Hussein v R - [2011] NZCA 58

IN THE COURT OF APPEAL OF NEW ZEALAND

CA477/2010
[2011] NZCA 58

BETWEEN ABDUL SALEEM HUSSEIN
Appellant

AND THE QUEEN
Respondent

Hearing: 2 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: P T Eastwood for Appellant
S B Edwards for Respondent

Judgment: 9 March 2011 at 9.45 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Venning J)

Introduction

Mr Hussein appeals against his convictions of six counts of receiving stolen property. The convictions followed the decision of Judge Blackie in the District Court at Manukau to refuse the appellant’s application to set aside his guilty pleas.
The appellant also appealed against the sentence of six months’ community detention, 300 hours community work and $18,500 by way of reparation, but during the course of submissions Mr Eastwood confirmed the sentence appeal was no longer pursued.

Background

On 21 September 2009 a Toyota Hi-Ace van valued at $35,000 was stolen from Great South Road, Papatoetoe.
The police located the stolen van at the address of Auto Ace New and Used Parts Limited, a business operated by the appellant in Otara. The police executed a search warrant and, in addition to the Toyota Hi-Ace, found another five stolen vehicles as well as the registration plates relating to a further stolen vehicle. The combined value of the vehicles was $104,000.
The appellant was spoken to. He admitted he was the business owner. He said he bought cars from two males who he only knew by their first name. He said he did not do the required checks or record the transactions and had paid cash for the cars. He accepted that some of the cars he had bought had their ignitions damaged. He admitted being careless.
The appellant was charged with seven counts of receiving stolen vehicles. On 18 February 2010 he pleaded guilty to counts 2 – 7 of the indictment. By agreement the Crown did not offer any evidence in relation to the first count involving the Toyota Hi-Ace. The appellant was discharged on that count.
The appellant was then remanded for sentence. However, before sentence he applied to vacate the guilty pleas. He supported the application with an affidavit in which he criticised the attention his former counsel, Mr Singh, had given the matter and the advice he had received from him. The appellant also set out the defences he had in relation to the charges. Mr Singh provided an affidavit in response.

The District Court decision

Judge Blackie heard the application on 23 July. The appellant did not give evidence. Mr Singh confirmed his affidavit and was cross-examined. After hearing the evidence Judge Blackie declined the application to set aside the guilty pleas and proceeded to sentence the appellant.
In declining to set aside the guilty pleas, the Judge directed himself to the authorities of R v Stretch[1] and Hau v Rotorua District Court.[2] As to the evidence, he was quite satisfied Mr Singh had a firm grip of the…

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 Hussein v R

Details

AGLC: Hussein v R [2011] NZCA 58
Case: [2011] NZCA 58
Decision Date: 9 March 2011

CaseChat Overview and Summary

Abdul Saleem Hussein appeals against his conviction of six counts of receiving stolen property, following his guilty pleas. The appeal also challenges the sentence of six months’ community detention, 300 hours of community work, and $18,500 in reparation. The appeal against sentence was subsequently abandoned. The convictions stem from the discovery of six stolen vehicles, valued at $104,000, at Hussein’s business premises. He pleaded guilty to receiving the vehicles but later sought to vacate these pleas, alleging ineffective legal advice and asserting he had viable defences. The District Court dismissed the application, and Hussein now appeals to the Court of Appeal.

The appeal hinges on whether the District Court judge erred in refusing to set aside Hussein’s guilty pleas, which would require a finding of a miscarriage of justice. The Court of Appeal must determine if Hussein's former counsel provided adequate advice, and whether the judge correctly assessed the validity of Hussein’s proposed defences. The Crown argues that Hussein’s guilty pleas were informed and voluntary, and that his defences were not tenable. The Court of Appeal reviews the adequacy of the legal advice Hussein received, the nature of the defences proposed, and whether there was a miscarriage of justice.

The Court of Appeal finds that Hussein’s guilty pleas were properly entered after receiving competent legal advice. Hussein's counsel, Mr. Singh, provided thorough advice, including examples of when to suspect a vehicle might be stolen. Hussein's affidavit outlining his defences was vague and provided little support for a viable defence. The Court notes that even if Hussein had an arguable defence, it would be difficult to establish a miscarriage of justice if the plea was entered freely and after proper advice. The Court concludes that there was no miscarriage of justice and affirms the District Court’s decision to uphold the guilty pleas. The appeal against the sentence was abandoned, and the Court finds the sentence appropriate for the offending.

The appeal against both conviction and sentence is dismissed.

Orders