SINGH v NEW ZEALAND POLICE [2018] NZCA 170

SINGH v NEW ZEALAND POLICE [2018] NZCA 170 [25 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA709/2017[2018] NZCA 170BETWEEN MANPREET SINGHApplicantAND NEW ZEALAND POLICERespondentHearing: 18 April 2018Court: Cooper, Dobson and Toogood JJCounsel: Applicant in personE J Hoskin for RespondentJudgment: 25 May 2018 at 11 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] The applicant (Mr Singh) pleaded guilty in the District Court to giving falseidentification details and dishonestly using a document for pecuniary advantage.He has now sought leave to bring a second appeal from a decision of the High Courtthat upheld the District Court's refusal to grant him a discharge without conviction.11 Singh v Police [2017] NZHC 2963. There is no record of the District Court decision.[2] The application for leave is governed by s 237 of the Criminal ProcedureAct 2011, which provides:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[3] Mr Singh was disenchanted with each of the different counsel who hadappeared for him in the District Court and in the High Court, and has pursuedthe application for leave on his own behalf. In addressing the grounds for a grant ofleave, Mr Singh accepted that his case did not raise a matter of general or publicimportance. Rather, he focused on what he considered to have been the risk of amiscarriage of justice involved in not obtaining a discharge without conviction.[4] This Court issued a minute on 9 February 2018 directing that the applicationfor leave was to be set down for an oral hearing. That minute put Mr Singh on noticeas to the requirements in r 12B of the Court of Appeal (Criminal) Rules 2001(the Rules) regarding fresh evidence, and the requirements of rr 12A(1) and (2) ifMr Singh wished to advance the conduct of his lawyer as a ground for making out amiscarriage of justice.The offending[5] Mr Singh was stopped by the police on 18 November 2016 for failing tocomply with a red traffic signal. He gave the police officer the false name ofBikramjit Singh and provided an Indian driver's licence for that person. He confirmedto the police at the time that the person pictured on the Indian driver's licence washim. It appears Mr Singh was concerned to avoid a fine and demerit points that wouldattach to his driving offence.[6] The Traffic Offence Notice was processed administratively andBikramjit Singh subsequently received notice of imposition of a fine for Mr Singh'sunlawful driving conduct. Bikramjit advised the police that he had not been therelevant driver, and that he had not given Mr Singh permission to use hisdriver's licence.[7] In February 2017, Mr Singh was located by the police and arrested.He acknowledged that he was responsible for the "mistake".Decisions in the Courts below[8] Mr Singh applied for a discharge without conviction, arguing that use ofBikramjit's licence was a panicked reaction, amounting to a mistake that he promisedwould never occur again. He was concerned about the adverse consequences of aconviction because he was endeavouring to embark on a career as a real estate agent,and that a dishonesty conviction would bar him from pursuing that career for asubstantial period of time. The application was unsuccessful. A conviction wasentered, Mr Singh was ordered to carry out 80 hours' community work and payreparation of $500 to Bikramjit.[9] Having retained fresh counsel, Mr Singh appealed to the High Court.Apparently (at least in part because there was no record of the District Court decisionon his application for a discharge) a direction was made that the application fordischarge ought to be heard afresh in the High Court.[10] Hinton J heard the appeal on 27 November 2017, which included evidencefrom both Mr Singh and Bikramjit. Her Honour dismissed the appeal at the conclusionof the hearing and provided the reasons for her decision on 30 November 2017.[11] The essence of Mr Singh's claim in this Court is that a miscarriage of justicehas occurred because the High Court Judge preferred the evidence of Bikramjit to hisown. Mr Singh contends that Bikramjit was lying so that the assessment of Mr Singh'sconduct is unjust when he should have been believed as a totally honest person.[12] It was clear that Bikramjit had not given Mr Singh permission to use his licenceas he did. The Judge preferred Bikramjit's explanation as to how that had occurred,which was that Mr Singh had asked him for his licence on two occasions. The firstwas for security after they moved into a flat, and secondly when Mr Singh was leavingthe flat for a period of five to six months and needed Bikramjit's licence to change therental property over into the latter's name. There were also differences betweenMr Singh and Bikramjit on the dealings that occurred between them after Bikramjitwas given notice of the fine imposed on him.[13] The Judge assessed the events as having a significant impact on Bikramjit. Itcaused him significant stress because he was in New Zealand on a working visa, hisEnglish is not good and he had to take time off work to deal with the matter.[14] The Judge also recorded the difficulties the police had in locating Mr Singh,who was out of New Zealand for a period in India. When arrested on 2 February 2017he had told the police he was not at home, but that was where he was apprehended.[15] The Judge assessed the seriousness of the offending as moderate. The onlyaspect of that assessment that Mr Singh could challenge was the influence on relativeseriousness that the Judge took from preferring Bikramjit's version of the dealingsbetween the two of them. Despite Mr Singh's protests at his honesty, and generalisedcriticisms of Bikramjit as having lied, he provided no relevant grounds for criticismof the factual findings the Judge made about those dealings. The Judge provided quitedetailed reasons for being satisfied that Bikramjit's version of events was correct.2Her Honour concluded that Mr Singh had lied regarding relevant matters, some ofwhich were conceded by him, whereas she considered that Bikramjit had told the truth.[16] As to the consequences of a conviction on these charges, some months afterthey were laid Mr Singh took steps to pursue a career as a real estate agent.Section 37(1) of the Real Estate Agents Act 2008 prohibits any person convicted of acrime involving dishonesty from applying for a licence for 10 years after such aconviction. Her Honour found that with qualifications and experience in landscapingand horticulture, Mr Singh would not be without employment options if he was unable2 At [17].to work as either a real estate agent or a taxi driver. In those circumstances, the Judgefound that the adverse consequences on employment and other aspects of adverseconsequences were not out of all proportion to the gravity of the offending.[17] Mr Singh's arguments on appeal did not persuade us that there was a prospectof error by the Judge in this aspect of her evaluation. We are accordingly satisfied thatthere is no prospect of him establishing error by the Judge sufficient to grant leave tobring a second appeal.Application to adduce new evidence[18] Mr Singh also sought leave to adduce a new affidavit. However, it does notqualify for admission in accordance with r 12B of the Rules as it is not fresh in therelevant sense. Accordingly, we refuse leave.Outcome[19] The application for leave to adduce further evidence is declined.[20] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent