DHEIL v R [2019] NZCA 416 [6 September 2019]

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA182/2019

[2019] NZCA 416

BETWEEN

HARJIT DHEIL

Appellant

AND

THE QUEEN

Respondent

Hearing:

26 June 2019

Court:

Stevens, Venning and Dunningham JJ

Counsel:

J H M Eaton QC for Appellant

S K Barr for Respondent

Judgment:

6 September 2019 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

[1] The appellant, Harjit Dheil (Harjit), was convicted of blackmailing

Amrit Singh (Amrit) by threatening that a woman would be paid to make a sexual

complaint against him in order to get him to withdraw an employment complaint

against Harjit’s company (Dheils Ltd). The conviction followed a jury trial before

Judge Dawson in the District Court where Harjit’s co-defendant, Gurchetan Singh

(Gurchetan), was acquitted.1

1 First names are used to avoid confusion when some individuals share the same surname.

[2] Harjit was sentenced by the Judge to 10 months’ home detention.2

[3] He appeals both his conviction and sentence.

Events leading to the charges

[4] The complainant, Amrit, had been an employee of Dheils Ltd which owned

and operated the Glenfield Sports Bar. Harjit was a director of that company and ran

the business with his brother, Hardesh Dheil.

[5] In early 2014 Amrit’s partner called the Department of Labour to report her

concerns about the number of hours Amrit was working, allegedly without pay.

However, those concerns were not pursued because at that time his visa was restricted

to Dheils Ltd and he feared losing his job.

[6] In June 2014, Dheils Ltd sold the bar to Gaming and Sports Ltd of which

Harjit’s co-defendant, Gurchetan, was a director, along with Pankaj Gupta and Roohi

Gupta. Amrit continued to work at the bar. At that point, when he was no longer at

risk of losing his job, Amrit initiated a formal complaint about his former employer,

Dheils Ltd, with the Employment Relations Authority (ERA). Various steps were

taken in that complaint, including unsuccessful mediation in August 2014, but it

remained unresolved.

[7] On the night of 14 August 2014, an incident occurred at the bar which involved

an intoxicated female patron. Amrit says he offered to give her a ride home, but before

they left he remembered he had left his uneaten dinner inside, so he went back into

the bar and she followed him. He said she then became flirtatious and difficult to deal

with, demanding that he give her alcohol, which he did, although he says it was

essentially to appease her. At one point she pulled her shirt up, exposing her chest to

him. She also took some bottles of pre-mixed drinks from the bar. Amrit says he

eventually managed to usher her out at about 1.30 am. She became angry and

aggressive and then struck him, at which point he called the police. He also took the

bottles of alcohol off her.

2 R v Dheil [2019] NZDC 8233 at [21].

[8] Some of the interaction with the female patron was captured on CCTV within

the bar. Amrit’s current employers saw the CCTV footage and took up their concerns

with Amrit. Specifically, they were concerned he had a woman inside the bar after

hours and had given her drinks without charging her. Amrit was also sent a warning

letter for serving a drunk patron on the premises after hours.

[9] The material events occurred two weeks later, on 28 August 2014, where

Gurchetan approached Amrit at the bar. The Crown case was that Gurchetan, acting

at the request of Harjit, approached Amrit with a view to forcing him, by blackmail,

into withdrawing the ERA complaint. The threat used was that the female seen on

the CCTV footage would be paid $10,000 to make a complaint of sexual assault

against Amrit. Gurchetan communicated with Harjit by telephone during the course

of that discussion and a letter, drafted by Harjit and withdrawing the ERA complaint,

was emailed to Gurchetan who then provided it to Amrit to sign.

[10] At some point during the conversation Amrit commenced recording it on his

mobile phone. He said he did this because he was concerned about where

the conversation was going.

[11] Telephone records confirmed that during the course of the afternoon there were

several calls and text messages between Harjit and Gurchetan. Harjit also accepted

that he drafted a letter for Amrit withdrawing his ERA complaint which was forwarded

to Gurchetan and given to Amrit, who signed it.

[12] On 1 September 2014 Amrit emailed the ERA advising his claim was resolved

with Dheils Ltd and he was withdrawing his case.

[13] However, Harjit’s case was that he did not know Gurchetan, who contacted

him for the first time that afternoon. Harjit said he did not make any threats but simply

drafted and forwarded the withdrawal letter because he understood that Amrit wanted

assistance with the process of withdrawing his ERA complaint.

The grounds of appeal

[14] The appeal against conviction is advanced on the following grounds:

(a) Inadmissible evidence, being Gurchetan’s recorded conversation with

Amrit, was admitted thereby causing a miscarriage of justice.

(b) The evidence given by Gurchetan regarding the recorded conversation

elicited significant hearsay evidence which was inadmissible and

prejudicial.

(c) Having admitted Gurchetan’s evidence and associated hearsay

evidence, the trial Judge failed to give any directions on this, and

the failure to direct has given rise to a miscarriage of justice.

(d) The acquittal of Gurchetan meant the guilty verdict in relation to Harjit

was both inconsistent and unreasonable.

[15] The appeal against sentence is advanced on the grounds that the sentence was

both inappropriate and manifestly excessive and the Judge erred in taking prison as

the appropriate starting point.3

[16] The notice of appeal also raises the refusal of the trial Judge to make a final

order for name suppression, although in submissions Mr Eaton QC accepted that

“suppression will be largely determined by the conviction appeal”.

Was the hearsay evidence of the recorded conversation properly admitted under

the co-conspirators rule?

[17] The admissibility of the recorded conversation between Amrit and Gurchetan

was contested from the outset.

[18] In 2016, Harjit applied under s 147 of the Criminal Procedure Act 2011 for an

order dismissing the charge on the grounds that there was insufficient evidence against

him. The Crown cross-applied for an order that Gurchetan’s recorded statements were

admissible against Harjit as statements made in furtherance of a conspiracy to commit

blackmail. The Judge hearing those pre-trial applications found that there was

reasonable evidence that Harjit was involved in a joint criminal enterprise with

3 A claim that the Judge was wrong not to discharge without conviction was not pursued at hearing.

Gurchetan and that the statements in question were made by Gurchetan in furtherance

of that conspiracy.4 As such they were admissible against Harjit.

[19] That pre-trial decision was appealed. On appeal this Court held that

the pre-conditions for admissibility of the co-defendant’s statements were met and

the Judge was correct to rule the evidence of Gurchetan admissible against Harjit on

the basis of the co-conspirators rule.5 However, the Court recorded that:6

… the issue of the admissibility of this evidence is something that the District

Court judge who presides over the trial may need to revisit depending upon

how the evidence as to [Harjit’s] role emerges at trial.

[20] Mr Eaton accepts that the pre-trial ruling held that the recorded conversation

was admissible. However, he emphasises that it was a provisional ruling which was

to be reconsidered at trial and was not so reconsidered. The pre-trial ruling admitted

the evidence on the assumption that the Crown was alleging a conspiracy or joint

enterprise, saying the defendants “conspired to blackmail the complainant”.7

However, that was not the case by trial.

[21] Mr Eaton submits that a review of the minutes and rulings which were

subsequently issued show how the Crown case evolved. In a bench note issued on

23 November 2017 it was recorded that the case was being presented in reliance on

s 66(2) of the Crimes Act 1961.8 However, in a later bench note, the Judge said she

had erroneously reached that conclusion as the Crown was proceeding on the basis

the defendants were jointly charged as principals but wanted to leave open the

possibility of arguing s 66(2).9 Her final bench note recorded “There will be no

mention of s 66(2) or parties in the question trail … I do not understand that Crown

counsel will address on it.” However, that Judge still prepared a question trail which

referenced there being a common enterprise to blackmail the complainant.

4 R v Dheil [2016] NZDC 13850. 5 D (CA425/2016) v R [2016] NZCA 566, at [14]. 6 At [14]. 7 At [4]. 8 R v Dheil [2017] NZDC 26485. 9 R v Dheil DC Auckland CRI-2015-044-2727, 29 November 2017.

[22] When the charges were the subject of a retrial in 2018, the Crown case was

based on s 66(1) and not s 66(2) and the question trail only made reference to party

liability under s 66(1). Mr Eaton argues, therefore, that the Crown case changed from

a conspiracy or s 66(2) joint enterprise to a case based on s 66(1), without triggering

a reconsideration of the admissibility of Gurchetan’s evidence against Harjit.

Having abandoned an allegation of conspiracy or joint enterprise, the recorded

conversations became inadmissible hearsay evidence and the trial Judge should have

revisited the admissibility ruling.

[23] While Mr Eaton accepted that the co-conspirators’ exception is not limited to

cases where conspiracy is alleged in the indictment, he relied on the statement in R v

Messenger that:10

The co-conspirators exception cannot be extended to cases where individual

accused are charged with a number of separate substantive offences and the

terms of any common enterprise or conspiracy are not shown or are

ill-defined …

[24] In this case, by the time of the retrial, Mr Eaton submits that neither the Crown

nor the trial Judge made an attempt to define an alleged conspiracy or joint enterprise

and the admissibility of the recorded conversation should therefore have been

reviewed and ruled inadmissible. Its admission, Mr Eaton says, has “caused a

miscarriage of justice”.

[25] The Crown, however, submits that the available record of the trial does not

establish that defence counsel were under any misapprehension as to the nature of

the prosecution case, which was that Harjit and Gurchetan had agreed that Gurchetan

would convey the threat to Amrit to compel him to withdraw his ERA complaint.

Any confusion caused by the earlier rulings were corrected by subsequent minutes.

[26] In any event, reliance on the so-called “co-conspirators rule” is not limited to

cases in which the charges seek to prove liability under s 66(2), or by way of a

conspiracy. The co-conspirators rule is a rule of evidence, not a pathway to liability,

and once the pre-requisites for admissibility are met, the evidence may be used to

10 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [16].

establish liability. In this case there was no reason for the Judge to revisit the ruling

in the pre-trial judgment.

Discussion

[27] In this Court’s decision on the admissibility of the recording, the judgment set

out the evidence which satisfied the Court that the threshold for admission had been

met. These factors included that:11

(a) The complaint was against Harjit’s company (although he was no

longer a director of that company).

(b) There was a meeting between Gurchetan and Amrit following which

Amrit signed a letter withdrawing his employment complaint.

(c) There were frequent calls between Harjit and Gurchetan throughout

the meeting on 28 August 2014, although only one was made by Harjit

to Gurchetan.

(d) Amrit saw a text message on Gurchetan’s cell-phone from Harjit that

said “call me”.

(e) Harjit emailed the letter withdrawing the complaint to Gurchetan

during a meeting between Gurchetan and Amrit, even though

Gurchetan had no involvement in the employment complaint.

(f) There was significance in the timing of the confrontation, in that it

occurred just two days after a case management telephone conference

in relation to Amrit’s employment complaint had been vacated.

[28] Although this Court cautioned that the issue of its admissibility may need to

be revisited depending upon how the evidence as to Harjit’s role emerged at trial, there

was no material change to the Crown case, nor in the evidence which emerged in

11 D (CA425/2016) v R, above n 5, at [13].

support of it, from that relied on when making this ruling. There was therefore no

reason to revisit the pre-trial ruling.

[29] However, more importantly, there was no need in this case to rely on

the co-conspirators exception in s 22A of the Evidence Act 2006 (the Act) to

the hearsay rule. The Act defines a hearsay statement as a statement that:12

(a) was made by a person other than a witness; and

(b) is offered in evidence to prove the truth of its contents.

[30] Section 4 of the Act defines a “witness” as someone “who gives evidence and

is able to be cross-examined in a proceeding”. Statements made out of court are not

hearsay if the maker of the statement is a witness in the particular proceeding.

The rationale for the rule that hearsay statements are generally inadmissible, is that the

reliability of the maker of the statement cannot be tested through cross-examination.13

In the present case, though, both co-defendants gave evidence and were

cross-examined. Accordingly, anything relayed in the recorded evidence about what

Gurchetan or Harjit said was not a hearsay statement because they were witnesses in

the proceeding and could be cross-examined on it.

[31] For these reasons, we do not consider there was any miscarriage of justice

arising through the admission of the recorded conversations. There was also no need

for the Judge to direct on this issue.

Was other hearsay/opinion evidence admitted giving rise to a miscarriage of

justice because of a failure to direct?

[32] Harjit also submits that significant hearsay evidence was elicited in

the evidence given by Gurchetan in relation to the recorded conversation with Amrit

as to what his business partners, Pankaj and Roohi Gupta, said about both Amrit and

Harjit.

12 Evidence Act 2006, s 4(1). 13 Section 17.

[33] Mr Eaton submitted that the recorded conversation referred frequently to

“they” without identifying who “they” were. When Gurchetan was asked who the

“they” were who were “making allegations” he generally referred to the Guptas, and

it seemed that much of his understanding was obtained through them. For example,

he says:

[T]his is actually when Pankaj and Roohi spoke to me, they said that,

“Mr Dheil might put an allegation against you regarding theft and dishonesty.”

[34] At another point, he says “Pankaj was telling me that there’s a possibility

Mr Dheil may put an allegation … about … theft of alcohol and dishonesty”. Later he

goes so far as to say “I don’t know whether Pankaj and Roohi were telling me the truth

or not”.

[35] Mr Eaton argues that this evidence amounted to inadmissible and highly

prejudicial hearsay evidence.

[36] We accept that this was strictly hearsay evidence. However, as the Crown

points out, Harjit relied on his own evidence denying any involvement in the threats,

along with the evidence of Gurchetan which provided the counter-explanation as to

what he meant in the recorded conversations.

[37] Importantly, Harjit’s lawyer did not raise any issues with this evidence from

Gurchetan because that evidence was supportive of Harjit’s case. It provided an

explanation for the words used by Gurchetan that otherwise implicated Harjit as the

person who had asked Gurchetan to convey threats to the complainant. Indeed, in the

defence closing, specific reliance was put on this evidence, with Harjit’s lawyer

saying:

So when you look at the recordings and the timings and who’s “he”, “they”, I

suggest to you it’s just not Mr Harjit Dheil. Whatever else is swirling around

in the complex relationships between Mr Gurchetan Singh, Mr Amrit Singh

and other people connected with that business and whether or not

Mr Amrit Singh should carry on working there, it was nothing to do with

Mr Dheil.

[38] For that reason, it is unremarkable that the Judge did not warn the jury as to

the unreliability of the hearsay evidence given by the co-defendant, Gurchetan.

The evidence he gave about what the Guptas said was broadly consistent with

the defence case and relied on by the defendant to support his case.

[39] We accept, therefore, that it would not have been in Harjit’s interests for

the Judge to call into question this evidence and no miscarriage of justice has resulted.

Was the verdict acquitting Gurchetan but convicting Harjit logically

irreconcilable such that the conviction should be set aside?

[40] The appellant submits that the acquittal of Gurchetan was logically inconsistent

with Harjit’s guilty verdict, such that the guilty verdict ought to be set aside.

As the Supreme Court said in B (SC12/2013) v R:14

Where they deliver multiple verdicts which are not capable of logical

reconciliation, juries give some insight into their thought processes. Logically

irreconcilable verdicts may indicate that the jury’s thinking has gone awry in

some fundamental way: in particular, the jury may have acted on a

misunderstanding of the law or reached an illegitimate compromise. In such

circumstances, a court may feel it necessary to intervene in order to ensure

that justice is done, despite its respect for the jury’s function in the criminal

justice process.

[41] In Mr Eaton’s submission, the evidence given by Gurchetan, and which led to

his acquittal, also exonerated Harjit. Gurchetan denied knowing Harjit and denied

being asked by Harjit to make a threat. He asserted that he was acting at the insistence

of Amrit and it was Amrit who raised the possibility of sexual allegations and payment

of money. If that evidence led to Gurchetan’s acquittal, it should also have led to

Harjit’s acquittal. In addition, because the Crown case was, by trial’s end, that

the defendants were joint principals, there was no logical reason for the jury to reach

different verdicts for the two defendants.

[42] Furthermore, Mr Eaton says the trial Judge failed to direct the jury as to

the consequences of factual or legal findings in relation to Gurchetan when

considering the case against Harjit. Because the defence cases were inextricably

linked, the Crown case did not permit different verdicts and the Judge should have

directed accordingly.

14 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [67] (footnote omitted).

Discussion

[43] We consider that, as the Crown submitted, the different verdicts were

reasonably open to the jury and the Judge’s directions reflected this. After explaining

party liability as including anyone who “abets any person in the commission of the

offence”, the Judge distinguished between someone who is “just being a messenger”

and someone who is willingly passing on a threat “with the intent of assisting

the maker of the threat to influence Amrit”. Specifically, the Judge posed the question:

“Are you sure that Gurchetan Singh intended to be a party to the threat made to Amrit

Singh and was not just a neutral communicator of the threat?” He then directed the

jury that:

… if you are of the view that Gurchetan was a mere conduit and a passer-on

of messages and information, then you must find him not guilty. If you find

that he has adopted the threat and has willingly passed it on to Amrit with the

intent of assisting the maker of the threat to influence Amrit, then Gurchetan

Singh is not a neutral communicator.

[44] The distinction between a neutral communicator of a threat and someone who

is a party to making a threat was discussed in Marshall v R.15 In that case, a valuable

sculpture had been stolen and Mr Marshall communicated with the local newspaper

editor, and then with the owners of the sculpture themselves, saying that although he

had not stolen the sculpture, he knew who had it and he could help get it back.

However, this would require a payment of $10,000, failing which the sculpture would

be destroyed. On the Crown’s case, he was the active agent of the blackmailers

seeking to take a cut of the amount paid, whereas on the defence case, he was merely

a “middle man” passing on threats from the thief, with a view to assisting the owners

to retrieve their artwork.16 Similarly, in this case, the defence case for Gurchetan was

that he was a “neutral messenger” and if the jury could not be sure that he was not,

then they could not convict.

[45] We are satisfied that this was the basis on which the Judge put the position to

the jury and, notwithstanding the Crown’s case that they were co-defendants, there

was a logical basis on which Gurchetan could be acquitted and Harjit convicted.

15 R v Marshall [2007] NZCA 583. 16 At [17]–[18].

[46] The appeal on this ground fails.

Was the sentence inappropriate and manifestly excessive?

[47] Harjit was sentenced to 10 months’ home detention. Mr Eaton argues that

the sentence was both inappropriate and manifestly excessive. He argues that

sentencing proceeded on erroneous factual assumptions, saying the trial Judge

appeared to rely on the Crown’s factual summary based on Amrit’s formal written

statement, and not on the evidence adduced at trial.

[48] He points out that at [7] of the sentencing notes, the Judge said that throughout

the meeting Gurchetan was getting calls from Harjit. He submits that is not correct,

as the records show that Gurchetan was calling Harjit, and there was only one phone

call to Gurchetan from Harjit. In addition, at [9], the Judge states that Amrit was

vulnerable as he was reliant upon his employment and at that time “he was employed

with you for his immigration status” when in fact, at the time of the alleged offence,

Amrit was not working for Harjit.

[49] Mr Eaton also points out that there was no reference in sentencing to the fact

that Amrit had been exposed acting in a manner that justified termination of his

employment and he was worried about his immigration status regardless of any alleged

threat made by Harjit.

[50] Finally, in terms of mitigating factors, Mr Eaton submits that the offending was

spontaneous rather than planned as the defendants were said to have taken advantage

of a situation that presented itself of Amrit’s own misconduct. He also notes that Harjit

is a man of “impeccable character”.

[51] Given Harjit has already served a large part of his sentence (approximately

four months at the time of the hearing), if any additional punitive element were

deemed appropriate, then a financial sanction would be the least restrictive appropriate

sentence.

Discussion

[52] We are satisfied that the factual errors were not material to the sentencing

exercise. While it is correct that of the 10 communications and attempted

communications between Gurchetan and Harjit on the afternoon of 28 August, only

one call and one text message was from Harjit to Gurchetan, that does not change

the fact that there was a series of telephone communications between the two, which

was the material fact. As the Crown says, Harjit’s innocent explanation of the content

of those calls was rejected.

[53] The Judge’s comment that Amrit was vulnerable clearly referred to

the circumstances when the genesis of the employment complaint arose, which is

when a complaint was made to the Labour Department but not pursued. The Judge

acknowledged that the threat itself came at a later point in time, saying “he was then

later subjected to threats and demands made of him and those threats and demands

were successful”.17 Again, this does not demonstrate a material error.

[54] Turning to the sentence itself, the Judge took a starting point of two years’

imprisonment.18 Having regard to the facts of the offending and the sentencing

decisions reviewed in Blackwood v R, we consider that a starting point of two years’

imprisonment was appropriate.19 A number of the cases reviewed in Blackwood

involved threats to publish intimate photographs, which were not carried out, but

which attracted starting points of one to two years’ imprisonment. In this case,

the seriousness of the offence was aggravated by the fact that the sexual allegations

were being deliberately fabricated, and that this was threatened with the intention of

subverting the ERA process. This second factor aligns the offending with cases of

attempting to pervert the course of justice, where sentences of 18 months to three years

have been imposed for cases involving attempts to dissuade a person from giving

evidence.20 In this case, the threat did in fact cause Amrit to withdraw his complaint,

which must be reflected in the sentence imposed.

17 R v Dheil, above n 2, at [9]. 18 At [20]. 19 Blackwood v R [2018] NZCA 215. 20 Clutterbuck v R CA372/99, 17 November 1999.

[55] We are satisfied that a starting point of two years was well within range.

[56] We also reject the suggestion that the Judge failed to take into account that this

was a man of impeccable character. He clearly acknowledged Harjit’s previous good

character and good standing in the community.21 This resulted in a sentence of

10 months’ home detention being imposed rather than a prison sentence. We can see

no error in the sentence and the appeal against sentence is dismissed.

[57] Similarly, in light of this result, the refusal to grant name suppression cannot

be criticised.

Result

[58] The appeal against conviction and sentence is dismissed.

Solicitors: Crown Law Office, Wellington for Respondent

21 R v Dheil, above n 2, at [20].