Khosrawi v Police - [2018] NZHC 3243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000258

[2018] NZHC 3243

BETWEEN
AKO AHMAD KHOSRAWI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 November 2018

Appearances:

Andrew Comeskey for the Appellant Max Hardy for the Respondent

Judgment:

11 December 2018

JUDGMENT OF MOORE J

[Appeal against conviction and sentence]

This judgment was delivered by me on 11 December 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

KHOSRAWI v NEW ZEALAND POLICE [2018] NZHC 3243 [11 December 2018]

Introduction

[1] On 9 July 2018, Mr Khosrawi was convicted of one charge of male assaults female following a Judge-alone trial in the District Court at Waitakere before Judge N J Sainsbury. Mr Khosrawi was sentenced to come up if called upon within 12 months.1

[2] Mr Khosrawi appeals his conviction. His primary submission is an amendment to the charge date during the course of the trial gave rise to a miscarriage of justice. He claims this amendment compromised the effectiveness of his defence of alibi.

[3] He seeks leave to adduce new evidence tending to support his alibi across the extended date range referred to in the charge.

Leave to appeal out of time

[4] Mr Khosrawi filed his notice of appeal out of time, on 14 August 2018. He seeks leave to appeal out of time. By memorandum dated 7 September 2018 the Police confirmed that there was no opposition to the application. Accordingly, leave is granted.

Approach on appeal

[5] I must allow the appeal if I am satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or because a miscarriage of justice has occurred for any other reason.2

[6]A miscarriage of justice is defined to as:3

“232 First appeal court to determine appeal

…

(4)… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

1      Police v Khosrawi [2018] NZDC 17110.
2      Criminal Procedure Act 2011, s 232(2).
3      Section 232(4).

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.”

[7] A real risk exists if “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.4

Background

[8] The complainant is Mr Khosrawi’s former partner. They lived together at an address in Henderson. Their relationship was “tempestuous”.5

[9] There are competing accounts of the events which led to the charge being laid. In her evidence at trial the complainant said that on the day in question she bought a present for her mother. Mr Khosrawi, who she described as angry, controlling and particularly difficult around issues of money, learned of this purchase and became angry.

[10] This led to an argument during which Mr Khosrawi left the room to have…

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.

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Details

Case: [2018] NZHC 3243
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of Khosrawi v Police involved an appeal by the appellant against his conviction and sentence. The appellant was convicted of male assaults female by the District Court at Waitakere. The appellant appealed his conviction on the grounds that an amendment to the charge date during the course of the trial gave rise to a miscarriage of justice, compromising the effectiveness of his defence of alibi. The central legal issue was whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or because a miscarriage of justice has occurred for any other reason.

The Court considered the legal principles governing the admission of new evidence in these circumstances, which require the Court to be satisfied that the new evidence is fresh, credible and cogent. The Court found that the evidence was fresh in the sense that the linking of the date of the assault to the purchase of the lawnmower came as a surprise to both counsel. The Court was not convinced that the evidence was incapable of belief, but was not satisfied that the evidence, including the evidence of alibi, had been admitted at trial the outcome would have been any different. The Court held that the Judge had power to amend the charge under s 133(1) of the Criminal Procedure Act 2011, and that there was no material prejudice to the defendant by an uncertainty or inaccuracy in the alleged date. The Court dismissed the appeal.

The Court granted leave to bring the appeal out of time, declined leave to adduce further evidence on appeal, and dismissed the appeal. The Court's judgment was delivered by Moore J on 11 December 2018 at 3:00 pm.

Orders