Ahmed v The King
[2024] NZCA 273
•27 June 2024 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA81/2015 [2024] NZCA 273 |
| BETWEEN | FAISAL MOHAMED AHMED |
| AND | THE KING |
| Court: | Mallon, Palmer and Wylie JJ |
Counsel: | Appellant in person |
Judgment: | 27 June 2024 at 2.30 pm |
JUDGMENT OF THE COURT
The application for recall is declined.
____________________________________________________________________
REASONS
(Given by Wylie J)
Introduction
The appellant, Faisal Ahmed, seeks to recall a judgment this Court issued on 14 June 2016.[1] He asserts that there are fundamental errors both of fact and of law in the judgment and that the Court did not fully understand the issues his case presented.
[1]Ahmed v R [2016] NZCA 252 [Court of Appeal judgment].
The application is opposed by the respondent.
Background facts
On 6 September 2007, Mr Ahmed was at the public counter of the Auckland Central Police Station watchhouse. He was behaving erratically. He was asked to leave. He left, but returned later in the day, carrying a suitcase and demanding to be arrested and put in prison.
Mr Ahmed was approached in the waiting room by a Senior Sergeant. She asked him to leave more than once, but he refused. She picked up Mr Ahmed’s bag to move it outside. He then attacked her without warning. He repeatedly punched her in the head. She managed to pin Mr Ahmed’s arms to his side. Undeterred, he began to strike her about the face and head using his knee. Other police officers were quick to intervene. They managed to restrain Mr Ahmed. He nevertheless continued to struggle and fight these further officers.
As a result of the attack, the Senior Sergeant received cuts to her mouth, damage to her teeth, bruising, swelling and soreness in her head area. Mr Ahmed was arrested and put into a cell where he continued to behave aggressively. He offered no explanation for his actions.
Mr Ahmed was charged with assault with intent to injure,[2] male assaults female,[3] and resisting the police.[4] He instructed counsel and ultimately entered guilty pleas to the latter two charges. Presumably the police did not pursue the first charge.
[2]Crimes Act 1961, s 193 (maximum penalty of three years’ imprisonment).
[3]Crimes Act, s 194(b) (maximum penalty of two years’ imprisonment).
[4]Summary Offences Act 1981, s 23(a) (maximum penalty of three months’ imprisonment or a fine not exceeding $2,000).
In 2008, Judge McNaughton, in the District Court at Auckland, sentenced Mr Ahmed to 12 months’ imprisonment.[5] A pre-sentence report and two psychiatric reports had been obtained prior to sentence. As proposed in one of the psychiatric reports, the Judge made an order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 directing that Mr Ahmed be committed to a hospital and detained as a special patient.[6]
[5]Police v Ahmed DC Auckland CRI-2008-004-27207, 18 December 2008 at [25]. This sentence was concurrent with a sentence of one month’s imprisonment for the resisting police charge: at [26].
[6]At [32].
Mr Ahmed served his sentence. He was released from hospital in 2010.
Mr Ahmed then appealed his conviction and sentence. On 26 September 2014, Courtney J dismissed the appeal against conviction, but allowed the appeal against sentence.[7] The sentence imposed in the District Court was set aside and a conviction and discharge were imposed to preserve Mr Ahmed’s ability to apply for citizenship in this country.[8]
[7]Ahmed v Police [2014] NZHC 2370 [High Court appeal judgment].
[8]At [49].
Mr Ahmed next applied for leave to appeal the High Court’s decision under s 144 of the Summary Proceedings Act 1957 (now repealed). In her judgment on that application, Courtney J observed that most of the grounds of appeal put forward had either already been considered on the previous appeal or could not be considered because Mr Ahmed had not waived privilege.[9] She held that none of the proposed grounds raised a question of law, let alone a question of law of such general or public importance as to warrant a second appeal. The application for leave to bring a second appeal was declined.[10]
[9]Ahmed v Police [2014] NZHC 2671 [High Court leave judgment] at [4].
[10]At [4].
Undeterred, Mr Ahmed applied to this Court for special leave to bring a second appeal against his convictions. This resulted in the 2016 judgment of this Court. Mr Ahmed’s application was filed out of time. The Crown did not oppose the application being brought out of time and this Court granted leave accordingly.[11] The Court considered however that the matters raised by Mr Ahmed involved questions of fact and not questions of law, that the grounds of appeal were untenable and that none of the proposed questions raised a matter of general or public importance.[12] Nor did the Court consider that there was any other reason for leave to be granted and accordingly it dismissed the application for special leave.[13]
The application for recall
[11]Court of Appeal judgment, above n 1, at [6].
[12]At [17]–[19].
[13]At [20]–[21].
On 11 June 2024, some eight years after this Court’s 2016 judgment and some 17 years after the offending, Mr Ahmed applied for a recall of this Court’s judgment on the special leave application. The question(s) of law which Mr Ahmed wishes to raise is not however clearly articulated. He believes that:
(a)he has a microchip implanted in his brain and that whoever implanted the chip is able to control him;
(b)if he stops taking medication he relapses and ends up breaking the law.
(c)he was not appropriately represented by his counsel when he entered his guilty pleas (or subsequently) because these matters were not fully brought to the attention of the Court;
(d)he has been discriminated against; and
(e)one of the psychiatric reports obtained in 2007 failed to properly address his mental health condition at the time of the offending, notwithstanding that he told the psychiatrist about the microchip.
Mr Ahmed says that, as a result, he did not receive a fair hearing.
Mr Ahmed also raises the possibility of seeking to withdraw his guilty pleas. He suggests that he “may” have been unfit to plead, and that he “may” have been insane in 2007.
In support of his application, Mr Ahmed filed a report from Dr Nimkar, a Senior Medical Officer in adult psychiatry, dated 2 February 2024, prepared in relation to a recent careless driving charge which Mr Ahmed faced. Dr Nimkar there concluded that Mr Ahmed suffers from schizophrenia. He expressed the opinion that Mr Ahmed was suffering from a qualifying disease of the mind at the time of the more recent offending, being 11 December 2022.
The Crown opposes the application for recall. It argues that the application does not disclose any special reason why this Court’s 2016 judgment should be recalled. Mr Davie, for the Crown, notes that a psychiatric report prepared at or about the time of the 2007 offending expressed the opinion that Mr Ahmed was then fit to plead. He also notes that there is no evidence from the period 2007 to 2008 which suggests that Mr Ahmed was insane at the time. He further submits that the Court is unable to test Mr Ahmed’s claims as to trial counsel error without a waiver of legal privilege and evidence from trial counsel. Mr Davie observes that this was carefully explained to Mr Ahmed in 2014 when he was before the High Court, but that Mr Ahmed has not waived privilege. The Crown also notes that there is no explanation for Mr Ahmed’s eight-year delay in bringing the recall application and submits that finality tells against reopening a decision from 2016 which relates to offending in 2007.
Mr Ahmed has filed a comprehensive response to the Crown’s notice of opposition.
Analysis
The grounds on which a judgment can be recalled are limited. Three categories of cases have been recognised by the Courts. Relevantly, a judgment can be recalled where, for some very special reason, justice requires that the judgment be recalled.[14]
[14]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; affirmed in Craig v Williams [2019] NZSC 60 at [10]. The grounds for recall set out in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) apply equally in the criminal jurisdiction: see Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [28]–[29]; and Jolley v R [2022] NZSC 150, [2022] 1 NZLR 595 at [12]–[17].
Here, there is no very special reason sufficient to permit recall of the 2016 judgment. The various matters raised by Mr Ahmed in his lengthy application do no more than repeat the various concerns which he has previously raised. There is simply nothing new which has not previously been examined by the courts on multiple occasions.
Dr Nimkar’s report of 2 February 2024 does not advance matters. Dr Nimkar met Mr Ahmed, it seems for the first time, on 10 October 2023 for the purpose of preparing his report. While it is Dr Nimkar’s opinion that Mr Ahmed was suffering from a disease of the mind in December 2022, it cannot be assumed that Mr Ahmed was also suffering from a disease of the mind in 2007. Mr Ahmed does not point to any evidence from that time to suggest that he was insane when he assaulted the Senior Sergeant.
Rather, the available material strongly points to the contrary. As Courtney J noted in her judgment of 22 September 2014, when the District Court dealt with the matter in 2007/2008, it had before it a report from a consultant psychiatrist, Dr Goodwin, dated 18 September 2007, which addressed Mr Ahmed’s fitness to stand trial at that time.[15] Dr Goodwin considered that, notwithstanding his mental health issues, Mr Ahmed had a good awareness of the court process, the pleas available to him and the likely consequences of those pleas. He concluded that there was no impaired concentration or any cognitive deficits that would impair Mr Ahmed’s ability to participate in the court process and that Mr Ahmed was fit to stand trial. There is nothing to suggest that Dr Goodwin’s report was in error.
[15]High Court appeal judgment, above n 7, at [14]–[15].
Mr Ahmed also claims that his trial counsel erred in 2007/2008 and that subsequent counsel have also failed to deal with matters satisfactorily from his perspective. However, Mr Ahmed has not waived privilege in relation to his trial counsel. As Courtney J noted in the High Court appeal judgment, the need for a waiver was raised in the High Court, both by Lang J and by the Judge herself.[16] Courtney J observed in her judgment that Mr Ahmed was then very clear that he did not wish to waive privilege. Nor did he wish to take advantage of the Judge’s offer to stand the matter down so that Mr Ahmed could discuss the position with counsel appointed to assist the Court.[17]
[16]At [18].
[17]At [18].
There is still no waiver of privilege. Rather, Mr Ahmed maintains that a waiver is not mandatory and that the fact that no waiver has been filed should not prevent him from seeking justice. While Mr Ahmed is entitled to take this stance, we cannot draw adverse conclusions about counsels’ conduct unless they are first given the opportunity to comment. To do otherwise would be unfair. Mr Ahmed’s refusal to waive privilege has denied counsel the opportunity to comment on his assertions. As a result, this Court is no better placed to consider Mr Ahmed’s complaints than Courtney J was.
The matters which Mr Ahmed raises fall well short of the only relevant criterion for the recall of a judgment. Accordingly, his application cannot succeed.
Result
The application for recall is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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