Azees Mahomed v The Queen

[2011] NZSC 5

IN THE SUPREME COURT OF NEW ZEALAND

SC 117/2010
[2011] NZSC 5

AZEES MAHOMED

v

THE QUEEN

Court:             Blanchard, McGrath and William Young JJ

Counsel:         G J King for Appellant
M D Downs for Crown

Judgment:      8 February 2011

JUDGMENT OF THE COURT

A        The application for leave to appeal is granted.

B         The approved grounds are:

(i)Whether the evidence concerning the child’s being left in the car on 19 December 2007 was admissible; and

(ii)If so, whether the Judge’s directions relating to that evidence were adequate.

REASONS

1. We do not grant leave on any of the proposed additional grounds.  The evidence concerning the applicant's low level of intellectual capacity was of no relevance to the murder charge given that his defence was that he had not inflicted any injury on the child.  Whilst intellectual capacity might have had a bearing on the charge of endangering her life by failing to obtain necessary medical treatment, the opinions offered by the experts were not directed to the applicant's perceptions in relation to the child's condition at the time of the failure to obtain medical treatment.  Moreover, there was no evidence from the applicant on that question which could form a basis for the opinions of the experts even if they had ventured into that territory.

2. The proposed expert evidence in relation to the post-natal depression of Mrs Mahomed was rightly held by the Court of Appeal to be inadmissible as the expert was not in a position to say that she was in fact suffering from post-natal depression.  The most that could be said was that this was possible but there had been no diagnosis.  The evidence was rightly excluded as a basis for the speculative proposition that severe post-natal depression might have induced Mrs Mahomed to inflict the fatal injuries.

3. The trial Judge's comment on the absence of any evidence from Mr Mahomed in support of his claim that his wife had inflicted the injuries was proper and balanced.

4. The proposed evidence suggesting that the child may have fallen from a swing is not fresh.  It depicts both parents as being aware that the child was on the floor and crying.  It is simply unbelievable that, if this incident had occurred, neither parent has mentioned it until after dismissal of the appeal against conviction.

Solicitors:

Crown Law Office, Wellington