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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 172
Decision Date: 13 February 2015

CaseChat Overview and Summary

Faisal Ahmed filed appeals against several convictions entered against him between 2003 and 2005, seeking leave to appeal out of time. The convictions included wilful trespass, wilful damage, male assaults female, and common assault. No punishment was imposed on any of the convictions, except for a reparation order of $200 in relation to the conviction for male assaults female. The District Court files for some of the convictions had been destroyed due to their age. Ahmed argued that it was in the interests of justice to grant him leave to appeal, citing reasons such as being unlawfully incarcerated and suffering from cruel and inhumane treatment. The court considered the discretion to grant leave under section 123 of the Summary Proceedings Act 1957, focusing on the interests of justice in a particular case.

The court examined the prospects of success in any appeal where leave was granted. Ahmed asserted that he had evidence to establish that he was not guilty and that the evidence had been fabricated. However, the court found that Ahmed's applications lacked compelling detail that might demonstrate the convictions were wrongly entered. Additionally, the court noted that significant difficulties would be encountered in convening either a hearing for the conviction where 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 minor nature of the charges and the resources required to bring them to hearing, the interests of justice did not favour their being resurrected.

The court found that 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. The court concluded that leave to appeal out of time should not be granted and dismissed Ahmed's applications.

Orders