The Queen v Sharma [2006] NZCA 164 (6 July 2006)

Last Updated: 19 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA360/04
CA364/04

THE QUEEN



v



DEO DATT SHARMA

Hearing: 2 March 2006

Court: Glazebrook, Hammond and O'Regan JJ

Counsel: G C Gotlieb for Appellant
E M Thomas for Crown

Judgment: 6 July 2006

JUDGMENT OF THE COURT

A Dr Sharma’s application to adduce new evidence is declined.
B Dr Sharma’s appeal against conviction is allowed in part. The conviction on count 3 (the charge relating to the incident that allegedly occurred on or about 24 June 2000) is quashed. No retrial is ordered. The appeal is otherwise dismissed.
C The Solicitor-General’s application for leave to appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Facts [2]
Procedural history [9]
Conviction appeal [12]

Mode of evidence [13]
Bias [24]
Prejudicial evidence [31]
Summing up [41]
Jury question [71]
Pressure on jury [77]
Further evidence [83]
Overall assessment [86]

Sentence appeal [89]

Sentencing remarks [89]
Submissions for Solicitor-General [92]
Submissions for Dr Sharma [93]
Discussion [96]

Result [99]

Introduction

[1]

Dr Sharma was convicted, following a jury trial at the Auckland District Court, of two counts of male assaults female (one being representative), one count of assault with a weapon and one count of assault on a child (representative). He now appeals against his conviction. In addition, the Solicitor-General has applied for leave to appeal against Dr Sharma’s sentence.

Facts

[2]	Dr Sharma and his wife (A) came to New Zealand in 1991. They have two children, a boy (X) and a younger girl (Y).
[3]	In relation to the representative charge of assault on a child (count 1), the Crown alleged that Dr Sharma physically abused X between 1995 and 2000. The abuse included pushing, slapping, punching and being hit with different objects such as a belt, a metal rod and a stick.
[4]	The representative charge of male assaults female (count 2) arose out of the alleged physical and verbal abuse of A by Dr Sharma over a period of four years from 1996 to 2000. The abuse included slapping, punching, kicking and hair pulling. A’s evidence was that on occasion she had black eyes and obvious bruising from the assaults but that Dr Sharma would not allow her to seek medical treatment.
[5]	The assault with a weapon charge (count 4) arose from an incident on 15 May 1998 when Dr Sharma allegedly became angry with his wife after X had tried to taste a chilli pepper from the garden. He pulled A by her hair and got a pocket penknife from a drawer. He opened the blade and threatened to cut off her nose. Both children witnessed the incident and were extremely distressed by it.
[6]	The specific count of male assaults female (count 3) allegedly occurred on 24 June 2000 when Dr Sharma attacked his wife by slapping, punching and kicking her. He repeatedly banged her head into walls and against a hot water cylinder. He attempted to strangle her and threatened her with further violence if she told anyone about the incident. As a result, A sustained some injuries to her head and ribs but no lasting injury.
[7]	The evidence to support these changes came substantially from the complainants. The corroborative evidence was on the whole supportive of the Crown case. For example, a neighbour gave evidence about frequent raised voices with the female voice "desperation sort of pleading, pleading. But very distressed." The neighbour also gave evidence about seeing X smacked on the legs (not in an abusive fashion but quite hard) and once being hit on the head quite forcefully to the extent that his head went back. In cross-examination she said she heard a dull sort of sound when the blow landed. When it was put to her that she could not hear a smack 100 metres away she replied "Well therefore it must have been more forceful than a smack then. If I heard it".
[8]	Another neighbour also gave evidence of seeing Dr Sharma hitting X "quite severely round the head" on two occasions. The same neighbour testified that on one occasion when she went to the house A had a black eye and severe bruising down one side of her face. In cross-examination it was put to her that she had earlier said she was not sure whether or not it was merely dark pigmentation. She nevertheless insisted that what she had seen was bruising.

Procedural history

[9]	There have been four trials in this matter. The first trial took place in December 2002 before Judge Rushton where Dr Sharma was represented by counsel. This trial resulted in Dr Sharma being convicted. On 9 May 2003, Judge Rushton sentenced Dr Sharma to fifteen months imprisonment, with leave to apply for home detention. The sentence was deferred for two months to allow for the determination of Dr Sharma’s application for home detention. At the first hearing before the Parole Board, Dr Sharma was declined home detention. However at his second hearing, approximately one month later, home detention was granted. On 3 September 2003, this Court overturned Dr Sharma’s convictions and ordered a new trial as a result of the conduct of his then counsel. Before his convictions were quashed, Dr Sharma served some two months on home detention on top of the one month spent in prison.
[10]	Dr Sharma elected to represent himself in his subsequent trials. His second trial occurred in March 2004 before Judge Hobbs and resulted in a hung jury. The third trial commenced on 10 May 2004 before Judge McElrea but was aborted after the first day due to a technical problem.
[11]	Dr Sharma was convicted on 5 July 2004 after his fourth trial before Judge Barry Morris. On 17 August 2004, Dr Sharma was sentenced to 200 hours community work. This fourth trial is the subject of this appeal.

Conviction appeal

[12]	Dr Sharma challenges his conviction on the following grounds:

(a) The mode of evidence orders prejudiced Dr Sharma’s right to a fair trial and undermined his defence as he could not directly cross-examine the children;
(b) The Judge was biased against Dr Sharma to such a point that his conduct interfered with Dr Sharma’s right to a fair trial;
(c) The Judge allowed prejudicial opinion evidence to be given;
(d) The Judge made several errors while summing up to the jury;
(e) The Judge failed to answer a jury question adequately; and
(f) The Judge placed improper pressure on the jury to reach a verdict.

Mode of evidence

[13]	In November 2002, prior to the first trial, it was ordered that Dr Sharma’s children give evidence by closed-circuit television (CCTV) and that their evidence in chief was to be in the form of pre-recorded evidential videos. These orders were apparently treated as subsisting for all subsequent trials and the children gave evidence in that manner at the trial before Judge Morris.
[14]	In addition, however, by order of Judge Kiernan on 17 March 2004, counsel (Mr Wade) was appointed for the purpose of conducting the cross-examination of the children. Dr Sharma lodged an appeal against that decision but was informed that there was not time for it to be heard before his trial (the second trial) was due to start. In fact, there would have been no jurisdiction to hear the appeal in any event – see R v B CA92/04 9 September 2004, and the authorities referred therein.
[15]	Before the second trial started on 22 March 2004, the matter was dealt with again by Judge Hobbs. He recorded that, after discussion with Dr Sharma and the Crown, Dr Sharma had indicated that he had no objection to his questions being put to the children by Mr Wade but wished to be seated alongside Mr Wade so the children could see him on screen. If that could be arranged, Dr Sharma said that he would have no objection to Judge Kiernan’s order and that he would abandon his appeal. Judge Hobbs spoke to the children and "neither of the children had the slightest objection to being able to see their father while questions were put to them by Mr Wade". The matter was thus arranged accordingly both for the trial before Judge Hobbs and the subsequent trial before Judge Morris.
[16]	In his affidavit of 22 August 2005, Dr Sharma deposed:
15.	Having another person cross-examine the children essentially undermined my whole defence. I was certain (and still maintain) that the children were heavily under the influence of their mother and were lying or mistakenly influenced as a result. In fact, she sat in the back of the Courtroom in the first trial and listened to them giving their evidence. My Counsel at the first trial had sought an order excluding her from the Courtroom whilst they gave their evidence, but this was denied. She was therefore able to know what was to be said in subsequent trials and reinforce that.
16.	If my children had been able to look me in the face they would not have been able to lie. I did not challenge the mode-of-evidence orders and would have been happy to cross-examine them via the closed circuit television.
17.	Not only was I not able to look my children in the face, but it was logistically very difficult to interrupt Mr. Wade in the course of his questioning to instruct him to ask the children particular questions.
[17]	Mr Wade deposed, in an affidavit dated 12 September 2005, that his questioning very closely followed the script prepared by Dr Sharma and that, at the conclusion of cross-examination, there were no further questions or topics that Dr Sharma wanted him to raise. Mr Wade explained that the CCTV camera in Court had both Dr Sharma and himself in shot and each child could see Dr Sharma while being cross-examined.
[18]	Mr Gotlieb’s submission, on behalf of Dr Sharma, was that Dr Sharma’s inability directly to cross-examine the children prejudiced his right to a fair trial and undermined his defence. Further, having the cross-examination conducted by Mr Wade was logistically difficult, as Dr Sharma felt unable to interrupt him to ask specific questions which arose during the evidence. Mr Gotlieb submitted that this was a breach of Dr Sharma’s right to represent himself and also of his right to cross-examine under s 25(f) of the New Zealand Bill of Rights Act 1990 (BORA).
[19]	Mr Thomas, for the Crown, submitted that it was open to the Judge to prevent Dr Sharma from cross-examining the child witnesses. In Mr Thomas’ submission, although the mode of evidence orders were made under the Court’s inherent powers, the matter should nevertheless be dealt with against the legislative framework and in particular taking account of s23F of the Evidence Act 1908. He submitted further that there was no breach of s 25(f) of BORA as that does not preserve the right for an accused to cross-examine a witness personally and full cross-examination of the witnesses was able to occur through Mr Wade.
[20]	The normal rule is that witnesses give their evidence and are cross-examined in open court by counsel in the presence of the accused, if the accused is represented by counsel, or by the accused personally, if the accused is representing him or herself. This position has been modified by statute in New Zealand by the provisions allowing for complainants in sexual cases to give evidence from behind a screen or via CCTV. In such cases a complainant will not normally be able to see the accused, although the accused will usually be able to see the complainant. The position has also been modified by providing that a self-represented accused cannot directly question a child or mentally handicapped complainant in sexual cases – see s 23F(1) of the Evidence Act. Section 23F(3) provides, however, that such an accused may put questions to a complainant through an intermediary approved by the Judge, the function Mr Wade performed in the present case.
[21]	Although the mode of evidence rulings in this case were not made under the Evidence Act provisions but under the inherent powers of the court to regulate its own procedures, we accept the Crown submission that it is against this statutory background that the present case must be assessed. In this regard, there was nothing wrong in principle with the children being seen as vulnerable in the same way that child complainants in sexual cases may be. Indeed, Dr Sharma does not challenge the ruling that allowed the children to give evidence via CCTV.
[22]	Dr Sharma had full opportunity to cross-examine his children through Mr Wade. There is no suggestion that Mr Wade did not put all the questions Dr Sharma required him to ask. Dr Sharma has not been able to point to any areas that were not covered in cross-examination or to any failures on the part of Mr Wade to follow his instructions. Neither has he pointed to any specific areas he would have covered or questions he may have asked had he been cross-examining the children himself. In addition, the children gave their evidence in this case (unlike in the usual run of CCTV cases) in the "presence" of Dr Sharma in the sense that he was clearly visible to them on screen while they were being questioned by Mr Wade.
[23]	There is thus no substance to Dr Sharma’s complaint about the process followed.

Bias

[24]	Mr Gotlieb’s next submission was that there was notable bias by the Judge and that his conduct of the trial went beyond impatience or rudeness to a point where it interfered with Dr Sharma’s right to a fair trial. In particular, Dr Sharma complained that the Judge made a number of inappropriate jokes at Dr Sharma’s expense, some of which were not recorded in the written transcript.
[25]	Dr Sharma, in his affidavit of 22 August 2005 said:
29.	In the course of attempting to cross-examine [Dr Shing, a medical witness], the Judge constantly belittled me, interfered and cut me off. At many points he was visibly angry with me and continued to tell me not to keep asking questions on what I thought as a very valid point.
30.	At one point in the trial [during the questioning of Dr Shing] the Judge actually shouted at me and became very angry; he became visibly red in the face and refused to continue to allow me to finish that line of questioning. He had been angry before but this was the most extreme case of it.
31.	Throughout the entire trial, the Judge interjected constantly, was visibly angry with me on many occasions, belittled me and my lines of questioning and was generally unfavourably disposed towards me.
32.	Judge Morris would interrupt me when I was asking questions. He used phrases such as "What the bum can’t bear, the head won’t take" to cut me short on a number of occasions. He would interrupt me and say "use fewer strokes and brighter colours". Most of his interruptions received a laugh from the jury. Only some of these are evident from the transcript. For example, ...: "but let’s not go on about the laundry habits that’s not healthy" or ...: "One, two or three, four five, or six, because its lunch and [pause, big laugh from the jury] should I suggest we take the luncheon adjournment ..."
33.	The Judge seemed to want to keep making jokes and have the jury laugh at my expense. I do remember the jury continually laughing at me after the judge’s comments. Judge Morris is a very large personality and I felt he continually put me down in front of the jury and made fun of me.
[26]	Mr Thomas acknowledged that the Judge became angry with Dr Sharma but submitted that this was an understandable response to Dr Sharma continuing to pose questions after the Judge had ruled against such questions being put. In Mr Thomas’ submission, when an overall view of the transcript is taken, it is apparent that the Judge was endeavouring to assist both Dr Sharma and the jury when he intervened during Dr Sharma’s cross-examination of Crown witnesses. The Crown submitted that the Judge undertook this function in an appropriate and balanced manner and that, against that background, isolated instances of frustration by the Judge cannot have resulted in a miscarriage of justice.
[27]	The trial was recorded digitally. Mr Gotlieb, however, having taken instructions from Dr Sharma, was content to rely on the written record. We have carefully considered the transcript. We accept Mr Thomas’ submission that the anger shown by the Judge during the cross-examination of the medical witness, Dr Shing, resulted from frustration at Dr Sharma continuing a line of questioning after being told to desist. The Judge was, in our view, justified in stopping the unnecessary repetition of points that had already been put to Dr Shing but his manner of doing so was unfortunate. On the other hand, the Judge’s frustration at Dr Sharma persisting in his questioning was understandable. We comment further at [87] below.
[28]	We also accept the Crown submission that the interventions of the Judge were on the whole designed to aid Dr Sharma in his conduct of the case. For example, Dr Sharma cross-examined his wife at length on her reasons for marrying him, on money given to her during the marriage and about a vehicle given to her by Dr Sharma, all of which seem to have been only of marginal (if any) relevance to the issues before the Court. Judge Morris was of a similar view and pointed this out to Dr Sharma on a number of occasions. For example, he said during the cross examination on the vehicle:

The Court: Mr Sharma, I am not interfering but I am just trying to put myself in the position of the jurors, and I wonder whether you are helping yourself and helping the jurors in getting a determination in this matter by going down some of the highways and byways. Now I am not interfering but I am just pointing the matter out to you. Please continue.
Mr Sharma: Yes, Your Honour, but I am just trying to paint the background picture.
The Court: I suggest you use fewer brush strokes and brighter colours. Do you know the analogy that I mean.
Mr Sharma: Yes sir.

[29]

We have carefully considered all of the "jokes" recorded in the transcript. We are satisfied that all covered matters of legitimate comment by the Judge, albeit expressed in a somewhat colourful manner. Although Dr Sharma understood the comments as belittling him, we consider that the jury would have understood the comments as undirected humour. They would have been laughing at the comments and not at Dr Sharma. That they laughed at the jokes would not, in any event, have deflected them from properly considering their verdicts. That said, it may have been wiser for the Judge to express himself in a less colourful manner. Jokes can be misunderstood in a courtroom environment, as Dr Sharma’s reaction in this case demonstrates. At the least, they can be seen as inappropriately detracting from the seriousness of the occasion.

[30]

Having said this, in our view the Judge gave Dr Sharma a lot of latitude in allowing him to continue lines of questioning on largely irrelevant matters. Other judges may well have been less tolerant.

Prejudicial evidence

[31]	Mr Gotlieb’s next submission was that the Judge allowed prejudicial opinion evidence to be given. This was in the form of evidence from the medical witness, Dr Shing, who had examined A about two weeks after the hot water cylinder incident described at [6] above. Mr Gotlieb submitted that Dr Shing gave inadmissible evidence of what A told him as to the cause of her injuries and also as to the steps he advised her to take. More importantly, he submitted that Dr Shing was permitted to give his opinion on what was really the ultimate issue for the jury, namely whether there had been an assault on A. In his submission, it was not permissible for the Doctor to provide an opinion that he "felt this was a genuine case" of abuse.
[32]	Mr Thomas submitted that a doctor may refer to a history provided by a patient if this formed part of the basis upon which his medical conclusion was reached. Arguably, therefore, Dr Shing was entitled to refer to the report made by the complainant relating to the alleged cause of her injuries. The Crown accepted that evidence of any discussion between the complainant and Dr Shing as to steps that she should take to protect herself should not have been led. However, against a background of some reference to physical abuse as being the cause of the injuries being admissible, Mr Thomas submitted that these references were of little moment and cannot have caused a miscarriage of justice.
[33]	Mr Thomas also submitted that the allegation of physical abuse to Dr Shing occurred roughly contemporaneously with police involvement in the allegations and that, as the defence case was that any complaint was false, any acceptance of the allegations by Dr Shing was of no moment. However, in his submission, there had been no such acceptance. Dr Shing, in the passage complained of, was referring to a genuine case of injury and not a genuine case of abuse.
[34]	It is worth setting out the relevant extracts from Dr Shing’s evidence:

Did you order any tests? ... Yes I did, I ordered a chest x-ray, also during the course of the consultation I discussed her allegation of physical abuse, that she had been thrown against the wall by her partner and we discussed the risks of her current situation and what option she wished to take in the near future? ... Doctor when you spoke to [A] and you spoke about her current situation, did you make any recommendations to her? ... Yes I suggested that she could consider leaving the current domestic situation, that she might be able to go to a friend or perhaps a women’s refuge, that she could go to the police that this type of behaviour was not acceptable.
And what was her response to that? ... She appeared to be very frightened of the situation, she repeatedly begged me to keep the consultation strictly confidential, not to tell anybody that she had been there or about her injuries. Doctor you’ve mentioned an area of tenderness, can that sort of thing be faked or made up by a patient? ... Tenderness is something the patient tells you when you press them. Certain patients are able to feign tenderness. One of the ways to try and improve the accuracy of whether there is true tenderness present or not is to examine that area repeatedly and perhaps examine other areas to see if the area of tenderness is always in the same place.
So you have consistency? ... Correct.
And having conducted an examination of [A] what were your feelings as far as that aspect was concerned? ... I felt there was consistent tenderness over the 11^th rib in the said area.
So you felt, based on your experience of many years that this was a genuine issue? ... Yes. I think it’s fair to say that from her demeanor and her physical and psychological appearance and the consistency of the tenderness that I felt that this was a genuine case.

[35]	Later in his evidence, Dr Shing said that the chest x-ray was normal but often bruised ribs would show no signs and could be just as painful as cracked or broken ones. He also said that it was not possible to tell the cause of the bruising, apart from the fact there had to have been an amount of blunt trauma. He also described A as being in a low mood, slow in speech and timid when she came to see him.
[36]	We do not consider that it was necessary for the Doctor to refer to the alleged physical abuse for the purpose of reaching a conclusion on A’s injuries. The reporting of her injuries to Dr Shing is a prior consistent statement and, as such, would not normally be admissible. It does, however, appear to have been part of Dr Sharma’s case that the physical abuse allegations were a recent invention designed to further A’s matrimonial property claims. The prior consistent statement may thus have been admissible to rebut that suggestion.
[37]	As to the complaint that Dr Shing was allowed to give evidence on the existence of abuse in the passage set out at [34] above, we do not consider this to be the case. In our view, Dr Shing was not in that passage giving evidence as to his views on the abuse question. It is clear from the context that what he was saying was genuine was the tenderness. This was legitimate opinion evidence that Dr Shing was entitled to give.
[38]	On the other hand, as conceded by the Crown, Dr Shing should not have referred to the steps he advised A to take with regard to the alleged abuse. There is a possible risk that this could have been interpreted by the jury not as standard advice in the circumstances but as an acceptance by Dr Shing that the complainant had been abused, even though there was, as his evidence makes clear, no medical basis upon which he could come to that conclusion. If the jury did see the evidence in this way, then it would amount to a comment on A’s credibility which is not permissible – see R v W CA235/04 30 August 2004 at [16] – [18].
[39]	As this case (at least as far as A was concerned) depended almost wholly on an assessment of the relative credibility of Dr Sharma and A, a possibly favourable assessment of A’s credibility by an independent medical expert is of concern. This is compounded, in our view, by the lack of a direction on how to treat expert evidence. The lack of such a direction is also of concern with regard to Dr Shing’s assessment as to the tenderness being genuine. We discuss this further at [87].
[40]	For completeness, we note that Dr Sharma complained in his affidavit of 22 August 2005 that Dr Shing gave evidence of matters that were not written in his notes taken at the time and that he expanded on what he had said in previous trials. We comment that there is nothing to stop witnesses, including expert witnesses like Dr Shing, giving evidence of what they remember even if there is no contemporary written record. There is also nothing to stop witnesses expanding on evidence given earlier. Where this happens, the jury would of course be entitled to put less weight on the evidence but whether they do so or not is entirely a matter for them.

Summing up

[41]	Mr Gotlieb expressed a number of concerns with the summing up:

(a) the prejudice and sympathy direction;

(b)	the inferences direction;
(c)	the directions on s 59 of the Crimes Act;
(d)	the lack of credibility directions;
(e)	the failure properly to put the defence case; and
(f)	the lack of mode of evidence and retrial directions.
[42]	Mr Gotlieb’s submission was that the directions given to the jury regarding prejudice and sympathy were extraordinary. The Judge said:

...None of us could fail to have sympathy for everybody involved in this trial insofar as the family is concerned. Dr Sharma, as the accused, and as the father, [A] as the mother, and the children, and the whole sadness of a family problem...Having said that, you have got to put the notions of prejudice or sympathy to one side and you’ve got to be objective and concentrate on the determination of guilt or not guilt in terms of the allegations of the commission of these offences as alleged. Frequently, feelings of sympathy or prejudice or prejudice can understandably be aroused in a criminal trial but when you are considering the verdict you are the judges. A Judge can never allow a feeling of prejudice against, or sympathy for an accused or a complainant or a witness to influence a decision in any way. Again, another one of the areas of concern of prejudice and/or sympathy is the children themselves. And I see it – this is my view, and my views of course of the facts account for nothing – but I’m just telling you, the feeling of sadness I had at seeing the four children we saw. We saw [X] at the time of the complaint, his sister at the time of the complaint and on closed-circuit tv we saw the two of them today, or earlier this week and they’re kids you’d hardly recognise them as the same two children, just simply because of the effluxion of time, but their evidence remains to be judged on the same basis of continuous involvement with these matters throughout.

[43]	In Mr Gotlieb’s submission, the Judge, although ostensibly telling the jury not to have prejudice and sympathy and assuring them that they should not adopt his view of the facts, then proceeded to tell them his view of the facts in such a way that completely undermined the direction.
[44]	Mr Thomas accepted that the comments by the Judge relating to his feelings of sadness in seeing the child complainants were unfortunate. However, he submitted that this did not result in a miscarriage of justice as the Judge had otherwise given a perfectly adequate direction on sympathy and prejudice. The Judge stressed that these were his reactions and that his view was irrelevant. Further, the feelings of sadness appear to have been expressed in relation to the passage of time as opposed to any conclusion held by the Judge that the children were the victims of physical abuse.
[45]	We accept the Crown submission that, read in their entirety, the Judge’s comments would not have been taken as an expression of opinion as to whether A or X were the subject of physical abuse. In any event, even if they had been understood in this light, the Judge made it very clear that his view was irrelevant. As to the submission that the comments negated the prejudice and sympathy directions, we acknowledge that it would have been better if the remarks had not been made by the Judge or if he had immediately repeated the direction not to let sympathy influence the decision. The remarks, however, came immediately after the direction to the jury not to let feelings of sympathy influence their decision and the jury cannot possibly have forgotten that direction.
[46]	Mr Gotlieb’s next submission was that the Judge’s direction as to inferences was one-sided and unfairly described the evidence of one of the prosecution witnesses. He pointed out that one "illustration" of an inference was adverse to Dr Sharma and was reliant on evidence that was itself the subject of significant dispute. Dr Sharma’s case was that the "bruising" was in reality pigmentation.
[47]	The Judge said:

The fifth point is that you are entitled to act on logical inferences based on facts that you find properly proved. If you find certain facts proved you may feel justified in coming to the conclusion though there’s no direct proof of it. Another fact may be inferred from the proved facts but this must be a proper inference drawn from the facts, not mere speculation or guesswork. There is not a lot – inferential reasoning is a tool in the human toolbox of reasoning. One of the illustrations I most often given, if you bought your Audi 2000 convertible and you arrived here when it was sunny and you went out at lunchtime...and you found the seats of your Audi 2000 convertible were wet, you’d have two inferences. Either someone has brought a bucket of water, or it’s rained and it is more likely to have been rain. That’s what you call an inference. There are some inferences – this is the evidence of Mrs Daniel that she observed [A] with bruising to her face and her cheek. And in the state that she was in there’s an inference that she received those in some way or another, which is the nub of the thing. That’s the type of thing that I use as an illustration, but mainly you are going to come down to a question of credibility and I will come to that in a minute.

[48]	The Crown accepted that the Judge’s direction on inferences with regard to bruises did not expressly indicate to the jury that there was a question as to whether or not there were bruises and thus whether such an inference could be drawn at all. However, neither did the Judge say that the inference to be drawn was that A’s state was attributable to physical abuse at the hands of Dr Sharma. Instead, the Judge emphasised to the jury that the cause of any injury was the central issue in the case, which in turn depended upon the jury’s findings of credibility.
[49]	In our view, it was unfortunate that the Judge did not mention the defence contention that the bruises were in fact dark pigmentation. On the other hand, we accept the Crown submission that the Judge did not suggest that the inference to be drawn was one of physical abuse. In addition, the cross-examination by Dr Sharma on the issue of pigmentation was extensive and the jury would therefore clearly have been aware of the issue. To the extent that the Judge’s use of that illustration suggested that he had come to the view that A had been bruised on occasion, we note that he had made it plain to the jury that any decision on the facts was for them and not for him. In the circumstances, therefore, we do not consider that the inferences direction could have caused the jury to misunderstand its task.
[50]	Mr Gotlieb next took issue with the Judge’s direction in respect of s 59 of the Crimes Act. The Judge said:

Dr [Sharma] admits he chastised [X] and there’s a, parental discipline is covered by s 59. I hope I’m up to date because there’s some suggestion of a change but I think, as far as I’m concerned, that’s still the law, s 59. And our law makes particular provision about the position of parents and the use of force by parents to discipline children. And again, this is my perception and I’ll leave you to form yours, but there has been some legislation at select committee level or some such thing like that and there’s been a bit of argument among the various parties that make up the Government party, but the relevant section in our Crimes Act reads as follows:

Every parent of a child and every person in the place of the parent of a child is justified in using force by way of correction towards the child if the force used is reasonable in the circumstances.

Whether the type of force and the degree of force was reasonable is a question of fact, that is, it is for you to decide by applying your common-sense and your collective judgement. In order to make a judgement about that you need to consider all of the circumstances including matters such as the age of the child, the level of maturity of the child, the size and health of the child, and the nature of the offence for which the child is being corrected, and so on. It is very important to bear in mind that if the issue of parental discipline is raised anywhere in the evidence it is not for the defence to prove that the accused was acting within the terms of the section, rather it is for the Crown to prove beyond reasonable doubt that he was not acting within its terms...
So there are three essential issues to consider. First, was the accused a parent of the child or someone acting in the place of the parent? There’s no problem there. Second, was the force truly being used as a corrective measure? A person will not, for instance, be protected by the section if he simply lost his temper no matter what the provocation and lashed out at the child. Now I suggest this is what is proffered to you by the Crown. Third, in all the circumstances, was the type and degree of the force used reasonable?...So if you think that it’s at least reasonably possible that the accused was acting within the terms of the section, then his actions will be justified and your verdict should be not guilty. [Emphasis added]

[51]	In Mr Gotlieb’s submission, any consideration of a change in the law is entirely irrelevant to the case and the evidence before the jury. Section 59 is the law and what the Judge or jury thought about it should never have been mentioned.
[52]	The Crown accepted that comments made by the Judge regarding possible reform of s 59 were unnecessary. However, in Mr Thomas’ submission, the Judge went on to provide a very clear, balanced and accurate direction on how the jury should apply s 59 to the present case. Accordingly, the Crown submitted that any superfluous remarks would not have led to a miscarriage of justice.
[53]	We accept the Crown submission. The italicised passages at [50] above make it quite clear to the jury that the Crown had to prove that Dr Sharma’s actions did not come within s 59. We thus do not consider there to be a risk that the jury acted under any misapprehension as to the applicable law in this regard.
[54]	Mr Gotlieb’s next submission was that, despite indicating that he would do so, the Judge did not give any directions as to credibility, aside from a direction relating to the character evidence called by Dr Sharma. He submitted that the Judge failed to direct the jury that they needed to assess the credibility of the complainants and the other witnesses. It was Mr Thomas’ submission that the Judge’s directions as to credibility were sufficient or, alternatively, that their insufficiency did not result in a miscarriage of justice.
[55]	The Judge gave a standard direction to the jury on the task of assessing the evidence:

When considering the oral evidence – that is the evidence given to you in the witness box – take into account not only what has been said, but how it has been said. How you assess the demeanour of a witness can be a valuable aid in judging his or her reliability and credibility. It is for you to decide which of the witnesses you believe and which you do not and you may, of course, accept part of any witness’s evidence and reject the rest. When considering the evidence and assessing its weight and worth, and the inferences you draw from it, you should apply your collective common-sense, your knowledge of human nature, and the ways of the world because that is why you are here. You are here as representatives of this community to apply your fair judgment and in so doing you use your experience of life thus far.

[56]	He also gave the standard direction on the onus and burden of proof and on the assessment of Dr Sharma’s evidence, albeit in a complete form only after calling the jury back in after the end of the summing up. He said:

Just on reflection, I just wanted to go over again to make sure, I don’t think I was quite accurate about the direction I gave you regarding the accused’s evidence. That is the evidence that he gave on oath in the Court. In this case you have the advantage of having seen and heard the evidence, seen the accused give evidence and be cross-examined. He didn’t need to do so. The fact that he did give evidence doesn’t alter the onus of proof, it doesn’t change the situation one bit. The onus remains on the Crown from beginning to the end of the trial. By calling evidence the accused undertakes nothing at all. Now, I said it may have a number of effects, his giving evidence. Now I should have said three. Three effects.
The first one is that, and this is what I said, you could conclude it was so absolutely truthful and reliable that in, as his evidence encompasses strenuous denials that he either assaulted [X] or [A], if you believe him, that’s the finish of the Crown case. If you were to accept the accused’s evidence that at all times he did not assault either [A] or the boy, or [A] with a weapon in that threat, then that’s the end of it. And then I said the evidence can have another effect, although you may not accept it as the truth, the whole truth and nothing but the truth, it may leave you with a reasonable doubt as to just what the true position was and in that case the Crown will have failed to prove its case to the required standard. The third one was that you may disbelieve him entirely. So if you disbelieve him entirely then you have to be satisfied that the evidence that the Crown has brought satisfies you beyond reasonable doubt. You see where I left the leg off? Thank you. Okay, back to work.

[57]	He then had this to say about the good character evidence called by Dr Sharma:

The next is the question of character. There has been evidence that those who know Dr Sharma regard him as being a person who enjoys a good reputation. That sort of evidence is primarily relevant to his or her credibility. That is, you may give it such weight as you think appropriate in deciding whether you believe what he says. But you may also take it into account as part of the evidence as a whole in deciding whether it is likely that a person who is said to have that sort of character is likely to have committed the crime. Again, how much weight you give it in that context is entirely for you. It needs to be borne in mind of course that having a previously good character is not, of itself, a defence. It is a matter of logic that people can offend for the first time.

[58]	The Judge made the following remarks about credibility generally:

...if at the end of the day, because credibility is so important, if at the end of the day you don’t know whom to believe, don’t literally or metaphorically toss a coin...if you cannot, if you don’t know whom to believe then you have the doubt and it is your duty to acquit.

[59]	It is true that there was no specific direction on the need to assess the credibility of the complainants or the evidence of the two neighbours who gave evidence of seeing Dr Sharma hit X. On the other hand, it would have been abundantly clear to the jury that the Crown case depended on them being sure that the evidence of abuse was true and that the conduct with regard to X did not come within s 59. It had been made clear to the jury that it was up to them to assess the evidence of all witnesses, they were given the standard direction on assessing Dr Sharma’s evidence and on the burden and onus of proof. It was stressed that the assessment of the credibility of the witnesses was important and the jury were told to acquit if they were unsure who to believe. We thus accept the Crown submission that the directions on credibility were adequate.
[60]	The next challenge to the summing up relates to an alleged inadequate presentation of the defence case. The Judge, it was submitted by Mr Gotlieb, presented as the defence case only what was said by Dr Sharma in his evidence-in-chief. He did not outline the points which had been raised by Dr Sharma during cross-examination of prosecution witnesses, including challenges to their credibility and prior inconsistent statements. He also did not direct specifically on the use to which the jury could put such prior inconsistent statements.
[61]	Mr Gotlieb referred to Dr Sharma’s affidavit which pointed out the following conflicts in the evidence of the prosecution witnesses:

(a) There was no direction in respect of where the pen-knife was kept;

(b) The wife had said she slept in a separate room. In the third trial she stated they had shared a room up to 1998, whereas in the fourth trial she changed her story and said it was now until late 1998.

(c) In the third trial the wife stated that the nose-cutting incident occurred in 1996-1997, although in the Family Court she had said 1995 - 1996.

(d) In the second trial, the child had said that he never saw his mother and father sharing the same room. He also said in that trial that he never had chilli pepper in his eyes, although the nose-cutting incident had allegedly started because X had put chilli in his eyes.

[62]	In Mr Thomas’ submission, overall the Judge correctly reduced the case to the important competing contentions in a fair and balanced way and conveyed these appropriately to the jury. He submitted that the perceived inconsistencies relied upon by Dr Sharma are either not inconsistencies at all or are of a limited degree and that, accordingly, no direction as to inconsistencies was required.
[63]	Mr Thomas submitted that the wife’s evidence that she and Dr Sharma shared a bedroom at the time of the knife incident on 15 May 1998 is not inconsistent with her evidence that he got the knife from his room, as she also gave evidence that, prior to a permanent move out of the joint bedroom in November 1998, there were many occasions when they would occupy separate rooms. The Crown submitted further that her evidence at trial about occupying a shared bedroom until late 1998 was not inconsistent with her evidence at an earlier trial where she stated that they had shared a room up to 1998. In any event, what the wife said in evidence in the earlier trial was never before the jury, it never having been put to her during the course of her evidence. The Crown submitted that the wife’s evidence at the earlier trial and in any Family Court proceedings as to not being sure when the knife incident occurred was not put to her and was, therefore, never before the jury. Further, in the Crown’s submission, X’s evidence was neither consistent nor inconsistent with A’s evidence. He was able to recall that Mr Sharma and A had separate bedrooms, but was unable to recall for what period and was unable to recall a time when they both shared the same room.
[64]	The Judge said the following about the Crown and defence cases (apart from what was said about s 59):

Now, the Crown case. Ms Latimer said to you this morning, in acknowledging the burden of proof and the onus of proof, that the Crown case is based on the evidence of the two children, one of whom is a complainant, and of [X]. She said that is strongly supported by the neighbours and the doctor, and she reminds you that it is the Crown’s contention that these matters – except for the two specific matters in counts 3 and 4 – that in counts one and two that has gone on for a number of years. So it is the evidence of the complainants, that’s [X] and [Y], the daughter, then there is the supportive evidence to the extent that the Crown says it supports the complainants’ evidence of Mrs Sowerby and Mrs Daniel. There’s Dr Wai Shing’s evidence that confirms the situation that he saw and the matters that were discussed with him and there was the original or initial interview with the Constable Tiedemann when he was called as the incident officer. As Ms Latimer has said, the question is "whom do you believe?".
Dr Sharma, as his own advocate and as his own witness, strenuously denies the accusations and it is his contention, both in his evidence and in his submission to you, that the children had been used by their mother as a separated wife against her husband and the motive is money and/or freedom. If you recall, in his evidence, Doctor said – there are a number of factors that come into effect and I’ve noted them. This is only my notes and, as I said, you have your own impression and this is mine. First of all there is the question of – and these are my words – an amount of freedom that [A] received or was receiving in New Zealand, especially with the independence of her own motor vehicle. There was the influence of what Doctor calls the Sai Baba cult. There was [X’s] behaviour. [There was extensive and largely uncontested evidence that X’s behaviour was very bad]. There is an admission by Dr Sharma in his evidence of a strapping, and I’ve got one incident, I think there’s, that’s my recollection, and smacking them on their bottoms. I think that’s both of the children. And he accepts arguments over meals with [A]. He denies the bedroom influence. He said there were plenty of arguments, that he has a busy life of a GP and that perhaps he might have been guilty of some inattention to the family in terms of time. But it certainly, in his view, he’s working and there are all those other considerations and obligations that he has. But the essence of his evidence, and mirrored again his submission that there was no physical, and it’s my word, interaction. There was no physical assault to the level alleged. That’s the essence of his position.
It is up to you how you deal with these matters. Dr Sharma did go into a little bit more detail in his submission over matrimonial property issues but my advice is they’re not something for you. They should only influence you, if influence is the correct word, insofar as the evidence that has been presented to you in this trial. ...

[65]	Mr Gotlieb accepted that Dr Sharma’s case as presented in examination-in-chief was adequately put. We remark that the Judge could have given the jury more assistance with the facts but we do not consider that it was vital for him to do so in this case. The trial was relatively short and the evidence was not complex. In addition, the jury had just heard the address of Ms Latimer, for the Crown, and Dr Sharma’s address. Both addresses would have fully canvassed the facts.
[66]	Dr Sharma also, no doubt, in his address to the jury went through the various inconsistencies alleged. We do not consider that it was necessary for the Judge to direct on those inconsistencies. We accept the Crown submission that the alleged inconsistencies were either not inconsistencies, not before the Court or of a relatively trivial nature.
[67]	Mr Gotlieb’s final submission on the summing up was that there were other striking omissions. In his submission, the Judge failed to direct the jury that no adverse inference should be drawn in respect of the mode of evidence for the child witnesses and also failed to give a retrial direction.
[68]	The Crown submitted that the Judge’s failure to give a mode of evidence direction did not result in a miscarriage of justice in the circumstances of this particular case. Although such a direction would have been prudent, the primary conflict in this case was not between Dr Sharma and the child complainants, but between Dr Sharma and his wife. It would have been apparent to the jury that Dr Sharma accepted striking his son on several occasions, but not to the extent claimed by the Crown and only in exercising parental discipline.
[69]	What we consider to be an adequate direction was given in relation to previous trials in the following terms (and something broadly similar had been said earlier in answer to a question by the jury):

The second point is you must reach your verdicts, your four verdicts, solely on the evidence put before you in this Court. You have heard, and you asked a question (an intelligent question) early on in the piece where you were somewhat puzzled by the reference to other proceedings. I remind you again that there have been other trials and for one reason or another those trials have not been resolved and that is why we are here. So that is all I want to say about that, but to put that back into context.

[70]

As to the lack of a direction as to the use of CCTV, we agree that a direction should have been given. However, we do not consider there to be any risk that the lack of a direction could have occasioned a miscarriage of justice in this case. The jury were well aware that the children could see their father while they were being questioned by Mr Wade. In those circumstances we do not consider the jury could have considered the fact the children gave evidence via CCTV or that the questions were asked by Mr Wade as being any reflection on Dr Sharma.

Jury question

[71]	Next, Mr Gotlieb submitted that the Judge failed to answer a jury question adequately. The jury had asked to see the transcript of A’s evidence–in-chief in relation to count 3, the hot water cylinder incident. According to Dr Sharma, the Judge discussed the matter with the prosecutor, and presumably with Mr Wade, and they went through the transcript while he was in the cells. He was only brought up afterwards along with the jury to hear the answer to the question. Dr Sharma deposed further that he wanted portions of the transcript, which were relevant to the jury’s question, also to be read to the jury. He asked that this be done after the question had been answered but the Judge simply said "no".
[72]	In Mr Gotlieb’s submission, the Judge employed an irregular procedure in deciding what answer to give to the jury questions. Section 376 of the Crimes Act 1961 provides that an accused has the right to be present in court during the whole of his trial. Mr Gotlieb submitted that, in line with this right, a defendant is entitled to hear legal argument relevant to his or her trial. Just as the accused should be present whenever evidence is read back in court (R v Priday CA156/02 25 September 2002), an unrepresented accused should be present during discussions held between judge and counsel as to what evidence should be read back. The discussion is otherwise inherently one-sided, and an accused has therefore been denied the right to be heard on an important part of the trial process. In addition, Mr Gotlieb submitted that the portions of the cross-examination that Dr Sharma wanted read highlighted inconsistencies in A’s evidence.
[73]	Mr Thomas accepted that it would be appropriate in the ordinary course to include a self-represented accused in any discussions regarding the answers to be given to jury questions. He noted, however, that at the very least Mr Wade would have been present and ensured that the interests of Dr Sharma were protected. Mr Thomas also pointed out that the only evidence that Dr Sharma was not involved in such discussions comes from him. The Court record and recollections of counsel are unable to assist in determining whether or not this was the case. Mr Thomas submitted further that, even if Dr Sharma were excluded from the discussions, he has not established that the questions were not appropriately answered, and accordingly no miscarriage of justice has arisen.
[74]	As Dr Sharma was not cross-examined, and there is no contrary evidence, we accept that Dr Sharma was not consulted before the jury question was answered. The question is whether he should have been and then whether any failure in this regard has occasioned a miscarriage of justice.
[75]	The first point to note is that a Judge, in answering questions from the jury, is not obliged to consult with counsel, although it is prudent to do so. Where a Judge does consult with counsel, however, this should include both parties’ counsel and normally take place in the presence of the accused. Where the accused is unrepresented, natural justice would require the accused to be present and to be allowed to put forward his or her views on the answer. Consulting an amicus is not sufficient. This means that we accept Mr Gotlieb’s submission that there was a failure of natural justice in this case. Dr Sharma did, however, albeit after the question was answered, put before the Judge his views on the evidence that should have been read. Dr Sharma’s views were considered and rejected by the Judge. In our view, that may have gone some way to curing the failure of natural justice.
[76]	The issue remains as to whether the question was properly answered. Although the jury asked only to hear the examination-in-chief of A, the Judge quite properly read part of the cross-examination relating to that incident. Unfortunately he did not read the whole of the cross-examination and in particular the detailed cross-examination relating to A’s injuries. We accept Mr Gotlieb’s submission that inconsistencies in that regard were part of Dr Sharma’s case. In our view, this means that the cross-examination on the extent of the injuries should also have been read at least in part. We discuss the effect of the failings in relation to the jury question at [87] below.

Pressure on jury

[77]	Mr Gotlieb then submitted that there was improper pressure on the jury to reach a decision. According to Dr Sharma’s affidavit of 22 August 2005, the Judge told the jury that one juror would not be available the following day and that therefore a decision would have to be reached that night. Dr Sharma was never consulted about this and the option of proceeding with 11 jurors was not discussed. He pointed out that the jury retired at 3pm and delivered a verdict at 8.30pm. As dinner took one hour and answers to questions 45 minutes, this left only three and a half hours for deliberations.
[78]	Mr Thomas submitted that Dr Sharma’s claim that the Judge placed improper pressure on the jury is not supported by either the Court record or the recollections of Mr Wade. Even if the notes referred to by Dr Sharma are properly proved and found to be genuine, they are, in his submission, in any event insufficient to establish improper pressure.
[79]	Mr Wade said in his affidavit that he has no recollection of the jury being put under pressure and that, had the events described by Dr Sharma happened, he would have expressed his concern at the time. Dr Sharma’s recollection of the jury being put under pressure is thus at odds with Mr Wade’s recollection. It is also not borne out by the transcript as noted by Mr Thomas.
[80]	The jury asked their first question at 4.56pm. The Judge said at the end of the answer to that question:

Shortly you will be dining, I don’t know whether it is haute cuisine, but you will be taken to dinner and looked after at 6.00. You can continue working on of course and I presume that you want that time. Then you will be getting in about 7.15 and you continue on to work as long as you require to do so. Okay, bon appetit.

[81]	The jury’s second question was asked at 8pm. At the end of the answer to that question the Judge said:

Can I ask you how you are doing? If you’re down at 4, do I get the inference that you’re working down okay? All right, no pressure, okay, au revoir.

[82]	This ground of appeal must fail.

Further evidence

[83]	Dr Sharma applied to adduce an affidavit of a counsellor the couple saw immediately after the penknife incident described at [5] above. Dr Sharma deposed, in an affidavit filed on 1 March 2006, that he had been attempting to contact the witness since 2002 without success and only by chance found her at the end of February this year. The counsellor’s proposed evidence is as follows:
2.	Sometime in April/May 1998 I received a referral from the Principal of Westminster Christian School for [X].
3.	I have checked my records and confirm that Dr Sharma and [A] came to see me with their son [X] on 13 May 1998.
4.	I do not recall any evidence of injury to [A] on that day or anytime thereafter.
[84]	Dr Sharma maintained, in his affidavit, that this evidence is important because, from A’s description of her injuries, bruising should have been evident. He referred to A’s description of her injuries in the course of the first trial as being head injuries, discharge from her ear, bleeding from her nose and a sore rib and internal bleeding.
[85]	The test for the admission of new evidence is set out in R v Bain [2004] 1 NZLR 638 at [22] – [23]. In this case, we are prepared to accept the evidence is new and credible. It is, however, of limited value. The counsellor said only that she does not recall any bruising. A has never asserted that she had visible bruising to her face. The evidence could not conceivably therefore have made any difference to the jury’s verdict. The application to adduce new evidence is declined.

Overall assessment

[86]	In conclusion, Mr Gotlieb submitted that, even taken alone, most of the points outlined above caused such unfairness to Dr Sharma that the convictions are unsafe. When considered in combination he submitted that this conclusion is inescapable and that, accordingly, the convictions should be set aside. Mr Thomas submitted that, as the points individually did not lead to a miscarriage of justice, they could not collectively do so.
[87]	Although the matters referred to at [27], [39] and [71] - [76] above may not have led to a miscarriage of justice if considered in isolation, we consider that collectively they do so in relation to count 3, the hot-water cylinder incident – see at [6] above. We are particularly concerned about the inadequate answer to the jury question, exacerbated by an initial failure of natural justice.
[88]	We have considered whether our concerns taint the other verdicts. We do not consider that they do. With regard to the other counts involving A, the jury question was relevant only to count 3. Dr Shing’s evidence was relevant only to that count as well (and this would have been quite clear to the jury). The Judge’s unfortunate (if understandable) outburst of anger also occurred in the course of Dr Shing’s evidence and thus did not affect the remainder of the counts. The jury question and Dr Shing’s evidence had nothing to do with the count relating to X and there was, in any event, independent corroborative evidence in relation to that count.

Sentence appeal

Sentencing remarks

[89]	On the basis that Dr Sharma had already had already effectively served five and a half months imprisonment, the Crown at sentencing before Judge Morris sought the imposition of a further four months imprisonment, thereby in effect reinstating the original sentence which had been quashed on appeal.
[90]	Judge Morris was not, however, comfortable with Crown counsel’s request to reinstate the prison/home detention option that was instituted by the first trial judge, particularly as this was a family matter and it was, in his view, a situation where Dr Sharma should regain a relationship with his children. The Judge noted that Dr Sharma is an experienced medical practitioner now aged 65 years who had been successful both academically and practically in his profession. With his unblemished record the Judge considered that Dr Sharma was in a position to make a contribution to his community during the community work sentence.
[91]	On the assault with a weapon charge, Judge Morris sentenced Dr Sharma to 100 hours community work. In respect of the male assaults female charges, he was sentenced to 50 hours community work on each charge, to be served concurrently with each other and cumulatively on the assault with a weapon sentence. He was sentenced to an additional 50 hours community work for the assault on a child, bringing the effective sentence to 200 hours community work.

Submissions for Solicitor-General

[92]

Given the time that has now passed between the offences and the hearing of this appeal and the fact that Dr Sharma has completed his sentence of community work, the Crown, while not abandoning the application for leave to appeal against the sentence, accepts that a sentence of imprisonment should not now be imposed.

Submissions for Dr Sharma

[93]	Mr Gotlieb, for Dr Sharma, submitted that, as Dr Sharma completed his community work on 5 October 2004, the appeal against sentence must lapse by virtue of s 383(3) of the Crimes Act 1961. This provision provides that:

(3) Every [Solicitor-General] appeal under subsection (2) of this section against a sentence of detention which is not heard before the date on which the person convicted has completed serving that sentence shall lapse on that date, and thereupon the appeal shall be deemed to have been dismissed by the court concerned for non-prosecution.

[94]

Mr Gotlieb submitted that the imposition of a term of community work is properly a sentence of detention. The new sentence of "community work" which was created by the Sentencing Act 2002 is a synthesis of the old periodic detention and community service. In his submission, it was clear under the old regime that a person serving periodic detention at a detention centre was detained under ss 40 and 42 of the Criminal Justice Act 1985: R v Roberts CA171/92; CA184/92 3 August 1993. Mr Gotlieb submitted that the new sentence of community work, which incorporates periodic detention, is likewise a sentence of detention.

[95]

In the alternative, Mr Gotlieb submitted that, if the appeal is not deemed to have lapsed, the sentence imposed was, in the circumstances, entirely appropriate and was not manifestly inadequate.

Discussion

[96]	We accept the Crown submission that the original sentence of 15 months imprisonment was an appropriate sentence. There is also no doubt that the fact that the offences occurred in a domestic setting is an aggravating rather than mitigating factor. We also consider, given the totality principle, that the sentence of 15 months would have been an appropriate sentence, even in the absence of count 3.
[97]	We do not, however, consider that Judge Morris was questioning the original sentence. We take his remarks as referring to the particular circumstances where Dr Sharma would (because of the procedural history of the matter) be sent back to prison some eighteen months after his first trial at a time when, in the Judge’s view, Dr Sharma should have been trying to re-establish a relationship with his children.
[98]	Given the unusual circumstances of this case, the imposition of a substantial term of community work (although perhaps lenient) cannot be said to have been wrong in principle. As we have come to this conclusion, it is unnecessary for us to consider Mr Gotlieb’s submission on whether s 383(3) of the Crimes Act is engaged.

Result

[99]	For the reasons given above, the appeal against conviction is partially allowed in that the conviction on count 3 (see at [6] above) is quashed. The appeal is otherwise dismissed. As Dr Sharma has served his sentence and it would be his fifth trial, no retrial is ordered.
[100]	As the sentence imposed by Judge Morris was lenient and the 50 hours community service imposed on count 3 was to be served concurrently with the sentence for the representative male assaults female charge, the quashing of this conviction does not necessitate an adjustment to sentence.
[101]	The Solicitor-General’s application for leave to appeal against sentence is dismissed.

Solicitors:
Bergseng & Co for Appellant
Crown Law Office, Wellington