Khan v The Queen - [2016] NZCA 165

IN THE COURT OF APPEAL OF NEW ZEALAND

CA598/2015
[2016] NZCA 165

BETWEEN	SHER AFZAL KHAN Applicants
AND	THE QUEEN Respondent

CA599/2015
BETWEEN	YOUMNA KHAN Applicant
AND	THE QUEEN Respondent

Hearing:	7 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	Sher Afzal Khan in person for Applicants A J Ewing for Respondent
Judgment:	3 May 2016 at 11.30 am

JUDGMENT OF THE COURT

The applications for leave to bring second appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

The applicants (the Khans), have already unsuccessfully appealed their convictions to this Court. The Court is treating the Khans’ notices of appeal as applications for leave to bring second appeals to this Court. Stevens J so directed in a minute dated 17 November 2015.[1]
[1]Khan v R CA598/2015 and CA599/2015, 17 November 2015.
The applicants therefore face the challenge of persuading this Court that “a substantial miscarriage of justice would result if fundamental error in procedure is not corrected”.[2] There is, in this Court’s judgment in Wong v R, an explanation of what that involves in a situation such as the present one, where first appeals have been dismissed following a full hearing. Essentially, this Court will reopen its decision only in exceptional circumstances when the interests of justice require and where there is no effective alternative remedy available.[3]
[2]R v Smith [2003] 3 NZLR 617 (CA) at [36].
[3]Wong v R [2011] NZCA 563 at [12] and [13](b).
In R v Smith and the other Taito cases, the appellant had not been afforded a genuine right of appeal, as guaranteed by s 25(h) of the New Zealand Bill of Rights Act 1990.[4] The procedures this Court had followed in dealing with Mr Smith’s appeal were “contrary to fundamental conceptions of fairness and justice”.[5]
[4]R v Smith, above n 2; and see R v Taito [2003] UKPC 15, [2003] 3 NZLR 577.
[5]R v Smith, above n 2, at [25]; and R v Taito, above n 4, at [20].
By contrast, there was no such failing in Wong. Mr Wong had been accorded a proper appeal in this Court: he was represented by counsel who filed extensive submissions on his behalf, the Court heard oral argument and it delivered a reasoned decision in writing addressing the various grounds raised. Mr Wong had unsuccessfully sought leave from the Supreme Court to appeal against that decision.[6] This Court accepted the Crown’s submission that Mr Wong was simply seeking to raise a further ground of appeal that could have been raised in his earlier appeal. It was not a case where Mr Wong sought to reopen this Court’s earlier decision. Rather, he sought a second appeal to this Court.[7] His application for leave to bring a second appeal to this Court was accordingly dismissed.
[6]Wong v R [2010] NZSC 14.
[7]Wong v R, above n 3, at [14] and [16].
The present applicants…

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 The Queen

Details

AGLC: Khan v The Queen [2016] NZCA 165
Case: [2016] NZCA 165
Decision Date: 3 May 2016

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicants, Sher Afzal Khan and Youmna Khan, sought leave to bring second appeals against their convictions and sentences for using a document with intent to defraud. The Court treated the applications as applications for leave to bring second appeals, following a previous direction by Stevens J. The Khans had previously unsuccessfully appealed their convictions and sentences to this Court. In this case, the Court was required to determine whether a substantial miscarriage of justice would result if fundamental procedural error was not corrected, and whether there were exceptional circumstances warranting a reopening of the earlier decision. The Court found that the Khans had not come close to meeting the high threshold for leave to bring second appeals. The Khans' arguments were essentially attempts to reopen matters that had been thoroughly canvassed in their trial and first appeal. The Court concluded that the Khans had not demonstrated any irregularity in their first appeals that would result in a substantial miscarriage of justice if not corrected. The Court also noted the Khans' unwillingness to accept that they had a full and fair trial and appeal, and their tendency to blame others for their criminal offending.

The Court dismissed the applications for leave to bring second appeals, finding that the Khans had not met the threshold for such appeals. The Court emphasized that the Khans' arguments were attempts to relitigate issues that had already been decided, and that the Khans had not shown any fundamental procedural error or exceptional circumstances warranting a reopening of the earlier decision. The Court concluded that the Khans had not demonstrated any risk of a substantial miscarriage of justice if their second appeals were not permitted. The Court also expressed its view that the Khans should come to terms with the reality of their full and fair trial and appeal, and desist from blaming others for their criminal offending.

Orders