Khan v Police
[2017] NZHC 462
•16 March 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2016-441-35 [2017] NZHC 462
BETWEEN ZAMEER KHAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 March 2017 Appearances:
P Ross for Appellant
C R Stuart for RespondentJudgment:
16 March 2017
JUDGMENT OF LANG J [on appeal against conviction]
This judgment was delivered by me on 16 March 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
KHAN v NEW ZEALAND POLICE [2017] NZHC 462 [16 March 2017]
[1] Mr Khan faced a charge in the District Court of obtaining a pecuniary advantage by deception. He defended the charge, but in a decision delivered on
17 October 2016 Judge Adeane found the charge proved.1 Mr Khan now appeals
against conviction.
Background
[2] The charge was laid in respect of an insurance claim that Mr Khan made following the alleged theft and arson of his Toyota Caldina motor vehicle. He had acquired the vehicle from his parents and taken over the finance and insurance payments in respect of it after his parents went back to Fiji in August 2015.
[3] On 30 July 2015, Mr Khan called the police and reported the theft of his car from where it had been parked overnight in the driveway of his address in Taradale. Later that day, the police discovered the vehicle abandoned and in a burnt-out state in a side road just off the Napier-Taupo Road. Mr Khan subsequently lodged an insurance claim in respect of the loss of the vehicle and several items of electronic equipment that had been in the vehicle when it was stolen and burnt. He subsequently withdrew the claim in respect of the electronic equipment. The insurance company subsequently accepted the claim in respect of the vehicle, and paid Mr Khan the sum of $16,700.
[4] Some time later an anonymous informant advised the insurance company that Mr Khan had been responsible for the destruction of the vehicle. The insurance company then appointed an investigator, who interviewed members of Mr Khan’s wider family. The police then became involved after three members of Mr Khan’s family said Mr Khan had made statements to them suggesting that he was responsible for, or involved in arranging, the theft and arson of the vehicle. The police laid the charge of causing loss by deception as a result.
Grounds of appeal
[5] On Mr Khan’s behalf, Mr Ross advances three separate but interrelated grounds of appeal. They are:
1 New Zealand Police v Khan [2017] NZDC 1464.
(a) The Judge erred in placing significant reliance on the demeanour of
Mr Khan when he gave evidence at the trial.
(b)The Judge erred in failing to caution himself that those members of Mr Khan’s family who gave evidence against him may have had a motive to give false evidence.
(c) Taken as a whole, the evidence was insufficient to support a guilty verdict.
Demeanour
[6] This ground of appeal arises because Mr Khan gave evidence in his own defence. He denied having any involvement in the theft and arson of the vehicle. His evidence was to the effect that it had been stolen from the driveway of his address, and he lodged the insurance claim in good faith.
[7] In dealing with Mr Khan’s evidence, the Judge observed that when a defendant gives evidence it may have one of three effects. It can exonerate the defendant or it can raise a reasonable doubt as to guilt. If the evidence is not accepted, it must be put to one side and the guilt or innocence of the defendant must be determined having regard to the balance of the evidence. The Judge then went on to say:2
[4] The evidence given by the defendant in this case does not fit neatly into any one of those three categories. It is a case where both the content and the demeanour of the defendant, when giving evidence and his reaction to certain questions, have proved of assistance to the Court. I return to the central concept that the prosecution must prove the charge. The defendant is under no obligation to prove anything.
…
[14] Second, is the air of dishonesty which surrounds a claim wherein the defendant received payment of $16,000 odd dollars for a vehicle which, on his own statement to the police, had a value of two or three thousand dollars. In evidence in chief and indeed in cross-examination, the defendant first of all asserted that he knew nothing of the market value of the car, it was not for sale and he did not turn his mind to it. His reaction when confronted
with the contents of his complaint to the police on that point was decidedly uncomfortable as one might expect.
[15] As I say there is a sense of dishonesty about the claim given the disparity between the amount paid out and the value of the vehicle as known to the defendant. There is also a distinct sense of dishonesty to the withdrawal of the claim for the chattels in the vehicle and the various explanations which the defendant has made in relation to them. First of all being quite emphatic and specific about them being in the car, consulting with his wife in the course of advancing that claim to the comms worker, but subsequently claiming to have withdrawn it on the strength of information given by his wife. None of these matters taken alone would begin to be conclusive of this matter but the coincidence of the evidence of [the family members] …taken together, that the evidence of those witnesses concerning the making of a confession by the defendant is to be accepted.
[8] In his written submissions, Mr Ross contended that the Judge had decided the case principally on the basis of Mr Khan’s demeanour when giving evidence. He pointed out that reliance on demeanour alone is now a discredited method of fact- finding in the sense that it has been found to be highly unreliable.3 For that reason Mr Ross contended that the Judge had erred in principle in basing his decision largely on Mr Khan’s demeanour.
[9] Mr Ross prepared his written submissions before the Judge’s decision had been transcribed. He therefore based his submissions on the report of the Judge’s decision he received from counsel who acted for Mr Khan during the hearing in the District Court. Mr Ross now acknowledges that the Judge did not base his decision on Mr Khan’s demeanour alone. Rather, he decided it on a significantly wider basis than that.
[10] I acknowledge that, had the Judge decided the case solely based on Mr Khan’s demeanour when giving evidence, he may have erred in his approach. The manner in which a witness gives evidence may nevertheless still be taken into account when assessing issues of credibility and deciding facts. Furthermore, reading the Judge’s decision as a whole, I do not consider that his assessment of Mr Khan’s demeanour played a significant part in his reasoning process. For that reason I am not prepared to say that the Judge erred in principle in taking Mr Khan’s demeanour into account.
Was a caution under s 122 of the Evidence Act 2006 required?
[11] The Judge expressly reminded himself that, if the case had been before a jury, s 122(2)(b) of the Evidence Act 2006 (the Evidence Act) would have required him to consider whether to remind the jury of the need to exercise caution when considering evidence relating to statements made by Mr Khan if those statements comprised the only evidence against him.4 Mr Ross submits the Judge ought to have gone further. He says the Judge should also have reminded himself that s 122(2)(c) of the Evidence Act required him to consider whether he needed to exercise caution before placing weight on the evidence given by the prosecution witnesses because they had
a motive to give false evidence against Mr Knan.
[12] Section 122 of the Evidence Act relevantly provides:
122 Judicial directions about evidence which may be unreliable
(1) …
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge to warn or inform the jury.
[13] Mr Ross submitted that all three members of Mr Khan’s family who gave evidence against him had a motive to give false evidence. The motivation arose because of earlier disputes within the family that undoubtedly led to ill-feeling between the three witnesses and Mr Khan. In those circumstances Mr Ross submits that the Judge ought to have given himself a caution under s 122(2)(c) of the Act.
[14] Strictly speaking, s 122(2) of the Act has no application in the present context because it only applies to cases being tried before a jury. Nevertheless, the factual situations set out in s 122(2)(a) to (e) are all examples of situations where the jury may need to consider whether to accept evidence or place weight on particular types of evidence because experience shows that such evidence may be unreliable. I consider that s 122(5), which applies only to cases being tried without a jury, gives rise to broadly similar considerations. Section 122(5) requires the Judge in a Judge alone trial to bear in mind the need for caution before convicting a defendant in any case based on evidence that may be unreliable. Unlike s 122(2), s 122(5) does not specify or provide examples of the circumstances in which a statement made by a witness may be unreliable. Logic and common sense suggest, however, that the evidence of a witness who has a motive to give false evidence may be unreliable.
[15] Although the Judge did not expressly refer to s 122(5), I am satisfied he was alive to the prospect that members of Mr Khan’s family may have had a motive to give false evidence against him. In reminding himself of the need for caution under s 122(2)(b), the Judge said:5
[13] It may be that there has been some background tension between the parties which might contribute to this allegation. But other matters can be juxtaposed against that. First of all, is the fact that no fewer than three of the defendant’s siblings, or their partners, have implicated him in circumstances where no real motive is apparent for doing so. As the witnesses themselves were quick to say they stood to gain nothing from false testimony against the defendant.
[16] I do not consider the Judge erred in principle by not referring expressly to s 122(5) when considering the evidence of the key prosecution witnesses, or that there is a real risk of a miscarriage of justice through that fact alone. Rather, the real issue on appeal is considerably wider than either of these two grounds. When asked to refine the overall appellate principle on which he relied, Mr Ross submitted that the Judge’s conclusion as to guilt was unsafe because the evidence was insufficient to support it. This ground of appeal is conventionally based on a submission that the verdict is unreasonable because it was not supported by the evidence.
Was the Judge’s conclusion unreasonable on the basis that it was not supported by the evidence?
[17] The principles that apply in this context are now well established through application of the principles referred to in the judgments of the Court of Appeal in R v Munro6 and the Supreme Court in R v Owen.7 In Owen, the Supreme Court concluded that the test is whether the jury’s verdict can be regarded as unreasonable on the basis that a verdict unsupported by evidence is presumptively so.8 The Supreme Court also confirmed that the appellate court is performing a review function, and is not entitled to substitute its own view of the evidence. Issues relating to the honesty and reliability of witnesses are classic examples of the advantage that the trier of fact will have over an appellate court. The weight to be given to individual pieces of evidence is essentially a function entrusted to the trier of fact, and reasonable minds may disagree on matters of fact. Furthermore, appellate courts should not lightly interfere with jury verdicts because the jury is the
body charged with finding the facts in a criminal trial.9
6 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.
7 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.
8 At [12].
9 At [13].
[18] The Crown case against Mr Khan was circumstantial. As such it relied on several strands of evidence. It did not depend entirely, as the Judge appears to have considered, on the evidence relating to the statements allegedly made by Mr Khan to members of his family. In any case based on circumstantial evidence the Crown is not required to prove individual strands of evidence beyond reasonable doubt. Rather, the combined effect of the evidence must prove the guilt of the defendant beyond reasonable doubt. The issue on appeal in the present case is therefore whether the strands of evidence upon which the prosecution relief were sufficient to enable the charge to be proved beyond reasonable doubt.
Motive
[19] Mr Khan was the only person who stood to gain from the theft and destruction of the vehicle. He stood to gain from receipt of the insurance proceeds, whereas no other person stood to gain anything. Furthermore, the theft and destruction of the vehicle would appear to be pointless acts for any person other than Mr Khan. He was therefore the only person with an obvious motive for those acts.
Access to the vehicle
[20] The person who removed the vehicle from the driveway of Mr Khan’s address had to gain access to it and then drive it away undetected. Mr Khan confirmed in cross-examination that the car was fitted with an audio alarm that would have sounded if somebody had broken into the car. This means that, if a person other than Mr Khan removed the vehicle, Mr Khan must have left it unlocked whilst it was parked in his driveway overnight. Mr Khan said in evidence that he usually locked the vehicle but could not remember whether he had left it locked that night. I consider this to be an unusual answer. Logic suggests that most people who go to the trouble and expense of installing an alarm in their vehicle would also take the elementary step of locking their vehicle if it is to be left parked outside overnight. Had Mr Khan taken that step, however, the alarm would have sounded when the vehicle was removed and this did not occur.
[21] I consider it inherently unlikely that Mr Khan would have been so careless as to have left the vehicle unlocked through inadvertence. This leads to one of two
conclusions, neither of which is helpful to Mr Khan. The first is that Mr Khan drove the vehicle away himself. The second is that he deliberately left the vehicle unlocked in the driveway. Given what subsequently occurred, the obvious inference to be drawn from the second conclusion is that Mr Khan had arranged for somebody else to remove his vehicle and destroy it.
Insurance
[22] It may also be inferred that Mr Khan is likely to have known the vehicle was insured for $16,000 when it had a market value of just $2,000 to $3,000. When Mr Khan took responsibility for the vehicle over from his parents, he also assumed responsibility for payment of the insurance premiums. He confirmed that he had dealt with this issue personally. He said he did not know how much the vehicle was insured for, but I consider that to be inherently unlikely. He would naturally have been concerned to ensure that he was not paying for more insurance cover than he needed. It is far more likely that he knew the vehicle was insured for approximately
$16,000.
[23] When Mr Khan reported the vehicle missing on the morning of 30 July 2015, the member of police staff who answered the call asked Mr Khan how much the vehicle was worth. Mr Khan immediately answered that the market value of the vehicle was “two to three thousand”. It follows that Mr Khan is likely to have known that the vehicle was insured for a sum that was far greater than its market value.
The insurance claim in respect of the chattels in the vehicles
[24] The circumstances surrounding the insurance claim in respect of items of electronic equipment that were supposedly in the vehicle at the time of the fire are also curious. During the telephone conversation in which Mr Khan reported the loss of the vehicle and its contents to the police, he sought advice from his wife regarding any items that may have been in the vehicle when it was stolen. Acting on her advice, he told the police that a ten inch silver iPad had been in the vehicle. On
19 November 2015, having already lodged a claim with his insurance company in respect of the loss of the vehicle, Mr Khan lodged a further claim in respect of the
loss of a Samsung tablet, a Samsung Galaxy S6 cellphone, an iPad Air 2 tablet and a ten inch MacBook Air iPad. Later the same day Mr Khan called the insurance company again to withdrew the claim for the loss of the electronic items, again after apparently speaking to his wife. He explained this by saying that he had learned from his wife that the items had not been in the vehicle when it was stolen as he had originally advised the police.
[25] One of the most curious aspects of this issue arises out of the fact that Mr Khan told his insurance company he had got the items of electronic equipment from his wife’s sister the day before the vehicle was stolen. He said they were to be a birthday gift from his wife’s sister to his wife, and he intended to give them to his wife the next day. He said he had left the items in the vehicle overnight because he did not want his wife to see them before he gave them to her.
[26] The insurance claim in respect of the electronic items raises several questions, perhaps the least important of which are why Mr Khan’s wife would be receiving several expensive items of electronic equipment as a birthday gift from her sister and how Mr Khan’s wife had become aware of the existence of at least the iPad by the time Mr Khan called the police on the morning the vehicle disappeared from his driveway. The more important questions are why Mr Khan’s wife concluded the items were not in the vehicle so soon after telling her husband that they were, and why Mr Khan would say they were a gift from his wife’s sister when the sister denied when giving evidence at the trial that she had given Mr Khan’s wife any gifts for her birthday. Neither of these questions is adequately explained on the evidence.
The evidence given by members of Mr Khan’s family
[27] There is then the evidence given by three members of Mr Khan’s family
regarding statements they say that he made to them following the theft of the vehicle.
Mohamed Sharuf Yasin (Sharuf)
[28] Sharuf is the brother of Mr Khan’s wife. He is therefore Mr Khan’s brother- in-law. He has known Mr Khan for approximately four years.
[29] Sharuf said that when Mr Khan’s car was stolen he told Sharuf that the vehicle was in the garage getting repaired. Some time later, Sharuf ’s wife Azbah discovered through a family friend in Levin that the vehicle had actually been stolen and burnt.
[30] At this time Mr Khan and his wife were visiting Sharuf and Azbah regularly. Sharuf said that on one of these visits he and Azbah asked Mr Khan and his wife about what had happened to the car. Mr Khan said that they had taken the car to the Taupo Road and had burnt it. Mr Khan and his wife were both present when this was said. Sharuf said that both Mr Khan and his wife confirmed the car had been taken to the Taupo Road and burnt. They also said that the insurance for the vehicle had been paid out and that they were trying to claim more money for electronic items.
[31] Sharuf said that he responded by telling Mr Khan and his wife that they should not have done it, and he asked them why they had done it. He said that they were quiet when he asked them these questions. Sharuf also said he remembered Mr Khan’s wife saying that her brother had done the same thing in Auckland, and this had encouraged her husband to do it. Sharuf said that he ceased contact with Mr Khan and his wife a short time after this visit because he did not want to get involved in the trouble that might follow.
[32] In cross-examination, Sharuf accepted that he was the person who had made the anonymous telephone call to the insurance company to advise them that Mr Khan had burnt the vehicle himself. He then spoke to the insurance investigator and subsequently to the police.
[33] Sharuf also agreed that a year or more earlier Mr Khan’s wife had made a complaint about Azbah assaulting her. Sharuf said this occurred after an incident in which Mr Khan’s wife had come to his house and tried to assault Azbah. Mr Khan’s wife then told the police that Azbah had assaulted her. He was not aware of the incident on a first hand basis, however, because he had been at work when it occurred.
[34] In addition, Sharuf said he believed that Mr Khan’s wife had made a complaint to the Child Youth & Family Service and the police about the manner in which Sharuf and Azbah were bringing up their child. This occurred at a time when Azbah was expecting another child. He also said he believed that this incident had occurred after he had made a statement to the police.
[35] Furthermore, Sharuf acknowledged he did not tell the police that Mr Khan’s wife had said that her brother had made a similar insurance claim in Auckland and that this encouraged Mr Khan and his wife to do the same thing.
Azbah Anjabeen (Azbah)
[36] Azbah Anjabeen is Mr Khan’s sister and is married to Sharuf. She said that Mr Khan and his wife used to visit their home on a regular basis. They generally arrived in the Toyota Caldina motor vehicle that Mr Khan had acquired from his parents. They then began arriving in another vehicle, and Azbah and her husband asked them why they were doing that. Mr Khan told them that the Toyota Caldina was being repaired in a garage. Azbah was subsequently told by a friend who lives in Levin that the Toyota Caldina had been stolen and burnt. When Azbah asked Mr Khan whether this was correct, he maintained that the vehicle was in a garage being repaired.
[37] Sharuf and Azbah had also become aware from the friend in Levin that she had been visited by Mr Wayne Cunningham, an investigator engaged by the insurance company. Mr Cunningham had also spoken to Sharuf and Azbah. The friend in Levin did not want Mr Khan and his wife to know she had told them about the car being stolen and burnt. For that reason Azbah told Mr Khan that Mr Cunningham had spoken to her and told her about the vehicle being stolen and burnt.
[38] Azbah said Mr Cunningham had told her that he was “99 per cent sure” that Mr Khan and his wife had burnt the vehicle themselves. She said she put this to Mr Khan and his wife during a visit, and Mr Khan’s wife had said not to tell anybody but that they had burnt the vehicle themselves. Azbah said Mr Khan was present when his wife told Azbah the story of how and when it had happened. Azbah
said that she was told the vehicle was burnt on a feeder road on the Napier/Taupo road.
[39] When the prosecutor asked Azbah whether she had any reason to come to
Court to lie:
A. No, I came today to give a statement was because the police got a call from a lady anonymously saying that I used to beat my child and used to feed him noodles only and that really got me and I said – and then they also said that I am due on 30th of March 2016, so they were the ones who knew the exact date and so I just knew – so after that, the police came, they saw my child, they saw how happy he was and then I called Zameer [Mr Khan] asking why he done that, he said, “Police came to my house. I didn’t call you, why did you call me when they came to your house?” So I knew that it was them and then I went to Kate [the police officer in charge of the case], I called Kate that I wanted to give a statement so I gave her the statement.
[40] In response to a question from the Judge, Azbah said that the incident involving her child occurred after she had been told about the vehicle being burnt.
[41] Under cross-examination, Azbah denied that she was lying. Her response to this was as follows:
Q. Mrs Anjabeen, I just put to you that Zameer did not tell you or your husband that he had burnt the car out.
A. No.
Q. I put it to you that you’re not telling us the truth on that?
A. How would that be?
Q. I just put it to you that you’re not telling us the truth?
A. No. If the wife’s saying they’ve done it, then they’ve done it. He was there. He did not object to it a bit. He kept sitting there and listening to every bit they said. I asked Zameer if he was dying of food.
Q. I say Zameer never ever said, “I did it,” did he?
A. No.
Q. No. Shagufta [Mr Khan’s wife] said –
A. Yes.
Q - they did it?
A. Yes.
Q. Right. You have had an issue with Shagufta, at times, haven’t you?
A. Yes.
Q. There was a time that she claimed that you assaulted her, correct? A. Yes. But that was wrong. That was wrong.
Q. That was wrong? A. Yes.
Asif Khan (Asif)
[42] Asif Khan is Mr Khan’s younger brother. He was staying at Mr Khan’s house on the night the vehicle disappeared. He heard his brother talking to the police in the morning, and Mr Khan then told him the vehicle had been stolen.
[43] Asif said he had received a telephone call from Mr Khan in January 2016 after the charge had been laid against Mr Khan. During this discussion Mr Khan told Asif that if things were not going too well, they should “blame it on Sharuf”. Asif initially said he did not know why his brother was saying this or what he was talking about. When questioned by the Judge as to what was to be blamed on Sharuf, Asif said:
All the car being stolen and burnt down, so everything was to go on Sharuf,
like he stole it and then he burnt it. I think that’s what he meant.
[44] After the prosecutor referred Asif to a statement he had made to the police, Asif confirmed that his brother had told him that if he (Mr Khan) was “going down”, then he was going to bring all of the family into it as well. He took it to mean that his brother was asking him to lie when giving evidence in Court.
[45] During cross-examination, Asif confirmed he had heard Mr Khan and his wife arguing, but never over money. He also confirmed he had told the police that the relationship between Mr Khan and his wife and Azbah and Sharuf was an off and on relationship in which the two couples would “fall out about different things and stop talking and then they would talk again”.
[46] Asif also confirmed that he still did not believe Mr Khan had taken the car.
Conclusion
[47] I do not consider that the evidence given by Asif takes matters very far in terms of the issue the Court was required to decide. Clearly, however, that, if accepted, the evidence given by Sharuf and Azbah was significant. It provided confirmation from Mr Khan, in the case of Sharuf, and Mr Khan’s wife in Mr Khan’s presence, in the case of Azbah, that Mr Khan was directly involved in the removal and destruction of the vehicle.
[48] I agree with Mr Ross that the evidence of both witnesses needed to be considered with care because of the earlier incidents that had earlier led to hostility between the two couples. In Azbah’s case it is also significant that she did not contact the police until after she believed that Mr Khan and/or his wife had contacted CYFS and the police about childcare issues. This provides an obvious motive for her to give false evidence against Mr Khan.
[49] Even giving the admissions allegedly made to Sharuf and Azbah limited weight, however, their evidence in relation to another issue that is not in dispute is of some significance. As I have already observed, they both said Mr Khan told them the vehicle was in the garage after he had reported it stolen and in circumstances where he knew it had been burnt. Mr Khan explained this by saying that he considered the theft and burning of the vehicle to be none of his family’s business. I find that to be a strange remark. This was a family vehicle that had previously belonged to Azbah’s parents. Furthermore, if the car had truly been stolen and burnt by a stranger, Mr Khan would have no reason to hide that fact from Azbah and Sharuf. The fact that he told them the vehicle was in the garage suggests he did not want them to know what had happened to the vehicle.
[50] In circumstances where nobody else had a motive to steal and destroy the vehicle, I consider there was a relatively strong circumstantial case against Mr Khan. He had a clear motive to take that step given the fact that he was most likely aware that the vehicle was over-insured. The circumstances in which the car was left unlocked also call for explanation, as do the circumstances in which Mr Khan made
and then withdrew the claim for the chattels supposedly in the vehicle when it was stolen. Even if limited weight is given to the evidence given by Sharuf and Azbah, I consider there was sufficient evidence to prove the charge beyond reasonable doubt.
Result
[51] The appeal against conviction is dismissed.
Lang J
Solicitors:
Crown Solicitor, Napier