Ahmed v Police - [2014] NZHC 2671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000324 [2014] NZHC 2671

BETWEEN
FAISAL AHMED

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: On the papers

Judgment:

30 October 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 30 October 2014 at 11.00 am
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………….

AHMED v NZ POLICE [2014] NZHC 2671 [30 October 2014]

[1] In my decision of 26 September 2014 I dismissed Mr Ahmed’s appeal against his 2008 conviction on charges of male assaults female and resisting police. I allowed his appeal against sentence. Mr Ahmed wishes to appeal my decision in relation to the conviction. He requires leave to do so; s 144 of the Summary Proceedings Act 1957 permits a second appeal on a question of law with the leave either of the High Court or with the special leave of the Court of Appeal in limited circumstances:

If in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.1 The proposed argument on the question of law must be tenable.2

[2] The offences occurred on 6 September 2007 at the public service counter at the Auckland Central Police watch-house. The summary of facts on which Mr Ahmed pleaded guilty recorded that:

The defendant had attended the watch house earlier the same day but was asked to leave by police due to his behaviour.

He returned but this time carrying a suitcase and other personal items, demanding to be arrested and put in prison.

The defendant remained in the waiting area for an extended period of time before being approached by Senior Sergeant Dianne Kay CAPPER, the complainant in this matter.

After a short discussion the defendant was asked several times to remove himself and his property from the Police Station.

When he refused, the complainant has picked up the defendant’s bag with
the intention of moving it outside.

The defendant has immediately stood up and without warning has swung two heavy punches at the complainant, striking her on the mouth and face area.

Being nearly half the defendant’s size, the complainant has stumbled
backwards.

As the defendant has moved towards the complainant to continue his attack the complainant has managed to grab him around the waist with both arms.

Unable to continue punching the complainant the defendant has raised his knee several times striking the complainant in the face and head.

1 Section 144(2), see R v Slater [1997] 1 NZLR 211.
2 Candy v Auckland City Council CA371/02, 17 February 2003 at [15].

Several other police officers have intervened and managed to take the defendant to the ground where he continued to struggled and attempt to fight police.

As a result of the attack the complainant has received two cuts to the inside of her…

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.

Keep reading for free

Create a free CaseChat account to read Ahmed v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2671
Decision Date: 30 October 2014

CaseChat Overview and Summary

Faisal Ahmed appealed against his conviction for male assaults female and resisting police, as well as the sentence imposed. The appeal was dismissed in relation to the conviction, but the sentence was allowed to be appealed. The court was required to determine whether Ahmed had grounds to appeal his conviction a second time, requiring leave under the Summary Proceedings Act 1957. The grounds proposed for the second appeal were that the police did not give full disclosure before Ahmed entered his guilty plea, CCTV footage was inadmissible because it had been altered, Ahmed did not resist arrest, self-defence was available as a defence, the police did not act according to law in terms of prosecuting the crime committed against him, Ahmed was not adequately represented by his counsel, Ahmed was coerced into pleading guilty in the hope of obtaining a discharge without conviction and misled by his counsel into thinking that would happen, although he had been granted leave to vacate his guilty plea Ahmed was not informed of this, there was a miscarriage of justice, and the impact of the conviction was still affecting his life.

The court considered the proposed grounds of appeal and found that none of them raised a question of law, let alone a question of law of such general or public importance as to warrant a second appeal. The court found that the proposed grounds had already been considered during the previous appeal or could not be effectively advanced because Ahmed had declined to waive privilege in respect of the advice he had received from his counsel. The court also found that the current assertion that the CCTV footage was altered did not raise a question of law. Therefore, leave was refused for the second appeal.

Orders