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 mouth that required stitches.  She also received damage to her teeth, bruising, swelling and soreness to her jaw and head and pain and stiffness to her neck.  Medical treatment was required.

[3]      The proposed grounds of appeal are that:

(a)      The Police did not give full disclosure before Mr Ahmed entered his guilty plea;

(b)      CCTV footage was inadmissible because it had been altered; (c)       Mr Ahmed did not resist arrest;

(d)      Self-defence was available as a defence;

(e)      The Police did not act according to law in terms of prosecuting the crime committed against him;

(f)      Mr Ahmed was not adequately represented by his counsel;

(g)Mr 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;

(h)      Although he had been  granted leave to vacate his guilty plea  Mr

Ahmed was not informed of this;

(i)       There was a miscarriage of justice; and

(j)       The impact of the conviction is still affecting his life.

[4]      With  the  exception  of  the  current  assertion  that  the  CCTV  footage  was altered, these grounds were either considered during the previous appeal or could not

be  effectively advanced  because  Mr Ahmed  had  declined  to  waive  privilege  in respect of the advice he had received from his counsel. However, none of the proposed grounds (including the suggested alteration of the CCTV footage) raise a question of law, let alone a question of law of such general or public importance as

to warrant a second appeal.  Leave is therefore refused.

P Courtney J