Arshad Mahmood Chatha v The Queen - [2009] NZSC 21

IN THE SUPREME COURT OF NEW ZEALAND
SC 8/2009
[2009] NZSC 21
ARSHAD MAHMOOD CHATHA
v
THE QUEEN
Court:Blanchard, Tipping and McGrath JJ
Counsel:T Ellis for Applicant

N P Chisnall for Crown

Judgment:24 March 2009

JUDGMENT OF THE COURT

AThe application for leave to amend the grounds of appeal is dismissed.

B The application for leave to appeal is dismissed.

REASONS
[1]       The history of this case demonstrates that Mr Chatha was throughout trying to manipulate the Crown's attempt to bring him to trial on charges relating to immigration fraud, on which he was eventually convicted in the High Court. The Court of Appeal has given his complaints careful consideration in a lengthy judgment and has dismissed his appeal both against conviction and sentence. It obviously did not accept, for good reason, Mr Chatha's assertions concerning the conditions of his imprisonment during the trial. This is the only matter relating to the conduct of the trial which is the subject of any submission, as opposed to bare assertion, in the present application. The Court of Appeal did not accept that Mr Chatha was unable to arrange for his wife or parents to bring his medication or documentation to Wellington. Mr Chatha's statements do not appear to be the subject of any supporting evidence. In view of the history of Mr Chatha's behaviour, the Court of Appeal was entitled to reject Mr Chatha's claims. His factual assertions are obviously unsuited to a second appeal.
[2]       The argument about the failure of MacKenzie J to deal with a recusal application must also fail. The Court of Appeal rightly said that a failure to deal with such an application does not invalidate the ensuing trial in the absence of a proper basis for recusal and, significantly, Mr Ellis did not seek to argue in the Court of Appeal that his client's application in the High Court should have succeeded.
[3]       The proposed argument concerning jury vetting is now overtaken by the dismissal by this Court of the appeal in R v Gordon-Smith.[1]
[1]      [2009] NZSC 21.
[4]       The bulk of the written submissions is taken up with the advancing of arguments concerning the quite hopeless applications for recusal of members of the Court of Appeal which were made in that Court and properly rejected. Some of these deal with the procedures adopted in the particular case by the Court of Appeal. We need refer only to the core argument that Miller J should not have sat on the appeal because both he and the trial Judge are based in Wellington. It is not, however, a seriously arguable proposition that a High Court Judge sitting in the Court of Appeal would fail to approach his or her task independently and would unconsciously be biased against reversing the result of a trial presided over by another High Court Judge because they would encounter one another in the High Court common room. The hypothetical observer, whose perception is used to test questions of…

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.

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Details

Case: [2009] NZSC 21
Decision Date: 24 March 2009

CaseChat Overview and Summary

Arshad Mahmood Chatha appealed against his conviction and sentence for immigration fraud in the Supreme Court of New Zealand. The appeal was dismissed by the Court of Appeal, and Chatha sought leave to appeal to the Supreme Court and to amend his grounds of appeal. The legal issues for the Supreme Court to decide included whether Chatha's claims about his imprisonment conditions were suitable for a second appeal, whether the trial judge should have recused himself, and whether the Court of Appeal judges should have recused themselves from hearing the appeal. The Supreme Court found that Chatha's claims about his imprisonment conditions were not supported by evidence and that the arguments about the trial judge and Court of Appeal judges' recusal were not seriously arguable. The Supreme Court also found that the sentence appeal was without merit.

The Supreme Court dismissed Chatha's application for leave to amend the grounds of appeal and his application for leave to appeal. The Court found that the proposed amendments to the grounds of appeal related to matters that were collateral to the result of the Court of Appeal and did not justify a second appeal. The Court found that the proposed arguments about the Court of Appeal judges' recusal were not supported by evidence and were not seriously arguable. The Court also found that the arguments about the trial judge's recusal and jury vetting were not suitable for a second appeal. The Court concluded that the appeal was devoid of merit.

Orders