Communication No. 791/1997*
Submitted by: Mr. Moti Singh
Alleged victim: The author
State party: New Zealand
Date of communication: 1 December 1996 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on: 12 July 2001,
Adopts the following:
Decision on admissibility
1. The author of the communication, dated 1 December 1996, is Moti
Singh, a New Zealand citizen, born on 13 March 1960 in Fiji, now residing
in Auckland. He claims to be a victim of violations by New Zealand
of articles 2, 7, 10, 14, paragraphs 1, 2, 3 (d), (e) and (g), and
5, 16, 23 and 26 of the Covenant. He is not represented by counsel.
Facts as submitted
2.1 On 22 December 1993, the author was charged with 66 charges of
tax fraud under the Income Tax Act 1976. He was also charged with
"theft by failing to account" under section 222 of the Crimes
Act 1961. (1)
2.2 On 8 June 1995, in the Otahuhu District Court, the author was
tried and convicted of 66 charges of tax fraud. The author's complaint
relates to the theft charges proceedings only.
2.3 The author made an application for legal aid in respect of the
theft charges, but was refused by the registrar of the Otahuhu District
Court on 24 January 1994. On 1 February 1994, the author appealed
this decision and legal aid was granted. However, the author still
had to pay
NZ$ 150 as a contribution.
2.4 Having been convicted on the fraud charges, the author was of
the opinion that he could not get a fair trial in the Otahuhu District
Court, he therefore asked his counsel to seek a change of venue for
the trial on theft charges. According to the author, the prosecutor
objected and the venue was not changed. (2) The author was
tried in the Otahuhu District Court on the theft charges, found guilty
on 6 July 1995 (after a hearing lasting eight days), sentenced to
nine months of periodic detention and ordered to make reparation of
2.5 On 10 August 1995, the author applied for legal aid to appeal
his conviction and sentence on the grounds that the judge was biased
and that he had not received a fair trial. On 4 October 1995, he was
informed that his request for legal aid had been denied, because the
grounds of appeal were "not substantial". The author appealed
against the registrar's decision but on 31 October 1995, a judge of
the Court of Appeal upheld the decision not to grant the author legal
aid. Nevertheless, the author still appealed his conviction and sentence
to the Court of Appeal. However, his case was dismissed on 24 July
3.1 The author makes the following complaints
Legal aid/inadequacy of counsel at the trial hearing/trial venue
3.2 The author states that although he received legal aid, he still
had to pay NZ$ 150 as a contribution to his defence. He claims that
as his first lawyer had impaired vision he could not prepare his case
adequately. Also, the lawyer subsequently assigned to him was not
a practitioner in tax law but criminal law and, therefore, could not
represent him adequately. In addition, he complains that he could
not choose experienced counsel, nor could he call expert witnesses
in view of the budgetary constraints. The author further complains
that as his request for a change of venue was not granted, his trial
Conduct of trial
3.3 The author states that at his trial, the judge pressured his counsel
to make him plead guilty because she found the evidence against him
overwhelming. Notwithstanding the alleged pressure he pleaded not
3.4 The author further argues that the judge breached her duty to
guarantee a fair trial by allowing the prosecution to proceed with
the six charges together in one indictment. According to the author,
the fact that these charges were not severed, prejudiced his trial.
He states that he
could not make an application for severance because of the financial
restraints under which he and his counsel were operating. Nevertheless,
he states that the judge always has a discretion to sever charges
in the interests of justice.
3.5 The author complains that the judge's attitude in general was
biased and that she had a "profound hatred" towards him
and his counsel because of their colour. The author claims that the
judge hindered him in explaining his case in full, and that his counsel
was prevented from effectively cross-examining the main witness for
the prosecution. The author also claims that the judge's "body
language" must have influenced the jury.
3.6 As further evidence of the judge's bias against him, the author
refers to the sentencing notes in which the judge states, "the
taxpayer was put to the expense of a two week trial on matters which
in my view were totally indefensible". The author also complains
that the judge told his counsel that, if the author were not to pay
his NZ$ 150 contribution toward legal aid, this would be deducted
from his counsel's fee.
3.7 The author states that his counsel became demoralized because
of the judge's attitude and wished to withdraw at the end of the trial,
but the judge refused to grant him leave to withdraw. The author argues
that this deprived him of proper representation.
3.8 The author takes issue with the attitude of Crown counsel at the
trial. He states that after he refused the prosecution's offer of
plea-bargaining, Crown counsel informed counsel for the defence that
he would strive to obtain convictions on all six counts. According
to the author, this was calculated as "an emotional attack"
on his counsel to intimidate and demoralize him. The Court of Appeal
dismissed his appeal on this ground without calling his former counsel
as a witness. According to the author, this constitutes a violation
of article 14 (3) (e).
3.9 The author further complains about the alleged emotive and inflammatory
language used by Crown counsel in his address to the jury. He claims
that the way Crown counsel cross-examined him was highly prejudicial
to his case; as he was compelled to answer self-incriminating questions
and was insulted by him. Finally, he complains that the prosecutor
tried to influence the judge with regard to the sentencing.
3.10 The author further alleges that an agreement between Crown counsel
and the defence was breached by the Crown. According to the agreement,
the Crown would only refer to the six counts of theft and not make
reference to the 66 summary convictions on tax fraud. When the Crown
counsel began to introduce precluded evidence, the author's counsel
objected stating that such matters were inadmissible as they were
in breach of the agreement. His objection was overruled by the judge.
The author states that this was prejudicial to his defence. On appeal,
the Court of Appeal found no merit in the author's complaint, since
the agreement was sufficiently broad to allow the matters put by the
Hearing of witnesses
3.11 The author states that he could not call a certain Mr. Kumar
as defence witness, because the individual concerned had been removed
from New Zealand on 8 May 1993. He claims that this witness could
have contradicted evidence given by prosecution witnesses and would
have created serious doubts about the credibility of the testimony
given by the main prosecution witness. On appeal, he filed an affidavit
which the Court of Appeal considered did not constitute a basis to
overturn the author's convictions.
3.12 He further contends that the main prosecution witness, lied in
Court, and implies that the State's law enforcement and prosecuting
agencies regularly resort to producing false evidence in order to
3.13 He alleges that a second witness for the prosecution, a Mr. Chandra,
lied in court when he denied that the author assisted him in immigration
matters and that counsel was not allowed to put copies of letters
relating to the immigration matters to the witness. According to the
author, these documents would have raised doubts as to the credibility
of the witness, and the judge's ruling thus violated his right to
an effective defence.
3.14 The author further argues that the evidence of one witness, who
died before the beginning of the trial, should not have been allowed.
He explains that the witness was dying of AIDS when his statement
was taken from him. He argues that the witness was not fit to give
a statement, since one day earlier he had not been fit to attend an
interview. He further contests that the statement was voluntary. However,
after a voire dire the judge allowed the statement.
Summing-up and sentencing
3.15 The author claims that the summing-up by the judge to the jury
was unfair and favoured the prosecution's case.
3.16 As to the sentencing, the author complains that the judge made
all sorts of disparaging remarks, and in particular he complains that
she recommended the Crown to send a copy of her sentencing remarks
to the New Zealand Society of Accountants and the Divisional Director
of the National Institute of Accountants, in order to prevent him
from continuing practicing as an accountant. The author, explaining
that his disabled mother is dependent on him, claims that this constitutes
a violation of article 23 (1) of the Covenant. The author further
complains that the sentence was excessive and that he is unable to
pay the reparation ordered. He claims that compared to similar cases,
his sentence was most severe and again argues that this was because
he is black. In this context, he also complains that white defendants
are able to hire experienced counsel, whereas black offenders have
to accept legal aid representation thereby limiting their chances
of acquittal or of a mild sentence. This is said to amount to a denial
3.17 The author claims that the judge's bias against him was grounded
in her prejudice against black defendants in general. He refers to
several decisions made by the judge purportedly showing her prejudice.
In this context, he mentions that his defence counsel (who was also
black) told him to engage a white lawyer for the submissions on sentencing
in order to escape
prison. The author further states that the Otahuhu District Court
is well known for "its ease in securing convictions". The
author also complains about the quality of the judiciary in New Zealand
3.18 The author maintains that the refusal of legal aid to conduct
his appeal violated the interests of justice and discriminated against
him on the basis of race, colour and other status. The author challenges
the correctness of the decisions rendered by Court of Appeal judges,
since more than 52 per cent of their decisions have been overturned
by the Privy Council in the past, and claims that a judge's estimation
that the grounds for appeal are not substantial is thus not necessarily
correct. He further claims that by refusing him legal aid on the grounds
that the appeal had no merit, the Court showed prejudice against him,
in violation of article 26. He also argues that as he had received
legal aid for his District Court hearing he had a "legitimate
expectation" that he would be accorded it for his appeal. Referring
to the discretion the registrar has in allowing/declining legal aid,
the author states that the system is open to abuse with black minorities
like himself always being refused legal aid. Moreover, he alleges
that the registrar's refusal to grant him legal aid was mala fide
because inter alia, he was "predetermined" to refuse it,
he gave the author very little time to file his documents and used
a malicious "tone" in his correspondence with him. He also
claims that his review application was not examined properly as it
was decided within two working days.
3.19 The author further complains that the judge at the Court of Appeal
was biased against him and interrupted him rudely when he made a mistake
thereby affecting his mental ability to argue his appeal. He states
that the appeal was a farcical exercise and that the outcome was predetermined,
as shown also by the refusal to grant him legal aid. Moreover, one
of the appeal judges had previously sat in his appeal on the tax fraud
charges (4) and, according to the author, should have disclosed
his prior involvement in the author's case and stepped down as judge
at the Court of Appeal hearing. The author explains that he did not
bring this issue up during the appeal as he was afraid to be found
in contempt of court. He further states that this judge is "notorious
for making ill-considered remarks during sentencing of offenders who
are either immigrants or aboriginal Maori people". In general,
the author complains that the judiciary is predominantly white to
the detriment of black defendants.
3.20 The author explains that he is serving his sentence by reporting
to a detention centre every Saturday where he is then detained for
eight hours and forced to do manual labour regardless of weather conditions.
This is said to amount to a violation of articles 7 and 10 of the
Covenant. In this context, he submits that there is only a portable
"pit" toilet at the work site for 8 to 10 detainees and
that no soap or detergent is provided. Further, he complains that
the food served is insufficient, of bad quality and prepared under
unhygienic conditions. He states that he is only given a cup of tea
mid-morning and a cheese and pork sandwich for lunch. He further complains
that despite the heavy manual labour, no safety gear or protective
clothing is provided and that detainees have to buy their own safety
shoes. He further claims that he has contracted a severe skin infection
on his hands from wearing gloves, provided by the prison, but which
were used by other detainees before and not disinfected.
3.21 He further claims that his mother is a victim of a violation
of article 7 of the Covenant, since the State party's acts have caused
her anguish and suffering and since he is not able to care for her
during the eight hours he spends in detention each week.
Observations by the State party on admissibility and the merits
4.1 The State party submits that all the author's allegations are
inadmissible on the basis of either incompatibility with the Covenant,
failure to substantiate, or non-exhaustion of domestic remedies. In
the event that the Committee consider any of the allegations admissible
the State party contends that they fail for reasons of non-substantiation
on the merits.
4.2 On a general basis the State party notes that most of the allegations
relate to matters pertaining to the District Court trial which have
already been dealt with and dismissed by the Court of Appeal. The
State party refers to the Committee's jurisprudence that it is for
the appellate courts of States parties and not the Committee to evaluate
the facts and evidence of a particular case unless the proceedings
are found to be manifestly arbitrary or to constitute a denial of
justice. Accordingly, most of the matters raised in this communication
are outside the scope of the Committee.
Legal aid/inadequacy of counsel at the trial hearing/trial venue
4.3 The State party contends that the author had effective representation.
It states that the author's suggestion that the registrar deliberately
assigned the author a blind lawyer is untrue and that all legal aid
lawyers are assigned on a rotation basis from a roster. It states
that a contribution towards legal aid is not an infrequent practice
and that the amount would not have caused the author any hardship.
In addition, it states that the author could have sought a review
of the registrar's decision on the contribution but as he failed to
do so domestic remedies in this regard have not been exhausted.
4.4 On the issue of the trial venue, the State party contends that
the author has not exhausted domestic remedies as he failed to apply
to the District Court judge under section 28 (d) of the District Courts
Act 1947 and section 322 (1) of the Crimes Act 1961 for a change of
Conduct of trial
4.5 With respect to the author's allegations on the conduct of the
trial, the State party contends that all these issues, including the
alleged bias of the trial judge, the alleged impropriety of the trial
judge in raising the possibility of a guilty plea, and the reference
by the judge that legal aid funds were being used unnecessarily, were
dealt with in full by the Court of Appeal and that the author has
failed to substantiate his claim. In this regard the State party highlights
some of the reasons given by the Court of Appeal in coming to its
decision. (5) In addition, on the issue of the judge's refusal
to allow counsel to withdraw, the State party points to the judgement
of the Court of Appeal stating that it was appropriate for the trial
judge to seek to dissuade counsel from withdrawing at such a late
stage in the trial (several days hearing into the trial) and that
there is nothing in the record indicating counsel's application for
4.6 On the issue of the prosecution's conduct, the State party contends
that the majority of these issues were examined by the Court of Appeal
and again quotes from the judgement. (6)
4.7 In relation to the alleged violation of article 14, paragraph
3 (c) by the courts, failure to allow the author to call his former
counsel to give evidence, the State party contends that the author
has not exhausted domestic remedies. Apparently, a letter was sent
from the deputy registrar to the author, dated 10 July 1996, setting
out the procedure the court should follow in arranging the examination
of the author's counsel. The author did not follow-up on this letter.
If he did not actually receive this letter, he should have attempted
to follow it up with a telephone call.
4.8 Similarly, the State party claims that the author failed to exhaust
domestic remedies in relation to the court's refusal to sever the
charges on the indictment. As the author himself admitted, it was
open to him to apply to the Court to do so. The State party contends
that on the issue of the prosecution's alleged breach of the agreement
between it and the defence, the State party argues that this issue
was dealt with in full by the Court of Appeal and dismissed. (7)
Hearing of witnesses
4.9 On the matter of the hearing of witnesses the State party contends
that these issues, in their entirety, were dealt with not only by
the trial judge but also by the Court of Appeal and refers to the
latter's judgement in this respect. (8) In relation to the
allegation that one of the witnesses lied during the trial, the State
party adds that the author failed to put this matter to the Court
of Appeal and therefore has not exhausted domestic remedies in this
Summing-up and sentencing
4.10 The State party contests the author's allegations on the issue
of the judge's summing-up. On the issue of sentencing and the judge's
invitation to the prosecution to inform the New Zealand Society of
Accountants of the conviction, the State party claims that this is
not an infrequent practice. It was, in the State party's view a prudent
and reasonable course of action as it was reasonably apparent on the
facts of the case that the author may attempt to act in the same way
4.11 On the issue of racial discrimination, the State party notes
that the author did not raise this issue at any time at the Court
of Appeal and therefore has not exhausted domestic remedies nor has
he substantiated this claim. In addition, it is argued that the alleged
excessive nature of the sentencing was brought before the Court of
Appeal and dismissed.
4.12 On the question of refusal of legal aid for the appeal the State
party contests all the allegations made by the author. In particular,
and in relation to the author's claim that the decision was unjust,
it describes the procedure in detail whereby the author's application
was examined by the registrar and subsequently independently examined
by four judges of the Court of Appeal. On the issue of the registrar's
alleged male fide, the State party claims that the author has failed
to substantiate this allegation. In addition, the author's submission
on this issue was dismissed by the Court of Appeal which noted "the
grounds of appeal put forward were not enough to justify it, and that
it had been considered by three judges of the Court of Appeal"
when the appeal was considered on the merits.
4.13 The State party argues that it fulfilled its obligations under
article 14, paragraph 3 (d) of the Covenant in light of the following:
(a) That assessments were made independently by four judges of the
Court of Appeal and that the interests of justice did not require
that legal aid be accorded to the author for his appeal;
(b) That those preliminary assessments indicated that the grounds
for appeal were not substantial;
(c) That the District Court sentence being appealed against was not
in the upper category of severity: no sentence of incarceration was
imposed (but only a moderate term of periodic detention), and although
the author was ordered to make reparation of a sum of misappropriated
moneys, no monetary fine additional thereto was levied;
(d) That the author was competent enough to prepare and argue his
case on appeal to the extent that in its judgement the Court of Appeal
commended his "careful, thorough and helpful written submissions
and the responsibly made oral submissions to supplement them".
4.14 Furthermore, the State party argues that the author was not without
means to pursue his appeal, that he privately engaged a lawyer to
act for him and that the lawyer was under instructions from him from
24 October 1995 until mid-June 1996, i.e. for most of the period between
the initial lodging of his appeal in mid-August 1995 and the hearing
of his appeal on 23 July 1996.
4.15 On the author's argument that one of the judges who had previously
been involved in the appeal on tax fraud charges should not subsequently
have been involved in the legal aid decision, the State party submits
that there are only a small number of Court of Appeal judges and that
therefore the situation is not always avoidable. If a judge were to
make a decision based on such reasoning, it would be contrary to his
judicial oath. In addition, the State party argues that the author
could have challenged the participation of the judge in question at
the outset of the hearing. It is difficult, according to the State
party, to accept the view that the author feared that he would be
held in contempt of court since no such issue would have arisen. Thus,
the author has failed to exhaust domestic remedies in this regard.
4.16 In response to the author's allegation that the decision was
"pre-determined", the State party refers to the fact that
several hours were devoted to this case and that the 20-page judgement
of the Court of Appeal is very detailed and comprehensive.
4.17 On the issue of the conditions of detention, the State party
explains in great detail the regime in place. As the island on which
the detention takes place is a reserve, it is not possible to maintain
a permanent toilet installation and a different type of facility had
to be adopted. This toilet, which has met the requirements of the
City Council, is fully enclosed, has proper seating, and lime is use
in the "pit" to dispense with unpleasant odours. This is
common practice with this type of toilet.
4.18 The State party contests that no soap or detergent is provided
for and states that, in addition, each individual receives a towel.
All these supplies are checked weekly and replenished when required.
The detainee responsible for the preparation of food is issued with
a pair of "food processing gloves" which he must wear at
all times when handling food. This is closely monitored by a Work
Party Supervisor. The State party describes in detail the rations
of food provided to each detainee and contests that it is insufficient.
It also states that the author never asked to receive special food
in line with any religious or ethnic factors, yet he could have done
4.19 The State party contests that all tasks involve heavy labour.
As to safety, all work sites are inspected by the Probation Officer
before any work party is sent out to the site. During this inspection,
health and safety guidelines are used in the inspection process. Where
it is clear that protective equipment/clothing is necessary, this
equipment is supplied to the Work Party Supervisor. Not all sites
require protective clothing. The State party contests that detainees
are expected to purchase protective clothing but states that it is
supplied by the Period Detention Centre. It also states that footwear
is provided to those who cannot afford to purchase their own and detainees
may also use their own gloves if they wish. The State party also remarks
that at no stage did the author inform or produce a medical certificate
to any of the Centre staff regarding a skin infection. Nor did any
of the staff receive verbal or written complaints from the author
regarding these matters.
4.20 On the allegation of a violation of articles 7, 10 and 23 in
relation to the author's mother, the State party contends that such
a complaint could be lodged personally by his mother. However, on
the merits, it states that the author attends the Centre only 8-10
hours each week and that both the author and his mother receive benefits
from the State in relation to her illness.
The author's reply to the State party's submission
5.1 In his response, the author reiterates the arguments made in his
initial communication. To the State party's argument that it is not
for the Committee to evaluate facts and evidence, the author argues
that the jurisprudence of the Committee can and should be revised
and that, in any event, the proceedings were arbitrary and manifestly
unfair. In this context, the author claims that the decision of the
Court of Appeal was "subjective" and provides no legal authority
to support its findings. He reiterates the fact that he was not represented
and was no match for the Crown counsel.
5.2 To the State party's argument that he had not exhausted domestic
remedies in respect of several of the violations, the author responds
that this was his counsel's responsibility and he should not be penalized
for his counsel's error. Furthermore, and in response to the same
argument by the State party on issues relating to his appeal, the
author argued that he could not be expected to be aware of possible
domestic remedies as he had no legal representation.
5.3 The author contests the State party's explanation on the system
of assigning legal aid counsel from a roster. (9) On the issue
of the change of venue, he argues that this is at the discretion of
the judge and that the remedy "is not available and would not
have been effective".
5.4 The author states that only three hours were devoted to his appeal
and that this was insufficient time to demonstrate that he had received
a fair hearing. He claims to have substantiated his allegations of
discrimination in his reference to four different cases in which the
same trial judge presided and which he alleges demonstrate her prejudice.
He states that the domestic remedy alleged by the State party to have
been open to the author was neither available, effective nor sufficient.
5.5 The author reiterates his claim in relation to the summing–up
and sentencing and provides information on domestic cases, which he
claims were similar to his and in which the individuals concerned
received lighter sentences. On the issue of the judge's decision to
bring the author's conviction to the attention of his professional
body, the author states that the State party has not provided any
examples of instances when this was done before and therefore failed
to substantiate their argument.
5.6 The author rebuts the State party's explanation on the refusal
of legal aid and claims that it has not provided any evidence to demonstrate
that his application was examined by four judges of the Court of Appeal.
The author claims that the reason he was refused legal aid was on
the basis of the costs of such an appeal. The consideration of the
costs of the appeal as a precondition to granting it is, in the author's
view, "illegal" and a clear violation of article 14, paragraph
3 (d) and 14, paragraph 5.
5.7 The author contests the State party's explanation on the conditions
of detention. He says that he and other detainees had complained on
many occasions about the insufficient amounts of food provided but
that nothing was done. He says that he told the wardens verbally and
several times in writing about his cultural beliefs and that he could
not eat beef. However, he continued to be provided with it in his
meals. (10) He also claims to have told the wardens about his
skin infection and to have supplied them with medical certificates.
(11) In addition, he claims to have received punishment for
minor things like talking to other detainees and was "hooded,
forced to remain standing for 10 hours, and subjected to verbal abuse
having racial connotations". (12)
5.8 The author confirms that he is receiving social security but that
he only began to receive it after he lost his part-time job upon conviction.
This does not, he claims, allow the State party to avoid its responsibility
to protect the family.
Issues and proceedings before the Committee
6.1 Before considering any claims in the communication, the Human
Rights Committee must, according to article 87 of the rules of procedure,
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
6.2 On the issue of the contribution the author had to pay towards
the cost of legal representation for the District Court trial hearing,
the Committee notes that the author did not seek a review of the registrar's
decision in this regard and therefore considers that the author has
failed to exhaust domestic remedies. Thus, this claim is inadmissible
under article 5, paragraph 2 (b) of the Optional Protocol.
6.3 Similarly, on the issue of the trial venue, the Committee notes
that, the author failed to apply to the District Court judge for a
change of venue and therefore has failed to exhaust domestic remedies.
Thus, this claim is inadmissible under article 5, paragraph 2 (b)
of the Optional Protocol.
6.4 In relation to the alleged violation of article 14, paragraph
3 (c) for failure to allow the author to call his former counsel as
a witness at the Court of Appeal hearing, the Committee notes that
the author did not follow the required procedure to allow his counsel
to give evidence and therefore failed to exhaust domestic remedies.
Thus, this claim is inadmissible under article 5, paragraph 2 (b)
of the Optional Protocol.
6.5 On the issue of the court's refusal to sever the charges on the
indictment, the author himself admitted that he failed to apply to
the court to do so and therefore has not exhausted domestic remedies.
Thus, this claim is inadmissible under article 5, paragraph 2 (b)
of the Optional Protocol.
6.6 With respect to the allegation that one of the witnesses lied
during the trial, the Committee notes that the author did not put
this matter to the Court of Appeal and therefore has failed to exhaust
domestic remedies. Thus, this claim is inadmissible under article
5, paragraph 2 (b) of the Optional Protocol.
6.7 On the issue of the alleged violation of article 26 of the Covenant,
on the basis of the author's skin colour, the Committee notes that
the author did not raise this issue at any time before the Court of
Appeal and therefore has not exhausted domestic remedies. This claim
is therefore inadmissible under article 5, paragraph 2 (b) of the
6.8 On the issue of the participation of a judge at the Court of Appeal
who had previously been involved in the appeal on tax fraud charges,
the Committee notes that the author did not challenge the participation
of the judge during the hearing. This claim is therefore inadmissible
for failure to exhaust domestic remedies under article 5, paragraph
2 (b) of the Optional Protocol.
6.9 With regard to the allegation that the representation the author
received during the District Court trial was not effective and thus
not in accordance with article 14, paragraph 3 (d), the Committee
considers that the mere fact that the author's first lawyer was visually
impaired and his second lawyer not a practising tax lawyer is not
sufficient to demonstrate that they were ineffective within the terms
of the Covenant. The Committee considers, therefore, that the author
has not provided sufficient information to substantiate this claim
for the purposes of admissibility. This claim is therefore inadmissible
under article 2 of the Optional Protocol.
6.10 In respect of the claim that the refusal to grant the author
legal aid for his appeal constituted a violation of article 14, paragraph
3 (d) and paragraph 5, of the Covenant, the Committee notes that the
author's request was examined by the registrar and subsequently by
four judges of the Court of Appeal who concluded that the interests
of justice did not require the assignment of legal aid. The Committee
is of the view that the author has not sufficiently substantiated
his allegation to the contrary, for purposes of admissibility, and
this claim is inadmissible under article 2 of the Optional Protocol.
6.11 The Committee notes that the author's remaining claims under
article 14 of the Covenant essentially relate to the evaluation of
facts and evidence as well as to the implementation of domestic law.
The Committee recalls that it is in general for the courts of State
parties, and not for the Committee, to evaluate the facts in a particular
case and to interpret domestic legislation. The information before
the Committee and the arguments advanced by the author do not show
that the Courts' evaluation of the facts and their interpretation
of the law were manifestly arbitrary or amounted to a denial of justice.
These claims are therefore inadmissible under articles 2 and 3 of
the Optional Protocol.
6.12 In relation to the alleged violations of articles 7 and 10 suffered
by the author's mother as a result of the author's detention, the
Committee observes that under article 2 of the Optional Protocol,
it is the alleged victim himself or herself who has standing to submit
a communication to the Committee. Further, even disregarding the fact
that the author's mother has not submitted
a communication, the Committee considers that the author has failed
to substantiate these claims for the purposes of admissibility. This
claim is therefore inadmissible under article 2 of the Optional Protocol.
6.13 With respect to the alleged violations of articles 7 and 10 of
the Covenant suffered by the author as a result of the conditions
during his eight-hour weekly work programme, the Committee is of the
view that the allegations raised are not sufficient to establish a
claim under article 7 or 10 of the Covenant. The same is true of the
additional claims referred to in paragraph 5.7 which were subsequently
brought forward by the author. These claims are therefore inadmissible
under article 2 of the Optional Protocol.
7 The Committee therefore decides:
(a) That this communication is inadmissible under articles 2, 3, and
5, paragraph 2 (b) of the Optional Protocol;
(b) That this decision shall be transmitted to the State party and
to the author.
** The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Maurice Glèlè Ahanhanzo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David
Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Rafael
Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer,
Mr. Hipólito Solari Yrigoyen, Mr. Ahmed Tawfik Khalil, Mr. Patrick
Vella and Mr. Maxwell Yalden.
[Adopted in English, French and Spanish, the English text being the
original version. Subsequently to be translated also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General
1. It appears that the author was accused of filing false tax returns
in the name of his clients, most of them friends and relatives, and
of subsequently keeping the refunds paid by the Inland Revenue in
a bank account in his name and in the name of another relative. The
author states that the money was deposited there in order to help
this relative with immigration matters. Moreover, he states that he
also did immigration work for many of his clients and that he deducted
the fee from the tax refunds.
2. There is no trace of any request for change of venue, nor of Prosecution's
objection, in the documents submitted by the author.
3. In his initial submission the author did not always relate the
alleged violations to any particular articles of the Covenant. In
his response to the State party's submission he acknowledges this
and claims that his communication relates to allegations of articles
2, 7, 10, 14, 23, and 26.
4. His appeal in this regard was dismissed.
5. For example, "We do not consider there is any substance in
these submissions. It is not unusual for a judge to raise the possibility
of a guilty plea. Any comment about the use of legal aid funds does
not necessarily indicate bias. Nor does any order relating to the
appellant's contribution, apparently intended to ensure that his contribution
was met and he made this up to his counsel".
6. In the decision of the Court of Appeal the following remark was
made, "The appellant submitted that counsel for the Crown acted
improperly in a number of respects. The appellant claims that he was
told by Mr. Chand that when counsel for the Crown offered to drop
the charges in respect of counts 2 and 5 if the appellant pleaded
guilty to the remaining and the
appellant refused, Crown counsel said that he would 'strive for a
conviction'. Quite apart from this being hearsay evidence, such a
statement made between counsel could hardly amount to misconduct."
7. The State party quotes from the Court of Appeal decision as follows:
" We do not accept this submission. Under the agreement the Crown
was entitled to lead the witnesses any 'evidence that relates to returns
which relate only to the counts in the indictment'. So as long as
the evidence related to the returns, it was within the agreement.
The evidence to which the appellant now objects is in that category."
8. One of its remarks was as follows " However, there must be
significant doubt about Mr. Kumar's credibility. Had he been available
to give evidence he would have faced cross-examination on the statement
that he gave Mr. Hudson. He would have been forced to admit that he
lied to Mr. Hudson. Even allowing for his explanation for these lies,
that must throw considerable doubt on the credibility of the evidence
contained in his affidavit. Even if some credibility is to be given
to it, it would not, in our view, be sufficient to justify setting
his conviction on count 2 relating to Mr. Puni, still less in respect
of the other counts."
9. The author provides an affidavit from Mr. Sharma (his former lawyer)
on this issue.
10. The author provides copies of these letters of complaint.
11. No written documentation is provided in this regard.
12. This allegation was not mentioned in his initial communication
and the author provides no further information on this point in the