THE QUEEN v YASH PAUL [2000] NZCA 355 (28 November 2000)

IN THE court of appeal of new zealand

ca 246/00

THE QUEEN

V

YASH PAUL

Hearing:	21 November 2000
Coram:	Richardson P Robertson J Goddard J
Appearances:	C P Comeskey for the Appellant J C Gordon and B H Dickey for the Crown
Judgment:	28 November 2000

judgment of the court DELIVERED BY GODDARD J

[1] This is an appeal against conviction for the murder of Ranvir Sharma ("the deceased") following a trial by jury in the High Court at Auckland on 1-23 May 2000.The appeal was originally advanced on two grounds:first, that "fresh evidence" is available indicating a third person was responsible for the murder; second, on the ground of misconduct by second counsel for the defence at trial,

Mr Singh, in failing to act upon the appellant's alleged advice that a third person was responsible.

[2] Mr Comeskey, representing the appellant on appeal did not pursue the first ground, there being no basis upon which a fresh evidence argument could be credibly advanced.He contended that the critical complaint was encompassed in the second ground.

[3] A number of affidavits were submitted to the Court.First, an affidavit sworn by the appellant in which he outlines what he says really happened on the night of the murder and instructions he said he gave to Mr Singh following depositions.In response, affidavits have been sworn by defence counsel, both Mr Jones, who was senior counsel, and Mr Singh.There is also an affidavit sworn by the officer in charge of the case, Senior Sergeant Benefield.

[4] More detailed reference will be made to the appellant's affidavit later in the judgment but, in short, he contends that a man named Surinder Kumar (known as Chamkela) came to his premises on the night in question and shot the deceased.

Mr Kumar (referred to as "Chamkela" henceforth) was interviewed by the Police during their investigations and two formal statements taken from him, on 23 and 29 March 1999 respectively.The Police had intended calling him as a Crown witness at trial but he left New Zealand for India prior to depositions being taken.At trial, the Crown applied to adduce his two signed statements in evidence.During the hearing of this application, Senior Sergeant Benefield gave evidence about efforts the Police had made to locate Chamkela.He said initial enquiries were made through Interpol's office in Wellington but the advice received was that there was little or no prospect of success without an address or contact point for Chamkela in India.Sources in New Zealand had proved of no assistance in locating any such address or contact point.In the event the trial Judge declined the Crown's application.The appellant was present in Court during the hearing and heard the evidence given by Senior Sergeant Benefield about Chamkela's return to India before depositions and the fact that his whereabouts were unknown.

The Trial

[5] The defence theory of the case, as instructed by the appellant and consistent with what he had said in his Police interviews, was that the deceased had come to the appellant's premises at 230 Marua Road, Ellerslie.He brought with him a rifle and committed suicide by shooting himself with the rifle while there.

[6] The essence of the Crown's case, as advanced at trial was that the deceased was fatally shot by the appellant at close range with the rifle at the appellant's Marua Road premises.The shooting occurred not long after 9.11pm on 27 February 1999.In summary the Crown's case was:

The appellant rented commercial premises on the first floor of a building at 230 Marua Road, Ellerslie.Most of the floor area was open plan with the open plan area being set up with a number of sewing machines.As well as the open plan area there were two small rooms to the left of the entrance area which functioned as a bedroom and an office.

In addition there was a small kitchen and bathroom area at the far end of the open plan area opposite the door into the premises.

The second or top floor of the premises was rented out as a residential unit. Three women lived there:Vunivesi Kuluka (also known as Linda Wagner), her sister Joanna Mau'pese and Linda's daughter Norlin Mau'pese.

Access to both the first and second floor was by way of a metal stairway on the outside of the building.

Between the front of the building and the road was a large open area used for carparking.The carpark is clearly visible from the large window in the kitchen area of the top floor flat.

On Saturday, 27 February 1999 at approximately 4.00pm the deceased went to the Big Fresh supermarket, Mt Wellington, which was a few minutes walk from his home.At the supermarket he spoke to Mr Sapt Shankar an Indian lawyer whom he knew.The deceased then returned home with his groceries.

Later on in the afternoon the deceased visited the appellant, who was a friend of his, at his Marua Road premises.It is not clear how long he was there but by reference to Telecom records it was established that at least at 5.44pm the deceased was present at the premises.The evidence of Norlin Mau'pese was that she went downstairs to the appellant's unit to use the phone and when she did so she saw both the appellant and the deceased, whom she knew, there.The phone call she made was at 5.44pm.

Joanna Mau'pese also gave evidence that the deceased was downstairs that afternoon as she could hear what she describes as angry arguing coming from downstairs.The voices were those of the appellant and the deceased.

The appellant and the deceased then left the appellant's premises.It is not clear at what time they left.They drove in the deceased's car to the place of a friend, Dalbir Gill (referred to as Kala).There they spoke to Kala's wife, Jasvir, who told them that Kala was not at home.

Some time after that the deceased arrived at his home in his car on his own.

The deceased then remained at home with his mother, father, wife and three children.There was no suggestion he would be going out later that night.

At 8.57pm a phone call was made from the appellant's Marua Road premises to the deceased's home.The deceased answered the telephone and the call lasted for 50 seconds.None of the members of his family heard what the deceased said when speaking on the phone.

There had been an earlier phone call at 8.23pm also from the Marua road premises to the telephone at the deceased's home.There was no evidence as to what was said in the course of the first telephone call either.

After speaking on the phone (at 8.57pm), the deceased played with his children for a short period.He then went to the fridge and said he would go out and buy some milk from the dairy.The deceased's wife and father said there was nothing unusual about the deceased's manner at the time he left the house.

The deceased drove off in his car.He did not go to the local dairy but drove to 230 Marua Road.

Joanna and Norlin Mau'pese had arrived home from the supermarket just before the deceased arrived at Marua Road.Based on supermarket checkout records, the security videos from the supermarket and a police reconstruction of the drive from the supermarket to 230 Marua Road, the two young women would have arrived home at about 9.11pm.

The deceased arrived at the appellant's premises shortly after the young women returned home.

The women heard a very loud bang soon after the deceased arrived.The women saw the appellant leave his premises carrying a rifle.He got into his car and drove off at speed along Marua Road for approximately one kilometre.He then turned into a side street, pulled up in his car and dropped the rifle onto the road.He then Drove off.An off duty police office happened to drive into the street where the rifle had been disposed of.He noticed the rifle lying on the roadway and retrieved it.He then made a 111 call which was timed at 9.38pm.

It was not clear precisely what the appellant did after dropping the rifle in the roadway but at some point during the evening of Saturday 27 February and Sunday 28 February he returned to his premises at 230 Marua Road.

During the night Linda Wagner was woken by noises which sounded to her like furniture being moved around downstairs.The Crown case was that the accused re-arranged furniture in part of the premises, lifted up the bloodstained carpet and wrapped the deceased in bedding from the bedroom in which he had been shot.The body of the deceased was put in the boot of his own car which was still in the carpark below.

The Crown case was that for at least a part of this "cleanup" process the appellant was assisted by someone else.There was forensic evidence of footprints of two people taking a bloodied bundle down the stairs and the footprints of two people in blood inside the premises.The appellant later identified Kala as the person who had assisted him.Kala denied leaving his house on the night or early morning of the death.Kala's wife corroborated this account and there was no other independent evidence regarding the identity of the person assisting in the removal of the body.

The deceased's car was Driven by the appellant to the carpark in the Ellerslie shopping centre where a Matrix security guard found it at approximately 5.30 on the morning of Sunday 28 February 1999.

The accused also deposited further bedding and other linen behind a block of shops in another area of Ellerslie.Those items were found at approximately midday on the Sunday and were reported to the police.

Later on Sunday, the appellant borrowed a van from friends.With the assistance of another friend, Kuldip Lal (referred to as Depa).On the Sunday evening he loaded pieces of the carpet which he had removed from the floor upstairs into the van, Drove to Kumeu and dumped them on the side of the road.

A large part of the Crown evidence was called to adDress the explanation the accused had given to the Police namely, that the deceased had arrived at his place and within moments had committed suicide.The deceased's friends and family gave evidence on this issue and expert evidence was also called.

The Crown accepted that while it would have been physically possible for the accused to have shot himself (in the sense that his arm was long enough to hold the rifle) the forensic evidence and further expert evidence supported the Crown case that someone else had fired the fatal shot.

[7] In closing for the Crown, Ms Gordon told the jury that they had to exclude the reasonable possibility that the deceased had committed suicide by shooting himself and had to be satisfied beyond reasonable doubt that it was the appellant who had pulled the trigger and killed the deceased, and not some third party.

[8] At trial, the appellant did not give nor call any evidence.Written statements he had made to the Police during their investigations were adduced in evidence.His first statement was made on 3 March 2000.In it the appellant told the Police that the deceased had come to his Marua Road premises at about 5.00pm in an upset state after having a disagreement with his father. He said he and the deceased drank together and then went out in the deceased's car for a time, the deceased later returning him to his Marua Road premises. The appellant said the deceased subsequently arrived at his premises bringing with him a gun which the appellant had seen before.He said he had looked after this gun for the deceased on a previous occasion.The deceased appeared upset and asked the appellant to get him a drink.Whilst the appellant was getting a glass of water from the kitchen the deceased walked into the bedroom and shot himself.When the appellant came into the bedroom the deceased was lying on the bed with the gun at his feet.The appellant said he did not know what to do and requested his friend Kala to help him dispose of the body.The appellant also described how he subsequently disposed of soiled pieces of carpet and other items from his premises.At the conclusion of the interview he was arrested and charged with unlawful possession of a firearm.His second statement was made on 12 March 1999, as the Police wanted him to clarify what he had said in his earlier statement regarding the death of the deceased.The appellant gave the same suicide explanation, repeating that his friend Kala had helped him to dispose of the body.He also referred briefly and in passing to Chamkela in his second statement, describing him as a friend and referring to Chamkela not liking Kala because he suspected Kala of burgling his house.The appellant also made the comment that Kala did not enjoy a good reputation in the Indian community.The appellant was again spoken to by the Police on 17 March 1999 at which time he gave a re-enactment of his suicide version of events at the Marua Road premises, which was recorded on video for evidential purposes.During this period the appellant had spoken to a number of his friends and associates about the deceased's death.His explanations to friends included variations of the suicide explanation he had given to the Police. Those variations were that the deceased had shot himself following an argument with his father; that he had shot himself following an argument with his brother; that he may have been checking or cleaning the gun and inadvertently shot himself.He also said to two people that some unnamed third person had shot the deceased in the back.That explanation was improbable, the deceased having died from a single shot to the chest.All of these friends and associates were called at the trial by the Crown.

[9] The appellant gave that same explanation and instructions to counsel first appointed to represent him, Mr Comeskey, and subsequently in written instructions to Mr Singh on 9 July 1999.

[10] None of the explanations the appellant gave to the Police or to the other witnesses accord with the explanation he now puts forward.

The Appellant's Affidavit Filed in Support of his Appeal

[11] In an affidavit sworn on 13 September 2000, the appellant states that the "entire story regarding Sharma killing himself is untrue" and alleges for the first time that it was Chamkela who shot and killed the deceased.He states that he, Chamkela and the deceased were all known to each other at the time of the killing.He says that earlier in the day Chamkela had telephoned him and told him that he believed the deceased and another man had been responsible for stealing things from his (Chamkela's) house and he was very upset about it. Later that same day the appellant says he visited Chamkela's home and Mrank whiskey with him.Chamkela repeated to him that the deceased had stolen his property and that he had been looking for him to confront him about the matter. He asked the appellant to arrange a meeting between himself and the deceased, and the appellant agreed to try and arrange a meeting that night.The appellant says that at about 5.30pm the deceased came to the appellant's premises and had a Drink with him.He told the deceased that Chamkela wanted to see him and the reason for that.The deceased agreed to have a face to face meeting with Chamkela but said "he needed to pick up the rifle for protection, just in case something went wrong".The appellant records that he went with the deceased to an address in Mangere to pick up the deceased's gun and ammunition.The deceased next dropped the appellant back at the Marua Road premises.The affidavit then contains a rather muddled explanation about the arrangements which the appellant says he then put in place.The upshot, according to his affidavit, was that the deceased arrived at the appellant's place some time after 9.00pm with the gun which he took into the bedroom with him.A few minutes later Chamkela arrived and went into the bedroom where the deceased was waiting.The appellant says he left them to talk to each other and went into the kitchen.He could hear the deceased and Chamkela arguing and then the deceased called out to him.When he went into the bedroom he saw Chamkela pointing the gun at the deceased from a distance of about half a metre, demanding to know where his stolen money was.The appellant then states:

I thought Chamkela was going to shoot Sharma.I grabbed him from behind.I threw both my arms around Chamkela's waist to try to stop him.The gun went off.His waist was quite big.

I don't know who loaded the gun.

When the gun went off it recoiled backwards about half a metre.At that point Sharma was almost standing up, like a half squat.The shot caused Sharma to fall backwards onto the bed.

I was shocked.I noticed immediately that Sharma was dead or dying.

Sharma opened his mouth as if to scream but nothing came out.

Chamkela was obviously shocked.He said to me "you shot him" meaning because I had grabbed him the gun went off.Chamkela said he was only scaring Sharma with the gun to get a true answer to where the money was.

I took the gun off Chamkela.I was scared because I didn't want him to shoot me.I took off with the gun for my own safety.I told Chamkela "that's your problem, you shot him, I got nothing to do with this".

Chamkela said to me don't make him involved in there, meaning present at the time of the shooting.Chamkela said to me to say it was a suicide.

[12] The appellant contends that Chamkela made threats against him and members of the appellant's family in India, which he took seriously.For that reason he says he foolishly made up the suicide story, which he maintained right up to and including the taking of depositions.

[13] Of central relevance are the following further passages in the appellant's affidavit:

After depositions, and up to trial, I had about 13 or 14 meetings with Mr Singh.They all took place at the prison.On about four of those occasions, Mr Jones was present.

After depositions, I told Mr Singh on two occasions about what really happened. I raised it by telling him the facts and then asking him, "what are we going to do about the real story?"

Mr Singh advised that we should stick with the suicide story.I only left out one fact in telling Mr Singh the real story and that was Chamkela's name.I did not name him but described his actions.

Mr Singh advised me that the jury would most likely take the view that because I rang Sharma to come around, that Chamkela and me killed him and the jury would find me guilty on that basis.

I followed Mr Singh's advice.I took the view he is a High Court lawyer and knows more than me, so it must be good advice.

I did not, as a result, raise the matter with Mr Jones before or during the trial.

The first I mentioned it to Mr Jones was the day of sentencing.A few minutes before sentencing I spoke to Mr Jones.

I told him that another person was there and did the shooting.That I had tried to stop the shooting.I did not tell Mr Jones the name.I did tell Mr Jones that I had told Mr Singh before the trial and that Mr Singh doesn't want you to know.Mr Jones said to me that he thought he knew who the killer was, meaning Karla, but not saying it.

Mr Jones told me he would not do my appeal case, because of what I had just told him and that he would arrange for someone else to do my appeal.

Mr Jones was angry with me for not telling him before the trial the truth.

I am positive I told Mr Singh about the truth.Mr Singh told me that if Mr Jones knew about that version, he would change the trial.

[14] Two comments arise in relation to the above passages.First that the "day of sentencing" the appellant refers to is 23 June 2000 when he appeared for sentence on the three receiving charges.He had already been sentenced to mandatory life imprisonment for murder immediately following the jury's verdict on 23 May 2000.Secondly, the statements were considerably embellished by the appellant during his cross-examination at the appeal hearing.

Affidavit of Mr Jones

[15] Mr Jones was assigned as senior counsel for the appellant on 9 February 2000.Mr Singh had been assigned as counsel since 9 July 1999.Prior to Mr Jones' appointment, Mr Singh had discussed the appellant's case with him on a number of occasions.Following his appointment, Mr Jones attended a number of meetings with the appellant and Mr Singh at Mt Eden Prison.In relation to these meetings Mr Jones says:

I confirm that at no stage was any defence raised with me other than the defence which had been set out in the Police interviews.Mr Paul was asked at several meetings at the Prison whether what he had said to the Police was the truth.He was informed that if he had told the Police lies and made up the suicide story to protect someone else or because he was afraid, or for any other reason, he had to tell us so the trial could be run in a proper way.Mr Paul was advised that he had to make a decision as to what his final instructions were, and that whatever his final instructions were, they would be the instructions on which his defence would be run at trial.

Mr Paul maintained throughout that what he had told the Police was the truth.

The suicide story, whilst possible, was not a version of events which sat happily with the facts as they were known.It seemed most unlikely that an apparently happily married man would go to a friend's house and kill himself within a matter of minutes of arrival there.This was one of the primary reasons why the issue of what Mr Paul's final instructions were for the trial was raised on a repeated basis.

The first time Mr Paul raised with me any issue of someone else being at the flat and being involved in Mr Sharma's death was immediately prior to the sentencing hearing on the receiving charges on 23 June 2000.What Mr Paul sets out in paragraphs 129-131 is essentially correct in terms of my dealings with him.

I have considered from the outset of my involvement with the case that there was every likelihood a third person was involved in the incident and had been present when Mr Sharma died.It was also for that reason that on the various occasions we met with Mr Paul, Mr Singh and I would ask him whether what he had said to the Police was the truth or whether someone else had been present.

Mr Singh and I both reiterated that if Mr Paul maintained the suicide story which he told the Police the trial obviously would have to be run on that basis.At all time Mr Paul maintained that what he had told the Police was the truth.I note that during the meetings these questions and answers would be asked in English and given in English and then would be translated into Punjabi by Mr Singh and (I believed) asked again, or vice versa.

[16] Mr Jones went on to state that he never received any advice or indication from Mr Singh of any conversation with the appellant about the presence of a third person when the deceased was shot.On the contrary, Mr Jones says that during the numerous meetings he had with Mr Singh whilst preparing for trial the discussion always centred on alternative theories to the suicide theory. It was clear to Mr Jones that Mr Singh had pressed the appellant on a number of occasions to disclose whether a third person was present at the crucial time. The appellant however had consistently maintained that only he and the deceased were in the flat when the deceased was shot.

[17] Mr Jones took the precaution of recording the appellant's instructions in a typewritten memorandum which the appellant signed prior to trial.The instructions confirmed that the suicide theory was to be run at trial and expressly clarified the extent of the appellant's instructions.Because of its importance the memorandum is set out in entirety below.

[18] Mr Jones further describes in his affidavit how the appellant told him prior to sentencing on 23 June 2000 that he had advised Mr Singh before the trial that a third person was present when the deceased was killed.Mr Jones said he felt frustrated on receiving such advice because the appellant had not seen fit to disclose the information earlier despite being given the opportunity to do so.Significantly, Mr Singh had never mentioned any such conversation with the appellant.Mr Jones found it difficult to understand why the appellant had not provided this vital information earlier if it were true.

[19] Mr Jones concludes his affidavit with an emphatic refutation that Mr Singh would have failed to act upon such information.Mr Jones says that, in his experience of working with Mr Singh, it would be quite out of character for him not to have acted.Furthermore, Mr Jones says, the allegation is contrary to everything the appellant had said in his statements to the Police, to various witnesses and to both his defence counsel during their preparation for trial.

The Memorandum of Instructions Prepared by Mr Jones

[20] The memorandum of instructions prepared by Mr Jones was based on what the appellant had related to him and to Mr Singh during preparation for trial and was prepared to "formalise the position" the appellant "had maintained throughout".The memorandum of instructions is as follows:

I am currently on remand at Mt Eden Prison and wish to confirm instructions to my counsel in relation to my trial which is scheduled to commence in the High Court at Auckland on Monday 1 May 2000.

I am facing one charge of murder, two charges of receiving stolen property (television sets) and one charge of receiving stolen property (Marlin 30/30 rifle).

I have been advised of the nature of the charges and what the Crown has to prove in relation to each charge.I understand the charges I face.

I wish to maintain my not guilty pleas in relation to all charges.I am aware that I probably have no defence to the charges of receiving stolen property but for tactical reasons I will maintain my not guilty plea.

I confirm my instructions that my defence to the murder charge is that I did not kill Ranvir Sharma or have anything to do with his death.What I told the Police in the statements which are dated 3 March 1999 and in the statement commencing on 12 March 1999 and concluding on 17 March 1999, is true and the contents of those statements form the basis of my instructions to my counsel.

I acknowledge I have been advised that the Crown case against me is based on circumstantial evidence and the Crown is alleging that there was no reason why Ranvir Sharma would have committed suicide.I acknowledge I have been advised of the strength of the Crown case and that unless the jury considers there is a reasonable possibility that Ranvir Sharma may have committed suicide, I will be found guilty of murder.

I reiterate that I had nothing to do with Ranvir Sharma's death and to the best of my knowledge nobody else, apart from myself and Ranvir Sharma, was in the flat when he received the fatal bullet wound.

I understand that the Crown has to prove the charges beyond any reasonable doubt and that I do not need to give evidence.There is nothing of substance which I could add to what I have already said in my Police statements and I do not wish to give evidence in the trial.I do not believe I could add anything, and I understand the risks of giving evidence.I understand that the decision to give or not to give evidence is entirely mine, but the advice I have received is that there would be little or no advantage in giving evidence and I accept that advice and instruct my counsel to proceed with the case on the basis that I will not give evidence.

There are certain additional matters that I have discussed with counsel which are not specifically included in the statement I made to the Police.However, I wish the trial to proceed on the basis that my counsel cross examine witnesses on what I have said in my statements to the Police and not any other matters.In particular, I do not wish the witness Dalbir Gill (aka Kala) to be questioned on the basis that he was present in my flat when Ranvir Sharma received the bullet wound, or that Surinder Kumar was involved in the death of Ranvir Sharma.I do not want any persons to be questioned on the basis that they or anyone else was directly involved in Ranvir Sharma's death.

I record I have been advised that if I am covering up for anyone in terms of saying that nobody else was present when in fact somebody was, that I run the risk of being found guilty of murder if the jury does not accept the reasonable possibility that Ranvir Sharma could have killed himself.I acknowledge and accept that risk, but reiterate that what I said to the Police is the truth and this is what my instructions to my counsel are.

I have been advised that on the basis of my instructions the verdict of the jury will be either guilty or not guilty of murder.The issue of the charge being reduced to manslaughter would not arise.

Dated: 27 April 2000

Signed by Yash Paul

[21] The memorandum bears the following footnote:

I have explained each paragraph to Yash Paul in Punjabi/Hindi and he appeared fully to understand the contents of the instructions herein.

Signed by A Swaran Singh

Counsel:27 April 2000

[22] The appellant has acknowledged that the memorandum of instructions contains a broad outline or summary of all the matters he had discussed with his counsel during preparation for trial.However, in relation to paragraph 9 of the memorandum, the appellant has this to say:

Where reference is made to "There are certain additional matters that I have discussed with counsel which are not specifically included in the statements I made to the Police".This is a reference to the true version which I told Mr Singh about a couple of months before

27 April 2000.

In the second sentence "However, I wish the trial to proceed on the basis that my counsel cross-examine witnesses on what I have said in my statements to the Police and not any other matters".I was accepting Mr Singh's advice that there was a real danger in changing explanations at this stage.

For the rest of the paragraph 9, where I specifically exclude Dalbir Gill and Surinder Kumar from questions on the basis that they were present or involved. I did not ask for those instruction to be Drafted in that way.I maintain that those names are recorded precisely because of the discussions I earlier had with Mr Singh.

[23] In his affidavit Mr Jones says that when preparing the memorandum of instructions he was unaware of any discussion the appellant alleges he had with Mr Singh and thus could not have known to include reference to such discussions in the memorandum.The references in paragraph 9 to "certain additional matters that I have discussed with counsel which are not specifically included in the statements I made to the Police" and to wishing "the trial to proceed on the basis that my counsel cross-examine witnesses on what I have said in my statements to the Police and not on any other matters" are simply references to incidental matters first raised by the appellant in Police interview.These incidental matters were criminal activities the deceased, Kala and Chamkela had been involved in, but which were not the subject of the trial.In relation to Kala specifically, the appellant had said he did not want Kala cross-examined so as to implicate him in helping to dispose of the body, nor in relation to any unrelated criminal activities such as receiving or burglary.Mr Jones says:

The real purpose of including paragraph 9 in that way was to record Mr Paul's instructions that cross examination of Gill and Kumar would be on the basis of what Mr Paul had told the Police as opposed to any other basis.It was also to record that there was no suggestion that either man had been involved in Mr Sharma's death.

[24] Mr Singh in his affidavit simply says that paragraph 9 cannot relate to the appellant's "true version" as allegedly told to him, as the appellant never told him any such "true version".In relation to his alleged advice that "there was a real danger in changing explanations at this stage, Mr Singh says:

In view of the clear written instructions I had received at the outset which were consistently maintained throughout by Mr Paul, I had no reason to give Mr Paul such advice.

[25] Those "clear written instructions" were given by the appellant to Mr Singh on 9 July 1999.The appellant confirms that he gave those instructions but explains "at that date I had not told Mr Singh the true version".Those much earlier written instructions state:

I Yash Paul instruct my counsel Mr A Singh that the statement I gave to the Police are true and correct.I don't wish to change any thing.I did not kill Ranvir Sharma.I did not shot him.Sharma had the gun and shot himself.I panicked and threw the gun and other evidence becose I was worried that poeple might think I had shot him and I did not shot him.

Independent Enquiries Made By Mr Singh

[26] Until Mr Singh was assigned as counsel on 9 July 1999 the appellant had been represented by Mr Comeskey.When Mr Singh received the files from Mr Comeskey in July and perused them, he advised the appellant that it appeared to him that a third person may have been present at the time the deceased died. He suggested that the appellant think matters over and let him know whether a third person had indeed been present at the time and asked whether the appellant was protecting anyone.Mr Singh also asked the appellant if he had any objection to Mr Singh making discreet enquiries of Senior Sergeant Benefield and the Crown Solicitor about the possibility of a further investigation should the appellant provide information relating to the presence of a third person at the relevant time.Mr Singh says he received verbal authorisation from the appellant to make such enquiries although the appellant still insisted that no-one else had been present and that the deceased had committed suicide.

[27] Mr Singh spoke to Mr S J E Moore, Crown Solicitor for Auckland, and to Senior Sergeant Benefield.Both Mr Moore and Senior Sergeant Benefield were amenable to making further enquiries should the appellant give a firm instruction in that regard.In his affidavit, Senior Sergeant Benefield confirms that Mr Singh did make such enquiry of him.

Cross-Examination of the Appellant and Mr Singh

[28] The appeal narrowed to a single point of conflict, namely, whether the appellant told Mr Singh the "true version" following depositions as he alleged or whether he did not do so until the day after he was convicted.Because of the direct conflict between the appellant and Mr Singh over this issue, and despite the weight of extrinsic evidence, the Court took the precaution of requiring both to attend for cross-examination on their affidavits.

[29] Under cross-examination, the appellant insisted that he first told Mr Singh the "true version" before trial and after depositions in "January or February 2000".He denied that he first spoke of the matter on the day following conviction.On that day he said Mr Singh came to visit him at the prison because he was upset and he wanted to discuss an appeal.Mr Singh told him that he would discuss the possibility of an appeal with Mr Jones and then discuss it with the appellant.Mr Singh told him that in his view there were unlikely to be any grounds of appeal.

[30] When asked about the matters set out in quoted and referred to in paragraphs 14-17 above, the appellant said that he always spoke to Mr Jones through Mr Singh at interview and that Mr Singh always told him in the Punjabi language what to say.He said:

Mr Jones has indicated in his affidavit that quite often you would respond in English even if [the] question [was] asked in Punjabi? ... Before I say something to David Jones, Singh told me in Indian language what to say.

... I already speak to Singh about what happened there so Jones only came to see me with Mr Singh, and I said I say what Mr Singh want me to say to Mr Jones.

[31] When challenged about this he went further and said that Mr Singh would ring him at the prison before any interview with Mr Jones and tell him to just say that the suicide story was true if Mr Jones asked him otherwise.The appellant even went so far as to say that Mr Singh would ring him two times a day to advise this.He said:

Whatever is written in [Mr Jones' affidavit] is alright but before that Mr Singh rang me and told me that if ever anything like that [is] asked just say yes.At that time I was working at the [Prison] workshop.That is where he rang me.

That accusation you just said about Dr Singh ringing you to just say yes is not contained in your affidavit for this appeal? ... No Dr Singh ring me two times a day.

...

So Mr Singh was ringing you at the prison to tell you just to agree that what you told the Police was the truth, when he and Mr Jones came to visit? ... Yes, before he visit he ring me up and tell me what to say.

[32] The appellant agreed that when Mr Singh was first assigned to his case he was very keen to know if a third person had been involved and asked for the appellant's authority to enquire of the Police about a reinvestigation if the appellant were prepared to give any information about any third person involved.

[33] The appellant denied categorically that he had a reasonable understanding of English or that he often replied directly to Mr Jones in English at interviews, rather than through Mr Singh.He also denied that he was taken through the memorandum of instructions paragraph by paragraph in both English and Punjabi by Mr Singh in Mr Jones' presence or that his response was invited to each paragraph.His denials in this regard are directly contradicted by Mr Jones in his affidavit.

[34] The appellant's assertions that he told Mr Singh a third person was involved in the killing of the deceased as early as February 2000 but was prevented from mentioning this vital matter to Mr Jones or the Police must be viewed against the fact that the appellant clearly felt able to speak to Mr Jones directly and in English about the matter following conviction.The same applies to his interviews with the Police following conviction.Even then the appellant was not prepared to frankly name any such alleged third person until preparation for this appeal.When questioned at the hearing about his reasons for this very late change of heart, the appellant gave various explanations. Some of his explanations were as follows:

... I did not tell the Police the name of the person before but now I have heard he has been threatening my family.Before he say he give money and all, but now [he is] threatening he will kill my brother if I say anything.But I have decided to open up now.It does not matter what happens.Because of that reason my brother is not staying in the house, he stays with someone else because he [is] scared.He only comes home sometimes.

Is this brother in India? ... Yes.

You are obviously in regular communication with your brother? ... No.I do not have communication much with my brother but my cousin tell me what is happening and my brother wrote to me saying that people [are] ringing him and threatening him.He wrote [a] letter [to] my wife's address.

You have that letter? ... Probably at home somewhere.I do not remember where, but maybe.I told my wife that any kind of documents give to my lawyers, maybe she [has] given it [to my lawyer].I do not know.

The letter from your brother to you is now with your lawyer? ... Well I cannot remember much because being in prison I am distanced emotionally.I cannot remember if I gave [them] the letter or my wife gave [them] the letter.When the letter arrived my wife brought [the] letter to [the] jail.I read it.She gave it to me.I cannot remember if I had the letter in [a] file with me or she gave the letter to the lawyer.

Did that letter come before you were sentenced on 23 June for the receiving charges? ... I have received three letters in total and we wash our own clothes and two letters were washed in the clothes.When in remand we wash our own clothes and two letters were washed in the clothes.I have the pieces.

You changed your mind about naming Chamkela after you were convicted and sentenced to life imprisonment? ... I trusted my lawyer and told him but something happened.I stop that answer.

You had your reasons for not naming Chamkela earlier.You named him sometime after you were convicted [for] murder and sentenced to life imprisonment.You said your reasons for changing your mind were that your brother had written to you and you have decided to tell the truth.I have asked where your brother's letters are, you say they may have gone in the wash when [you were] a remand prisoner.After you were convicted you were no longer a remand prisoner.It was after you were convicted [that] you say you changed your mind, do you understand what I am saying? ... Yes.I want to say Chamkela's name now. After my sentence I have decided I want to say Chamkela's name.

Did you change your mind because your brother is no longer under threat or because you want to name Chamkela, even if that puts your brother at risk? ... My brother has been [placed] in a safe place now and I have decided that now I am going to open up.

That advice was received [by] your cousin by letter or to your wife by letter? ... My cousin rang his own home in India.That is how he know.

You also know from your brother because your brother wrote to you and your wife? ... The letter my brother wrote to me did not say about whether he [was] safe, but about [the] problems he was going through.[I] only find out he is safe when [I] hear from my cousin, who rang his home in India.That is how I know he is safe now.I am trying so we can take my brother out from India to another country while my case [is] coming through, so he is not in trouble.

[35] In contrast to the appellant, Mr Singh was consistent, clear and unequivocal when cross-examined and his affidavit evidence remained unshaken. In his affidavit he was clear that it was not until after the jury had found the appellant guilty that the appellant told Mr Singh a third person had been involved after all.He was not however prepared to name that person.Mr Singh said he expressed great disappointment to the appellant for not having disclosed that information before trial.Mr Singh said:

...In particular, I told him that by instructing us that Mr Sharma had committed suicide, we had conducted the defence on that basis.I told him that I had to cross-examine Mr Sharma's parents and wife in a way that could have been avoided had he told us that a third person had been involved and, in particular, had he not instructed us that Mr Sharma had committed suicide.I reminded him how painful it must have been for them during my cross-examination.Mr Paul apologised for that pain it must have caused them.

[36] At the hearing Mr Singh amplified that evidence as follows:

... on the morning of 24 May Yash Paul himself called me to say he wished to see me. ... On arrival Mr Paul indicated to me that he was very stressed out by the verdict and when he settled down he said to me, "would you do my appeal?" At that stage I said to him that from the way the trial had been conducted I did not believe there were any grounds of appeal unless there was fresh evidence.He asked me what did "fresh evidence" mean.I explained to him what I understood fresh evidence to mean and then in particular I emphasised to him that [it was] evidence that was not available to him prior to and at the time of the trial.There were other issues that were discussed.They were of a personal kind, he was worried about issues like how long would he have serve. I believe, but I cannot be sure, also the issue of parole must have come up in our discussions.Generally he required reassuring because he was extremely distraught and I believe later Mr Jones joined us.He did not stay long because it was [at the] time that we were about to leave.Mr Jones left early. I walked down the steps with Yash Paul from the interview room upstairs.As we came down [Mr] Paul said to me that there was a third person involved.At which stage I said to him, "why didn't you tell us this before?"In particular I recall distinctly saying to him, do you know what the family must have gone through during my cross-examination, how painful it must have been for them - this is [in] the context of my cross-examining them as to Mr Sharma having committed suicide.To the best of my recollection Mr Paul said to me he was sorry he had to put the family through that.I then asked him as we were closer to the door, which is the main entrance into the place where we come to see our clients, I said to him, "who was this third person?"He said he was not prepared to let me know who this third person was.He again asked me if I would do his appeal. I said to him in the circumstances, given a complete about turn in the instructions he had given me and Mr Jones earlier and in view of the fact that we had conducted the trial on the basis of his instructions, based on Mr Sharma having committed suicide, I advised [Mr] Paul that it would be best for him to seek independent counsel and if he needed assistance with finding one he should call me and that it is best if the appeal were to be conducted by another counsel and that there was no way I would be available to deal with this appeal, on the basis of his earlier instructions and a complete about turn on 24 May.

[37] Under cross-examination on the issue Mr Singh further said:

On 24 May, when you say that Mr Paul advised you of the third person, did you recognise the significance in what he was saying to you? ... Yes, because that is after he called me to see him.He made it very clear that he did not accept the verdict because he had not shot Mr Sharma, as he put it to me.He then said there was a third person involved.As I understood him at the time, he was saying I am not guilty, somebody else is responsible.

Did you recognise that in that barest of statements made by [Mr] Paul to you, he was reversing everything that the conduct of the defence at trial was based upon? ... He just raised [it], he did not put it in [the] form of instructions. When I explained to him that you need fresh evidence, he raised that as a possibility.He was not telling me affirmatively in absolutely clear terms that there in fact was a third party and who the third party was.He was telling me that yes [there is] fresh evidence.[A] third party [is] involved. I am not prepared to give you more instructions as to who [the] third party was.

Legal Principles Relating to Conduct of Counsel

[38] The Courts have recognised that a radical mistake by counsel may give rise to a miscarriage of justice:R v Pointon [1985] 1 NZLR 109 (CA). Likewise a failure to follow instructions may result in a miscarriage of justice:R v McLoughlin& Isaacs [1985] 1 NZLR 106 (CA).A mere mistake in tactics will not however suffice.In the present case, the allegation is that Mr Singh failed to act upon information critical to the defence, thus effectively depriving the appellant of an opportunity to put his defence.In R v McLoughlin & Isaacs, trial counsel who was assigned at the last minute elected not to call alibi evidence, contrary to the accused's instructions, as he thought the evidence unreliable.The appeal was allowed on the following basis:

It is basic in our law that an accused person receive a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury.(cf s 354 of the Crimes Act 1961).The present appellant has been deprived of that opportunity and justice has therefore been denied to him.Such a denial can be made good only by the ordering of a new trial.(p 107)

Discussion

[39] The critical issue is the time at which the appellant first told Mr Singh a third person was responsible for or implicated in the deceased's death.The question for the Court is whether he told Mr Singh this in January or February 1999 following depositions and before Mr Jones was formally assigned as senior counsel on

9 February 2000 - or on 24 May 2000, the day after the appellant had been convicted of murder and sentenced to mandatory life imprisonment?

[40] There are two overlapping bases upon which to determine this critical issue:first, there is the affidavit evidence and cross-examination on it; secondly, there are the extrinsic factors.The affidavit evidence and cross-examination involves an assessment of credibility and the extrinsic factors speak largely for themselves.

[41] Read together the respective affidavits of the appellant, Mr Jones and

Mr Singh, constitute a series of allegations met by firm refutations.The appellant has not produced any testimony other than his own or put forward any corroborative evidence to support his claims.His case on appeal depends entirely on his word.

[42] On the affidavit evidence alone, it is impossible to accept the appellant's account of matters as credible or to prefer it in any way.Mr Jones in his affidavit corroborates Mr Singh's evidence in a number of crucial aspects.For example,

Mr Jones confirms that the appellant was asked at several of the meetings with him and Mr Singh "whether what he had said to the Police was the truth".Mr Jones also confirms that the appellant was informed at those meetings, that if he had lied to the Police and made up the suicide story to protect someone else or because he was afraid, he had to tell Mr Jones and Mr Singh "so the trial could be run in a proper way".Importantly, Mr Jones corroborates that the appellant "maintained throughout that what he had told the Police was the truth" and that the appellant exhibited a good understanding of the English language and quite often answered him directly in English.This squarely contradicts what the appellant said in his evidence.

[43] Significantly, it was Mr Jones who drafted the detailed memorandum of instructions of 27 April 2000 requiring the appellant to confirm "what his final instructions were".In this regard Mr Jones was making it clear to the appellant that "whatever his final instructions were, they would be the instructions on which his defence would be run at trial".It is not difficult to discern that Mr Jones harboured a degree of scepticism about the suicide story and thought it an unlikely scenario.

[44] Although the affidavits read on their own provide a sufficient basis for rejecting the appellant's version of events, because of the importance and seriousness of the claim the Court decided it should give both the appellant and Mr Singh the opportunity to appear before the Court in person.The cross-examination on the crucial issues confirmed for us that Mr Singh's account of matters was indeed wholly credible and that he was an entirely honest witness.In contrast the appellant created an unfavourable impression and his evidence was simply not believable.In particular his assertion that Mr Singh forbade him to tell Mr Jones the "true version" and his assertion that Mr Singh would ring him at the prison prior to meetings with Mr Jones to remind him about this was a ludicrous embellishment.Likewise the appellant's assertion that he had poor English and never conversed directly with

Mr Jones in any meaningful way at the meetings was not credible in the face of

Mr Jones clear evidence to the contrary and the way he presented in Court. His assertion that Mr Singh manipulated his answers to obscure the truth when interpreting for him at the meetings with Mr Jones defies belief.

[45] The extrinsic evidence completely supports Mr Singh's account of matters and renders the appellant's account even less credible.The most compelling factor is that Mr Singh himself early formed the view that a third person may have been involved in helping the appellant.The appellant was unable to deny that Mr Singh expressed this view to him at an early stage or deny that Mr Singh sought his authorisation to make enquiries of Senior Sergeant Benefield and the Crown Solicitor about the possibility of having the case further investigated.The fact that Mr Singh made those enquiries is attested to by Senior Sergeant Benefield in his affidavit.It is stretching the bounds of credulity to suggest that, in light of those enquiries, Mr Singh would not have acted on any instruction given by the appellant about the involvement of a third person.Although the appellant alleges that

Mr Singh advised him to "stick with the suicide story" because it would create an inconsistency if a different defence were put forward at trial, both Mr Singh and Mr Jones' make it clear that they were perfectly prepared to accept an instruction that the appellant had lied about the suicide and was covering up the truth when he gave that story to the Police and at depositions.A change in stance by an accused person at trial is hardly a novel situation and is one with which experienced trial counsel are well used to dealing.

[46] Other extrinsic factors which speak for themselves and corroborate

Mr Singh's version of events are the appellant's written instruction to Mr Singh in July 1999 and, most tellingly, Mr Jones' memorandum of instructions of April 2000.The appellant's separate instructions to both counsel are identical in those documents.

[47] On the basis of the affidavit evidence and the cross-examination alone, we would have had no hesitation in accepting Mr Singh's account as credible and feasible.When the extrinsic evidence is added to that evidence the picture becomes overwhelming.We are satisfied that the appellant did not disclose the possibility that a third person was responsible for the deceased's death to Mr Singh before trial but spoke of this for the first time on the day following his conviction and sentence for murder.A chronology of relevant events is appended to the judgment.It provides a useful framework for assessing the veracity of the appellant's claims.

[48] Mr Comeskey submitted that the fact that Mr Singh did not contact Mr Jones upon receiving the appellant's advice that a third (but unnamed) person had been involved in the murder after all, impinged upon Mr Singh's credibility and therefore supported the timeframe the appellant claimed for this disclosure. We find no merit in this submission.On the contrary Mr Singh's account of his reaction to the disclosure on 24 May 2000 and the advice he gave the appellant in response to it were entirely appropriate.

[49] Finally, we note the Crown's submission that the version the appellant now puts forward lacks cogency when viewed against the totality of the evidence at trial.Scant evidence emerged to suggest the presence of a third person at the time the deceased was shot and it is significant that the only fingerprints found on the rifle were those of the appellant.The probability that a third person may have been involved as an accessory after the fact helping to dispose of the body, is another matter.

Judgment

[50] The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland, for the Crown

C P Comeskey, Auckland, for the Appellant

Appendix A

Chronology of Relevant Events

27 February 1999 Deceased shot and killed

3 March 1999 Appellant first spoken to by Police - Mr Comeskey instructed - appellant makes written statement - tells suicide story - arrested for unlawful possession of a firearm.

12-17 March 1999 Appellant spoken to by Police on three further occasions - confirms suicide story on each occasion - on 17 March accompanies Police to the Marua Road premises and re-enacts suicide version of events - this is videotaped.

March 1999 Appellant tells numerous friends and associates the suicide story and some other versions of events.

2 July 1999 Mr Singh appointed to represent the appellant.

9 July 1999 Appellant provides written instruction to Mr Singh confirming truth of statements given to Police and confirming suicide version.

August 1999 Mr Singh receives documents relating to the appellant's case from Mr Comeskey.

August 1999 Mr Singh advises the appellant that on his reading of the files it appears that a third person may have been present at the time the deceased died - asks whether appellant has any objection to him making enquiries of the Police and Crown Solicitor - appellant authorises such enquiries whilst still insisting that no-one else was present and deceased committed suicide - Mr Singh makes enquiries of Senior Sergeant Benefield and

Mr S J E Moore, who agree to consider further investigation should Mr Singh receive appropriate instructions.

December 1999 Depositions hearing - appellant committed for trial on charge of murder and three charges of receiving.

January/February 2000 Appellant alleges he told Mr Singh "about what really happened" but without naming Chamkela - appellant alleges Mr Singh advised him to "stick with the suicide story".

9 February 2000 Mr Jones assigned as senior counsel for the defence at trial.

April 2000 Mr Jones and Mr Singh meet with appellant at Mt Eden Prison on a number of occasions to discuss and prepare for trial - at no stage is any defence raised other than suicide - both counsel together query the suicide story and advise the appellant that he should inform them if it is untrue and if he is seeking to protect someone else or is afraid to tell the truth - appellant advised to finalise his instructions as his defence at trial will be run on the basis of those instructions.

27 April 2000 Mr Jones prepares Memorandum of Instructions based on what the appellant said to both him and Mr Singh during preparation for trial - the purpose of the Memorandum is to "formalise the position that [the appellant] had maintained throughout" - Memorandum gone through with the appellant paragraph by paragraph in Punjabi and in English by Mr Singh in Mr Jones' presence - appellant acknowledges instructions are correct and signs them.

1-23 May 2000 Trial in High Court at Auckland.

23 May 2000 Guilty verdicts on all charges - sentenced to life imprisonment for murder and remanded to 23 June 2000 for sentence on receiving charges.

24 May 2000 Mr Singh visits the appellant in Mt Eden Prison at his request to discuss possible appeal - advises no grounds of appeal unless fresh evidence - Mr Singh says appellant then asserts for the first time that a third person was involved in the shooting of the deceased but declines to name the person.

23 June 2000 Appellant due to be sentenced on receiving charges - advises Mr Jones for the first time that someone else was involved in the shooting of the deceased but refuses to disclose the name of the person involved.

28/29 June 2000 Appellant interviewed at Mt Eden Prison by Police seeking name of third person involved in the shooting of the deceased - the appellant refuses to disclose the name of person involved.

30 June 2000 Mr Comeskey instructed - appellant tells Mr Comeskey "what really happened".