Elmeleh v Police - [2019] NZHC 3371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-454

[2019] NZHC 3371

BETWEEN ABDEL GADIR TEBEG HAMID ELMELEH
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2019

Counsel:

S Asmundson for Appellant

C Stubbington for Respondent

Judgment:

18 December 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 18 December 2019 at 10.00 am

Registrar/Deputy Registrar

ELMELEH v NEW ZEALAND POLICE [2019] NZHC 3371 [18 December 2019]

Introduction

[1] Mr Elmeleh was found guilty of one charge of common assault following an altercation with his then boss on 26 March 2018.1 His conviction was the result of a judge-alone trial on 9 April 2019 in the District Court at Auckland.2 Mr Elmeleh applied for a discharge without conviction. Judge Thomas refused that application on 19 July 2019. He sentenced him to nine months’ supervision and ordered him to pay
$300 in reparation.3 Mr Elmeleh paid the reparation immediately.

[2] Mr Elmeleh appeals against conviction and sentence. The thrust of his appeal is that the evidence of the prosecution witnesses at trial was so inconsistent that the Police were unable to prove the charge beyond a reasonable doubt. If the conviction is upheld, he argues Judge Thomas should have granted the discharge without conviction because the consequences on his employment are out of all proportion to the low gravity of the offending.

[3] He applies to adduce fresh evidence in respect of these consequences. The Crown sensibly does not oppose its introduction. The October 2019 letter is fresh; it was not in existence at the time the application was made. The June 2016 letter is not fresh but provides important context to the October 2019 letter. I grant leave accordingly.

Conviction appeal - facts

[4] It is not in dispute that Mr Elmeleh was at the premises of Crown Cabs on 26 March 2018 at about 3 pm. He was there to collect his weekly earnings from Mr Khalil Tajek, his then boss. Mr Tajek’s office is on the second floor of the building, next to the offices of iSecurity NZ. There was a dispute as to how he got there and whether the material visit was his first or second of that day. The essence of the factual dispute on appeal is more straightforward, whether Mr Elmeleh punched Mr Tajek, and so I focus on this. The three main witnesses at trial (Mr Elmeleh,

1      I note that the appellant's name was incorrectly spelt on the original Court intituling. This is the correct spelling.
2      New Zealand Police v Elmemeh [2019] NZDC 21975.
3      New Zealand Police v Elmemeh [2019] NZDC 14620.

Mr Tajek and Mr Pouniu) all gave differing accounts on this question. Because this inconsistency is the crux of the appeal, I set their evidence out in some detail.

Evidence of a punch

[5] Mr Tajek said he was inside his locked office when he heard someone knock on the office door. He opened…

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: [2019] NZHC 3371
Decision Date: 18 December 2019

CaseChat Overview and Summary

The appellant, Mr Elmeleh, appeals his conviction and sentence for a charge of common assault against the respondent, New Zealand Police. The central issue on appeal is the credibility of the prosecution witnesses and whether the consequences of a conviction would be out of proportion to the gravity of the offending. The appellant argues that the evidence of the prosecution witnesses was inconsistent, and if the conviction is upheld, the Judge should have granted a discharge without conviction due to the disproportionate consequences on his employment. The Crown does not oppose the introduction of fresh evidence regarding these consequences.

The court found no fault in the Judge's assessment of the credibility of the witnesses, and the prosecution successfully proved the charge beyond a reasonable doubt. However, the court allowed the appeal against the refusal of the application to discharge without conviction. The fresh evidence presented by the appellant shows a real and appreciable risk that his passenger endorsement will be revoked due to his conviction, which the court considers to be out of proportion to the gravity of the offending in this case.

The appeal against conviction is dismissed, but the appeal against the refusal of the application to discharge without conviction is allowed. The order for reparation to the victim stands, regardless of the result of this appeal.

Orders