Appellant. THE QUEEN Respondent. Miller, Ronald Young and Clifford JJ JUDGMENT OF THE COURT REASONS OF THE COURT. (Given by Miller J)

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA790/2013 [2014] NZCA 106 BETWEEN AND UGESH DUTT Appellant THE QUEEN Respondent Hearing: 4 March 2014 Court: Counsel: Judgment: Miller, Ronald Young and Clifford JJ M I Koya for Appellant M E Ball for Respondent 28 March 2014 at am JUDGMENT OF THE COURT The appeal is dismissed. REASONS OF THE COURT (Given by Miller J) [1] This appeal against conviction concerns two charges, both of wilfully attempting to pervert the course of justice, of which Mr Dutt was convicted after a jury trial in the Manukau District Court before Judge Field. 1 [2] Mr Dutt assaulted his wife on 5 December He pleaded guilty to this offence, but not until 21 September On his account, which appears to have 1 We record that no grounds were advanced in respect of the appeal against sentence. DUTT v R CA790/2013 [2014] NZCA 106

2 been accepted when sentencing him on the assault, the offence consisted of putting his hand over her mouth to stifle her cries. On her account, which was given at his trial on the present charges, the offence was rather more serious; she said that he grabbed her as she tried to leave the family home, dragged her along the driveway by her hand and, an attempt to silence her screams, forced his hand into her mouth with sufficient force to cause slight bleeding. [3] The first of the two charges with which we are now concerned arose out of the complainant s attempt to withdraw her complaint of assault shortly after she disclosed to Mr Dutt that she had gone to the police. [4] She went to the police station on 14 December 2010 with a handwritten letter stating that she wished to withdraw the complaint. Her evidence was that although this letter was written in her own handwriting she had copied it from a letter written by Mr Dutt, who had pressured her to withdraw the complaint. She reported that she had delivered the letter to the police, but Mr Dutt demanded that she obtain a receipt. When she went to the police station for the receipt on the following day she was told that the complaint could not be withdrawn. [5] That evening the complainant was given a typed declaration to sign. It was handed to her by Mr Dutt s mother, but he was present. The declaration stated that her complaint was false; she had made it up to get a protection order against Mr Dutt. It also stated that he had never ill-treated, harassed or assaulted her in any way and that he was a caring husband and father. With one amendment, which was made by Mr Dutt on his computer, the complainant signed the declaration on 16 December 2010, believing that it would bring an end to her complaint to the police. Mr Dutt was charged with perverting the course of justice by having her make the declaration. [6] The second charge arose out of Mr Dutt s use of the same declaration on 21 December 2010 when seeking Family Court orders preventing removal of the couple s child from New Zealand and giving him responsibility for parenting the child. He was charged with perverting the course of justice by filing the declaration in court in support of these applications.

3 [7] The complainant gave evidence at the trial, as did Mr Dutt. She was not sure that Mr Dutt had typed the declaration, but the Crown invited the jury to draw the inference that he did; he had a computer in his room, he amended the declaration after she objected to part of it, and he had better English than the complainant. Mr Dutt denied typing the declaration. He accused the complainant of typing the declaration herself, and his brothers claimed to have seen her doing it. He admitted that his lawyers filed it in the Family Court, but said that he did not know his actions on 5 December amounted to an assault, so believed it to be true. Count 1 [8] With respect to the first charge, Mr Dutt complains that there was no course of justice to pervert at the time, 2 for the police had not even commenced an investigation, that the Crown failed to prove that pressure was put on the complainant to withdraw her complaint, and that the verdict was accordingly unreasonable. [9] With respect to the first of these complaints, we observe that defence counsel at the trial (not Mr Koya) conceded that there was a course of justice in existence when the complainant tried to withdraw her complaint. The trial Judge accordingly directed the jury that this element of the offence was not in issue. When we pointed out to Mr Koya that there had been no allegation of trial counsel error he invited us to adjourn so that evidence might be filed. [10] However, we have not found it necessary to take that course. We accept Ms Ball s submission that while course of justice refers to criminal proceedings in a court and a police investigation does not of itself amount to a course of justice, the offence may be committed where an offender takes steps to adversely affect criminal proceedings that he or she contemplates may follow. 3 The offence is aimed at conduct designed to prevent a court from doing justice. It is not necessary that the police should first have done anything in response to a complaint. This element of the offence was made out. 2 3 Crimes Act 1961, s 117(e). McMahon v R [2009] NZCA 472 at [47] citing with approval R v Rogerson (1992) 174 CLR 268; R v Meyrick CA513/04, 14 June 2005 at [42].

4 [11] So far as the element of pressure is concerned, Mr Koya emphasised that in her evidence in chief the complainant said that the decision to withdraw the complaint was hers. Further, she did not sign the declaration as originally presented to her; she insisted on changes, which were duly made. She signed the declaration in the presence of a Justice of the Peace, unaccompanied by the appellant. Counsel also argued that the complainant s evidence was inconsistent and unreliable. [12] However, there was strong evidence that the complainant was indeed placed under considerable pressure to withdraw, and that the pressure was applied by the appellant and his mother, acting in concert. At sentencing, Judge Field characterised the evidence as quite clear. 4 We agree. The jury were entitled to accept that Mr Dutt s anger caused the complainant to withdraw the complaint, that he wrote the letter that she copied and gave to the police, that he demanded she get a receipt, and that he typed the declaration, the language of which was aptly described by Ms Ball as self-serving. His actions were directed to ensuring that she precluded criminal proceedings by withdrawing her complaint about the assault that he had committed on 5 December. Count 2 [13] With respect to the second charge, Mr Dutt complains that there is no evidence that he knew the declaration was false, or that he was responsible for his lawyers filing it in the Family Court proceedings, and further that the verdict was unreasonable. [14] In argument Mr Koya conceded that the second of these grounds lacked merit, for Mr Dutt used the declaration in the Family Court proceedings. His application to the Court had the declaration attached. [15] So far as Mr Dutt s knowledge and the reasonableness of the verdict are concerned, the jury were not required to accept his account of the assault as a momentary pressing of his hand on the complainant s mouth to quieten her. The jury evidently found her a credible witness. Nor were they required to accept his 4 R v Dutt DC Manukau CRI , 11 November 2013.

5 evidence that he did not realise that his conduct amounted to an assault. The inference was plainly open that he knew the declaration was false, not only because of the nature of the assault but also because of the efforts he made to have her withdraw her complaint. A guilty verdict on count 2 almost inevitably followed the verdict on count 1. Decision [16] The appeal is dismissed. Solicitors: Crown Law Office, Wellington for Respondent