I mentioned it was [Mr Momi] that time in the statementbut I ask [Mr Hayer] like if he's –Q. Let's just – Mr Manes its just important that we from your ownmemories as best you can tells us what you could see or saw or heard.A. Yeah.Q. So I'll come back to the question I had which I asked just before whichwas so we've talked about the person with the glasses, we talked about[Mr Thind] and we talked about the person with the turban. We'll talkabout other people that you can remember or if you can. [Mr Momi],what was he, where was he?A. He was there as well. I think that time when I see him I think he wastalking to [Snejit] Brar at that time.[23] Under cross-examination by Mr Momi's trial counsel, Mr Manes stated:Q. When he asked you, you said: "I think I mentioned [Mr Momi] in mystatement but," and you didn't say any more. Now I want to knowabout what you saw that night. Were you mistaken?A. Yes. From the back, from the back I'm thinking like it was[Mr Momi]. But when I then sat by [Mr Hayer] and he said no itwasn't.Q. Okay, don't tell me what [Mr Hayer] told you.A. Mhm.Q. I just want to know what you remember?A. From the back I think it's [Mr Momi], that's why I just said.Q. Would you accept that you might be mistaken about that?A. I might have been.[24] The Judge specifically directed the jury in his summing up that they could notrely on Mr Manes' evidence to find that Mr Momi was directly involved in the attackbecause his identification evidence was too unreliable:I want to give you an example of this. You will recall that [Crown counsel] inhis closing referred to the fact that Mr Manes had identified Mr Momi ashaving been one of the persons involved in the attack, and if you go back andread the evidence of Mr Manes, and it is between pages 107 and 109 if youare interested, you will find that all of the factors to which I have referredcome into play. First, he said that he thought that the person known as[Tinker], whom we know as Mr Thind, was the person who was attacking oneof the complainants. Then later on in cross-examination by [Mr Momi's trialcounsel], he referred to the fact that he had said in an earlier statement that itwas [Mr Momi] who was doing this, and then he said "Well actually I onlythought it was [Mr Momi] because somebody else told me that". Well all ofthose things raise real warning bells for you because firstly, we have got thewitness changing his evidence about who it was. And also in addition he saidto [Mr Momi's trial counsel], I think, "Well I said in my statement I thought itwas [Mr Momi] because I saw the back of his head". Well seeing the back ofsomebody's head is not a particularly strong basis on which to make anidentification, and then of course, we have the fact that the witness has beentalking to other people as several of the witnesses here acknowledged they haddone. After this event they discussed what had happened clearly and they toldeach other what they thought they had seen. So all of those factors call intoquestion the validity of that identification. I have to tell you that you couldnot rely on Mr Manes' evidence to find that Mr Momi was involved directlyin the attack as he says because his identification evidence is simply toounreliable.[25] The Judge's assessment of the unreliability of Mr Manes' evidence wasobviously correct and his clear directions to the jury were entirely appropriate.[26] We accept Mr Mansfield's submission that Mr Pal's evidence was also notsufficient to prove to the required standard that Mr Momi dealt the blows that causedthe serious injuries to Mr Hayer and Mr Manpreet Singh forming the basis of charges 1and 2. We note that the Judge reached a similar view, stating when sentencingMr Momi:5[18] I am satisfied beyond reasonable doubt that you were involved inthe planning of this attack and that you were also physically involved in it.The DNA and fingerprint evidence suggest you used the cricket bat as aweapon in doing so. It is obviously not possible to determine whether youpersonally inflicted any of the blows that caused the injuries to the twocomplainants who were the subject of the two most serious charges. Had theCrown been able to establish that fact, I am satisfied a starting point of aroundnine to ten years imprisonment would have been appropriate. [27] It follows that we accept this aspect of Mr Mansfield's argument. In reachingthis conclusion, we do not overlook Mr Steele's submissions for the Crown that otherevidence supported the contention that Mr Momi was involved in the assault.This included: Mr Hayer's evidence that he recognised three of the people attackinghim as those he had seen earlier in the night; the fact that Mr Momi was in the car in5 Sentencing judgment, above n 1.which the weapons were found; his fingerprint was on the bamboo pole; his blood wason the handle of the cricket bat; and both Mr Hayer's and Mr Manpreet Singh's bloodwas found on his clothing. This evidence clearly implicates Mr Momi in the attackbut, as the Judge found, it does not prove that Mr Momi inflicted the particular blowsfounding charges 1 and 2.[28] We therefore do not need to address the second limb of Mr Mansfield'sargument on principal liability. We turn now to consider whether the jury's verdictsare sustainable on the alternative basis that Mr Momi was a secondary party tothe offending.Secondary party liability on charges 1, 2 and 3 — s 66(2)[29] In closing to the jury, Crown counsel described the Crown's case under s 66(2)as follows:So the Crown case is in this case there's a group of three that got into anargument with the Christchurch guys at the party. They went away.They collected seven of their mates. Collected various weapons and formeda common intention to inflict physical injury on the complainants. These threedefendants they were part of that common intention or agreement andthe offences that were committed by that group were all probableconsequences of their agreement.[30] Building on these statements made by Crown counsel in closing, Mr Mansfieldsubmits that it was essential to the Crown's case for it to prove the fact of the argumentand the specific actors involved, in particular that "the group of three" was Mr Momiand his two friends, and "the Christchurch guys" were the complainants — Mr Hayer,Mr Manpreet Singh and Mr Gursharan Singh. He submits that if the evidence couldnot satisfy the jury beyond reasonable doubt that those individuals all engaged inthe argument, the Crown case under s 66(2) could not succeed. We do not accept thissubmission. The fact of the argument and who was involved in it provided importantcontext, but these matters did not form essential elements of the offence. The Crowntherefore did not have to prove there was an argument or establish precisely who wasinvolved in it. Nor was it necessary for the Crown to prove the identity of all partiesto the alleged agreement or understanding to inflict physical injury. Rather, the Crownonly had to prove the essential elements of the offence, including that Mr Momientered into an agreement or understanding with one or more of the other namedindividuals to carry out the unlawful purpose.[31] There is no challenge, nor could there be, to the Judge's identification, in hisappropriately tailored question trail, of the essential elements of the offence thatthe Crown had to prove to the required standard. The questions for the jury todetermine party liability on charge 1 were:1. Are you sure that Mr Momi entered into an agreement orunderstanding with one or more of the persons named in Charge One[Mr Thind, Mr Amandeep Singh, Lovepreet Kumar, Mr Dhillon,Harpreet Singh, Parminder Chahal and Jaskarandeep Singh] to carryout an unlawful purpose, namely the infliction of physical injury onone or more of the persons Mr Momi had met earlier on 3 July 2017at [the address]?2. Are you sure that Mr Momi and the person(s) with whom he enteredinto that agreement or understanding agreed to assist each other incarrying out that unlawful purpose?3. Are you sure that one or more of the persons with whom Mr Momientered into that agreement or understanding wounded [Mr Hayer] inthe course of carrying out the common unlawful purpose?4. Are you sure that the person(s) who wounded [Mr Hayer] intended tocause him really serious bodily injury?5. Are you sure that Mr Momi knew (ie actually appreciated) that it wasa probable consequence of carrying out the unlawful common purposethat one or more of the persons with whom he entered intothe agreement or understanding:(a) would wound a person or persons whom they had met earlierthat evening at [the address]; and(b) that he/they would do so with intent to cause that person reallyserious injury?[32] Next, Mr Mansfield submits that the Crown case as put in closing (quotedat [29] above) was premised on the basis the Crown was only required to prove thatthere was "a common intention to inflict physical injury on the complainants", but thiswas not sufficient to establish the requisite intention on charges 1 and 2, whichinvolved wounding with intent to cause grievous bodily harm. There is nothing in thissubmission. The quoted passage of the Crown closing refers to the unlawful purpose(question 1 in the question trail), not to the actual offence that was the foreseenprobable consequence of carrying it out (questions 4 and 5).[33] Finally, Mr Mansfield submits there was insufficient evidence to sustainthe jury's verdict for secondary party liability on the required intention element.He refers to the test formulated by the Supreme Court in Ahsin v R for secondary partyliability under s 66(2), namely that the Crown must prove that the defendant:6 intended that the offence that eventuated be committed, or knew thatthe offence was a probable consequence of carrying out the common purpose.This requires foresight of both the physical and mental elements ofthe essential facts of the offence.[34] Mr Mansfield says there was simply no evidence to prove that what he saysstarted as a spontaneous melee as a result of a minor argument would result inthe infliction of grievous bodily harm on any of the complainants. He argues that nosuch intention can be inferred from the circumstances, including that a cricket bat andother similar weapons were used.[35] We disagree. In our assessment, there was ample evidence from whichinferences could be drawn on the issue of intent to justify the jury's verdicts oncharges 1 and 2. This included the heated argument that indisputably took place,the threat that was made when Mr Momi and his friends left the address having beentold to leave, the fact they gathered seven others to form a group of 10, they obtainednumerous weapons including a cricket bat and a bamboo pole, they waited outsidethe address for some time and immediately attacked the complainants as they leftthe address, repeatedly striking them on their heads and bodies with such force as tocause the very serious injuries sustained by Mr Hayer and Mr Manpreet Singh,including a fractured skull. Mr Steele also drew our attention to the evidence that oneof the attackers stated during the assault "we're going to kill you guys".6 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [102(e)].[36] For these reasons, we dismiss Mr Momi's appeal against conviction.Mr Amandeep Singh's appeal against conviction[37] Mr Amandeep Singh's appeal against conviction is focused narrowly on asingle point that he claims caused a miscarriage of justice. The Crown opened tothe jury on the basis that one of the complainants identified Mr Amandeep Singh atthe scene as one of the attackers. This signalled evidence was not given, and the Judgedid not permit the Crown to adduce the identification through the police officer towhom it was made.7 Crown counsel acknowledged in closing that this aspect of itscase had not unfolded as expected. However, Mr Carruthers, for Mr Amandeep Singh,submits that in the course of doing so, Crown counsel effectively reminded the jury ofthe identification, reinforcing the fact that it had been made. Mr Carruthers arguesthis may well have influenced the jury in finding Mr Amandeep Singh guilty.He submits that Mr Amandeep Singh plausibly addressed the other strands ofthe Crown case against him.[38] In opening, Crown counsel summarised the case against Mr Amandeep Singhas follows:The next person we have down on the Contents page there is Mr AmandeepSingh, who is a defendant in this trial. He was located again at the scene wherethe police stopped the vehicles at the end of the street. He was located inthe vehicle that didn't contain any of the weapons but, importantly, he wasidentified by one of the complainants as having taken part in the attack.The piece of evidence that may assume some significance aboutMr [Amandeep] Singh's appearance on the night is the fact that on the nighthe is seen wearing a turban and is the only person at the point of arrest whohad a turban on. He also had what is almost certainly the blood of one ofthe complainants on his clothing the Crown says.So as is probably apparent by me running through the list of individualsinvolved there's a lot of different types of way of evidence in the way in whichindividuals are being identified. So I just want to group that evidence for you,so you know how it is going to come out. The first of those is what I will callidentification by circumstances and the fact that all ten of these, all of theseindividuals are caught leaving the scene in the vehicles and two of whom areactually in the vehicle, two of these defendants were in the vehicle where allthe weapons are.7 R v Momi HC Auckland CRI-2017-004-6762, 29 April 2021 (Ruling No 2) [Ruling No 2].The first [bucket of evidence] is what I will call identification bycircumstances. It is the fact that these people arrived in vehicles and then leftin the vehicles and were stopped very shortly after the attack at the end of[the street]. So that is a, what the Crown will say is a compelling circumstanceto point towards those individuals having been involved. The second bucketof evidence is really what I call direct identification. It is identification by oneof the complainants of each of the defendants and of those, those eight peoplethat I told you about. That identification was made at the scene to a policeofficer. His name is Detective Thomas Malcolm and you will see him atvarious points through the trial seated at the back of the Court. He is notpresent now, but he is the Officer in Charge of this investigation. He was oneof the early responders to the complaint. So you will hear thatthe identification made by that complainant included three defendants heretoday.(Emphasis added.)[39] The complainant who was expected to give this evidence wasMr Manpreet Singh (although the jury was not told this in opening). However, despitebeing pressed by Crown counsel, Mr Manpreet Singh said he could not identifythe attackers and could not recall making any identification at the scene or in hisstatement to the police the next day. The following exchange occurred near the outsetof his evidence-in-chief:Q. Okay, well first of all had you seen any of these eight to 10 peoplebefore? Before those cars pulled up and you said you were thenattacked and you'd seen eight to 10 people come out. Had you seenany of those eight to 10 people before?A. No. It was very dark.Crown counsel returned to the topic the following day:Q. Yesterday we got to the part of the evidence where you were outon the street and in and around the cars. You were about to tell uswhat sort of happened next. Before we do that I want to go back intime to cover just some other evidence what you have covered andjust ask you some question about that. Do you recall giving evidenceyesterday about the argument in the house earlier on in that evening?A. Yeah.Q. And who was it who was arguing, who was the argument between?A. I told you like the boys from Christchurch our friends they wasarguing with a couple of guys who came over. I don't remember who(inaudible ).Q. Do you know the names of the people who came over?A. I don't know the name.Q. Is it a case that you've never known their names or you knew themand have perhaps forgotten about.A. I think I knew one of the guy name but I think I was mixing with otherguy so that's why I'm not pretty sure who was who.Q. You've provided the police a statement in this proceeding is that right?A. Yes I did.Q. And that statement was taken the day after this incident on the 4th ofJuly 2017?A. Yes.Q. And when you made that statement were the events that took place onthat night fresher in mind than they are now?A. (inaudible)Q. Would it help to have — be able to have a look at that statement tohelp refresh your memory about the names of the people who werethere.A. Yeah. Do you want to have a look?Q. Just a few formalities first Mr [Manpreet] Singh. Can I just get youto confirm that that's your name on the front page?WITNESS REFERRED TO STATEMENTA. Yeah that's me.Q. And this is your New Zealand Police statement?A. Yes.Q. On the bottom right-hand corner of all pages is a – all seven pagesyour initials?A. Yeah.Q. And can I confirm that the final page has your signature.A. Yeah.Q. Its dated the 4th of July 2017.A. Yes.Q. And just above that signature it says: "I confirm the truth and accuracyof the statement. I make the statement with the knowledge that it isto be used in Court proceedings. I am aware that it is an offence tomake a statement that is known by me to be false or intended by meto mislead".A. Yeah.Q. Where I would like you to read please is if you turn to page 2 of thatstatement.A. Page number 2 yes.Q. And the paragraph that I'd like you to look at is about half way downthe page and it starts with two of three guys. If you could just readthat to yourself please.A. I should read.Q. So read it to yourself the paragraph there its two lines it begins withthe words two of the three guys.A. Yes.Q. Just let me know once you've done that.A. Yeah I done.Q. Now having had a look at your statement that you gave to the policethe next day has that assisted your memory at all in being able to namepeople who were involved in the argument.A. Yes like I remembered these two names a bit familiar 'cos I hear fromother people.Q. Just need to be clear what are the names you're talking about.A. As by my statement is saying like there was a guy one was guy wascalled Momi and another guy called Tinker [Mr Thind].Q. And I just need to be clear because of something you said is that – didyou learn those names yourself or did someone else tell you aboutthem?A. Someone else.Q. Can you remember what they looked like?A. I think the both guys the both of guys they're not here now both ofthem.Q. So just focusing on the two of the three guys can you describe themat all to me. Do you have any memory about what they look like?A. Man its four years I can't remind that now.Later in evidence-in-chief, Crown counsel attempted to adduce the expected evidencethat Mr Manpreet Singh identified Mr Amandeep Singh and the other appellants asattackers when speaking to the police at the scene:Q. So you had a conversation with police?A. Yes.Q. And getting an ambulance and going to hospital?A. Yeah.Q. Do you recall at all having any conversation about the incident thathad taken place and what had happened?A. Sorry again?Q. Did you have any conversation with police about what had justhappened?A. I think police asking us, yeah, like how you got – how you gotbleeding and things that's what police were asking something to us.Q. And now we're going back a long time. Do you have any memoryabout what you told them?A. No.Q. Do you know whether you spoke to them who was involved.A. I don't know what the police that day. Counsel left it there and moved to another topic.[40] Crown counsel later attempted to adduce Mr Manpreet Singh's sceneidentification evidence through the police officer to whom it was made. The Judgedid not permit this because there would be no opportunity to cross-examineMr Manpreet Singh about it:8I acknowledge the Crown's argument that counsel for the defendants will beable to cross-examine the detective, and make submissions to the jury, aboutfactors relevant to the circumstances in which the identifications were made.This does not address the issue relating to the value of cross-examination incircumstances such as the present. The detective cannot give evidence aboutwhy Mr [Manpreet] Singh identified the defendants. In the absence of anyability to cross-examine Mr [Manpreet] Singh on this issue the visualidentification evidence would effectively be admitted unchallenged.8 Ruling No 2, above n 7, at [5].[41] In closing, Crown counsel referred back to the categories of evidence he haddescribed in opening:9You might recall going back to last Monday in my opening address I laid outto you what I said were really four categories of evidence that I'd invite youto focus on during the trial as identifying the involvement of each of thesedefendants in the attack. Now despite nearly four years between the eventsthat night and the trial much of that evidence played out as I foreshadowed toyou last Monday and [it's] those categories that will be the focus on the firstpart of the address. After discussing the first category of evidence, described as identification bycircumstances, counsel turned to the second category, direct identification.Counsel fairly acknowledged that the identification evidence he had signalled inopening had not been given and told the jury they must put his earlier reference to thisout of their minds:The second, is direct identification and this is a part of the evidence I have tofairly accept the evidence did not playout how I opened. I opened and I saidthat there would be various identifications made at the scene by a complainant.You heard [Mr] Manpreet Singh not remembering what he said at the sceneand so it's really important that you ignore everything that I said about thatparticular piece of evidence in my opening. It is absolutely critical that thistrial is fair to everyone and what I say is not evidence. It's what the witnessessay that's evidence. And there's no evidence of that having been made atthe scene. His Honour will direct on that point in his summing-up but I wantyou to hear it from me first so you can put that out of your mind.[42] Mr Dickinson, trial counsel for Mr Amandeep Singh, also emphasised thisdeficit in the Crown case in his closing address:One of the main things that [the] prosecution opened its case on was the sceneidentification. The prosecution got out in front of this in the closing addressthat you just heard by saying that it didn't happen, and it certainly didn't.You were told when the Crown opened the case that there would be evidenceof a complainant identifying who was involved at the scene. And thatevidence doesn't exist, it's not in this trial.[43] However, prior to the summing up, Mr Dickinson raised with the Judge hisconcern that Crown counsel had inadvertently prejudiced Mr Amandeep Singh byinforming the jury that it was Mr Manpreet Singh who had made the identification atthe scene, whereas in opening the jury was simply told that this evidence would be9 The closing address was given on Wednesday, 28 April 2021. The opening had been given onMonday the previous week, 19 April 2021.given by one of the complainants. The concern was that the jury would havethe impression that Mr Manpreet Singh made the identification at the scene, but justcould not remember doing it. Following discussion with counsel the Judge determinedthat the best course, endorsed by Mr Dickinson after reflecting on the matter overnight,was to make it clear there was no scene identification and to give a clear warning aboutthe dangers of identification evidence. This was done.[44] Early in his summing up, the Judge gave detailed, tailored directions, to guidethe jury in their assessment of the reliability of the evidence generally before turningto the identification evidence in particular. As to the identification evidence, the Judgeinstructed the jury as follows:Now these issues become particularly pronounced or acute when you areconsidering evidence given by witnesses that identify what particular peoplewere doing at a particular time. We call this identification evidence, and allthe lawyers have referred to that. Now you need to know that there is a needfor special caution before you find any of the charges proved in reliance onthe correctness of the identification made by a witness of a defendant and hisactions. Now this flows from the fact that a miscarriage [of] justice can occurwhen a jury relies on a mistaken identification to bring in a guilty verdict.A miscarriage of justice arises because it is a wrong verdict because there hasbeen a misidentification of the defendant in question. You also need to bearin mind the possibility that a witness who identifies a defendant as havingdone something, may be a convincing witness, even though they are mistaken.The fact that several witnesses give the same evidence about identificationdoes not take matters much further either, because several witnesses can bemistaken just as one witness can be.So before you accept any evidence of a witness who identifies one or more ofthe defendants doing anything or committing a particular act, you need to lookat all the circumstances in which the identification occurred. How well, if atall, did the witness know the person they identified? Over what period didthe identification take [place]? Was it seconds or was it minutes? And in thiscase, this as you know, [was] a very fast-moving series of events.Thirdly, what were the conditions like when the identification was made?Well here of course you have got the issues that I have already raised inrelation to the fact that it was at night and the only lighting was provided bystreetlights. Fourthly, were there any other factors that might affectthe reliability of the identification? And here is where we run up against thesame issues I have already referred to. You have got fast-moving events, youhave got people running about, you have got acts of violence being committedin a very short space of time. So all of those issues are going to need to befactored into account when you consider the evidence given by witnessesidentifying particular defendants as having done something.[45] The Judge then provided a specific example, referring to Mr Manes' evidence.We have already quoted this passage from the summing up at [24] above.[46] Later, in the final part of the summing up where the Judge summarised the casefor the Crown and for the defence, the Judge told the jury:The Crown acknowledges that perhaps the eye witness identification isthe weakest aspect of its case. And of course it is accepted by the Crown that on the night in question atthe scene there is no evidence of any identification of the defendants by anyof the complainants. [Crown counsel] acknowledged that in his closingaddress. The most you get in terms of identification is some reference andstatements taken the next day.[47] Mr Carruthers echoes the concerns raised by Mr Dickinson. Although heacknowledges that Crown counsel's good intentions cannot be faulted, the waythe matter was dealt with was somewhat awkward. Counsel reminded the jury of hisclaim in opening that one of the complainants had identified Mr Amandeep Singh atthe scene as being one of the attackers. By then referring to Mr Manpreet Singh'sinability to recall what he had said at the scene, Mr Carruthers submits that counselwas effectively reassuring the jury that the identification had been made and the onlyreason it did not come out in the evidence was because Mr Manpreet Singh could nolonger recall making it. Mr Carruthers argues that it would have been difficult forthe jury to ignore the information that Mr Amandeep Singh had been identified onthe night as being one of the attackers. He argues that Mr Amandeep Singh wasprejudiced in two ways. First, he did not have the opportunity to cross-examineMr Manpreet Singh on the circumstances in which he had made the identification.Secondly, he points to the well-recognised risk that juries frequently givedisproportionate weight to identification evidence. Mr Carruthers says there wasarguably a third factor, also raised by Mr Dickinson, caused by identifyingMr Manpreet Singh as the complainant who had made the scene identification. This isbecause one of the photographs in the photo-booklet produced in evidence showedMr Manpreet Singh pointing something out while to talking to the police at the scene.[48] Mr Carruthers says that this placed trial counsel and the Judge in a difficultposition. He does not suggest error on the part of either, but he says the Judge'sdirection "did not tackle the potential impact of what was not in evidence".Mr Carruthers submits, and we agree, that the case is analogous to those where a juryis inadvertently given prejudicial information. Whether this gives rise to a miscarriageof justice will depend on the nature of the information, the circumstances in which itwas given to the jury, its potential to influence the jury and any corrective measurestaken.10[49] Despite Mr Carruthers' thoughtful submissions, we are not persuaded there isa real risk that justice has miscarried as a result of this issue.[50] It was entirely proper for the Crown's opening to signal the primary evidencethe jury were expected to hear. The reference to the expected identification evidenceas forming an important plank of the Crown case was appropriate. Mr Carruthers doesnot contend otherwise.[51] Witnesses failing to come up to brief is not an infrequent occurrence, althoughthis will not always be apparent to the jury. In this case, we consider it would havebeen obvious to the jury, including from the passages of the evidence quoted at [39]above, that Mr Manpreet Singh, one of the first to give evidence and one ofthe principal complainants, did not provide the assistance the Crown was expecting onthe issue of identification. This was a comparatively short trial. Such evidence havingbeen promoted in opening as an important part of the case againstMr Amandeep Singh, we consider it was appropriate for Crown counsel to make itclear in closing that there was no such identification evidence. The acknowledgementwas both clear and fair: it's really important that you ignore everything that I said about thatparticular piece of evidence in my opening. It is absolutely critical that thistrial is fair to everyone and what I say is not evidence. It's what the witnessessay that's evidence. And there's no evidence of that having been made at thescene. His Honour will direct on that point in his summing-up but I want youto hear it from me first so you can put that out of your mind.[52] As noted, the defence capitalised on the Crown's failure to adduce thisevidence, characterising it as "[o]ne of the main things that [the] prosecution openedits case on".10 Edmonds v R [2015] NZCA 152 at [24]; and Pulemoana v R [2019] NZCA 293 at [50] citingR v Weaver [1968] 1 QB 353 (CA) at 359–360.[53] Importantly, the Judge's directions to the jury were clear. His reliabilitydirections concerning visual identification evidence cannot be faulted. Having givenstandard directions that they must decide the case on the evidence, he stated that it is"accepted by the Crown that on the night in question at the scene there is no evidenceof any identification of the defendants by any of the complainants". We are notpersuaded there was any real risk the jury would have ignored these very cleardirections, strayed outside the evidence and taken account of information they weretold to put out of their minds.[54] We therefore dismiss Mr Amandeep Singh's appeal against conviction.Mr Momi's appeal against sentence[55] In setting the starting point, the Judge identified four aggravating features:there was a significant degree of premeditation including assembling of a group ofeight to 10 men with various weapons and two vehicles;11 the violence was inflictedby a large number of assailants on a smaller number of victims; the offending involvedattacks to the head using various weapons; and the injuries inflicted on two ofthe complainants were really serious, though not life-threatening.12 Taking account ofthese aggravating features, the Judge considered the offending attracted a startingpoint at the upper end of Band 2 (five to 10 years' imprisonment) or the lower end ofBand 3 (nine to 14 years' imprisonment) identified by this Court in R v Taueki.13[56] The Judge considered Mr Momi's culpability was greater than that ofMr Amandeep Singh:[17] Mr Momi, I consider your position to be somewhat different to that ofMr [Amandeep] Singh. You were present at the address when the initial verbalaltercation occurred, and you were present when threats were made to theeffect that you would return. Several of the eyewitnesses also named you asbeing actively involved in the attacks on the victims. Your DNA andblood-stained fingerprint were also identified on a cricket bat found in one ofthe vehicles as you attempted to leave the scene. Witnesses describedthe cricket bat being used to assault the complainants.11 Sentencing judgment, above n 1, at [9].12 At [10].13 At [15], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA) at [34].[18] I am satisfied beyond reasonable doubt that you were involved inthe planning of this attack and that you were also physically involved in it.The DNA and fingerprint evidence suggest you used the cricket bat as aweapon in doing so. It is obviously not possible to determine whether youpersonally inflicted any of the blows that caused the injuries to the twocomplainants who were the subject of the two most serious charges.Had the Crown been able to establish that fact, I am satisfied a starting pointof around nine to ten years imprisonment would have been appropriate.As matters stand, however, I am satisfied your involvement warrants a startingpoint of eight years six months imprisonment.[19] I do not consider any uplift is required to reflect the charge relating tothe third complainant. You were found guilty as a party to that offending andthere is no evidence you were actively involved in any form of assault on him.Furthermore, the injuries the third complainant suffered were relatively minor.I therefore consider a starting point of eight years six months imprisonment issufficient to reflect your culpability on that charge as well.[57] From the starting point of eight years and six months' imprisonment, the Judgeallowed three discounts together totalling two years and nine months. The discountswere as follows:(a) 12 months for Mr Momi's previous good character (he was aged 24 atthe time of the offending, had no previous convictions and wasdescribed by the Judge as a "model resident" up until this offending);14(b) 18 months for the undue delay between the time of arrest and trial;15and(c) three months to recognise the added stress caused to Mr Momi whileserving a sentence of imprisonment given the prospect of deportation.16[58] These discounts resulted in an end sentence of five years and nine months'imprisonment.17[59] The Judge explained why he considered Mr Amandeep Singh's culpability waslower, justifying a lesser starting point of seven years' imprisonment:14 At [23].15 At [27].16 At [28].17 At [29].[20] Mr [Amandeep] Singh, you were not present at the address when theinitial argument occurred. It can therefore be inferred that you were one ofthe persons summoned by Mr Momi and his associates to return to the scenearmed with weapons. It is not known how you got there. Nevertheless,the jury's verdict makes it clear that you were at the very least a party to a planto inflict violence on those with whom Mr Momi and his associates had beenarguing earlier in the evening. You also knew the intentional infliction ofreally serious harm on the victims could well happen. You would have knownthat because of the number of persons who went to the address and the natureof the weapons they took with them. I sentence you on the basis that you wereparty to the offending although I have no doubt you played an active part in it.I consider a starting point of seven years imprisonment is appropriate in yourcase on the two most serious charges.[60] Mr Mansfield submits that the Judge was wrong to conclude that Mr Momihad any active involvement in the initial argument and the Judge's statement that"[s]everal of the eyewitnesses also named you as being actively involved in the attackson the victims"18 is factually incorrect. The only such evidence came from Mr Pal.Mr Mansfield submits that there was no reasonable basis to adopt a higher startingpoint for Mr Momi than for Mr Amandeep Singh and notes that the Crown did notseek to distinguish between them for the purposes of setting the starting point.[61] Contrary to Mr Mansfield's submission, the Judge did not say that Mr Momiwas actively involved in the argument; he merely found that Mr Momi was presentduring the argument and when the threats were made.19 Whether the Judge made anyerror about the number of eyewitnesses who identified Mr Momi as being activelyinvolved in the attacks is immaterial. The important point is that the Judge found it tohave been established beyond reasonable doubt that Mr Momi was actively involvedin the attack.20 There was ample evidence to support that conclusion, as we havealready discussed. That the Crown did not seek to differentiate between Mr Momi andMr Amandeep Singh in their submissions on the appropriate starting point is notdeterminative. It is obviously the Judge's responsibility to make the necessary factualfindings consistent with the jury's verdicts and determine the appropriate sentencingoutcome.18 At [17].19 At [17].20 At [18].[62] Given the Judge's findings, the starting point he adopted towards the upper endof Band 2 in Taueki is unimpeachable. We also consider the Judge was entitled toassess Mr Amandeep Singh's culpability as being lower, for the reasons he gave.Mr Amandeep Singh was not present at the Mt Wellington address when the argumentoccurred and when the threats were made. The Judge was entitled to conclude thatMr Amandeep Singh was one of those summoned by the group who were present,including Mr Momi. Of particular importance was the Judge's finding, well-supportedby the evidence, that Mr Momi was not only involved in the attack, his participationinvolved the use of a weapon. This may well have been the bamboo pole rather thanthe cricket bat, but this is immaterial for sentencing purposes.[63] For these reasons, we are not persuaded the Judge erred in setting the startingpoint for Mr Momi. There being no other challenge to the sentencing assessment,the appeal against sentence is dismissed.Mr Dhillon's appeal against the refusal to grant a discharge without conviction[64] Taking account of all relevant matters, the Judge assessed the overall gravityof Mr Dhillon's offending as low:21This reflects the fact that Mr Dhillon has no previous convictions and appearsto have been a model resident up until the time of the present offending.Furthermore, I consider the jury found Mr Dhillon guilty as a party to arelatively minor assault and it cannot be shown that he caused any injury tothe complainant himself. The offending is aggravated only by the fact thatMr Dhillon was prepared to be part of a group attack on the complainant andthat he did so knowing one of the members of the group was using a stick asa weapon.[65] The Judge was not persuaded to grant Mr Dhillon's application for a dischargewithout conviction because the Judge considered the consequences of a convictionwere low to very low.22 The Judge's reasons were set out in the following paragraphsof his judgment:[13] Mr Dhillon is concerned that any conviction may affect his currentand future employment as a truck driver. He is presently employed by acompany that carries out work on contract for a nationwide courier company.21 Dhillon judgment, above n 2, at [12].22 At [16].[14] The evidence that Mr Dhillon may lose his current employment isrelatively vague. He has produced an email from his employer'sOperations Director, who states that he understands he will have to letMr Dhillon go if he sustains a criminal conviction. He says thatthe organisation for which Mr Dhillon's employer carries out work on contract"is very strict around who is around their freight".[15] However, it is not immediately clear why a courier company wouldconsider the present conviction may impact on Mr Dhillon's suitability tocontinue in his employment. He has accrued a stable employment history overthe last seven years and is clearly highly thought of by his present employer.Furthermore, the present offending does not involve allegations of dishonestyor any other attribute that might be inherently incompatible with hisoccupation as a courier driver. In addition, Mr Dhillon's employer (and anyfuture employer) will have the benefit of my sentencing remarks as well asthis judgment. These, together with the sentence of community work that Iimposed, confirm the relatively low level of Mr Dhillon's offending.Finally, even if Mr Dhillon does lose his current employment I do not considerthe conviction will hinder him obtaining alternative employment as a truckdriver for another employer given his employment record to date.(Footnote omitted.)[66] As noted, Mr Dhillon does not challenge the Judge's assessment based onthe material that had been placed before him, which he accepts was somewhat vague.However, he applies to adduce further evidence in support of the appeal. He says thisfurther evidence shows that the consequences of the conviction are far more seriousthan the Judge appreciated. The Crown does not oppose the introduction of this furtherevidence. In the circumstances, we grant Mr Dhillon's application to adduce it.[67] The new evidence is an affidavit from Mr Dhillon sworn on 10 March 2022.He states that he has been employed as a truck driver with Cargo Plus for the pastseven years and that this employment has continued to the date of the affidavit despitethe conviction. We understand that Mr Dhillon's direct employer was Mills TransportLtd and that it contracts with Cargo Plus. Mr Dhillon explains that his work forCargo Plus requires a security pass issued by the Civil Aviation Authority to enablehim to enter the air side of the airport to drop off and pick up freight. Mr Dhillon saysthat his pass has now expired and he is not able to reapply for one. Mr Dhillon annexedto his affidavit a letter from Mills Transport advising that because of his convictionand consequent inability to apply for an airport pass, his employment must beterminated with effect from 31 March 2022.[68] To support his contention that he will "struggle" to obtain other employmentbecause of the conviction, Mr Dhillon attaches a letter dated 18 October 2021 fromanother transport company, Malwa Transport Ltd, advising him that he was anunsuccessful interviewee for a driver position with that company:Thank you for taking the time to interview with us for the Class 5 (swing lift)driver position. Although your experience and background are impressive, weregret having to inform you that we have selected another candidate whom wefeel is a better job match for us at this time.You have not passed your criminal record check as you also mentioned inyou[r] CV. You have a conviction for assault with intent to injure and [t]his is[a] serious conviction. So, [d]ue to our company policies and hiringprocedures [we are] not able to offer [you a] class 5 job at this stage. Weappreciate your interest in our company, and the time it took for you to gothrough this process. Again, thank you for participating with us in the process.We wish you success in your career pursuit.[69] We do not accept Mr Hintze's submissions for Mr Dhillon that this furtherevidence materially alters the assessment as to the consequences of the conviction.The Judge accepted that Mr Dhillon may lose his current employment as a result ofthe conviction,23 so the fact this has now occurred is not a particularly material change.We consider the Judge's assessment as to Mr Dhillon's employment prospects remainscorrect, notwithstanding the letter from Malwa Transport. The letter is dated18 October 2021, while Mr Dhillon was still employed with Mills Transport and fivemonths prior to the completion of the affidavit. Although Mr Dhillon's application fora position with Malwa Transport was unsuccessful, the rejection letter is not altogetherdiscouraging. Despite disclosing the conviction in his CV, Mr Dhillon was affordedan interview and appears to have missed being selected because another candidate wasconsidered to be a "better job match for [the company] at this time". The convictiondoes not appear to have been an insurmountable obstacle. The letter states that the jobcould not be offered "at this stage".[70] More significantly, there is no evidence Mr Dhillon has made any otherapplications for employment in the 12-month period since his conviction or that hehas been rejected because of it. We accept that the conviction is a blemish onMr Dhillon's otherwise untarnished record that may count against him when he applies23 At [13]–[16].for employment, depending on the particular role. However, it is not at all clear howhis conviction, especially given the circumstances, could reasonably be viewed asbeing generally incompatible with his vocation as a truck driver. Like the Judge, wedo not consider the consequences of a conviction for Mr Dhillon have been shown tobe out of all proportion to the gravity of his offending. Far from it. It follows that hisappeal must also be dismissed.Result[71] Mr Momi's appeal against conviction in CA392/2021 is dismissed.[72] Mr Momi's appeal against sentence in CA392/2021 is dismissed.[73] Mr Singh's appeal against conviction in CA335/2021 is dismissed.[74] Mr Dhillon's application to adduce further evidence in CA396/2021 is granted.[75] Mr Dhillon's appeal against the refusal to discharge him without conviction inCA396/2021 is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent