Ahmed v Police

[2015] NZHC 172

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000049
CRI-2014-485-000050
CRI-2014-485-000051

CRI-2014-485-000052 [2015] NZHC 172

BETWEEN

FAISAL AHMED

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 February 2015
Appearances:	Appellant in person A C Whittaker and S W P Woods for respondent
Judgment:	13 February 2015

RESERVED JUDGMENT OF DOBSON J

[1]      During 2014, Mr Ahmed filed four notices of appeal against conviction and sentence in relation to convictions that were entered against him between December

2003 and August 2005.  Two of the convictions are for wilful trespass and one each for wilful damage, male assaults female and common assault.   The criminal convictions report annexed to Mr Ahmed’s submissions specifies that no punishment was imposed on any of the convictions, and instead Mr Ahmed was required to come up for sentence if called upon within various times.  A reparation order of $200 was made in relation to the conviction for male assaults female.

[2]      Mr Ahmed appreciated that he required leave to bring these appeals so long after the 28 day period for lodging them had expired, and his essential point in

support of being granted leave was that it was in the interests of justice to do so.

AHMED v POLICE [2015] NZHC 172 [13 February 2015]

[3]      The position with some of the convictions is not entirely clear.  Given their age,  at  least  some  of  the  District  Court  files  have  quite  understandably  been destroyed.

[4]      The notice of appeal in respect of the conviction for male assaults female, and the older of the two wilful trespass convictions, which date from 4 December

2003, specified as the grounds of Mr Ahmed’s appeal:

I did not commit this crime.   Did not trespass, the Police fabricated the evidence.   I have evidence to prove the Council a lot of problems.   This matter has been to the High Court before.   I have suffered due to many aspects of the actions (?).

[5]      In response to the question on the form as to reasons why the Court should extend time where the application was made out of time, Mr Ahmed specified:

I have been out of time due to various reasons, been unlawfully incarcerated for  a long period  of  time.    I left Wellington-Auckland.    My privacy is invaded and had [to] suffer cruel and inhumane treatment: did not get any help from lawyers.

I am controlled via a chip implant in me – which constitutes a serious crime and abuse.

[6]      A  discrete  ground  for  opposing  leave  in  relation  to  the  oldest  of  the convictions Mr Ahmed seeks to challenge (wilful trespass and male assaults female on 4 December 2003) is that those convictions have already been the subject of an unsuccessful appeal to this Court.1

[7]      I took Mr Ahmed’s stance by the end of the hearing to be an acceptance that he cannot pursue a second appeal in the High Court in relation to the December 2003 convictions.  He is apparently pursuing an application for special leave to appeal to the Court of Appeal in relation to the two December 2003 convictions.

[8]      I  note  also  that  Mr Ahmed  has  two  further  convictions  entered  in  the

Auckland District Court on 18 December 2008 for male assaults female and resisting the Police.  In September 2014, Courtney J granted Mr Ahmed leave to appeal out of

1      Ahmed v Police HC Wellington CRI-2004-485-111, 7 December 2004.

time against those two convictions.2    Mr Ahmed failed in his appeal against those convictions, but succeeded in his appeal against a sentence of imprisonment that had been imposed on the more serious conviction.   The substituted outcome was that Mr Ahmed was convicted and discharged.

[9]      At the time of Mr Ahmed’s 2014 appeal, the Court relied on advice that the imposition   of   a   term   of   imprisonment   precluded   Mr Ahmed   being   granted New Zealand citizenship before 2016.3   By the time of the hearing of the application for leave in the present appeals, that difficultly had been resolved and Mr Ahmed advised that he has been granted New Zealand citizenship.

[10]     His residual concern at the existence of the convictions (notwithstanding the lack of any punishment imposed in relation to them) was that his obligation to disclose all criminal convictions was likely to preclude him obtaining a visa to visit members of his family, particularly in the United States.

[11]     Mr Ahmed arrived in New Zealand as a refugee from Somalia.   It appears that the various judges who have dealt with him have been appraised of mental health difficulties he has had.   The papers filed with the present applications for leave include psychiatric reports prepared in October and November 2004 in respect of him.  The earlier of those reports expressed an opinion that he had developed a paranoid belief system and was psychotic at that time.

[12]     Subsequently, it is apparent from the judgment of Courtney J that he had been under the care of the Auckland City Mental Health Unit for a period, and was treated in that judgment as having plainly laboured under the disability of a mental illness notwithstanding that he was fit to plead.4    At the present hearing, Mr Ahmed was articulate and I had no concerns that he was unable to deal with the issues involved.

[13]     Given the age of the convictions, the present application for leave is governed by s 123 of the Summary Proceedings Act 1957.   In assessing the discretion as to

2      Ahmed v Police [2014] NZHC 2370.

3      The constraint is in s 9A of the Citizenship Act 1977. A lesser constraint for three years exists if a person is convicted of an offence but does not serve a sentence of imprisonment.

4      Ahmed v Police, above n 2, at [31].

whether to grant leave, the touchstone is the interests of justice in a particular case, and all relevant interests must be balanced.5

[14]     One of the convictions Mr Ahmed wants leave to appeal (wilful damage conviction entered on 15 August 2005) is a charge to which he pleaded guilty.  That adds an additional hurdle in that grounds would be needed for leave to vacate the plea.  On that and the other convictions, Mr Ahmed asserted very confidently that he had evidence to establish that he was not guilty, that he had been let down by incompetent counsel, and at least in some respects that evidence had been fabricated.

[15]     To the extent that counsel incompetence was raised in the appeal before Courtney J,  Mr Ahmed  had  resisted  an  invitation  to  waive  privilege  so  that  his version of criticisms of counsel could be tested with them.  Mr Ahmed maintained the same stance at the present hearing, although he did suggest the prospect of waiving privilege if he were granted special leave by the Court of Appeal to pursue a

second appeal from Courtney J’s decision.6    That stance makes it difficult to place

any  material   reliance   on   what   are   otherwise   unsubstantiated   allegations   of misconduct and incompetence by counsel.  Mr Ahmed has provided copies of some correspondence with some of the lawyers who have acted for him at various times. That correspondence does not give any immediate impression that the services provided to him were incompetent.

[16]     The prospects of success in any appeal where leave is granted is a relevant consideration.    Mr Ahmed’s  applications  lack  any  compelling  detail  that  might demonstrate the convictions were wrongly entered.   His argument rested on his general assertion that he could prove the convictions were wrongly entered.   That approach falls substantially short of raising any serious prospect of there being a miscarriage of justice.

[17]     Without  the  files  and  therefore  any  transcript  of  evidence  called  on  the various  charges,  an  appeal  focusing  on  how  the  original  hearing  went  in  the

conventional  way  would  be  pointless.    A  significant  consideration  is  the  very

5      Isherwood v R [2010] NZCA 347 at [16].

6      Courtney J has declined leave: Ahmed v Police [2014] NZHC 2671.

substantial difficulties that would be encountered in convening either a hearing for the conviction where Mr Ahmed pleaded guilty, or re-hearings in the other cases, where it is unlikely that the prosecution would be able to reconstruct the case and call the witnesses that it would have depended on 10 and more years ago.  Given the relatively minor nature of the charges involved, and the extent of resources that would be required to bring them to hearing, the interests of justice do not favour their being resurrected.

[18]     The effect of Mr Ahmed’s submission was that the interests of justice were to be assessed only from his perspective, so that it was crucial he be given a belated opportunity to reverse the consequences of the convictions.  However, the interests of justice must also take into consideration the interests of the community in efficiently processing charges of this type.  It is in the interest of finality that matters are not allowed to be unreasonably protracted.

[19]     In all the circumstances, I am satisfied that leave to appeal out of time should not be granted.  Mr Ahmed’s applications are accordingly dismissed.

Dobson J

Solicitors:

Crown Solicitor, Wellington

Copy to: Appellant