Ahmed v R - [2009] NZCA 220

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA528/2008
[2009] NZCA 220
THE QUEEN
v
ABDULKADIR JUMA AHMED
Hearing:25 February 2009

Court:William Young P, Chisholm and Heath JJ
Counsel:M R Bott for Appellant

S J Mount for Crown

Judgment:2 June 2009 at 10 am

JUDGMENT OF THE COURT

ATHE APPEAL AGAINST CONVICTION IS ALLOWED AND THE CONVICTIONS ARE QUASHED.
BJudgment is entered in favour of Mr Ahmed together with verdicts of acquittal.

____________________________________________________________________
REASONS OF THE COURT
Chisholm and Heath JJ [1]
William Young P [82]

CHISHOLM AND HEATH JJ

(GIVEN BY HEATH J)
Contents
Introduction  [1]
Background  [4]
Grounds of appeal  [14]
Analysis
Kidnapping or citizen’s arrest?
Introductory comments  [18]
(ii) “Citizen’s arrest”: the statutory provisions  [21]
           (iii) What constitutes an “arrest”?  [36]
           (iv) Are the statutory immunities and protections engaged?             [41]

(b) The offensive weapon charge  [66]
(c) Should there be a re-trial?  [77]
Result  [81]
Introduction
[1]        Mr Ahmed was charged with kidnapping, male assaults female and possessing an offensive weapon (a knife) in circumstances that showed, prima facie, an intent to use it to commit an offence involving the threat or fear of violence.
Following a trial in the District Court at Wellington, before Judge Butler and a jury, Mr Ahmed was convicted on the kidnapping and offensive weapon charges, but acquitted on the count alleging assault. He was sentenced to 200 hours community work.
Mr Ahmed appeals against conviction.
Background
On the evening of 12 September 2007, Mr Ahmed visited an escort agency in Wellington. He made arrangements for a woman (known as “Ginger”) to attend at his hotel room, at about 9.30pm that night.
Ginger attended at Mr Ahmed’s hotel room, as arranged. She insisted on payment before any services were provided. Payment was made.
There is some dispute about what happened when Ginger first arrived. On Ginger’s evidence, Mr Ahmed paid the fee and they went and showered together. After that, Mr Ahmed brushed his teeth and then offered a toothbrush to Ginger to do likewise. Ginger asked why he wanted her to do that. Mr Ahmed said that he wanted to kiss.
On Mr Ahmed’s evidence, he and Ginger undressed, he wrapped a towel around himself and suggested they each take a shower and brush their teeth. Mr Ahmed told Ginger that he wanted her to brush her teeth because they would be kissing.
Whichever version is accepted, Ginger made it clear to Mr Ahmed that kissing was not included in her service. She explained, at trial, that that was because of the possibility of contracting a disease through passing of saliva.
Mr Ahmed required that Ginger repay his money to him before she left his room. At that point, the versions of events given at trial by Ginger and Mr Ahmed again diverge.
Ginger gave evidence of not being allowed to leave the hotel room and of Mr Ahmed punching her in the face and grabbing a knife. She said…

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.

Continue reading Ahmed v R

Details

AGLC: Ahmed v R [2009] NZCA 220
Case: [2009] NZCA 220
Decision Date: 2 June 2009

CaseChat Overview and Summary

Abdulkadir Juma Ahmed appealed against his convictions on the charges of kidnapping and possession of an offensive weapon, contending that the trial Judge had misdirected the jury by not allowing for the possibility that he was effecting a citizen's arrest. The Court of Appeal found that the trial Judge had not adequately directed the jury on the issue of citizen's arrest, specifically regarding the statutory immunities and protections that could have applied. The Court found that there was enough evidence for the jury to consider that Mr Ahmed might have reasonably believed that Ginger was committing an offence, which could have justified his actions under Section 36 of the Crimes Act 1961. Consequently, the Court of Appeal allowed the appeal against conviction, quashed the convictions, and entered a judgment in favour of Mr Ahmed, including verdicts of acquittal. The Court also found that the trial Judge's direction on the charge of possession of an offensive weapon was defective, leading to the appeal on that count also succeeding. The Court concluded that a re-trial was not warranted given the circumstances and Mr Ahmed's good character.

Orders