Elmeleh v Police
[2019] NZHC 3371
•18 December 2019
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
AppellantAND
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 the door with force and saw Mr Elmeleh fall down as the door had hit him on the face. He was half standing, not flat on the floor. Mr Tajek says he extended his hands to Mr Elmeleh who then “woke up”, immediately punched him in the face, and said: “Why did you do that to me?”. Mr Tajek said he was punched on his left cheek, and that the punch happened at the door to his office. He said Mr Elmeleh’s second punch missed and that a “security guard” held Mr Elmeleh from behind following a third punch which missed. Mr Tajek said there was “big swelling” on his face.
[6] Under cross-examination, Mr Tajek acknowledged that he had told Police at the time he was punched on the right side of his face. In explanation, he said: “This is one year now from that date … nobody can remember this”.
[7] The “security guard” whom Mr Tajek referred to is Mr Mac Pouniu, the managing director of iSecurity NZ, whose office is next to Mr Tajek’s. Mr Pouniu gave evidence that he had let Mr Elmeleh into the building, after he was banging and yelling at the main door. Mr Pouniu followed him upstairs to Mr Tajek’s office, hesitated at the entrance to his own office, and turned to look as Mr Elmeleh knocked “quite loud” on Mr Tajek’s door. Mr Pouniu was standing about two metres away from Mr Tajek’s office. He saw Mr Elmeleh pull at the door to Mr Tajek’s office. Mr Tajek opened his door and bumped Mr Elmeleh’s head, who slowly fell backwards towards the wall but not completely to the ground.
[8] Mr Pouniu said there was “a bit of yelling” between them. He said Mr Tajek never left his office. Mr Elmeleh walked into Mr Tajek’s office. Mr Pouniu had no view of what was happening. Mr Pouniu heard “a little fumble” from inside the room, which he later demonstrated to the Court by hitting his closed fist into his other palm. He heard Mr Tajek sort of yell out: “Stop”. He entered the office and saw Mr Tajek fall on top of his desk “with one hand holding his face and his other hand holding up
to block any more physical contact”. He did not see anyone hitting anyone. Mr Pouniu said he stood between the two men and told Mr Elmeleh to leave. Mr Tajek was complaining about his face being hit. He said Mr Tajek was yelling at Mr Elmeleh to leave and that Mr Elmeleh was “quite aggressive”. Mr Pouniu said Mr Elmeleh finally left, after they threatened to call the Police. Mr Elmeleh waited for Police so that he could explain his version of events.
[9] Under cross-examination, Mr Pouniu said he did not have a close relationship with Mr Tajek, but the two were always talking and saying hello to each other and asking how each other’s families were going. Mr Pouniu also said he believed he heard Mr Elmeleh say something along the lines of: “I’m the victim”.
[10] Constable Samir Khan, the officer who responded to the call, gave evidence that he found Mr Tajek in his office holding his hand over the right side of his face. He saw redness on one side of Mr Tajek’s face. He arrested Mr Elmeleh, whom he said was “quite agitated”. On the ride to the police station he told the officer he was the victim in the matter and that he had been hit in the head by the door. He denied punching Mr Tajek. Constable Khan was aware Mr Elmeleh had been hit on his head by the door and offered him medical assistance, but the officer did not notice any injuries.
[11] Mr Elmeleh elected to give evidence at trial. That in no way changed the burden of proof. After he was let into the building by someone else, he said he went upstairs and knocked politely at Mr Tajek’s door. He said the door was initially locked. He said it was then opened slightly, Mr Tajek looked at him and then opened the door with a very strong push “like if there was a bull there”. Mr Elmeleh said he then entered the office with “all these good feelings for him, I didn’t like to do anything bad”. He said he was fasting at the time and was “more polite, more humble, more human”. He denied touching, let alone punching Mr Tajek. He asked Mr Tajek why he had hit him and asked for his money. He said Mr Tajek told him to get out and told a man outside to call the Police. He said the “security guard” never touched him and he left after Mr Tajek said to call the Police. He waited for the Police so they could understand his complaint of being hit by the door. He went to hospital for about three hours after he was released by the Police because he had a headache.
The District Court decision
[12] In a succinct oral judgment, Judge Thomas found the assault charge was proved.4 He considered the material moment was when Mr Elmeleh found himself outside Mr Tajek’s office door.5 The Judge found Mr Tajek had opened the door outwards, striking Mr Elmeleh on the forehead, hard enough to at least make him stumble backwards, and causing an injury.6
[13] The Judge said the only issue in dispute was whether Mr Elmeleh punched Mr Tajek.7 He reminded himself that the burden of proof was on the Police to prove the charge beyond a reasonable doubt. He said Mr Elmeleh and Mr Tajek’s versions of events were different and irreconcilable. The Judge said he could not simply choose which evidence he preferred and that, rather, the Police “must make me sure that Mr Tajek’s version is the correct version”.8
[14] The Judge noted that Mr Tajek’s evidence bore some inconsistencies, such as which side of the face he said he was struck on. But Constable Khan’s evidence was that he saw redness on the right side of Mr Tajek’s face “and there is no reason to think Constable Khan would fabricate or be mistaken about what he saw”.9
[15] Judge Thomas considered that there were elements to Mr Elmeleh’s evidence that were self-serving and unlikely.10 He found it very hard to believe Mr Elmeleh had not been upset about missing out on his money. He also found it unlikely Mr Elmeleh had not been angry when he was not let in, or hit by the door. It also flew in the face of his own evidence about confronting Mr Tajek about it.
[16] The Judge said that, if Mr Tajek and Mr Elmeleh were the only witnesses, he would be unable to find the charge proved. However, he found the evidence of Mr Pouniu resolved the case.11 He described Mr Pouniu as a sensible witness who
4 New Zealand Police v Elmemeh, above n 2.
5 At [3].
6 At [4]–[5].
7 At [6].
8 At [9].
9 At [7].
10 At [8].
11 At [9]–[10].
did not embellish his evidence or exhibit any bias. The evidence he gave was consistent with Mr Elmeleh entering the room and punching Mr Tajek.
Approach on appeal
[17] Mr Elmeleh’s notice of appeal only challenges Judge Thomas’ refusal to grant a discharge without conviction. However, written submissions filed on his behalf also challenge the conviction. The Police have filed written submissions in response to this issue, so I will determine both aspects of the appeal.
[18] Under s 232(2) of the Criminal Procedure Act 2011, I must allow an appeal against conviction if I am satisfied: the Judge erred in his or her assessment of the evidence, to such an extent a miscarriage of justice has occurred (subs (b)); or a miscarriage of justice has occurred for any reason (subs (c)). Otherwise, I must dismiss the appeal.
[19] A miscarriage of justice is defined to be “any error, irregularity, or occurrence in or in relation to or affecting the trial” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.
[20] The Supreme Court clarified the meaning of s 232(2)(b) in Sena v New Zealand Police.12 It is for the appellant to show that an error has been made and the appellate court must consider any advantages a trial judge may have had. This means that an appellate court will exercise “customary caution” to a challenge to credibility findings based on contested oral evidence.13 If the appellate court comes to a different view of the evidence, the trial judge must necessarily have erred and the appeal must be allowed.14
Submissions
[21] Ms Asmundson, for Mr Elmeleh, submits that Mr Pounui’s evidence was inconsistent with Mr Tajek’s. This inconsistency meant it was an error for the Judge
12 Sena v New Zealand Police [2019] NZSC 55.
13 At [38].
14 At [38].
to use Mr Pouniu’s evidence to support the prosecution’s case. She submits the Judge did not articulate sufficiently why Mr Tajek’s evidence was not sufficient to prove the charge and how Mr Pouniu’s evidence then resolved the question beyond reasonable doubt.
[22] Ms Asmundson agrees that the critical points of evidence concern what happened when Mr Elmeleh arrived outside Mr Tajek’s office door. Mr Tajek said he was punched at the door to his office. Mr Pouniu’s evidence was that he did not see any punches in the hallway or doorway. Mr Tajek said he reached out his hands to Mr Elmeleh, whereas Mr Pounui said Mr Tajek never came out of his office. She submits the Judge erred in finding that Mr Pouniu’s evidence was consistent with Mr Elmeleh punching Mr Tajek in the way Mr Tajek said and provided no or no adequate explanation for that conclusion.
[23] Ms Stubbington, for the Police, submits the Judge was faced with differing accounts of what happened and had to resolve credibility issues. He was entitled to rely on the evidence of independent witnesses to prove the charge beyond a reasonable doubt. She submits the evidence of Constable Khan and Mr Pouniu corroborate the prosecution’s narrative.
Discussion
[24] I can find no fault in Judge Thomas’ assessment of the credibility of Mr Tajek or Mr Elmeleh, or Mr Pouniu for that matter. His reasoning is far from the “conclusory credibility preference” warned of in Sena.15 The Judge was in the best position to gauge witness credibility and his assessment on the key issues was, with respect, cogent.
[25] There is more force in Ms Asmundson’s submission that the Judge erred in finding that “all the evidence” Mr Pouniu gave “about what he did see and what he did hear was consistent with [Mr Elmeleh] entering the room and punching Mr Tajek in the way Mr Tajek says”.16 Mr Pouniu’s evidence was that Mr Tajek never left his
15 Sena v New Zealand Police, above n 11, at [36].
16 New Zealand Police v Elmemeh, above n 2, at [10].
office, and that after Mr Elmeleh entered the office he heard but did not see a “little fumble” from inside, which made a sound like a fist hitting a palm. When Mr Pouniu entered the office, he saw Mr Tajek had one hand on his face and was holding his other hand up to block physical contact. This account is different to that of Mr Tajek, who said Mr Elmeleh punched him at the door to the office immediately after Mr Elmeleh had fallen in the hallway, and that Mr Pouniu intervened before or after a third punch (only one of which connected). I accept Ms Asmundson’s submission that Mr Pounui was standing so close to where Mr Elmeleh had fallen that he would have seen if Mr Elmeleh had punched Mr Tajek then.
[26] Nonetheless, I am satisfied the Police established the charge beyond a reasonable doubt. The prosecution was required to prove that Mr Elmeleh assaulted Mr Tajek, which I am sure he did, based on the combined evidence of Mr Tajek, Mr Pouniu and Constable Khan. Mr Pouniu’s independent evidence was clear and credible. The inconsistencies did not go to the heart of the matter but were on peripheral matters. I am not persuaded that Mr Tajek’s statement that this all happened at the door to the office means in the hallway. It could also mean just inside the door to his office. Mr Pouniu said Mr Elmeleh was acting aggressively, he saw him enter the office, heard what sounded like a punch and saw Mr Tajek holding his face and in a defensive position. Constable Khan confirmed he saw redness on the one side of Mr Tajek’s face. And, while Mr Tajek’s evidence was that the punch took place at the office door, this is not so inconsistent with the other prosecution witnesses that it cannot be explained by the lapse of time since the event or difficulty in remembering a stressful event.
[27]Accordingly, the conviction appeal fails.
Appeal against refusal to grant discharge without conviction
[28] In his affidavit in support of the application for a discharge without conviction, Mr Elmeleh said he hoped to work in the public sector, such as in a regional council.17 He said there was a real risk that he would not be able to obtain such employment because he was aware the public sector requires police checks to be done. He said he
17 Affidavit of Abdel Elmeleh, 17 May 2019.
would like to work as a security guard while he studied towards a certificate in bi- cultural social studies but, if he was convicted, he would not be able to renew his security guard licence.
[29] Mr Elmeleh also raised concerns about his voluntary work as a teacher at a masjid. He said news of the events that led to his conviction had spread within the community and had “put me in a rather bad position affecting my teaching”. He said he would be unable to continue to teach at the masjid if he was convicted. He attached to his affidavit exhibits of letters written by two imams. The imams described Mr Elmeleh as “loved by the students” and as noble, humble, passionate, honest, and trustworthy. Neither imam suggested Mr Elmeleh would be unable to continue teaching if he was convicted.
[30] Mr Elmeleh has since filed a fresh affidavit in support of his appeal.18 He says he has begun studying for his certificate in bi-cultural social studies and that he would like to work part time as a taxi driver and/or security guard, so he can contribute to the family household. He attaches as exhibits two letters from the New Zealand Transport Agency (NZTA). The first, dated 24 June 2016, expresses the NZTA’s concern about Mr Elmeleh’s “recent traffic offences” and warns that further offending would prompt consideration of whether he was a fit and proper person. The second letter, dated 25 October 2019, gives notice of NZTA’s intention to revoke Mr Elmeleh’s passenger endorsement on the basis that he is no longer a fit and proper person to hold one. The letter states:
Assault and violence related behaviour are directly relevant to your fitness and propriety, and to public safety. Your recent conviction for common assault shows a tendency to display violent behaviour. This is especially significant considering that your role is to safely transport passengers.
[31] The NZTA letter states Mr Elmeleh’s traffic offence history is an additional cause for concern and “demonstrates a flagrant disregard for land transport safety rules”. The letter lists his 14 traffic offences since he obtained a passenger endorsement. Ten of these were committed after the warning he received in June 2016. The letter advises Mr Elmeleh that he has a right to make submissions to the Agency
18 Affidavit of Abdel Elmeleh, 29 November 2019.
within 21 days of the decision. That date has since passed. There is no evidence of NZTA’s final decision. The letter also advises him of his right to appeal a final decision to the District Court. Ms Asmundson informs me that the appellant is waiting for the outcome of this hearing before he takes any steps.
District Court decision
[32] Judge Thomas considered the gravity of Mr Elmeleh’s offending was at the low end of moderate.19 He had targeted Mr Tajek’s head, but Mr Tajek did not suffer serious injury and there did not appear to be any lasting effects. Mr Elmeleh was otherwise a person of good character, with no previous convictions, who was prepared to pay emotional harm reparation.
[33] Against this, the Judge said there was no evidence before him of a real and appreciable risk that Mr Elmeleh would not be able to get work in the public sector, local government field, or as a security guard.20 In relation to the latter, the Judge said the Private Security Personnel Licensing Authority had a discretion to grant security guard licences to applicants who had been convicted of a disqualifying offence.21 He said there was no information before him to help him determine whether Mr Elmeleh’s licence would be renewed or not. Judge Thomas also said there was no direct evidence before him that a conviction would prevent Mr Elmeleh from continuing to teach at the masjid. The letters from the imams suggested otherwise.
[34] Overall, the Judge was not satisfied the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offending.22
Approach on appeal
[35] A discharge without conviction is only possible, under s 107 of the Sentencing Act 2002, if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” and it exercises its discretion to discharge without conviction under s 106. The assessment is to be
19 New Zealand Police v Elmemeh, above n 3, at [5].
20 At [6], [8].
21 At [8], citing s 53(5) of the Private Security Personnel and Private Investigators Act 2010.
22 At [11].
made in accordance with the three-step approach set out by the Court of Appeal in Z v R.23 In short, there is a threshold which must first be met before any discretion is to be exercised. The applicant must demonstrate there is a real and appreciable risk any identified consequences will occur, rather than speculate about matters of present fact.24 Once the test in s 107 of the Sentencing Act 2002 is met, it is generally appropriate for a discharge to be granted.25
[36] This is not an appeal against a discretion. It is an appeal against judicial assessment of the threshold criteria.26 It is treated as an appeal, by way of rehearing, against conviction and sentence under s 232(2) of the Criminal Procedure Act 2011. I must allow the appeal if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107.27 Otherwise I must dismiss the appeal. A miscarriage of justice is defined to mean “any error, irregularity, or occurrence in or in relation to or affecting the trial” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.
Submissions
[37] Ms Asmundson submits the gravity of the offending was low, and not at the low end of moderate. The Judge failed to consider that Mr Elmeleh offended in the context of having just been hit in the head with some force with a door by Mr Tajek. The punch was spontaneous.
[38] She submits the Judge erred by requiring Mr Elmeleh to prove any claimed consequences would occur, rather than a real and appreciable risk. She submits the fact a conviction for violence is a disqualifying offence for a security licence is sufficient to establish a real and appreciable risk, regardless of whether the Private Security Personnel Licensing Authority retains a discretion to grant a licence in such cases. In respect of the passenger endorsement, Ms Amundson submits NZTA’s
23 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
24 DC (CA47/2013) v R [2013] NZCA 255 at [43].
25 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
26 H v R [2012] NZCA 198 at [30].
27 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
October 2019 letter shows there is a real and appreciable risk the Private Security Personnel Licensing Authority will do the same and not renew his security licence.
[39] She also submits that the NZTA would not have decided to suspend his endorsement if he had not been convicted, regardless of his traffic infringements. She says Mr Elmeleh would be in a strong position to have the decision reviewed if his appeal is successful. Finally, she submits his conviction has had a great impact on him and how he is viewed within the community. If he is unable to work, he will be unable to support his children, especially during their time at university. In short, she submits that the all the factors collectively weigh in favour or a discharge and that the fresh material tips the balance such that the threshold is met.
[40] Ms Stubbington submits Judge Thomas correctly assessed the gravity of the offending as “low to moderate”. In respect of the consequences claimed by Mr Elmeleh, she submits that, if there is no evidence to support his assertions of a real and appreciable risk of the consequences occurring, then the Court cannot be satisfied that the risks exist. Mr Elmeleh provided no independent evidence to the Judge to support his claims. He has since provided the NZTA letter on appeal, but Ms Stubbington submits the NZTA’s notice of intention was also based on Mr Elmeleh’s lengthy history of traffic infringements and there is nothing in the fact that the letter refers first to the assault conviction. She says the risk that he would lose his passenger endorsement was significant even before conviction, and so any suspension is not a consequence solely of the conviction. In relation to the security licence, Ms Stubbington submits that is a matter of discretion for the Private Security Personnel Licensing Authority.
Discussion
[41] I accept Ms Asmundson’s submission that the gravity of Mr Elmeleh’s offending is low. I also accept that the circumstances around Mr Elmeleh being first struck by the opening door (even if inadvertent) would have escalated tensions. Mr Tajek’s evidence itself suggests that the knock had caused either a very brief loss of consciousness or at least that Mr Elmeleh had been momentarily stunned. He spoke of Mr Elmeleh punching him when he “woke up”.
[42] Mr Elmeleh provided the Judge with no evidence beyond his own speculation that a conviction would stop him from working in the public sector, as a security guard, or from volunteering at the masjid. The only evidence from the Muslim community he belongs to suggests that community elders hold him in high regard. And the Private Security Personnel Licensing Authority has a discretion to grant a security licence to Mr Elmeleh even if he has a recent conviction for violence. He had not established there is a real and appreciable risk it will not do so. Judge Thomas was correct to hold that the consequences of conviction were not out of all proportion to the gravity of Mr Elmeleh’s offending.
[43] The question on appeal is whether the fresh evidence changes the complexion. I note that Mr Elmeleh has not provided evidence that the NZTA has made a final decision and, if so, whether he has exercised his right to appeal. It is possible that the NZTA, or the District Court on appeal, might decide that a one-off instance of low- gravity violence in an employment setting does not suggest Mr Elmeleh poses a safety risk to taxi passengers. It might decide otherwise, or it might decide Mr Elmeleh’s traffic offences alone are sufficient to justify revoking his passenger endorsement. That is an assessment for the NZTA or the District Court.
[44] The important point is that I am satisfied on the fresh evidence that there is now a real and appreciable risk Mr Elmeleh’s passenger endorsement will be revoked if his conviction stands. In circumstances where the offending was at the low end of the scale and, most importantly, factoring in the injury to him which likely sparked his spontaneous reaction, I consider that a conviction would be out of all proportion to the gravity of his offending in this case. This incident should, however, serve as a warning to Mr Elmeleh.
Result
[45]The appeal against conviction is dismissed.
[46] I allow the appeal against the refusal of the application to discharge without conviction.
[47] I record Mr Elmeleh’s agreement that the order for reparation to Mr Tajek stands, regardless of the result of this appeal. I understand that it has been paid.
...................................................
Walker J