Khanbigy v The Queen - [2016] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND

CA669/2015
[2016] NZCA 583

BETWEEN	SAMAN AHMAD KHANBIGY Appellant
AND	THE QUEEN Respondent

Hearing:	31 August 2016 (further submissions 18 October 2016)
Court:	Wild, Courtney and Woodhouse JJ
Counsel:	Appellant in person S L McColgan for Respondent
Judgment:	6 December 2016 at 3 pm

JUDGMENT OF THE COURT

The appeals against both conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

Following a jury trial in the Auckland District Court in July and August 2015 before Judge McAuslan, Saman Khanbigy was convicted on six drug-related charges and sentenced to a total of four and a half years’ imprisonment.[1] He appeals four of the convictions, two of possessing methamphetamine for supply and two of supplying methamphetamine.[2]
[1]R v Khanbigy [2015] NZDC 22837.
[2]Mr Khanbigy was also convicted on one charge of possessing pseudoephedrine for supply and one of supplying pseudoephedrine. He does not appeal those convictions.
Mr Khanbigy’s counsel, Mr Kaye, was given leave to withdraw shortly before the appeal hearing and Mr Khanbigy argued the appeal in person. He advanced grounds that differed from the notice of appeal but the Crown did not object.
Mr Khanbigy asserted a miscarriage of justice as a result of:
(a)error by trial counsel in advising him against giving evidence;
(b)the Crown’s failure to prove any specific instance of supply by Mr Khanbigy;
(c)prejudice as a result of Mr Khanbigy standing trial together with several other defendants, all of whom had been identified during the course of an 18-month long police investigation;
(d)the trial being completed with only 11 jurors as a result of one juror being discharged for sickness;
(e)prejudice as a result of the Crown adducing evidence of a relatively large amount of cash found at Mr Khanbigy’s family home for which he and his family had provided an alternative explanation unrelated to drug dealing; and
(f)prejudice as a result of media reports during the trial linking Mr Khanbigy to the failure of his family’s travel agency business, Dena Travel.
Mr Khanbigy had also appealed his sentence but acknowledged that four and a half years would have been a fair sentence had he been guilty of all the charges. Therefore if the conviction appeal fails, no issues will arise regarding the sentence.

Not giving evidence

Mr Khanbigy did not provide an affidavit to support this ground of appeal. However, without objection from the Crown, he described the factual basis for it.
Mr Khanbigy did not make a statement to police when arrested. He talked to Mr Kaye about giving evidence but Mr Kaye advised him against it. Mr Khanbigy told us that he took that advice because he did not know anything about criminal trials. Mr Khanbigy did not identify any particular concern over the advice that Mr Kaye gave him.
In essence, Mr Khanbigy said that, given the opportunity, he could have conveyed to the jury that the “transactions” relied on by the Crown were nothing more…

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 Khanbigy v The Queen

Details

AGLC: Khanbigy v The Queen [2016] NZCA 583
Case: [2016] NZCA 583
Decision Date: 6 December 2016 at 3 pm

CaseChat Overview and Summary

Saman Khanbigy was convicted on six drug-related charges in the Auckland District Court and subsequently appealed four of those convictions. He argued that he suffered a miscarriage of justice due to a range of factors, including the advice of his trial counsel, the Crown’s failure to prove specific instances of supply, prejudice from being tried alongside other defendants, and prejudice from evidence of a large sum of cash found at his home. The Court of Appeal rejected all of these grounds of appeal. The Court found that there was no real risk that the decision not to give evidence affected the outcome, and that the jury was entitled to conclude that Khanbigy had asked for and obtained an ounce of methamphetamine from Mr Hoo and onsold it. The Court also found that there was no unfair prejudice to Khanbigy as a result of the reference to the money as part of the overall Crown case, and that there was no basis to conclude that there was any prejudice to Khanbigy that might have affected the safety of the verdicts. The appeals against both conviction and sentence were dismissed.

Orders