SIDDIQUI v R [2019] NZCA 196

SIDDIQUI v R [2019] NZCA 196 [31 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA558/2017[2019] NZCA 196BETWEEN MOHAMED SHAKEEL SIDDIQUIAppellantAND THE QUEENRespondentHearing: 8 May 2019Court: Courtney, Lang and Whata JJCounsel: D J Allan for AppellantA J Ewing for RespondentJudgment: 31 May 2019 at 10.30 amReissued: 6 June 2019Effective dateof Judgment: 31 May 2019JUDGMENT OF THE COURTA The application to adjourn the hearing date is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 2014 Mr Siddiqui applied from the United States for a position asa psychiatrist at the Waikato District Health Board (DHB). He had tertiaryqualifications, including a medical qualification, but was not qualified to practisepsychiatry. In support of his application he provided two forged documents: an IllinoisDepartment of Financial and Professional Regulations certificate and an AmericanBoard of Psychiatry and Neurology certificate. These qualifications actually belongedto another man with the same name. Mr Siddiqui also altered a scanned copy ofan Indian passport in the name of Mohamed Siddiqui so that it appeared to be his ownpassport. He provided three written references, all from false email addresses, andan oral reference with the telephone number of his brother.[2] Mr Siddiqui obtained the position. He was granted temporary registration anda practising licence by the Medical Council of New Zealand using the forged licenseand certificate. He began work in January 2015. Concerns about his performance ledto inquiries about his qualifications. In July 2015 he was charged with 13 counts ofdishonesty, including forgery, using forged documents and obtaining by deception.[3] On the first day of trial, 14 March 2017, Mr Siddiqui pleaded guilty tofour charges arising from his use of the forged documents. Prior to sentencing heapplied unsuccessfully to vacate his guilty pleas.1 He was sentenced to four years andthree months' imprisonment, which he served.2 He was subsequently deported toIndia. Mr Siddiqui now appeals his convictions on the ground that he was acting underduress in entering the guilty pleas.Adjournment application[4] Prior to the hearing of the appeal Mr Siddiqui applied twice, unsuccessfully,for an adjournment of the appeal hearing.3 That application was renewed onthe morning of the hearing and refused. Given the unusual circumstances it isappropriate that we give our reasons for refusing the adjournment.[5] Mr Siddiqui was sentenced on 18 September 2017 and filed his notice of appealon 27 September 2017. He had a provisional grant of Legal Aid to assess whether he1 R v Siddiqui [2017] NZDC 19197 [Application to vacate guilty pleas].2 R v Siddiqui [2017] NZDC 21063 at [45] [Sentencing notes].3 Siddiqui v R CA558/2017, 5 April 2019 (Minute of Gilbert J) and Siddiqui v R CA558/2017,18 April 2019 (Minute 2 of Gilbert J).had an arguable case. However, the appeal was not advanced expeditiously. A yearlater, in a memorandum dated 25 September 2018, Mr Siddiqui's counsel, Mr Allan,confirmed that he had interviewed Mr Siddiqui and provided a letter to Legal Aid insupport of a full grant on the basis that there was an arguable case. He also advisedthat Mr Siddiqui had been granted parole, effective from 26 September 2018 subjectto the conditions that he be deported from, and not return to, New Zealand.[6] On 17 December 2018 Mr Allan advised that he had given Mr Siddiquilegal advice by email and that Mr Siddiqui had replied promptly by email from India.He said that once Mr Siddiqui had approved the proposed grounds of appeal a formalnotice of grounds of appeal would be filed. Gilbert J issued a minute noting concernby counsel (presumably Crown counsel) about the delay in progressing the appeal andsetting a timetable "by consent and in the expectation of strict compliance".4The timetable required amended grounds of appeal to be filed no later than 25 January2019 together with any waiver of privilege and any affidavits or other materials insupport of the appeal to be filed and served no later than 1 March 2019.[7] Amended grounds of appeal were filed on 1 February 2019. The othertimetable directions were not complied with at all. Gilbert J issued a minute on14 March 2019 recording Mr Allan's earlier advice that Mr Siddiqui would not waiveprivilege and noting that the appeal would be argued largely on the basis of the recordbut that Mr Siddiqui would file an affidavit confirming the qualifications he held.5 Itappeared, however, that the Crown accepted the fact of his qualifications and GilbertJ recorded that "[t]he only outstanding issue concerns whether a further exhibit shouldbe attached to the affidavit that is otherwise in final form."6[8] An amended timetable required Mr Siddiqui's affidavit to be filed and servedno later than 15 March 2019 with any response from the Crown by 29 March 2019and submissions by 8 and 15 April respectively.7 On 15 March 2019 Mr Allan advisedthat his emails to Mr Siddiqui had gone unanswered. On 1 April 2019 he sought toadjourn the appeal hearing on the basis that Mr Siddiqui was in detention in the4 Siddiqui v R CA558/2017, 17 December 2018 (Minute 3 of Gilbert J) at [2].5 Siddiqui v R CA558/2017, 14 March 2019 (Minute 4 of Gilbert J).6 At [1].7 At [2].United States but that Mr Allan was unable to contact him directly and had no detailsabout where he was being detained or when he might be released. The adjournmentapplication was opposed by the Crown and refused by Gilbert J on the basis thatMr Siddiqui had been aware from 18 December 2018 that his affidavit needed to befiled and that strict compliance with the timetable was expected.8 The Judge noted,moreover, that since the only purpose of the affidavit was to annex qualifications thatMr Siddiqui claims to have obtained and that the Crown accepts he held it was unclearwhat purpose would be served by filing the affidavit.9[9] On 15 April 2019 the Court Registry received a letter, apparently fromMr Siddiqui himself, explaining that he had been detained in the United States byHomeland Security since 10 February 2019, had no access to email or the internet andthat making telephone calls was difficult. He claimed that his ongoing detention wasdependent upon the appeal and requested further time. Gilbert J declined that requestby a direction issued to the parties on 18 April 2019.[10] On 7 May 2019, the day before the appeal hearing, Mr Allan filed amemorandum advising that he had received instructions from Mr Siddiqui that day toadvise the Court that neither Mr Siddiqui nor Mr Allan were ready for the appeal as aresult of circumstances beyond Mr Siddiqui's control. Mr Allan also advised that hehad unsuccessfully tried to telephone Mr Siddiqui and, accordingly, could not finaliseinstructions regarding the exhibits for his affidavit or legal submissions. He drew tothe Court's attention that when Mr Siddiqui's Legal Aid grant was confirmed in August2018, following the Parole Board's grant of parole, the Legal Aid grant was subject tothe following qualification:Such issues may include whether Mr Siddiqui's eventual location affects hisability to instruct or otherwise professionally engage with his assignedCounsel.[11] Mr Allan submitted that Mr Siddiqui's current detention limited his ability tocommunicate with counsel, which was the specific type of situation anticipated by theLegal Aid Grants Officer.8 Siddiqui v R CA558/2017, 5 April 2019 (Minute 5 of Gilbert J) at [8].9 At [8].[12] It is evident that Mr Siddiqui was in contact with Mr Allan until 12 March2018. The only available inference is that Mr Siddiqui made the decision to leaveIndia knowing that the timetable directions had not been complied with and that strictcompliance with them was required. In any event, as Gilbert J previously observed,the only outstanding step was the completion of an affidavit annexing copies ofqualifications Mr Siddiqui held, which was not in issue. All the information neededto advance the appeal was already before the Court. In these circumstances there wasno basis on which to adjourn this very longstanding appeal further.AppealRelevant principles[13] It is well recognised that an appeal against conviction following a guilty pleawill only succeed in exceptional circumstances. Generally they are the categoriesidentified in R v Le Page and Merrilees v R:10(a) where the appellant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law have beenconvicted of the offence charged;(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law; or(d) where trial counsel erred in advising as to the non-availability of certaindefences or potential outcomes.[14] Some care is required when considering the last category, on whichMr Siddiqui relies in this case. Erroneous advice by counsel, including aboutsentence, may vitiate a guilty plea but the advice must go to the heart of the plea sothat it is not a true acknowledgment of guilt.11 Where the appellant has fully10 R v Le Page [2005] 2 NZLR 845 (CA) at 849–850; and Merrilees v R [2009] NZCA 59 at [33]–[34].11 Tuira v R [2018] NZCA 43 at [81]; citing R v Saik [2004] EWCA Crim 2936 at [57].appreciated the merits of his or her position and made an informed decision,the conviction will not be impugned. The fact that an appellant may feel that he or sheis under pressure when making a decision will not generally be sufficient.12[15] Finally, the overriding question is whether a miscarriage of justice resultedfrom the declinature of an application to vacate a guilty plea.13 The appellant musttherefore show a tenable defence in order to establish a miscarriage of justice.14Application to vacate the guilty pleas[16] By the time the case reached trial on 14 March 2017, Mr Siddiqui wasrepresented by counsel, Mr Jonathan Temm. By then he had been in custody for overa year. On the morning of the trial there were negotiations over a possible plea whichled to Mr Siddiqui pleading guilty to four charges and the Crown withdrawing theremaining nine. Mr Siddiqui ultimately pleaded guilty to:(a) one charge of using forged documents to obtain a pecuniaryadvantage;15(b) two charges of obtaining a benefit by deception;16 and(c) one charge of holding himself out as a health practitioner despite beingunqualified.17[17] By August 2017 Mr Siddiqui was represented by new counsel, Mr Bradford,who appeared for him on the application to vacate the guilty pleas. Mr Siddiqui andMr Temm both filed affidavits, and gave evidence at the hearing of that application.However, Mr Siddiqui declined to waive privilege in respect of his communicationswith Mr Temm. Mr Siddiqui's account was that Mr Temm telephoned him at about10 am on 13 March 2017, the day before the hearing, and said that since he had not12 Hancock v R [2012] NZCA 292 at [32].13 Halpin v R [2018] NZCA 477 at [2]; and Whichman v R [2018] NZCA 519 at [36].14 Halpin v R, above n 13, at [20]; and Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699at [26].15 Crimes Act 1961, s 257(1)(a).16 Section 240(1)(a).17 Health Practitioners Competence Assurance Act 2003, s 7(1).received the money he needed for the trial he would no longer be acting forMr Siddiqui. Mr Siddiqui said that he understood from that that he was withoutcounsel, with the trial starting the next day.[18] Mr Siddiqui claimed that, notwithstanding the state of affairs that heunderstood had existed as at 13 March 2017, Mr Temm came to see him prior to courtstarting on 14 March 2017 in the cells. Mr Siddiqui claimed that Mr Temm told himhe was not Mr Siddiqui's lawyer but that the Court had asked him to assist as amicus.There was no discussion of any options other than Mr Temm telling Mr Siddiqui thathe could provide assistance but that Mr Siddiqui would still need to defend himself.Mr Siddiqui said that he was confused, that he was expecting money to arrive fromhis family (and in fact money did arrive in Mr Temm's trust account on the afternoonof 14 March 2017). Then, Mr Siddiqui said that Mr Temm introduced the idea of a"plea bargain" and because of his state of mind he went along with things, hardlyaware of what he was signing. Without proper legal advice, alone in a distant country,away from his family and fearful of another remand in prison he decided to pleadguilty.[19] Mr Temm recalled two telephone calls on 13 March 2017 but says that he nevertold Mr Siddiqui he would not represent him at trial. From file notes, he recalledtelling Mr Siddiqui that he could put the Crown to proof but could not do some otherthings which he could not elaborate on because Mr Siddiqui had not waived privilege.Mr Temm said that he had offered to drive to Spring Hill Prison that afternoon todiscuss matters again with Mr Siddiqui but that Mr Siddiqui hung up on him.[20] Later that same day Mr Temm filed a memorandum with the Court which wassubsequently attached to Mr Siddiqui's affidavit in support of the application to vacatethe guilty plea but which Mr Siddiqui claimed not to have known of at the time. In thememorandum Mr Temm stated that:The basis on which Counsel can no longer continue to act is extensive but canbe summarised that:a. Counsel is not permitted to follow the instructions of the defendantfor ethical reasons, particularly around the presentation to the Courtof documents that are invalid or lack authenticity;b. Counsel has been misinformed and misled by the defendant on criticalissues and whilst this does not prevent the Crown being put tothe proof, it does prevent any type of positive or affirmative defencebeing advanced with evidence being given by the defendant in Court;c. There is a lack of confidence in the Counsel/client relationship whichCounsel submits is such that Counsel can no longer act in the bestinterests of the defendant.[21] Mr Temm said that on the day of the trial, he discussed with Mr Siddiqui aproposed change to the charges, some minor amendments to statements thatMr Siddiqui had made, the issue of unpaid fees, the possibility of an adjournment andan application for legal aid, and the possibility of Mr Temm being appointed amicus.Mr Temm also said that he explained the memorandum of 13 March 2017 withMr Siddiqui. Mr Temm then said that it was Mr Siddiqui who had initiated the ideaof a plea bargain, which surprised him because Mr Siddiqui had always been clearabout his intention to proceed to trial. Nevertheless, as a result of that suggestionMr Temm consulted with the Crown and Mr Siddiqui over the course of the next90 minutes or so. Mr Siddiqui was able to discuss the issues clearly, notwithstandingthat he did look dishevelled and worn and that he went carefully through a writteninstruction by Mr Siddiqui to counsel that recorded:I Mohamed Siddiqui am facing my trial today. My lawyer has sought leaveto withdraw. He will not continue as my lawyer. He may continue as AmicusCuriae if the Court directed — but only with my consent.Before I consider that, and any adjournment of trial and any legal aidassignment issue I have asked my lawyer to do a plea bargain.I instruct my lawyer to discuss with the Crown a plea to some charges in theCCN. [22] The Judge rejected Mr Siddiqui's evidence on the key points.18 Specifically,he did not accept that Mr Temm had raised the issue of fees as the only reason for nolonger continuing to act.19 The Judge considered that claim was inconsistent withMr Temm's memorandum of 13 March 2017 to the Court, which, he found, Mr Temmhad discussed with Mr Siddiqui on 14 March 2017.20 Mr Siddiqui's refusal to waiveprivilege gave rise to an adverse inference on this issue.18 Application to vacate guilty pleas, above n 1, at [54].19 At [55].20 At [55].[23] The Judge concluded that Mr Temm was still acting for Mr Siddiqui on14 March 2017 because there had been no need for him to withdraw and he had notactually pursued his application to withdraw as counsel after Mr Siddiqui raisedthe issue of pleading to some of the charges.21 He found that Mr Siddiqui initiatedthe plea bargain process, was fully engaged in that process with Mr Temm, was ableto adequately challenge and discuss all the aspects of the proposed plea bargain, and tocompetently instruct Mr Temm.22[24] In Mr Siddiqui's affidavit in support of the application to vacate his plea hehad also asserted that Mr Temm had not discussed sentence implications with him and,specifically, that "I now know a sentence of more than one year prison precludes megoing back to my family in the USA". The Judge was satisfied that the difficultiesthat Mr Siddiqui would face returning to the United States if he was sentenced to morethan one year in prison was a matter that he had discovered after the plea was enteredand was the reason that he now wished to vacate his guilty plea.23 The Judgeconcluded that:[74] Here Mr Siddiqui did not in my view enter guilty pleas in circumstanceswhere the voluntariness of the entry of pleas was questionable. I rejectthe proposition that Mr Temm placed undue pressure on Mr Siddiqui to pleadguilty or that there was any duress involved on Mr Temm's part.[75] Mr Siddiqui had initiated those plea bargain discussions, hadthe benefit of competent counsel and was fully aware of what he was doing atthe time he entered those pleas and did so on a voluntary and informed basis.Grounds of appeal[25] Mr Allan raised three broad points in support of the appeal. The first was thatthe Court record itself shows that Mr Siddiqui was under some level of duress becauseof the tight time frame provided to prepare for trial. Secondly, Mr Siddiqui hada tenable defence. Thirdly, the Judge dealing with the application to vacate the guiltyplea was unfairly influenced by the contents of Mr Temm's memorandum of 13 March2017.21 At [59].22 At [63].23 At [68].[26] We deal with the first two together. Mr Allan pointed out that, from the Courtrecord, it was apparent that as late as 23 February 2017 there was no firm trial date.On that day Judge Connell determined applications by Mr Siddiqui for e-bail(unsuccessful) and applications by the Crown to extend time for filing an amendedcharge sheet and to offer hearsay evidence (successful).24 As to the latter applications,the Crown was permitted to add three further charges and to adduce hearsay evidenceby way of employment records of the referees relied on by Mr Siddiqui in making hisoriginal application for employment with the DHB.[27] Mr Allan pointed out that at that stage the trial was still in the reserve trialcategory, without a fixed date. It appears not to have been until 9 March 2017 thatthe trial date of 14 March 2017 was confirmed. The decisions relating to the Crown'spre-trial applications were delivered the following day, 10 March 2017. It is thereforereasonable to infer that the trial was brought on earlier and that neither Mr Siddiquinor Mr Temm had adequate time to properly prepare.[28] We have difficulty accepting that the time frame for the trial precluded afair trial such that Mr Siddiqui might have felt that he had no option but to plead guilty.Mr Temm's affidavit refers to him taking instructions from Mr Siddiqui on22 November 2016 and having numerous attendances in person with him.During those attendances they reviewed the entire Crown disclosure file, witness listand exhibits. Mr Temm received instructions on witnesses and the defence to beadvanced. He acknowledged that there had been issues over payment for some timeprior to trial but said that this did not prevent him from preparing for trial and that hedid so on the basis that payment might or might not be made. He added that"[t]he predominant issue was the legal advice that I had given to Mr Siddiqui and hisinstructions to me as to the manner in which the trial defence was to be conducted".[29] We are satisfied that Mr Temm would have been in a position to proceed and,given the Judge's findings as to the reason that Mr Temm withdrew, it cannot fairly besaid that the timing of the trial in itself affected Mr Siddiqui's position. Even if the trialhad been brought on at short notice, it would only be significant if Mr Siddiqui could24 R v Siddiqui [2017] NZDC 5006; and R v Siddiqui [2017] NZDC 5074.point to a tenable defence that he was precluded from advancing by reason of the tighttime frame.[30] In his affidavit in support of the application to vacate the guilty pleaMr Siddiqui did not mention any specific defence he might have advanced, a pointthat Judge Marshall identified:25In submissions counsel for Mr Siddiqui states that it was his clear and strongdesire to go to trial and that now that the Crown accept that he has a medicaldegree, he has a defence worthy of putting before the Court. It is furthersubmitted that the fact he has not disclosed his defence cannot count againsthim at this stage and in this application. Further that what [Mr Temm] hasdisclosed to the Crown should also not count against Mr Siddiqui whenconsidering the viable defence issue. I put the viable defence issue to one sideat this time as a neutral factor. Mr Siddiqui has not put forward grounds fora viable defence and therefore that cannot operate in his favour The merefact he has medical qualifications is not of itself indicative of an arguabledefence given the Crown case and lack of any specificity on the details of anydefence.(emphasis added)[31] Mr Allan argued that Mr Siddiqui would have been entitled, with the benefitof the Crown's acknowledgment of his medical qualification, to have advanced adefence of claim of right in respect of the two obtaining by deception charges.26He was unable to go into any further detail about such a defence, in the absence ofspecific evidence from Mr Siddiqui and lack of instructions on the point.[32] The expression "claim of right" is defined in s 2 of the Crimes Act 1961 asfollows:claim of right, in relation to any act, means a belief at the time of the act in aproprietary or possessory right in property in relation to which the offence isalleged to have been committed, although that belief may be based on ignoranceor mistake of fact or of any matter of law other than the enactment against whichthe offence is alleged to have been committed.25 Application to vacate guilty pleas, above n 1, at [71].26 Crimes Act, s 240(1)(a).The Supreme Court confirmed in Hayes v R, that the belief is not required to bereasonable, nor reasonably held, but it must be honest or genuine in the sense that itwas actually held by the defendant.27[33] It is not obvious how Mr Siddiqui intended to advance a claim of right defence.The essence of all the charges to which Mr Siddiqui pleaded is dishonesty.The deliberate use of the forged documents leads inevitably to the conclusion thatMr Siddiqui acted dishonestly, precluding an honest belief in his right to usethe documents. It may be that he intended to rely on an honest belief that his genuinequalifications entitled him to practise psychiatry. That would not be a tenableproposition either because it is completely at odds with the use of qualificationsbelonging to someone else. We are therefore satisfied that the fact that Mr Siddiquiheld some genuine qualifications could not have provided the basis for a tenabledefence of claim of right in relation to the charges of obtaining by deception he pleadedguilty to.[34] Finally, Mr Allan argued that Mr Temm's memorandum of 13 March 2017 washighly prejudicial to Mr Siddiqui and must have influenced the Judge in his assessmentof Mr Siddiqui's credibility and his decision to refuse the application to vacate theguilty plea. We can readily understand Mr Siddiqui's concern about the tone of thememorandum. We agree that, although the memorandum did not contain any specificinformation about privileged communications, it unequivocally conveyed the tenor ofthose communications. However, the Judge was alert to Mr Siddiqui's concern andreferred to it in his decision.28 But in the absence of any tenable defence, it is notpossible to conclude that a miscarriage of justice resulted. Even if Mr Temm had saidnothing at all about the circumstances that led him to withdraw, Mr Siddiqui's lack ofa tenable defence was an insuperable obstacle to him demonstrating that a miscarriageof justice would result if his guilty pleas were not vacated.[35] In the context of Judge Marshall's findings which were made with the benefitof seeing both Mr Siddiqui and Mr Temm under cross-examination, there was no basis27 Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321 at [58]. See also Jardine v R [2016] NZCA 371at [34].28 See [30] above.on which Mr Siddiqui could realistically assert that he was not properly advised ordid not understand the nature of the charges to which he was pleading nor the likelyeffect of the charges. Mr Siddiqui was under no misapprehension as to the probableoutcome of the guilty plea and could not demonstrate a tenable defence.Result[36] The application to adjourn the hearing date is declined.[37] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent