SHARANJEET SINGH v R [2022] NZCA 271

SHARANJEET SINGH v R [2022] NZCA 271 [28 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA34/2022[2022] NZCA 271BETWEEN SHARANJEET SINGHApplicantAND THE QUEENRespondentCourt: Gilbert, Mander and Fitzgerald JJCounsel: R P Chaudhry for AppellantM R L Davie for CrownJudgment:(On the papers)28 June 2022 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] After being provided with a sentence indication, Mr Sharanjeet Singh pleadedguilty in the Manukau District Court to charges of assaulting and threatening to killhis wife.1 An application to be discharged without conviction was declined and hewas sentenced to 120 hours' community work and eight months' supervision.21 R v Singh DC Manukau CRI-2020-092-7048, 31 March 2021.2 Police v Singh [2021] NZDC 15082.[2] Mr Singh appealed his convictions on the basis his guilty pleas werethe product of language difficulties resulting from him not having access to aninterpreter, and that he was induced into pleading guilty by the illegitimate actions andinfluence of his lawyers. His appeal was dismissed.3 Wylie J held Mr Singhunderstood English and no misunderstandings had arisen from any languagedifficulties.4 Wylie J also determined Mr Singh made a free and voluntary decision toenter guilty pleas which was not vitiated by any counsel error or misconduct.5[3] Mr Singh now applies to this Court for leave to bring a second appeal againstconviction. He essentially advances the same grounds — that counsel failed to followhis instructions and neglected to provide him with language assistance to allow him toproperly instruct counsel and understand the proceeding. He claims he therefore didnot make an informed decision to plead guilty.[4] The Crown opposes the application for leave to appeal. It submits Mr Singhseeks to re-litigate two factual findings made by the High Court regarding his abilityto understand and communicate with his lawyers in English and that he intentionallyand voluntarily instructed his lawyers to enter guilty pleas.Background[5] The charges arise out of a domestic dispute that occurred in the family homeafter Mr Singh accused his partner of infidelity. In the presence of their teenage sonand the complainant's mother, Mr Singh applied pressure to the complainant's neck tothe point she thought she was going to lose consciousness. After being pulled off thecomplainant, Mr Singh again confronted her, this time with a hammer and threatenedto kill her before being disarmed.[6] The complainant suffered bruising and scratches to her neck which weredocumented in photographs taken by attending police officers. When spoken to bypolice, Mr Singh denied the offending, despite statements made by the complainant'smother and son corroborating her account of what had occurred.3 Singh v R [2021] NZHC 3388.4 At [27]–[28].5 At [36] and [41].Procedural history[7] Mr Singh was legally represented throughout the criminal proceeding.He pleaded guilty following advice the prosecution was willing to reduce a charge ofimpeding breathing to one of male assaults female and a sentence indication, all ofwhich he discussed with his counsel, Mr White. He signed a written instructiondocumenting that he wished to accept the sentence indication and plead guilty.[8] Almost a month later, Mr Singh advised he wished to apply to be dischargedwithout conviction pursuant to s 106 of the Sentencing Act 2002. Initially, Mr Singhaccepted the advice of his new counsel, Mr MacNeil, not to bring such an application.However, at Mr Singh's insistence, an affidavit was prepared and the dischargeapplication advanced. Judge Earwaker declined the application.Appeal to High Court[9] Justice Wylie identified that Mr Singh's appeal turned on whether he hadproperly understood the charges laid against him, the proposed resolution of thecharges, and the pleas he subsequently entered.6 The Judge reviewed the evidenceadduced before him, including from Mr Singh himself and three of the lawyers whoacted for him during the course of the criminal proceeding. The Judge also viewed arecorded interview police conducted with Mr Singh to gauge his command ofthe English language. After an exhaustive review of the evidence bearing on thisissue, the Judge concluded that Mr Singh could understand English well. Wylie J wassatisfied Mr Singh knew what was going on throughout his interactions with counseland the Court, and had no difficulty communicating in English.7[10] Similarly, after reviewing the relevant evidence, including signed writteninstructions and contemporaneous file notes, the Judge found there was nothing tosuggest Mr Singh had made anything other than a free and voluntary decision to enterguilty pleas.8 The Judge determined he was well-capable of standing up to his lawyersif he genuinely thought he was being pressured into a course of action he did not wish6 At [22].7 At [28].8 At [36].to take. In reaching these conclusions, the Judge found Mr Singh to be "an entirelyunsatisfactory witness" whose explanations and assertions "simply made no sense"and had "a distinct ring of implausibility about them".9Approach to applications for leave to bring a second appeal against conviction[11] Leave to bring a second appeal will only be granted where it involves a matterof general public importance, or a miscarriage of justice may have occurred, or mayoccur, unless the appeal is heard.10 Mr Chaudhry, who advanced Mr Singh'sapplication on his behalf, contended that both limbs of the threshold test were satisfiedin this case.Applicant's argument[12] Mr Chaudhry argued the High Court erred in finding that Mr Singh's counselhad properly followed his instructions. He maintained there was cogent evidence ofcounsel error or misconduct. He submitted the High Court erred in concluding thatMr Singh was "well conversant in English". Reliance was placed on a request for aFiji Hindi interpreter that had been made in a case management memorandum filed atan earlier stage in the proceeding. A related submission was that the Court had erredin finding Mr Singh was properly able to instruct trial counsel without the assistanceof an interpreter.[13] Mr Chaudhry submitted the Judge had erroneously applied the threshold foracceptable trial counsel conduct, and asserted counsel had failed to follow Mr Singh'sinstructions. These failings, it was contended, amounted to a breach of Mr Singh'sright to receive a fair trial pursuant to the New Zealand Bill of Rights Act 1990. As aresult, it was argued, a matter of general or public importance arose and a miscarriageof justice may occur if the appeal is not heard.9 At [40].10 Criminal Procedure Act 2011, s 237(2).Discussion[14] We are satisfied no ground of general or public importance arises onthe proposed appeal against conviction. Nor do we consider, having regard tothe evidence available to the first appeal Court, any miscarriage of justice potentiallyarises from the dismissal of Mr Singh's first appeal.[15] Wylie J correctly identified the relevant principles that govern the assessmentof an appeal against conviction following a plea of guilty. In particular, that where anappellant fully appreciates the merits of their position and makes an informed decisionto plead guilty, the conviction cannot be impugned.11 Whether Mr Singh entered hisplea because of a misunderstanding or mistake due to language difficulties or as aconsequence of his counsel failing to follow his instructions were both questions offact that Wylie J addressed and decisively rejected.[16] We accept the prime submission of the Crown that this application for a secondappeal simply seeks to re-litigate those factual issues. Neither gives rise to a questionof general or public importance. Wylie J's judgment involves the application oforthodox legal principles to findings of fact reached following a careful assessment ofthe evidence. It included the rejection of Mr Singh as a credible witness.[17] There was ample evidence available to the High Court to conclude Mr Singhwas able to understand and communicate with his lawyers and provide them withinformed instructions. Not only was there his lawyers' evidence, but the Judge wasable to independently make his own assessment from the recorded interview policeconducted with Mr Singh. Other sources included the electronic communications thattook place between Mr Singh and his counsel, all of which demonstrated not only hisunderstanding of English but the informed nature of the decisions he made aboutthe conduct of his case. Mr Singh's reliance on an initial request that provision bemade for a Fiji Hindi interpreter at his trial does not alter the strength of thatconclusion.11 R v Le Page [2005] 2 NZLR 845 (CA) at [16].[18] Similarly, the signed written records of Mr Singh's instructions to his counselto seek a sentence indication and his subsequent decision to plead guilty on the basisof the indication provided show these were Mr Singh's own decisions that he made ona free and voluntary basis. Apart from Mr Singh's rejected assertions to the contrary,there is nothing to suggest he did not fully understand the decisions he was beingcalled upon to make or the implications of taking those steps. Given the availabilityof eyewitnesses to his offending and the evidence of the injuries caused to his victim,it is unsurprising Mr Singh relinquished his right to trial in favour of pleading guiltyto a lesser charge and obtaining credit. Mr Singh acknowledged in his evidence heknew he did not have to plead guilty and had the right to defend the charges.Decision[19] There was a wealth of evidence available to the High Court to conclude thatMr Singh made an informed decision to plead guilty to the charges, and knowinglyand voluntarily instructed his counsel to proceed on that basis. In the absence ofMr Chaudhry being able to articulate how Wylie J erred in his analysis of these factualissues and why this Court can, or should, take a different view of the evidence, we donot consider there is any reasonably available argument that a miscarriage of justicehas occurred.Result[20] The application for leave to bring a second appeal against conviction isdeclined.Solicitors:Chaudhry Legal, Auckland for the ApplicantCrown Law Wellington, for the Respondent