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Court of Appeal of New Zealand |
Last Updated: 12 June 2023
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BETWEEN |
DONALD DEV KUMAR SINGH Appellant |
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AND |
THE KING Respondent |
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Hearing: |
16 February 2023 |
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Court: |
Katz, Whata and Davison JJ |
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Counsel: |
J E L Carruthers for Appellant M R L Davie for Respondent |
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Judgment: |
9 June 2023 at 9:00 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
The evidence [8]
[1] Mr Donald Dev Kumar Singh appeals against conviction on one charge of wounding with intent to cause grievous bodily harm.[1] He claims:
(a) The Judge gave the jury an incomplete intoxication direction, failing to inform them that they had to take Mr Singh’s intoxication into account when deciding whether he acted with the required intent.(b) The prosecutor breached s 32 of the Evidence Act 2006, dealing with the right to silence, which was not cured by the Judge.
[2] The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. Section 232 of that Act relevantly provides that the Court must allow the appeal, inter alia, if a miscarriage of justice has occurred for any reason.[2] A miscarriage of justice is defined as “any error, irregularity, or occurrence in or in relation to or affecting the trial that (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity”.[3]
[3] A miscarriage is something more than an inconsequential or immaterial mistake or irregularity.[4] There must be a real risk that the outcome was affected. This “requires consideration of whether there is a reasonable possibility another verdict would have been reached”.[5] An appellant “does not have to establish a miscarriage in the sense that the verdict actually is unsafe”; “[t]he presence of a real risk that this is so will suffice.”[6] The focus is on “realistic rather than theoretical possibilities”.[7]
[4] The facts upon which Mr Singh was found guilty by the jury and sentenced were as follows.[8] Mr Singh and the complainant Mr Tevita Tanginoa were drinking together throughout the day on 30 October 2018 at Mr Tanginoa’s relative’s home. At some time in the evening, Mr Singh became angry at having lost his phone. Mr Tanginoa decided to drive him home. Whilst in the vehicle they began to argue. When the car stopped at a red light, Mr Singh picked up a work knife or box cutter and used it to slash and stab Mr Tanginoa. Mr Tanginoa fought back but Mr Singh continued to cut and stab Mr Tanginoa. Mr Tanginoa eventually got out of the car where the fighting continued. Mr Singh was injured. Mr Singh left the scene when people were attending to Mr Tanginoa’s injuries.
[5] Mr Singh was later found on the side of the road. Mr Singh said he had been beaten by somebody other than Mr Tanginoa. He was taken to hospital. While there, he reported to a doctor that he had been assaulted but again he did not identify Mr Tanginoa as the assailant. He was then arrested and advised of his right to silence. During questioning by the police, he repeated that he had been assaulted, but did not identify Mr Tanginoa as the assailant. He otherwise refused to answer any more questions.
[6] Mr Tanginoa received the following injuries:
(a) a stab wound to his left shoulder that required three stitches;(b) a seven-centimetre-long gash to his right inner forearm that required surgery and rehabilitation; and
(c) a seven-centimetre-long gash to his chin, below his lower lip, that required surgery to repair.
[7] The following is a summary of what unfolded at trial as it relates to the issues on appeal.
[8] The central issue at trial was whether the jury could be sure beyond reasonable doubt that Mr Tanginoa was telling the truth. In support of the Crown case, evidence was led from Mr Tanginoa who confirmed that on the night in question while driving home Mr Singh was still angry about losing his phone, was drunk, and that Mr Tanginoa laughed at Mr Singh when Mr Singh said he would hit Mr Tanginoa. At this point, Mr Tanginoa’s evidence was that he was attacked by Mr Singh with a knife. He said that Mr Singh “was trying to slit my throat”, that he punched Mr Singh a couple of times, and that he eventually got out of the car and attempted to punch Mr Singh until a couple came along and Mr Singh fled.
[9] Under cross-examination Mr Tanginoa confirmed that Mr Singh was drunk and that he was angry with Mr Singh as he had insulted his family at the party. He maintained however that he was not angry by the time they left the party. He also denied telling Constable Park on the night in question that he had been attacked at an ATM. He did recall later telling the Constable Park at the hospital that he had been attacked by Mr Singh. He denied that he told a relative’s partner, Mr Finau, that he had been jumped by four people at an ATM and that he also told Mr Finau that he got into a fight with Mr Singh. But he later clarified that the Detective may have misunderstood him. He accepted that he did not refer in his statement to Mr Singh having tried to slit his throat. He accepted that he punched Mr Singh “very hard” in “the face”.
[10] Mr Finau gave evidence that Mr Tanginoa arrived at his house and told him he had “had a fight with an Indian”. He denied that Mr Tanginoa told him that he had been attacked at an ATM machine.
[11] Another witness, Mr Haupeakui, gave evidence that he recalled a visit by Mr Tanginoa and Mr Singh to his home on 30 October 2018. He recalled relaxing with them and other friends over a barbeque and then Mr Singh saying he had lost his phone and starting to get angry and swearing. Mr Tanginoa was embarrassed and left with Mr Singh. Mr Haupeakui recalled that Mr Tanginoa was drunk but he knew what he was doing.
[12] Another witness, Ms Tamatea, gave evidence that she had observed Mr Tanginoa’s car on the side of the road and she saw a person getting beaten. She thought the person doing the beating was a lady. She described the man getting beaten as Indian.
[13] Detective Clarke gave evidence in relation to her dealings with Mr Singh. She confirmed that she had arrested him and advised him of his rights. She referred to his statement that the last thing he remembered was the barbeque, and Mr Tanginoa driving him home, and that he refused to answer further questions. She also gave evidence of visiting an ATM and not seeing any evidence that an assault had taken place. Under cross-examination she accepted that no DNA analysis was undertaken of a Stanley knife found in Mr Tanginoa’s car and that this was the weapon he said had been used to stab him. She also confirmed that there was no blood evidence whatsoever found on Mr Singh. She said that Mr Singh presented with a swollen face, and she did not ask Mr Singh about what had happened to him.
[14] Statements of Constables Park, Tabb, Simon and Overall were produced by consent. Constable Park said he attended Mr Finau’s premises at the time Mr Tanginoa was being looked after by ambulance officers. His statement records that Mr Tanginoa identified his work friend, Mr Singh, as the assailant. Constable Tabb’s statement records that Mr Finau had told her that Mr Tanginoa had said that he had been attacked at an ATM by four males, and one of them was a workmate who was Indian.
[15] Constable Simon attended the street corner where Mr Singh had been found. He was recorded as being dazed with clear facial injuries. He said he could not identify who had attacked him. Constable Simon could smell a strong odour of alcohol on him. She said it was “hard to ascertain if SINGH’s incoherent speech, refusal to answer questions and lack of balance was due to SINGH’s level of intoxication or as a result of the assault”.
[16] Constable Overall was with Constable Simon. He observed that Mr Singh “seemed too intoxicated to answer” questions. He records that Mr Singh mumbled that a group of females that he didn’t know had attacked him.
[17] Mr Singh gave evidence. He outlined the events of the 30 October 2018 in some detail. He referred to going to a laundromat with Mr Tanginoa, buying and consuming alcohol, and then going to Mr Tanginoa’s relative’s house. He referred to playing some games, then departing to get more alcohol. He referred to “pacing my drink”, but accepted that he was affected by alcohol. He referred to losing his phone, but stated that he was not angry about this. He said he swore, but only when telling Mr Tanginoa to calm down. He referred to Mr Tanginoa being angry in the car and driving badly. He tried to get out of the car and Mr Tanginoa grabbed him, pulled him in, “back-handed” him, and then punched him with a closed fist. He did not remember anything after he was hit except getting out of the car. He said he was dazed and did not remember much afterwards. He said he remembered being told he “got beaten up by a chick”. He referred to his injuries which included several fractures requiring surgery.
[18] Mr Singh recalled being spoken to by an officer at the hospital about the attack on Mr Tanginoa and that he was the suspect. He confirmed that he told the officer he did not know who attacked him, because he did not want to get Mr Tanginoa into trouble.
[19] Under cross-examination he confirmed that he had been consuming alcohol but he maintained that he was not angry about losing his phone and did not blame the family. It was also put to him that he could not be calmed down and that he was drunk. He said “[n]ot to the point that I didn’t know what I was doing.” He maintained he was not angry, and it was Mr Tanginoa who got angry. He confirmed that he was punched and “went out cold”, and the next thing he remembers is walking out of the car. He was asked about what he had said to Constables Simon and Overall and confirmed their account, namely that he did not know what had happened and that he had been hit by “a chick”. He was then taken by counsel to notes of a doctor that record Mr Singh had said he had been attacked by a group of people. He said that this referred to a whole different occasion.
[20] Mr Singh was then cross-examined on what he had said to Detective Clarke. He denied he had said to her that he had been attacked walking home, and rather he was attacked trying to walk home. He was referred to evidence from a constable having seen a large amount of blood on his hood. He did not recall this evidence and noted that he often used his hood to wipe his face. He said he did not tell the police about Mr Tanginoa because he would “never nark on anyone”. He was pressed on the fact that there was no mention of Mr Tanginoa’s name to the two attending officers even though Mr Singh had Mr Tanginoa’s ID on him, and that Mr Singh did not mention Mr Tanginoa’s name when he was told he was a suspect for stabbing and cutting Mr Tanginoa. He said he went quiet because he could not believe that he was being accused of the offending.
[21] There was a detailed exchange on the circumstances of his engagement with Detective Clarke, in which it was put to Mr Singh that when he was under arrest, he could have told Detective Clarke it was Mr Tanginoa who hit him. Mr Singh responded he went quiet because he was accused of something. It was also put to him that he had the opportunity to tell the Detective and did not, to which he responded he could not. It was also suggested to him that he had not told the police it was Mr Tanginoa until now (the trial). It was then put to him that he did not tell the police about Mr Tanginoa because he “wanted to avoid any kind of involvement”. He did not agree with this.
[22] Mr Singh was also questioned by the Judge who put it to him he told a constable that he did not know who attacked him and that this was a lie. He said he could not remember.
The Crown case
[23] In closing the prosecutor emphasised that Mr Singh’s account was full of inconsistencies and gaps; was not supported by other evidence; and that Mr Singh’s account that Mr Tanginoa was angry and attacked him was implausible as there was nothing to suggest that Mr Tanginoa had reason to attack Mr Singh at the time.
[24] The prosecutor also highlighted that:
(a) When found after the assault, Mr Singh said he had been attacked by a “female”, and then a “group of females”.(b) Mr Singh made no mention when he was arrested that he had been assaulted by Mr Tanginoa:
There’s also the fact that despite being told he was arrested for wounding Mr Tanginoa, Mr Singh made no mention of the fact he himself had apparently been assaulted by Mr Tanginoa. He told you that it was because he wasn’t a nark. But consider whether this is plausible, given that he himself had been accused of a wounding which he supposedly had no knowledge of.
(c) Mr Singh had conveniently blacked out and could not remember anything from the point of being hit in the vehicle.(d) Other available evidence contradicted Mr Singh’s account of not being angry before he left with Mr Tanginoa.
(e) In relation to the key question of intent, the nature of the injuries (targeted to the head and neck area and aiming to cut the throat) clearly revealed intent to seriously harm Mr Tanginoa.
[25] On the issue of intoxication, there are multiple references to Mr Singh’s drunkenness in the Crown closing. The Crown stated:
... a significant amount of alcohol was drunk during the day by the men before others joined them at the address for this barbecue. ... Mr Tanginoa’s account of Mr Singh’s drunkenness at the address, as well as his own, is also corroborated by Mr Haupeakui’s recollection of events, and both men’s general drunkenness is also corroborated by each of the sets of attending police officers who could smell alcohol on both men ...
...
... We’ve heard a lot in this trial about intoxication, we know that both Mr Tanginoa and Mr Singh were drinking ... Mr Singh may well have been drunk when he attacked Mr Tanginoa. But intent or intention can be formed in an instant, it doesn’t require prior planning or premeditation and, importantly, in our law drunken intent is still an intent.
...
Now I’ve already outlined the different accounts identifying that Mr Singh became enraged when he lost his mobile phone. Of course he was also observed to be drunk, and we know that there was a lot of drinking that day, so you may think that his anger was exacerbated by his state. ...
...
Angry and drunk, Mr Singh snapped.
[26] On the issue of Mr Singh’s right to silence, the Crown noted that “despite being told he was arrested for wounding Mr Tanginoa, Mr Singh made no mention of the fact he himself had apparently been assaulted by Mr Tanginoa”.
[27] In opening, Ms Gray, who was trial counsel for Mr Singh, said:
Mr Singh will tell you he wasn’t upset about the phone as Tavita Tanginoa made out but he does admit using the word “fuck”. His evidence will be that Tavita was upset and angry with him. He wanted to get home but Tavita took him home and got into the car drunk and drove off in an angry fashion. He will tell you that he assaulted him with real force when he was in the car. He will tell you that he struck him about the head such that he thinks he blacked out such were the force of the blows and no doubt the level of alcohol in his system, and then he remembers getting out of the car and running away with a hurt face.
[28] In closing, Ms Gray emphasised the inconsistencies, gaps, and reconstruction in Mr Tanginoa’s evidence. She referred to the multiple versions of events he had given and that his version at trial was inconsistent with other versions given to police. One of those versions suggested that the stabbing happened at an ATM. She highlighted the lack of forensic evidence, including the alleged weapon or DNA evidence linking Mr Singh to the stabbing incident or showing that a stabbing incident occurred in a car. She said that there was no evidence of blood in the car.
[29] On the issue of intoxication, Ms Gray referred to intoxication at a number of points, including the following references:
Detective Simon, Crown witness, said that when she found Mr Singh on the roadside, his speech was incoherent, and he couldn’t balance properly. This is the sort of state that he is in. Plus, he’s affected by alcohol. ...
...
So Mr Singh was not in a good state and I suggest you can put those comments aside. Ask yourself, how would you feel, you’ve been beaten to the head, you’re drunk, you’re tired, you worked the whole night the night before.
[30] Ms Gray did not expressly rely on intoxication to show lack of the requisite intent. But she did put it to the jury that:
You’ll recall in my opening statement, I said to you the defence is that Mr Singh did not stab Mr Tanginoa. Or at the very least, he did not consciously do so. And I’m sure it’s clear to you from his evidence and the defence case that Mr Singh is firmly of the view he did not stab Mr Tanginoa.
[31] She added:
Even if you did find that he stabbed Tevita Tanginoa, and I respectfully suggest to you that that would be most surprising, but even if you did find that, the defence say you can’t logically convict Mr Singh because he did not have the necessary mental intent.
[32] She also closed to the jury with the following statement:
If you didn’t have the necessary intention, you can’t be guilty of it. And that is what Mr Singh says in the very least, is he ... badly to the head, he blacks out and next thing, he’s on the side of the road.
[33] Ms Gray took no issue with any breach of Mr Singh’s right to silence. But when dealing with his exchanges with the police shortly after having “been beaten”, Ms Gray said, in addition to the comment noted at [29] above:
In any event, it’s not for Mr Singh to provide the explanations. As I said, the onus and standard, as you know, the onus of proof is not on him. He doesn’t have to say anything.
[34] The Judge gave the orthodox directions as to standard and burden of proof, emphasising as required Mr Singh’s presumption of innocence. The Judge then reminded the jury that Mr Singh did not have to disprove the allegations, noting that the key question was “[h]as the Crown proved the defendant’s guilt beyond reasonable doubt?” He then provided a fulsome narrative of Mr Singh’s version of events, including that he was attacked by Mr Tanginoa, never took hold of a knife, he did not have a clear recollection of events after being hit, and then did not tell the police who had attacked him because he did not want to get Mr Tanginoa in trouble. This was immediately followed by a tripartite direction:
Now if you accept what the defendant says then obviously the proper verdict is not guilty, because he will not have done what the Crown says that he did. In other words he did not use a knife to cut and stab Mr Tanginoa and he did not have the necessary guilty mind that the law requires. If what he says leaves you unsure, then again, the proper verdict is not guilty, because you will have been left with a reasonable doubt. If what the defendant says seems a reasonable possibility the Crown will not have discharged its task and you must then find him not guilty. If you disbelieve the defendant’s evidence about not assaulting the complainant with a knife do not leap from that to an assessment of guilt because to do that would be to forget who has to prove the charge. Instead, you must assess all of the other evidence that you accept as reliable, and answer does that evidence satisfy you of the defendant’[s] guilt to the required standard.
[35] The Judge drew attention to the claims by both the Crown and the defence that the complainant and the defendant were lying. Reference in this context was made to the production of prior inconsistent statements. We return to this narrative when dealing with the right to silence, but it is noteworthy in terms of the linkage drawn by the Judge between prior inconsistent statements, issues of reliability and credibility, and associated orthodox directions.
[36] Consideration was also given to the elements of the offending and the respective cases in the context of an explanation of the question trail, including the requirement to prove intent. The Judge noted that the case for the Crown was that intent was shown by the nature of the injuries inflicted and that the case for the defence was that it did not happen. The issue of intoxication was touched upon. That is addressed separately below.
[37] The Judge concluded the summing up with very detailed accounts of the respective cases for the Crown and defence, the most relevant parts of which are already summarised in this judgment above at [23]–[33].
Right to silence
[38] We turn now to the Judge’s treatment of the issue of the right to silence. It is common ground that the Judge did not give a direction as to the right to silence and its significance. However, the statements made by Mr Singh pre-trial and corresponding positions of the parties were addressed at some length. As noted, the Judge directed the jury on the proper use of prior inconsistent statements.
[39] In relation to Mr Singh’s pre-trial statements the Judge said:
You will finally recall that the defendant was also cross-examined, with the aid of prior inconsistent statements. His evidence was that he was the victim of an assault. That Mr Tanginoa punched him repeatedly in the head before he blacked out and was then assisted on the roadside by a member of the public. However, it was put to Mr Singh that when spoken to by Constable Overall, at the roadside scene, Mr Singh said that he did not know who had attacked him. Later, when at the hospital and being treated by a doctor, he claimed to have been attacked by the group of people when walking home, without any mention of Mr Tanginoa. And lastly, when questioned by Detective Clarke at the hospital, when he was receiving medical treatment for his own injuries, after telling him he was arrested for an assault on Mr Tanginoa and giving him his Bill of Rights advice and cautioned, Mr Singh said nothing about being assaulted by Mr Tanginoa.
[40] The Judge then carefully explained Mr Singh’s position on these statements, noting among other things that “he did not make any statement to Officer Clarke about how he was assaulted because he refused to say anything further once the officer told him that he was being arrested for a serious assault”. The Judge noted to the jury that “inconsistency” was something that the jury may consider when deciding whether the witnesses’ evidence on the topic was reliable or credible.
[41] The Judge returned to these statements when explaining the Crown case. He said:
Mr Djurich put it to you that if Mr Singh was telling you the truth about the complainant attacking him why had he not told Police the complainant had assaulted him when he had every opportunity to do so at the hospital or on the road, where he was found by a member of the public. Instead, he actually claimed that he did not know who was responsible for his own injuries. Is it because he deliberately withheld Mr Tanginoa’s name because he did not want to be connected to the wounds that Mr Tanginoa had suffered? How did the complainant receive these injuries that had to have been deliberately inflicted?
[42] And again, when dealing with the defence case:
Ms Gray also told you that the fact that Mr Singh never said to Police Mr Tanginoa assaulted him is neither here nor there when you consider that he enjoys the right to silence and he was told this by Police, which was when he refused to answer any further questions. But in any event, he gave evidence in this trial and his evidence was both truthful and reliable.
[43] The Judge also addressed the Crown claim that Mr Singh was lying when he denied that he had assaulted Mr Tanginoa with a knife. He directed the jury not to infer simply from the fact Mr Singh was facing charges that he had a motive to lie or to disbelieve him because that “assumes he is guilty, and our law says quite the opposite”. He also said it “would be unfair”.
Intoxication
[44] On the issue of intoxication, the Judge made the following comments:
Now, the Crown says this was an assault, which was clearly deliberate, brought about by the loss of self-control due to intoxication, and fuelled by the defendant’s anger at losing his phone and further exacerbated at being laughed at by the complainant when they were in the car together. The defence case here, in part, is that you cannot be sure that the wounds inflicted were caused by Mr Singh because he denies doing so and because the complainant himself originally told others that he was injured at an ATM machine in Manurewa, when attacked by a group of people.
...
You heard evidence that before the crucial events in the car, that Mr Tanginoa and Mr Singh had been drinking for much of the day. Alcohol sometimes has a disinhibiting effect so people may do things, when intoxicated, that they would not do when they are sober. But the law holds people responsible for their intentional acts, even if they are drunk at the time. A drunken intent is still an intent for the purposes of the law, so it follows that intoxication is not in and of itself a defence.
[45] The defence case on the crucial issue of intent was also noted, namely that intent could not be inferred because Mr Singh did not do as Mr Tanginoa alleged.
[46] Intoxication was referred to again by the Judge when summarising the cases for the Crown and Mr Singh. Relevantly, he noted:
Mr Djurich said to you this was a quick and frenzied attack which by its nature can only be reasonably regarded as one where Mr Singh intended to cause the complainant really serious harm. Mr Singh may have been drunk at the time but intoxicated intent is still intent. Intoxication is not a defence and it does not diminish, reduce or dilute an obvious intent to cause really serious harm.
[47] As to the key issue of intent, the Judge said this:
Mr Singh gave you his sworn account, denying that he assaulted Mr Tanginoa and that Mr Tanginoa assaulted him, by punching him repeatedly to the head and face. His claim of blacking out after the second forceful punch by the complainant is not fanciful. It is entirely consistent with various observations by others of him when at the scene and then later, at the hospital. Remember, they gave accounts of seeing Mr Singh unsteady, lacking balance, and looking dazed.
[48] We address first Mr Singh’s claim that the Judge’s direction in relation to intoxication was inadequate. Mr Carruthers, who appeared for Mr Singh on appeal, submits that the Judge referred to two limbs of the orthodox intoxication direction but did not tell the jury that Mr Singh’s intoxication was still relevant to whether he in fact formed the specific intent required for the charge. Indeed, he submits that the Judge’s remarks can be interpreted as suggesting that Mr Singh’s intoxication was irrelevant, contrary to leading authority.[9]
[49] Mr Davie for the Crown accepts that the Judge did not give the complete intoxication direction. The Judge did not tell the jury they could look at the evidence of intoxication in assessing whether Mr Singh intended to cause grievous bodily harm. However, Mr Davey says that there was not a sufficient evidential basis for an intoxication direction. He says there was not enough evidence to suggest that Mr Singh could not form the necessary intent to cause grievous bodily harm. He refers to parts of the evidence that tend to suggest that Mr Singh was not so intoxicated that he did not know what he was doing.
[50] Mr Davie further submits that Mr Singh’s clear and detailed evidence of what transpired is inconsistent with the proposition that he was so intoxicated he was unable to form the requisite intent to injure. He also submits that the full intoxication direction may have cut across the defence case that Mr Singh’s recollection of events was reliable. Nor, he says, was an intoxication direction sought by Ms Gray, a very experienced defence counsel.
[51] Intoxication is not, strictly speaking, a defence. An intoxicated intent is still an intent. However, where there is a sufficient evidential basis for intoxication to be relevant to the issue of intent, a jury should be told to take the evidence of intoxication into consideration in their assessment of all the evidence on whether the defendant had the required intent. This direction should be given irrespective of whether the defendant has advanced intoxication as a ground for finding lack of intent.[10] However, there must first be a plausible narrative that might lead a jury to find that there was a reasonable possibility that that requisite intent was lacking because of intoxication.[11] Furthermore, there may be cases where an intoxication direction might undermine the defence theory of the case, for example that the defendant was not present at all at the scene of the alleged offending. Not giving an intoxication direction in such cases might not then give rise to a miscarriage of justice.[12]
[52] Intoxication was a feature of the Crown case at trial, with the Crown making multiple references to intoxication in its evidence and in closing. Ms Gray for the defence also mentioned intoxication in opening and closing. Mr Singh’s intoxication is linked by both the Crown and defence to Mr Singh’s state of mind at the time of the offending and afterwards when he was questioned. Against this, there is no direct evidence from Mr Singh that he was so intoxicated that he did not appreciate what he was doing. Conversely, on Mr Singh’s own account he was never so intoxicated as to not possess the requisite intent to stab Mr Tanginoa in what could have only been a frenzied intentional attack.
[53] In this regard, Mr Singh gave a detailed account of what happened prior to the altercation in the car. He had a clear and detailed recollection about what he and Mr Tanginoa had done earlier that day — he recalled going to Mr Tanginoa’s relative’s house where Mr Tanginoa’s brother-in-law was, what alcohol was purchased, the timing of events, losing his phone, Mr Tanginoa’s anger, why he did not get angry, and what was said. Mr Singh referred to matters of minutiae including asking for the keys to a car, and recalling the precise route travelled when leaving Mr Tanginoa’s relative’s place. Mr Singh also had a precise recollection of Mr Tanginoa’s assault on him including the types of blows and where they landed. None of Mr Singh’s evidence is plausibly consistent with a narrative that he in fact struck Mr Tanginoa but was so intoxicated that he could not have had the requisite intent to injure him. Exemplifying Mr Singh’s evidence about his state of mind at least prior to the attack is the following exchange under cross-examination:
[54] Overall, therefore, while Ms Gray left it open to the jury to find Mr Singh lacked the requisite intent because of his addled state, there is no suggestion in Mr Singh’s evidence that he struck Mr Tanginoa at all, let alone in a drunken and angry state.
[55] In these circumstances, we do not consider that it was necessary to give the full intoxication direction. Furthermore, even if we are wrong about this, we do not consider the failure to give a full intoxication direction caused the trial to miscarry. In addition to the absence of any direct evidence that Mr Singh was so intoxicated he could not have intended to stab Mr Tanginoa, the Crown case on intent was very strong. Given the nature of the injuries suffered, a finding of requisite intent was inevitable. So, we are not satisfied that there was any real possibility of a different verdict had the full intoxication direction been given.
Right to silence
[56] Mr Singh was
asked by the Judge, and by counsel for both defence and the Crown, about why he
did not tell the police that Mr
Tanginoa had assaulted him when he had multiple
opportunities to do so. In response to questions from Ms Gray in
evidence-in-chief,
he said it was because he “just didn’t want him
[Mr Tanginoa] to get into trouble”. The exchange with the Crown
on the
issue was substantially more fulsome. The following passage from
cross-examination is however key to Mr Carruthers’s
complaint:
[57] The Judge also posed the following questions to Mr Singh:
[58] As noted above, in closing to the jury the prosecutor only briefly referred to the fact that Mr Singh did not identify Mr Tanginoa when asked. Ms Gray did not address the issue in her closing, and the Judge gave no direction addressing the right to silence.
[59] Mr Carruthers submits that the right to silence, affirmed by s 32 of the Evidence Act, is fundamental.[13] He says that the Crown breached this right by cross‑examining Mr Singh heavily on his refusal to identify Mr Tanginoa as the assailant. He submits that the Crown left the jury with the impression that Mr Singh’s failure to identify Mr Tanginoa implies “guilt” and thus triggered the need for a clear direction about Mr Singh’s right to silence.[14] He makes the further point that the Judge referred to the infringing cross-examination, and to the Crown case, but gave no clear jury direction.[15]
[60] Mr Davie accepts it is available to the Court to find a breach of s 32 of the Evidence Act in that the questioning amounted to questioning about the failure to disclose a defence and an invitation to infer guilt. He submits, however, that there was no miscarriage of justice; that the prosecutor did not make much of Mr Singh’s failure to disclose; that the Crown case was strong; that Mr Singh’s evidence lacked credibility; and that it was open to the jury to find that Mr Singh lied about who had attacked him — noting that relying on lies as evidence of guilt does not breach the right to silence.
[61] Section 32 of the Evidence Act affirms the right to silence in these terms:
(1) This section applies to a criminal proceeding in which it appears that the defendant failed—
(a) to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
(b) to disclose a defence before trial.
(2) If subsection (1) applies,—
(a) no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and(b) if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.
(3) This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.
[62] This Court in Hamdi v R helpfully summarised the applicable principles from which we make the following observations:[16]
(a) Section 32 seeks to preserve certain aspects of a defendant’s fundamental right to silence.[17](b) There is a distinction between inviting an adverse inference based on the exercise of the right to silence and inviting one based on inconsistency between what was said out of court and what was said in evidence. The latter is permissible.[18]
(c) A credibility challenge is more difficult where: (1) a defendant has exercised their right to silence; and (2) the credibility challenge is based on the failure to offer up at an earlier point the exculpatory statement now given in evidence.[19] It is permissible for a prosecutor to challenge the credibility of a defendant who does not offer up exculpatory evidence despite having several opportunities to do so.[20] Conversely, where the defendant has made no prior statement, comments on belated explanations may be unfair unless the defendant’s right to silence is clearly explained and the jury warned not to draw an inference of guilt.
(d) Section 32 protection may still apply despite a defendant giving a partial response to police questioning only to then exercise his or her right to silence.[21]
(e) Where s 32 has been infringed, the Judge has an obligation to direct a jury it may not infer guilt from the defendant’s exercise of their s 25(d) right under the New Zealand Bill of Rights Act 1990 not to be compelled to confess guilt.[22]
[63] In terms of s 32(1) of the Evidence Act, Mr Singh failed to respond to a question about how he received his injuries in the course of investigative questioning before trial. He also failed to disclose a potential defence, namely that he was attacked and rendered senseless by Mr Tanginoa. The remaining issue is whether, in terms of s 32(2), the prosecution invited the jury to infer that Mr Singh was guilty from his failure to respond to questions or whether the prosecution case was fairly directed to Mr Singh’s credibility.
[64] As the Court in Hamdi noted, the line between an attack on credibility and inviting an adverse interest based on the exercise of the right to silence is one that “would test the skills of a philosopher”.[23] Relevantly in this regard, this is not a case where the prosecution openly invited the jury to infer guilt from silence in closing. Nevertheless, while not clear-cut, we have reached the conclusion that the Crown, through its cross-examination, invited the jury to infer guilt from Mr Singh’s failure to identify Mr Tanginoa as his assailant to Detective Clarke. We think this is best shown by the following question put to Mr Singh by the prosecutor:
And I suggest to you that you didn’t [tell the Detective that you were assaulted by Mr Tanginoa] because ... you were the one who stabbed him in the car and you wanted to avoid any kind of involvement.
[65] The Judge’s summing up on this exchange also suggests the Crown’s case on this point was that Mr Singh was trying to avoid being connected to Mr Tanginoa’s injuries. We therefore consider that s 32 was breached and the Judge was required to direct the jury about Mr Singh’s right to silence and more specifically that guilt cannot be inferred from Mr Singh exercising his right to silence. We note in this regard that the Court in Hamdi found that a similar line of cross-examination infringed s 32 where the failure to offer up the explanation was used to draw an adverse inference from the exercise of the right to silence.[24]
[66] We turn now to examine whether this error caused the trial to miscarry.
[67] We are satisfied that there has been no such miscarriage.
[68] First, as we have already said, this was not an obvious case of invitation to infer guilt from silence. Importantly, the s 32 infringement must be seen in light of the evidence that Mr Singh had told Constables Simon and Overall and a doctor that he had been attacked by someone else. The inconsistencies between those explanations and what Mr Singh said at trial would have been obvious to the jury. In addition, Mr Singh’s explanation that what he said to the doctor related to altogether a different attack on him, would have only amplified the fictional nature of his pre‑trial accounts. These inconsistencies were properly highlighted by the prosecution as undermining Mr Singh’s case and it was available to the Crown to invite the jury to infer from these inconsistencies that Mr Singh was hiding his involvement in an altercation with Mr Tanginoa. Significantly, therefore, Mr Singh’s silence about what happened in his interview with Detective Clarke would have been viewed by the jury as simply one of many inconsistencies in Mr Singh’s pre-trial account.
[69] Second, while the Judge did not give the usual right to silence warning, he did give a fulsome direction on the proper use of inconsistent statements including the statements made by Mr Singh to Detective Clarke. The Judge fully contextualised these statements, including the reasons why Mr Singh said he remained silent. The Judge reminded the jury that the weight to be afforded to these statements was for them and that, correctly, the statements go to issues of credibility and reliability.
[70] Third, the Crown case was strong. Notably, in key respects the weight of evidence at trial clearly favoured Mr Tanginoa’s account. Critically, Mr Tanginoa’s version of events leading up to the assaults was corroborated by eyewitness testimony. More specifically, they confirmed that it was Mr Singh who was angry at the party, not Mr Tanginoa. This evidence contradicted a central plank of Mr Singh’s defence, namely that Mr Tanginoa was angry and the aggressor.
[71] Fourth, it is also common ground that there had been an altercation in the car. The only residual factual issue, on the defence case, was whether Mr Singh stabbed Mr Tanginoa at the time of that altercation. Mr Singh’s defence and evidence was that he had no recollection of stabbing Mr Tanginoa, and he denied doing it. Yet, as we explain above, he was able to recall in fine-grained detail other events of that day and evening. Blood was also found in the car. Furthermore, Mr Singh’s counternarrative was highly implausible; namely, that after Mr Tanginoa fought with Mr Singh, Mr Tanginoa also got into another confrontation and was stabbed multiple times by someone else.
[72] Finally, we note that several aspects of the summing up mitigated the impact of the failure to give the right to silence direction. We note in particular, in addition to the inconsistent statement directions, the careful attention given to the presumption of innocence and the tripartite direction. Taken together, these directions focused the jury on the need for the Crown to prove its case and on issues of credibility and reliability.
[73] For completeness we have stepped back and examined the combined effect of the failure to give the full intoxication direction as well as the right to silence direction. In reality, the entire case for Mr Singh turned on the inherently implausible narrative that he had a detailed recall of all events, except, remarkably, the stabbing, and that while he had fought with Mr Tanginoa, the latter just happened to be stabbed, multiple times, by somebody else on the same night. Conversely, the case for the Crown was strong, with direct evidence of the assault and evidence corroborating Mr Tanginoa’s evidence as to surrounding events.
[74] Overall, therefore, we see no real possibility of a more favourable verdict had there been a full intoxication direction and a direction as to right to silence. Accordingly, we are satisfied that the trial did not miscarry.
[75] The appeal is dismissed.
Solicitors:
Crown Law
Office | Te Tari Ture o te Karauna, Wellington for Respondent
[1] Crimes Act 1961, s 188(1).
[2] Criminal Procedure Act 2011, s 232(2)(c).
[3] Section 232(4).
[4] R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26]–[30]; and Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [38]–[48].
[5] Misa v R, above n 4, at [48].
[6] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J (footnote omitted); and see Tuia v R [1994] 3 NZLR 553 (CA) at 555.
[7] Misa v R, above n 4, at [46], quoting Wiley v R, above n 4, at [28].
[8] R v Singh [2022] NZDC 16765.
[9] Herewini v R [2013] NZCA 294, (2013) 26 CRNZ 666 at [18] and [35].
[10] At [18]–[19]; and Kirby v R [2013] NZCA 451, (2013) 26 CRNZ 740 at [55]–[56] and [58] per Stevens and Cooper JJ.
[11] Kirby v R, above n 10, at [60].
[12] At [63]–[65].
[13] Referring to Hamdi v R [2017] NZCA 242, (2017) 28 CRNZ 319 at [25].
[14] Referring to Smith v R [2013] NZCA 362, [2014] 2 NZLR 421.
[15] Contrary to dicta in Blair v R [2012] NZCA 62.
[17] At [20]. See also McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467 at [15].
[18] Hamdi v R, above n 13, at [21].
[19] At [22].
[20] At [27], citing Smith v R, above n 14, at [42].
[21] At [24], citing McNaughton v R, above n 17, at [15].
[22] At [25].
[23] At [23], citing E (CA727/09) v R [2010] NZCA 202 at [60].
[24] At [32].
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