Singh v Police [2014] NZHC 3039 (1 December 2014)

Last Updated: 22 December 2014

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-454-13 [2014] NZHC 3039

BETWEEN	RAVINDRA PAL SINGH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 November 2014
Counsel:	R Mulgan for appellant D R Davies for respondent
Judgment:	1 December 2014

_{RESERVED JUDGMENT OF DOBSON J}

The appeal and the complaints

[1] This judgment deals with an application by the appellant for leave to adduce fresh evidence on the hearing of his appeal against two convictions for assault.

[2] At the relevant time, the appellant (Mr Singh) was the head of a flying school in Palmerston North. The two complainants were students at the school seeking qualification as pilots.

[3] A summary trial proceeded before Judge J A Binns in the District Court at Palmerston North over four days between August and December 2012. At its conclusion, her Honour found the appellant guilty of one charge of assault against each of the two complainants, Ms Vijay and Mr Illyas Valiyapeediyekal (referred to

_{throughout the proceedings as Illyas).}¹

¹ Police v Singh DC Palmerston North CRI-2011-054-3470, 21 December 2012.

[4] Mr Singh was represented at the District Court hearing by Mr Thackery, but initiated an appeal acting on his own behalf. On 22 October 2013, a hearing of his appeal commenced before Simon France J with Mr Singh acting for himself. As recorded in a minute issued by France J on that day, Mr Singh relied materially on evidence that had not been before the District Court. The Judge adjourned the appeal, providing directions for Mr Singh as to the necessary steps in any attempt to adduce fresh evidence on appeal.

[5] The appeal was then allocated a further hearing for 5 February 2014, but before that Mr Singh sought an adjournment. It appears from a minute issued by Collins J on 3 February 2014 that, at that time, Mr Singh was instructing Mr Thackery to appear for him on the appeal.

[6] Since being granted the further adjournment, Mr Mulgan has been instructed and affidavits reflecting the proposed new evidence have been filed.

[7] The general rule for admission of fresh evidence on an appeal is that it has to be fresh in the sense that it was not reasonably available at the time of trial, as well as being credible and material to the outcome. None of the new evidence proposed in this case qualifies as “fresh” in the usual sense. However, that requirement does not need to be present if the evidence was not adduced at trial because of counsel error. That ground is invoked here. A consideration of whether it applies might logically be considered at the outset. However, given the extent of the proposed new evidence and the issues to which it relates, it is appropriate to revert to the claims of counsel error after describing the proposed evidence in the context of the issues to

which it relates.²

[8] Ms Vijay alleged that there was a pattern of assaults against her by Mr Singh whilst they were both flying in the cockpit of a small training aircraft in the period between 23 May and 9 July 2011. Her complaint was that while she had her hands on the controls of the aircraft, Mr Singh, seated on her right, would knock her right arm with his left elbow with a degree of force. The application of force allegedly

_{occurred in the course of disparaging criticisms of her. Ms Vijay was extensively}

² The topic of counsel error is considered at [29]–[37] below.

cross-examined on her allegations in the context of wider challenges to the circumstances in which she was at the flying school. Judge Binns formed a favourable impression of Ms Vijay’s credibility, finding her to be precise and careful, and noted that she had stood up admirably to a cross-examination that the Judge described as bordering on abusive. Her Honour found this charge of assault proven.

[9] Illyas complained of a single instance of assault that occurred whilst flying with Mr Singh on 25 June 2011. His complaint was that Mr Singh had slapped his face, grabbed his head in both hands, and knocked it against the window of the small plane they were in as Illyas was bringing it in to land. This complainant was also subjected to extensive cross-examination and the Judge formed a favourable view of his credibility, finding that his responses were consistent and firm, despite English obviously being his second language. She accepted his evidence on that basis and found this charge of assault proven as well.

[10] Mr Singh denied that any of the assaults occurred. His defence included an argument that the two complainants had conspired with two other complainants, Messrs Babu and Tripathi, to drum up false allegations against him. He alleged that they did this because they were not making adequate progress with their studies, and faced the prospect that he would not support them in applications to extend their student visas to remain in New Zealand. It was suggested for Mr Singh that the complainants would have known that if they were required as witnesses in a criminal case in New Zealand, the Police would support their remaining here until the case was resolved.

[11] Another strand of this argument for Mr Singh was that all four of the complainants were encouraged to complain by a Mr Ghai. Mr Ghai was supposedly in contact with all four of the complainants, and facilitated some of them contacting the Police when the complaints were made. All the complaints were made within a confined period of time.

[12] The complaints by Messrs Tripathi and Babu did not proceed because they were no longer available. Mr Babu had left New Zealand whilst facing fraud charges brought by the Civil Aviation Authority.

Content of proposed new evidence

[13] The new evidence goes to matters said to affect the credibility of the two complainants.

Choice of instructor

[14] The first issue to which the new evidence relates is the process of allocating instructors to students for the purposes of flying lessons. Mr Singh seeks to challenge the credibility of Ms Vijay’s evidence that she continued taking flying lessons with him despite a pattern of assaults. On Mr Singh’s version of the process, there was no requirement that she continue with the same instructor. His case is that she would have been free to request another instructor. She was therefore not required to continue flying alone with Mr Singh in circumstances that created the opportunity for him to assault her. Arguably, that leads to the inference that the allegations were made up.

[15] The topic was touched upon in the evidence but, on Mr Mulgan’s analysis, was not tested with the witnesses as thoroughly as it deserved. Mr Singh gave evidence at his trial and was asked in evidence-in-chief as follows:³

Q. Miss Vijay basically said that she had to fly with you, there was no one else to fly with, what do you say?

A. That is what she was saying, she was saying that she had to fly with me from 24^th May onwards because her instructor, Neha Jacob, she had gone to get engaged and she was not of a level. I ready, had already gone there, gone on holidays so therefore she had no choice but to, she had to fly with me. But remember at the same time she also said that Neha, her instructor, was pretty happy with her and she told Vijay to fly with me for her solo check. What I am saying is it is not correct, it was not a solo check. Neha came and told me that –

[16] Mr Singh now wishes to add further evidence on the point from two other flight instructors, Atif Ghuman and Kaveri Gupta. Both have now returned to the Indian subcontinent but have completed affidavits to the effect that students were not forced to fly with a particular instructor and, if they so requested, would be

_{transferred to another instructor. Ms Gupta did give evidence at trial so any new}

³ Police v Singh, notes of evidence (NoE) at 244-245.

evidence adduced from her would be additional to that. Her affidavit states that normally students would fly with one instructor who was responsible for monitoring their progress and keeping their training records. However, if a student was not happy, they could refuse to fly with that instructor and ask for someone else.

[17] Ms Vijay was challenged on the topic. Mr Thackery put to her that she could have had other instructors prepare her for the level where she would be doing a flying solo check with Mr Singh. Her response was that two other instructors, whom she named, were not available at the time and so that was why she had to fly with Mr Singh.⁴ Ms Vijay also stated that it was not for the students to choose their

flights and that the instructors made their flight bookings for them.⁵

[18] Although Ms Gupta’s evidence was taken out of sequence, it appeared entirely predictable before her evidence was given that this topic might assume significance for Mr Singh’s case in challenging Ms Vijay’s credibility.

Ms Vijay’s payment of fees

[19] Mr Singh is also concerned that inadequacies in the evidence prevented him from mounting the best challenge to Ms Vijay’s credibility on her evidence as to the payment of her fees at the flying school. The course fees, including costs of accommodation, were $59,000, and her evidence was to the effect that she had paid the full amount. She relied on a letter, ostensibly signed by Mr Singh, acknowledging payment. He contended that this letter was a forgery. The Judge

commented on this in her judgment:⁶

... It was suggested to her that she did not pay the $59,000 course fee and that she had somehow removed letterhead from the Wings Flight Academy and forged a letter and [Mr Singh’s] signature. I considered that that proposition was a “bridge too far” and completely implausible. It strengthened my view about the truth of what she was saying. It was also suggested to Ms Vijay that because she had a minor accident in a plane that, that was a motive for her to make a false complaint. I reject that.

⁴ _{NoE at 169.}

⁵ _{NoE at 192–193.}

⁶ Police v Singh, above n 1, at [37].

[20] It is common ground that educational institutions in New Zealand charging fees to overseas students have payments directed to trust accounts operated by the Public Trust. The Public Trust is then authorised to disburse the funds as parts of the total fees became payable to the institution. That arrangement was in place for Mr Singh’s flying school. A further affidavit that he now seeks to adduce as new evidence has been provided in response to a summons by an appropriate officer at the Public Trust, Philippa Mary Chapman. She confirms from the records maintained for the appropriate trust account that the Public Trust only ever received

$51,992 from Ms Vijay. A substantial portion of that was refunded when the flying school closed before her course was completed.

[21] Mr Singh also seeks to adduce evidence from an IT expert, Michael David Draper. Mr Draper has provided an affidavit confirming his compliance with the obligations under the Code of Conduct for Expert Witnesses. Mr Singh says, in support of his claim that the letter was forged, that the form of the letterhead it uses is outdated. He alleges that, previously, correspondence on the school’s letterhead was transmitted in Word format by email. One of the purposes of Mr Draper’s evidence is to confirm the ease with which a recipient of such a letter, transmitted via email in Word format, could alter the contents by retaining the letterhead and signature, and substituting entirely different text.

[22] As part of the opposition to the present application the Police have filed an affidavit from Ms Vijay in reply to this proposed new evidence. That deposes to the circumstances of her payments for the course before she left India for New Zealand, in substantially more detail than was traversed in her evidence at the trial. She describes somewhat complicated arrangements for paying an agent of Mr Singh’s in India, in Indian rupees, an amount which exceeded NZ$59,000 at the time. Her suggested explanation for the discrepancy between the $59,000 she paid, and the amount slightly less than $52,000 that the Public Trust received, is that the balance may have been retained as a commission by the agent. Mr Singh, in a second affidavit in support of the present application and in reply to Ms Vijay, acknowledges a business connection with the man Ms Vijay describes dealing with in India. However, Mr Singh denies that this man had any authority to receive fees for students enrolling in the flying school.

[23] A number of details in relation to Ms Vijay’s payment of fees remain unclear after an assessment of the evidence at trial and the affidavits filed subsequently. There is a possible rationalisation of the various points consistent with Ms Vijay’s explanation. A likely construction would require an acknowledgement that she is mistaken on some details. In any case, the topic is neither new in any definitive sense, nor decisive as a basis on which to challenge Ms Vijay’s credibility.

Illyas’s Facebook postings

[24] The remaining topic on which Mr Singh seeks to adduce new evidence relates to a challenge to Illyas’s credibility. Mr Singh’s case was that Illyas was sufficiently ill-disposed towards him that he would be prepared to make up complaints to harm him. On this point, Illyas was cross-examined about postings on his Facebook page that made derogatory and trenchant criticisms of Mr Singh. The comments included a positive reaction to Mr Singh having been charged. When pressed on this point, Illyas stated that part of one particular post had been written by someone else, and that another post had been deleted by someone else. It appears that counsel did not challenge the technical capacity for these things to occur.

[25] Mr Draper has been asked to opine on the capacity for other persons to add to a posting on the Facebook page of a particular person. He has also been asked to comment on whether persons other than an administrator or operator of a Facebook page can delete content. Mr Draper opines that both suggestions are highly unlikely.

[26] Mr Mulgan submitted that the point is sufficiently material to an assessment of Illyas’s credibility that it warrants the new evidence being adduced. The Judge dealt with this broader challenge to Illyas’s credibility in the following terms:⁷

It was put to him that he had placed messages on his Facebook page which is a method of social media. Many people use it for communication. I do not know that what was shown to Illyas was a true copy of his Facebook page. I did view it, but it was not formally produced. It seemed to have unusual underlining. No one could give evidence that they had actually viewed it, downloaded it and printed it. While it was of peripheral relevance, I did not consider that even if it was his Facebook page that his comments detracted from Illyas’ credibility. If true, they were generally consistent with his

evidence and his feelings of resentment about being “ripped off” and his

happiness that Mr Singh had been charged.

[27] Ms Davies disputed that this issue could be sufficiently material to justify leave to adduce fresh evidence. On her analysis, it was hardly a valid criticism of Mr Thackery for not anticipating the need for, and calling, an IT specialist, having challenged Illyas in cross-examination about the content of the Facebook page, and his responses in relation to it. She submitted that the challenge to Illyas’s credibility would not be materially enhanced by reference to what an IT expert would say on the points.

[28] The challenge to Illyas’s credibility on this topic was peripheral to the central aspect of Mr Singh’s defence on this charge. The defence was that the assault, as complained of by Illyas, was physically impossible in the very confined space of the cockpit of the small plane in which they were flying. A component of that was the implausibility of a responsible instructor risking the safety of a landing manoeuvre when the assault was alleged to have occurred during the approach to land. Mr Mulgan characterised this aspect of the defence case as supported by three experts, Ms Gupta, Mr Singh and Mr Rowland, whose evidence was not rebutted by the Crown. Clearly, a part of the argument on appeal that does not require fresh evidence is that the unrebutted defence evidence on the point should have been determinative.

Absence of the evidence explained by counsel error?

[29] The test for leave to adduce fresh evidence in circumstances such as this was recently addressed by the Court of Appeal in Gosnell v R, which stated as follows:⁸

[15] The appellate court assesses new evidence for credibility, freshness, and materiality to verdict. As this Court pointed out in Witehira v R, the authorities are unsettled as to whether the screening is done to determine admissibility or as part of the court’s substantive inquiry. The former approach has traditionally been taken to evidence that might have been led at trial. As a matter of practice, appellate courts have long taken the latter approach to evidence of counsel error, which almost by definition could not be led at trial. The two approaches merge where, as here, the error concerns counsel’s failure to call evidence at trial. In such cases the appellate court

usually treats the new evidence as fresh if persuaded that counsel error explains its absence from the record.

[30] Mr Mulgan accepted that none of the new evidence sought to be adduced was fresh given that all of it could, with reasonable diligence, have been briefed and adduced at trial. Rather, he criticised Mr Thackery’s conduct of the defence as amounting to counsel error, thereby justifying a consideration of the proposed new evidence.

[31] That approach was opposed on the basis that there were no sufficient grounds for relevant criticism of Mr Thackery, as well as more general objections to the lack of cogency of the proposed evidence, and in some respects its lack of materiality.

[32] Mr Singh waived solicitor-client privilege. The Police have subsequently filed a relatively extensive affidavit from Mr Thackery recording the nature and extent of the work he did in preparing for and presenting Mr Singh’s defence. Mr Thackery was initially retained by another solicitor, Mrs Angampally, who effectively remained involved as junior counsel. Unobjectionably, Mr Thackery’s affidavit refers to Mrs Angampally’s involvement and, in certain respects, her separate comments about the more recent criticisms of their conduct raised by Mr Singh.

[33] Mr Thackery has reconstructed the scope and nature of the work he undertook in terms that appear thorough and accurate in that they are, for the most part, cross-referenced to documents. Overall, I am left with the impression that Mr Thackery has been too ready to accept Mr Singh’s criticisms, without attempting to justify what Mr Singh now treats as deficiencies in the conduct of his defence, reflecting on matters from a different perspective after the event. It is apparent that Mr Singh had considerable difficulty in distinguishing the matters relevant to his defence to the assault charges, from much broader and more complicated matters affecting the survival of his flying school, and the preservation of his reputation. The description given by Mr Thackery of his and Mrs Angampally’s protracted discussions with Mr Singh indicate that Mr Singh treated the proceeding as a challenge to his integrity and good reputation on a far wider front than simply responding to the charges.

[34] Mr Singh and his then counsel had the somewhat unusual advantage of staggered hearing days over a period of months, expanding what would normally be the far more confined opportunity to respond to the prosecution evidence as it was given. Overall, I am not satisfied that there was a sufficient level of incompetence to justify assessing the materiality and cogency of the new evidence as “fresh”.

[35] A number of the counsel errors articulated by Mr Mulgan were not that material points had been overlooked entirely, but rather that they had been dealt with too lightly or inadequately. In all the circumstances as they now appear, those criticisms cannot rate as counsel error of the type that justifies an assessment of new evidence on the basis that it was unavailable at trial.

[36] On other topics, it is clear that the points now sought to be made simply were not addressed at all. However, it is not reasonable to attribute to Mr Thackery an appreciation of the relevance that Mr Singh now seeks to attribute to those points, when the case was being prepared for trial, and during the course of the staggered hearing of the evidence. I accept that Mr Singh’s reference to a multitude of other issues in relation to the flying school would have made it unusually difficult for counsel to identify the relevant issues in the narrower context of two charges of assault.

[37] Before recording a finite view on whether counsel error justifies treating the proposed new evidence as “new”, it is useful to reflect on the cogency and materiality of it to the live issues on Mr Singh’s appeal.

Cogency and materiality of the proposed evidence

[38] I have reflected on the cogency and materiality of the proposed evidence from each deponent, both individually and in the context of its combined impact.

[39] I am not satisfied that the proposed evidence from Mr Ghuman and Ms Gupta is sufficiently relevant to raise a new issue challenging Ms Vijay’s credibility. It is entirely possible that the conceptual prospect of students rejecting one instructor and asking to be instructed by another was in the minds of instructors, without it ever being a realistic prospect for students at the flying school. In another context, the

Judge commented on the power imbalance between a senior flying instructor such as Mr Singh, and a young student like Ms Vijay. There is no evidence that Ms Vijay was explicitly told that she could reject one instructor and ask to be instructed by another. However, even if she was explicitly told that, appreciating an entitlement to do something and exercising that entitlement are entirely different things. I am not persuaded that the credibility of Ms Vijay’s perception that the instructors set the flying schedule is materially challenged by evidence that she would have been entitled to insist on another instructor. This is particularly so when considered alongside the circumstances as she perceived them that, in essence, she got to fly with Mr Singh by default. It is difficult to attribute sufficient materiality to the proposed evidence for it to satisfy the materiality criterion for new evidence on appeal.

[40] As to the cogency of the proposed evidence in relation to Ms Vijay’s payment of fees, the evidence at trial was certainly less than decisive, but would remain somewhat confused if the new evidence was all adduced. There would be nothing in the nature of a decisive or even material advance to Mr Singh’s case in challenging her credibility on that topic. For instance, I raised with Mr Mulgan that Ms Vijay’s evidence was that the letter confirming receipt of fees purportedly signed by Mr Singh was received by her in pdf form (which I understand to be far more difficult to tamper with than a Word document), whereas Mr Draper’s proposed new evidence addressed the facility to doctor a Word document. In response, Mr Mulgan suggested a theory for Mr Singh’s case involving the forgery having been done by someone other than Ms Vijay. It was left unclear whether Mr Singh’s case would be that she was nonetheless a party to any forgery. These uncertainties mean that the proposed new evidence would not definitively address a matter that is presently unclear, and the new evidence would be more likely to expand the range of uncertainties on this topic, rather than to reduce them.

[41] Accordingly, the proposed new evidence on that topic is not sufficiently cogent to justify an evaluation of the other criteria that are required to be met before it could be admitted.

[42] As for the attempt to challenge more directly the evidence from Illyas about his Facebook postings, the most that could be observed is that he has misrepresented the position as to responsibility for disparaging remarks. Whether that was deliberate or accidental is unlikely to change the overall perception of his credibility, given the Judge’s acceptance of the prospect of inaccuracies on this topic.

Summary

[43] Accordingly:

(a) Because the proposed evidence did not satisfy the usual requirement that it is “fresh” since the hearing, a consideration of whether it can be adduced is only warranted if its omission at trial is explained by counsel error.

(b) In general terms, there are no sufficient criticisms of the conduct of trial counsel to justify treating all the proposed new evidence in a blanket fashion, as “fresh”.

(c) The conduct of trial counsel does not reveal serious particular omissions or errors that led to the omission of evidence on particular topics at trial.

(d) In any event, the proposed evidence lacks the material degree of cogency and materiality that is required to justify the granting of leave for it to be adduced on the appeal.

[44] Accordingly, the application is dismissed in relation to each of the affidavits sought to be adduced.

Dobson J

Solicitors:

Alan Campbell, Paremata for appellant

Crown Solicitor, Palmerston North for respondent