Ahmed v The Queen - [2016] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/2015
[2016] NZCA 252

BETWEEN	FAISAL MOHAMED AHMED Applicant
AND	THE QUEEN Respondent

Hearing:	25 May 2016
Court:	Stevens, Woodhouse and Wylie JJ
Counsel:	S K Green for Applicant I R Murray for Respondent
Judgment:	14 June 2016 at 11.30 am

JUDGMENT OF THE COURT

ALeave to bring the application for special leave to appeal out of time is granted.
BThe application for special leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The applicant, Mr Ahmed, seeks special leave to appeal convictions entered against him following an incident in September 2007. The convictions followed guilty pleas to two charges: male assaults female, contrary to s 194(b) of the Crimes Act 1961; and resisting the police, contrary to s 23(a) of the Summary Offences Act 1981.
On 18 December 2008, Mr Ahmed was sentenced by Judge McNaughton in the District Court at Auckland to 12 months’ imprisonment.[1] The Judge made a hybrid order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Ahmed be committed to hospital and detained as a special patient.
[1]Police v Ahmed DC Auckland CRI-2008-004-27207, 18 December 2008.
Mr Ahmed served his sentence and was released in 2010.
Mr Ahmed belatedly appealed his conviction and sentence. On 26 September 2014, Courtney J dismissed the appeal against conviction, but allowed his appeal against sentence.[2] A conviction and a discharge were substituted in order to preserve Mr Ahmed’s ability to apply for citizenship in this country.
[2]Ahmed v Police [2014] NZHC 2370.
Mr Ahmed then applied for leave to appeal Courtney J’s decision under s 144 of the Summary Proceedings Act 1957. Courtney J found that most of the grounds of appeal put forward either had already been considered on the previous appeal, or could not be considered because Mr Ahmed had not waived privilege.[3] 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.[4] As such, the application for leave to appeal was declined.
[3]Ahmed v Police [2014] NZHC 2671.
[4]At [4].
Mr Ahmed now applies for special leave to bring a second appeal against his convictions. The application for special leave was filed out of time. Mr Ahmed says he did not apply in time because he was in hospital. The Crown does not oppose the application for an extension of time, and accepts it has not been prejudiced. On this basis, we grant leave to Mr Ahmed to bring the application seeking leave for a second appeal, notwithstanding that the application was filed out of time.

Background

On 6 September 2007 Mr Ahmed was at the public counter of the Auckland Central Police Station watchhouse. He was behaving erratically and was asked to leave. He left but returned later in the day carrying a suitcase, demanding to be arrested and…

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 The Queen

Details

AGLC: Ahmed v The Queen [2016] NZCA 252
Case: [2016] NZCA 252
Decision Date: 14 June 2016 at 11.30 am

CaseChat Overview and Summary

In the case of Ahmed v The Queen, the applicant, Mr Ahmed, sought special leave to appeal his convictions for male assaults female and resisting the police, which occurred in 2007. He was sentenced in 2008 and had previously appealed against his conviction and sentence in 2014. The appeal against conviction was dismissed, but the appeal against sentence was allowed, resulting in a conviction and a discharge being substituted. Mr Ahmed then applied for leave to appeal the decision of the High Court, which was declined. He subsequently applied for special leave to bring a second appeal against his convictions, which was filed out of time. The Crown did not oppose the application for an extension of time and accepted it had not been prejudiced.

The legal issues that the Court of Appeal was required to decide included whether the application for special leave to appeal was filed out of time and whether the application for special leave should be granted. The Court of Appeal noted that the matters raised by Mr Ahmed involved questions of fact, not questions of law. The Court also noted that any proposed appeal question had to be tenable, and that there was no realistic prospect of an appeal against the convictions succeeding. Furthermore, the Court observed that Mr Ahmed had received a merciful and lenient sentence as a result of the High Court appeal.

The Court of Appeal held that the application for special leave to appeal was filed out of time, but granted leave to Mr Ahmed to bring the application seeking leave for a second appeal, notwithstanding that the application was filed out of time. However, the application for special leave to appeal was declined, as the proposed grounds of appeal were not tenable and did not raise issues of general or public importance. The Court concluded that the application for special leave must fail.

Orders