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Ali v The King

Ali v The King

Case [2025] NZCA 267 24 June 2025

Appeal

Jurisdiction

Miscarriage of Justice

Admissibility of Evidence

Sentencing

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA159/2024
[2025] NZCA 267

BETWEEN	ASHIK ALI Appellant
AND	THE KING Respondent

Hearing:	3 April 2025
Court:	Campbell, Dunningham and Harvey JJ
Counsel:	M W Ryan, A Finchett and A C Gilbert for Appellant E J Hoskin for Respondent
Judgment:	24 June 2025 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence on appeal is granted.

BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harvey J)

Introduction

Ashik Ali was initially charged with assaulting and strangling his wife and assaulting his seven‑year‑old son. On the morning of trial, 1 February 2022, Mr Ali agreed that he would plead guilty to a representative charge of male assaults female (for the assault against his wife) and the Crown would withdraw the remaining charges and amend the summary of facts in his favour.[1] No conviction was entered as Mr Ali signalled his intent to apply for a discharge without conviction.
[1]Crimes Act 1961, s 194(b). Maximum penalty: two years’ imprisonment.
After Mr Ali’s sentencing hearing on 1 April 2022, which was adjourned to give him time to provide further supporting evidence, Mr Ali and his counsel had a falling out. He engaged new counsel and applied to vacate his guilty plea, claiming trial counsel error. This application was unsuccessful at first instance[2] and on appeal.[3]
[2]R v Ali [2023] NZDC 7477 [Judge Otene’s decision].
[3]Ali v R [2023] NZCA 557 [Palmer J’s decision].
On 11 March 2024, Judge Forrest declined Mr Ali’s application for a discharge without conviction, imposed a sentence of supervision and directed him to make an emotional harm reparation payment of $2,000.[4] Mr Ali now appeals. He says his conviction is a result of two errors amounting to a miscarriage of justice: first, trial counsel error and, second, the error made by Judge Forrest in refusing to grant a discharge without conviction. Ms Hoskin, for the Crown, opposes the appeal and submitted that no miscarriage of justice has occurred.

The offending

[4]R v Ali [2024] NZDC 5571 [Judge Forrest’s decision].

This account is based on the amended summary of facts to which Mr Ali pleaded guilty on 1 February 2022. On 8 January 2021, Mr Ali and his wife were at home with their six children. He was looking through his wife’s phone and refused to give it back, despite repeated requests from his wife and their son. Mr Ali became angry and pushed and slapped her multiple times to her chest and face in front of the children. The pair went downstairs and their argument continued. Mr Ali pushed his wife’s upper chest. She stumbled backwards, hitting the back of her head against a brick wall. She received a three to four centimetre cut to the back of her head. When spoken to about the offending, Mr Ali explained that he did not remember and did not know how the victim got 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.

Continue reading Ali v The King

Details

AGLC: Ali v The King [2025] NZCA 267
Case: [2025] NZCA 267
Decision Date: 24 June 2025 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Ashik Ali appeals against his conviction for assaulting his wife and his application for a discharge without conviction. The appeal focuses on alleged trial counsel error and the appropriateness of the sentence. Initially, Mr Ali pleaded guilty to a charge of male assaults female, but later sought to withdraw his plea, claiming trial counsel error. His application was unsuccessful at both first instance and on appeal. Mr Ali also unsuccessfully sought a discharge without conviction, arguing that the consequences of a conviction would be disproportionate to the gravity of the offending. Mr Ali's counsel sought to adduce CCTV footage of the offending as fresh evidence, which the Court allowed. The Court considered the appeal on the basis that a miscarriage of justice would need to be shown in order to overturn the conviction. The Court found that Mr Ali was adequately advised by his trial counsel and that there was no sufficient trial counsel error to result in a miscarriage of justice. The Court also found that the Judge was correct to assess the gravity of the offending as moderate and that the consequences of a conviction were not disproportionate to the offending. The appeal against conviction is dismissed.

Orders