Employer who blackmailed ex-worker with fake sex claim challenges admissibility of phone recording

The Supreme Court turned away a final legal challenge in the blackmail case. Photo / File

A man who threatened to frame his former employee for sexual misconduct has lost his latest legal battle after challenging the admissibility of a phone recording.

Harjit Dheil and Amrit Singh (Amrit) were embroiled in an employment dispute which led to blackmail.

In early 2014, Amrit's wife raised concerns about the number of hours her husband was working without pay. However, Amrit, a migrant worker, feared losing his job because his visa was restricted to Dheil's company Dheils Ltd, which owned the North Shore sports bar he worked at.

But in June 2014, Dheils Ltd sold the bar and Gurchetan Singh (Gurchetan), who would also later be charged with blackmail, became one of its directors.

Feeling he was no longer at risk of losing his job, Amrit made a formal complaint about his former employer to the Employment Relations Authority.

An unsuccessful mediation followed in August 2014.

Two months later, however, a drunk woman flirted with Amrit before assaulting him at the bar. She was arrested and some of what transpired was caught on CCTV.

Dheil used this incident to threaten Amrit that the woman would be paid $10,000 to make a sexual misconduct claim against him unless he withdrew the employment complaint.

The Crown alleged Gurchetan, acting at the request of the Dheil, conveyed the threat Amrit.

Gurchetan was later acquitted at trial.

A letter was then drafted by Dheil and emailed to Gurchetan for Amrit to sign.

The letter said Amrit had resolved his employment complaint with Dheils Ltd and at the end of a discussion with Gurchetan, Amrit signed it, court documents read.

Amrit, however, had recorded some of the conversation on his mobile phone.

Before Dheil and Gurchetan went to trial they unsuccessfully challenged the admissibility of the recording at the Court of Appeal.

But, in its judgment, the court said the recording's admissibility may need to be revisited at trial.

The first trial did not end in verdicts and a retrial was required.

An application to revisit the recording's admissibility was unsuccessfully made at the first trial, but no application was made at the retrial where Dheil was convicted of blackmail.

Dheil took the case back to the Court of Appeal this year and argued Judge Nevin Dawson ought to have revisited the recording's admissibility during the retrial. The Court of Appeal rejected this.

He then sought to argue at the Supreme Court that the pre‑trial ruling was made against the background of the Crown alleging a conspiracy between himself and Gurchetan but no attempt was made to define the terms of a conspiracy.

In those circumstances, he claimed, the recording were not admissible under the co‑conspirator's exception set out in the Evidence Act.

In a decision released this month, the Supreme Court Justices Susan Glazebrook, Mark O'Regan and Ellen France agreed with the Court of Appeal that there was no need to rely on the co‑conspirator's exception because both Dheil and Gurcheta gave evidence at trial and were cross‑examined.

"Thus, anything relayed in the recorded evidence about what Gurchetan or the applicant said was not a hearsay statement," the Supreme Court's ruling reads.

Dheil also wanted to argue Judge Dawson failed to provide a hearsay direction to the jury about the recording, particularly given Dheil was not present and unable to challenge what was being said.

The Supreme Court said the issue was "fact‑specific" and did not consider any miscarriage arose from the absence of a direction.

Dheil also claimed evidence given by Gurchetan about what he was told by two non‑witnesses was hearsay and his jury should've been warned by the judge.

The Court of Appeal accepted the evidence was hearsay but noted the defence relied in part on the evidence and a direction to the jury would not have been in Dheil's interests.

Dheil, who was sentenced to 10 months' home detention, took issue with the view his defence relied on the evidence in closing.

"This is an entirely fact‑specific point, no point of public importance arises and we do not consider there is any risk of a miscarriage if leave is not granted on this point," the Supreme Court ruled.