SINGH v NEW ZEALAND POLICE [2023] NZHC 1858

SINGH v NEW ZEALAND POLICE [2023] NZHC 1858 [18 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-35[2023] NZHC 1858BETWEEN REGINAL RAJ SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 3 July 2023Appearances: R Chaudhry for AppellantH Watts for RespondentJudgment: 18 July 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 18 July 2023 at 11:00 am.Registrar/Deputy RegistrarSolicitors: Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), ManukauChaudhry Legal, Manukau CityIntroduction[1] On 29 June 2022, after a Judge-alone trial,1 Reginal Raj Singh was convictedby Judge Field of criminal harassment2 under s 8(1)(b) of the Harassment Act 1997(the Act). On 25 January 2023, he was sentenced by Judge Moses to 80 hourscommunity work and nine months' supervision. He now appeals against convictionand sentence.Factual background[2] Mr Singh was previously married to the complainant. Their separation wasacrimonious. At about 11.40 am on 28 July 2020, the complainant was driving alongCavendish Drive in Manukau when she noticed a black Ford Ranger following her.The complainant then attended a nail appointment. After she left the appointment, thecomplainant noticed the same black Ford Ranger following her on Diorella Drive,Manukau.[3] She stopped her car and got out to ascertain the Ford Ranger's number plateand to take a photograph of it. The complainant said to the female passenger, "canyou stop following me" to which the passenger replied, "I'm not following you bitch".The complainant then identified Mr Singh as the driver. Mr Singh then put down hiswindow and yelled in Hindi "[y]ou and your friend Thakur wait and watch see what Ido". Mr Singh then drove off.[4] In explanation, Mr Singh said he was in the area with friends viewing an openhome but denied making any threats to the complainant.Offence of criminal harassment[5] The offence of criminal harassment under s 8 of the Act, as charged in thiscase, is as follows:(1) Every person commits an offence who harasses another person in anycase where—1 Police v Singh [2022] NZDC 12250.2 Harassment Act 1997, ss 8(1)(b) and (2). Maximum penalty: two years' imprisonment.(b) the first-mentioned person knows that the harassment is likelyto cause the other person, given his or her particularcircumstances, to reasonably fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other personis in a family relationship.(2) Every person who commits an offence against this section is liable,on conviction, to imprisonment for a term not exceeding two years.[6] "Harassment" is defined in s 3 of the Act as follows:3 Meaning of harassment(1) For the purposes of this Act, a person harasses another personif he or she engages in a pattern of behaviour that is directedagainst that other person, being a pattern of behaviour thatincludes doing any specified act to the other person on at least2 separate occasions within a period of 12 months.(2) To avoid any doubt,—(a) the specified acts required for the purposes ofsubsection (1) may be the same type of specified acton each separate occasion, or different types ofspecified acts:(b) the specified acts need not be done to the same personon each separate occasion, as long as the pattern ofbehaviour is directed against the same person.[7] "Specified act" is set out in s 4 of the Act:4 Meaning of specified act(1) For the purposes of this Act, a specified act, in relation to a person,means any of the following acts:(a) watching, loitering near, or preventing or hindering access toor from, that person's place of residence, business,employment, or any other place that the person frequents forany purpose:(b) following, stopping, or accosting that person:(c) entering, or interfering with, property in that person'spossession:(d) making contact with that person (whether by telephone,correspondence, electronic communication, or in any otherway):(e) giving offensive material to that person or leaving it where itwill be found by, given to, or brought to the attention of thatperson:(ea) giving offensive material to a person by placing the materialin any electronic media where it is likely that it will be seenby, or brought to the attention of, that person:(f) acting in any other way—(i) that causes that person (person A) to fear for his orher safety; and(ii) that would cause a reasonable person in person A'sparticular circumstances to fear for his or her safety.[8] "Safety" is defined in s 2 of the Act to include a person's mental well-being.[9] Combining these sections, to prove criminal harassment there must be:(a) "a pattern of behaviour that is directed against that other person". Thatrequires that there be a "specified act" (as defined) on at least twoseparate occasions which are done "to the other person" (as defined);and(b) those acts must be done with the intent set out in s 8(1)(a) or theknowledge set out in s 8(1)(b).[10] The charging document alleged that on 28 July 2020, Mr Singh harassed thecomplainant by following her in a vehicle, having already been warned on17 November 2019 for taking unsolicited photographs of [the complainant] and thenwarned on 24 May 2020 for following her in a vehicle, knowing that the harassmentwas likely to cause [the complainant], given her particular circumstances, toreasonably fear for her safety.District Court decision[11] At the outset of his oral decision, Judge Field outlined the meaning ofharassment as set out in s 3 of the Act and proceeded to explain the elements involvedin a charge laid under s 8 of the Act. He said s 8 makes it an offence to harass anotherperson where the person intends that harassment to cause the other person to fear fortheir safety (which is the mens rea required under s 8(1)(a), but not s 8(1)(b) underwhich Mr Singh was charged). The Judge referred to the required standard of proofwhereby he must be satisfied beyond reasonable doubt the acts occurred and thatMr Singh had the relevant state of mind. On Mr Singh's state of mind, Judge Fieldsaid that he had to know that he would affect the mind of the complainant and intendedto affect her mind.[12] The Judge then referred to a pattern of behaviour by Mr Singh, noting that ittook place in the context of a separation that had not remained amicable. In particular,the complainant said that she became aware of Mr Singh taking a significant interestin her whereabouts and movements, including taking photographs of her and clampinga vehicle. The Police argued that the behaviour demonstrated a particular state of mindof Mr Singh and that it must be viewed in the context of their past relationship.Judge Field also recognised that Mr Singh and the complainant lived reasonably closeto each other at one point and worked in the same general area, therefore, it would notbe unreasonable for some encounters to occur from time to time.[13] However, the Judge noted the complainant's argument that Mr Singh'sbehaviour went beyond chance encounters and that he was keeping track of hermovements, which led her to contact the Police regarding the incidents in April andJuly of 2020, and a Police officer speaking to Mr Singh. The Judge noted that evidenceof complaints cannot substantiate the offending alone but said they can support theestablishment of consistency and credibility of the complainant. Therefore, the Judgefound that it was proper for the Court to take into account the Police officer's evidenceof the complaints made by the complainant.[14] When questioned by an officer, Mr Singh had denied that he had beenfollowing and harassing the complainant but acknowledged taking a video of her withthe intention of recording that she was in breach of the lockdown during COVID-19.The Judge found that justification disingenuous and was satisfied that the intention ofMr Singh was at least to irritate the complainant and let her know she was beingwatched.[15] In respect of the evidence that Mr Singh clamped the complainant's vehicle,the Judge further determined that regardless of why he did it, it would certainly havehad the effect of distressing the complainant and it can hardly be argued that Mr Singhdid not have that in mind when clamping the vehicle, or even photographing it.Judge Field said that these incidents could not be viewed in isolation.[16] The Judge was satisfied that Mr Singh had acted in a manner that demonstrateda pattern of behaviour towards the complainant designed to distress her. It was againstthis background that the Judge then considered the alleged offending on 28 July 2020that was the subject of the charge.[17] The circumstances were that the complainant was driving to a nail appointmentwhen she says she met Mr Singh at a set of lights, and it appeared he was driving inthe opposite direction to her as she turned left. However, she then says she recognisedhis car in her rear-view mirror. The complainant attended her nail appointment, whichtook some time and when she exited, she saw two vehicles, one of which sherecognised as being driven by Mr Singh's best friend. The complainant approachedone of the vehicles and it is agreed that she became angry and there was an exchangebetween herself and another woman.[18] The Judge noted the defence position on this incident was that it was a chanceencounter because Mr Singh was in the area visiting a property. The defence producedevidence of a property for sale. The prosecution suggested that it was unlikely to havebeen a coincidence or chance encounter and that Mr Singh was aware of this. Theysay it was orchestrated or arranged with the intention of letting the complainant knowthat she was still under observation, an intention that was a theme emerging from theevidence.[19] The Judge acknowledged that Mr Singh may have been visiting a property andstopped at a playground but found that it was too much to expect the Court to acceptthat it was a chance encounter. There were too many coincidences in the evidencegiven by the complainant and the Judge was of the view that they pointed to a courseof conduct designed by Mr Singh and known by him to cause distress to thecomplainant. The Judge accordingly convicted Mr Singh.Law on appeal[20] First appeals against conviction, such as this conviction appeal by Mr Singh,are determined under s 232 of the Criminal Procedure Act 2011. Relevantly under thatprovision:(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.Discussion[21] Although counsel for Mr Singh advanced a number of grounds of appeal, I amof the view that the appeal can be dealt with quite shortly.[22] The charging document refers to warnings given to Mr Singh on 17 November2019 for taking unsolicited photographs of the victim and on 24 May 2020 byfollowing her in a vehicle. The warnings themselves are not specified acts. Thesummary of facts prepared by the Police refers to warnings given on two other dates:On 21/09/2019 the Defendant was issued a formal caution for CriminalHarassment after he took unsolicited photographs of [the complainant and athird person], then delivered the photographs on a USB to [the third person's]mail box at his home address.The Defendant made several phone calls to [the third person] and his wife overa three month period. Making up to four or five calls a day.On 11/04/2020 the Defendant was given a verbal warning for following [thecomplainant] in her vehicle to her destination, then parked on the opposite[side] of the road and began filming her with his cell phone.[23] Although it was quite clear that the incident on 28 July 2020, when thecomplainant was attending a nail appointment, was the subject of the charge ofharassment, it is unclear which other incident or incidents were relied on to establisha pattern of behaviour that made the nail appointment incident harassment.[24] As to the first alleged incident of taking unsolicited photographs of thecomplainant and a third person that was allegedly the subject of the formal warningreceived on 21 September 2019, counsel for Mr Singh notes that no evidence of theincident, or the warning, was led at trial. Counsel for the Crown seems to acknowledgethe lack of evidence when she submits that even in the absence of evidence of theSeptember incident, having regard to the incidents in the evidence highlighted by theJudge—on 11 April 2020 and 28 July 2020 (the index offending)—and the wheel-clamping incident, there was sufficient evidence of harassment before the trial Judgeto convict Mr Singh of the charge.[25] The complainant did give evidence of Mr Singh following her and filming herwith his cell phone on 11 April 2020. However, the only reference made by the Judgeto the incident on 11 April 2020 was as follows:[4] The complainant says, however, that the defendant knew more abouther and her movements than can be explained by a mere casual meeting orencounter in the street. She says, and she invites the Court to draw theinference, that he was keeping watch on her movements and following herfrom time to time to do this and she gave instances of a number of occasionswhere, for example, in the carpark at the Manukau Centre, I think it was, hewas following or is said to have been following her to ascertain where she hadparked her vehicle. This has led her to contact the police and make complaintsabout the matters that occurred in April and in July. This resulted in ConstableAfoa speaking to the defendant and he referred to a conversation that he hadwith the defendant concerning an incident on 11 April 2020. This was as aresult of a complaint made by the complainant. So I have referred to these issues only to point out that the incidentsthemselves cannot be viewed in isolation and the incidents I am talking aboutof course are those on 11 and, in particular, 28 July 2020.[26] The wheel-clamping incident is not included in the charging document or thesummary of facts. It is referred to by the Judge as follows:[6] There was also the clamping of the vehicle and there had been no validreason given for that. He acknowledges that. The prosecutor says that it wassimply done out of spite and whether that is correct or not certainly wouldhave had the effect of distressing the complainant and it can hardly be arguedthat the defendant did not have that in mind when clamping it or, indeed, whenphotographing the vehicle. [27] Whether one or two specific acts in addition to the index offending are to berelied upon as establishing a threshold for a finding of harassment, a Judge must turnhis or her mind to whether the specific acts are proven. Here, the Judge made noreference to the alleged incident on 21 September 2019 (summary of facts) and only areference in passing to the alleged incident on 17 November 2019 (chargingdocument). It seems that the warning on 24 May 2020 (charging document) was forthe incident on 11 April 2020 (summary of facts) among others. It was again referredto only in passing by the Judge.[28] The incident upon which the Judge goes furthest is the wheel-clampingincident, which is not specified in the charging document or the summary of facts.The Judge referred to the prosecutor's submission that it was simply done out of spite,but makes no finding—"whether that is correct or not". He says it would have theeffect of distressing the complainant and it could hardly be argued that he did not havethat in mind when clamping it.[29] The focus in s 8(1)(b) is, however, on the defendant's knowledge that theharassment is likely to cause the complainant to reasonably fear for her safety. At thestart of his judgment, the Judge mistakenly referred to an intention that harassmentcaused the complainant to fear for her safety (mens rea element under s 8(1)(a)). Thenin reference to the incident on 11 April 2020, the Judge stated that he was satisfied thatMr Singh took the photographs with the intention of, at least, irritating her or lettingher know that the vehicle was under observation. Then in reference to the wheel-clamping, the Judge said it would have the effect of distressing the complainant.[30] After reviewing in a broad way, the prior incidents, before going on to considerthe index offending, the Judge said he was satisfied they demonstrated a pattern ofbehaviour towards the complainant designed to distress her.[31] As to the index offending, the Judge found the meeting was orchestrated withthe intention of letting the complainant know she was still under observation. Heconcluded it was a course of conduct designed by Mr Singh and known by him tocause distress to the complainant. Distress is a relevant factor under s 16 of the Actwhich gives the Court power to make a restraining order, but not in terms of s 8(1)(b),under which Mr Singh was charged.[32] The Judge made reference mistakenly to an intent to cause the complainant toreasonably fear for her safety, an intent to irritate her, an intent to let her know thevehicle was under observation, and an intent to cause her distress when the mens rearequirement which needed to be proved was knowledge that his actions would belikely to cause the complainant to reasonably fear for her safety.[33] I am therefore of the view that there has been a miscarriage of justice in thatthe two prior specified acts alleged in the charging document (and those specified inthe summary of facts) were not proved in that the Judge did not make a specific findingabout them, nor did he consider the requisite mens rea requirements in each case. Itis not enough to submit that there was ample evidence from which the Judge couldconclude all the elements of a charge under s 8(1)(b) had been made out,notwithstanding his lack of express reference to the specified acts alleged to constitutea pattern of behaviour amounting to harassment. Specific focus and findings wererequired.Result[34] The appeal against conviction and sentence is allowed. Mr Singh's convictionfor criminal harassment and the sentence of 80 hours community work andnine months' supervision is quashed. There will be no order for a re-trial because ofthe length of time since the alleged offences.3____________________________Woolford J3 H v R [2022] NZSC 42; [2022] 1 NZLR 21 at [29]–[37].