Janif v Police - [2014] NZHC 2753

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000066 [2014] NZHC 2753

BETWEEN
SAHEED MOHAMMED JANIF

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2014

Appearances:

G D Prentice and T Singh for Appellant
S Cameron for Respondent

Judgment:

6 November 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 6 November 2014 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Public Defence Service, DX GX1005, Hamilton
Almao Douch, Barristers and Solicitors, DX GP2003, Hamilton

SAHEED MOHAMMED JANIF v NEW ZEALAND POLICE [2014] NZHC 2753 [6 November 2014]

[1] Mr Janif appeals against his convictions for male assault female and breach of a protection order, which were entered by Judge H Riddell in the Hamilton District Court following a defended hearing on 5 November 2013.

[2] The original grounds of appeal have been abandoned. In an amended notice of appeal dated 10 October 2014, the grounds are now specified as:

(a) the complainant was cross-examined by the police prosecutor without having been declared hostile in breach of ss 89 and 94 of the Evidence Act 2006 (Act);

(b)the evidence of what the complainant said happened to the neighbour was hearsay, because at the time it was given the complainant was a future testifier, therefore not a witness; and

(c) the Judge reversed the onus of the burden of proof.

[3] The appeal is lodged under s 115 of the Summary Proceedings Act 1957, as Mr Janif was first charged before the commencement date of the Criminal Procedure Act 2011. Mr Janif has the onus of satisfying the High Court that it should differ from the District Court decision, but the High Court must come to its own view on the merits of the decision.1

Factual background

[4] On 10 April 2013, the Police were called to a domestic disturbance at the appellant’s flat in Hamilton by a neighbour. The neighbour had been alerted by the complainant’s young son, who knocked on her door, seeking her assistance. The neighbour went to the scene of the disturbance and saw the complainant on the floor with her arms raised as if to protect herself and the appellant hovering over her.

[5] The neighbour yelled out and said she was going to call the Police. She then went back to her flat and rang 111. She saw a cup come flying out of the appellant’s doorway. The complainant also exited the appellant’s flat in an agitated state. The

111 call records the complainant saying to the neighbour that the appellant had hit her. The complainant then spoke to the 111 operator herself and told her that the appellant had hit her.

[6] The Police arrived and the complainant repeated her advice that that the appellant had hit her and showed them her reddened arms and swollen left cheek bone. When later asked to make a formal statement, she declined.

[7] On the day of the defended hearing the complainant did not…

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 Janif v Police

Details

AGLC: Janif v Police [2014] NZHC 2753
Case: [2014] NZHC 2753
Decision Date: 6 November 2014

CaseChat Overview and Summary

The appeal in Janif v Police was brought by the appellant, Saheed Mohammed Janif, against his convictions for male assault female and breach of a protection order. These convictions were entered by Judge H Riddell in the Hamilton District Court following a defended hearing. The appellant's grounds of appeal were initially abandoned, but were later amended to include claims that the complainant was cross-examined by the police prosecutor without being declared hostile, that the neighbour's evidence was inadmissible hearsay, and that the Judge had reversed the burden of proof. The appeal was lodged under the Summary Proceedings Act 1957, and the appellant bore the onus of satisfying the High Court that it should differ from the District Court decision. The Court was required to consider the merits of the decision and come to its own view.

The High Court found that the complainant's examination by the police prosecutor was not cross-examination, as it was not primarily addressed to breaking down or impeaching her evidence. The prosecutor's questions were aimed at seeking an acknowledgement from the complainant of what she had told the Police, and the leading questions did not amount to cross-examination. The Court also found that the neighbour's evidence was independently admissible as part of the events in issue, and that there was no unfairness to the appellant in the order in which the evidence was heard. Finally, the Court found that the Judge's comments did not reverse the burden of proof, but were merely expressing a view that there was no other reasonable explanation for the complainant's injuries other than that the appellant had hit her.

The appeal was dismissed, and the High Court found that Judge Riddell was plainly correct to find the appellant guilty beyond reasonable doubt. The Court carefully reviewed the evidence, made appropriate findings of credibility and reliability, and reached conclusions which were soundly based on all the evidence. The Court did not find any merit in the appellant's grounds of appeal, and dismissed the appeal accordingly.

Orders