Khan v Police - [2017] NZHC 462

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 Respondent

Judgment:

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.…

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 Khan v Police

Details

AGLC: Khan v Police [2017] NZHC 462
Case: [2017] NZHC 462
Decision Date: 16 March 2017

CaseChat Overview and Summary

The appellant, Mr Khan, appealed against his conviction for obtaining a pecuniary advantage by deception. The District Court had found that Mr Khan had made an insurance claim for the theft and subsequent destruction of his car. The claim was found to be fraudulent, as Mr Khan had allegedly arranged for the theft and destruction of the vehicle to claim the insurance money. The appeal was heard by the High Court, which dismissed the appeal against conviction. The court held that the evidence against Mr Khan, though circumstantial, was sufficient to prove the charge beyond reasonable doubt. The evidence included the fact that Mr Khan had a motive to commit the fraud, as he was the only person who stood to gain from the destruction of the vehicle. Furthermore, the evidence suggested that Mr Khan had knowledge of the extent of the insurance coverage, which was significantly higher than the market value of the vehicle. The court also considered the evidence given by three members of Mr Khan’s family, who stated that Mr Khan had confessed to being involved in the theft and destruction of the vehicle. Although the court acknowledged that these witnesses may have had a motive to give false evidence against Mr Khan, it found that their evidence, when considered with other evidence, was sufficient to prove the charge against him.

Orders