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 a cigarette on the deck. At the time he was dependent on a mobility walker, as he suffers from chronic back pain. In early 2017, he was admitted to North Shore Hospital for quite lengthy periods between 21 February and 10 March, and 15 and 23 March.

[11]               Outside the argument continued. According to the complainant, Mr Khosrawi made various unflattering remarks about her family. Upset, she pushed him in the back using two hands. She said Mr Khosrawi responded by wheeling around and punching her on the side of the head. She described the blow as hard and causing her to “see stars”.

[12]               The complainant’s son gave evidence. He confirmed there had been an argument, although he could not remember what it was about.  He said that he could

4      Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27], adopting Tipping J’s formulation in

R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

5      Police v Khosrawi, above n 1, at [1].

remember Mr Khosrawi hitting his mother, but, apparently, did not witness the assault itself. He remembered seeing a red mark on her face immediately afterwards.

[13]               The complainant’s mother also gave evidence. She was called to the address after the assault. She spoke with her daughter. She saw a red lump on her temple. She said she spoke with Mr Khosrawi who told her the complainant had pushed him first.

[14]               Despite these events, the couple continued co-habiting for several months. They separated when the complainant moved out of the home at the end of April 2017.

[15]               On 5 May 2017, apparently at the urging of a social worker, the complainant made a complaint to the Police. A statement was taken in which she described the events. Significantly, she was unable to specify the date. Instead, she said it occurred some time in mid-March, between 9 and 16 March.

[16]               Mr Khosrawi was spoken to by the Police later the same day. He said that on the date of the assault the complainant attacked him first. He said that she always called him lazy and useless, and that she punched him in the face and scratched him on his chest. When asked if he retaliated, he said “No, I just talked and walked away”. He said that he had never assaulted her, either then or at any other time.

[17]               The following day Mr Khosrawi was charged. The particulars of the date recorded in the charging document were “between the 9th day of March 2017 and the 16th day of March 2017”.

District Court hearing

[18]               Mr Khosrawi’s trial took place on 9 July 2018. The prosecution called four witnesses; the complainant, her son, her mother  and the  Police officer  who took  Mr Khosrawi’s statement. Mr Khosrawi elected not to give evidence or call evidence in his defence.

[19]               Notwithstanding that election, Mr Comeskey for Mr Khosrawi, advanced a defence of alibi. On the morning of the trial, in a somewhat unorthodox procedure,

the parties agreed to put before the Court various documents tending to indicate that Mr Khosrawi was confined to hospital for a number of days during the alleged offending date  range.  It  was,  however,  an  incomplete  alibi  in  the  sense  that  Mr Khosrawi was not hospitalised throughout the entire period particularised by the prosecution.

[20]               In her evidence, the complainant accepted she was uncertain of the date, suggesting that it was around February or March. However, she said that on the morning of the assault Mr Khosrawi and her stepfather purchased a lawnmower. Shortly before taking the luncheon adjournment, the Judge asked whether there was any possibility of obtaining further information about the purchase of the lawnmower, indicating that if evidence of that sort was obtained it needed to be adduced before Mr Comeskey’s cross-examination started.

[21]               When Court resumed the prosecutor advised the Judge that the lawnmower issue had been resolved. She said the date was 31 January 2017 and applied to amend the charging document to include that date. Unsurprisingly, the Judge observed that the relevant evidence needed to be led before he could consider an amendment.

[22]               The prosecution continued its examination of the complainant, and in particular, the purchase of the lawnmower. The complainant confirmed this occurred on 31 January 2017. Asked how she knew that, the complainant said that her stepfather had phoned the bank and obtained a statement. Mr Comeskey objected on the grounds of hearsay. It seems the Judge accepted this evidence on a provisional basis pending further proof. That proof did not materialise.

Conviction decision

[23]               The Judge dealt with the prosecution’s application for amendment when he delivered his oral judgment at the end of the hearing. He did not see the timing of the incident as particularly salient, given there was consensus there had been an incident some time in early 2017. He therefore granted the application.

[24]               It would appear that the Judge then amended the date range in the charging document to “between 1 February 2017 and 30 March 2017”. It is noteworthy the

amendment did not extend back to January. The amended range reflected the complainant’s evidence the assault occurred “around February or March”, and not the evidence around buying the lawnmower. Evidently the Judge regarded that evidence as inadmissible.

[25]               After reviewing the evidence of each witness the Judge concluded that it was common ground there had been an acrimonious argument between the parties, and that the complainant pushed Mr Khosrawi in the back. Given his medical vulnerability this was likely to have been painful, the Judge observed.

[26]               The Judge noted Mr Khosrawi had admitted an altercation although he denied liability, instead accusing the complainant. Additionally, the complainant’s account was supported by the evidence of other witnesses. This caused the Judge to accept the assault  as  alleged  had  occurred.  He  found  the  charge  proved  and  convicted  Mr Khosrawi.

Should fresh evidence be admitted?

[27]               This appeal was first scheduled to be heard before Whata J on 30 October 2018. At that time Mr Khosrawi produced what appeared to be a receipt from Mitre 10 Mega at Henderson, showing that he had purchased the lawnmower on 31 January 2017.

[28]               He did not, however, present any evidence to support an alibi for that date. Mr Comeskey apparently confirmed that such evidence could be filed if the appellant was given more time. Whata J adjourned the appeal for that purpose.6

[29]               On 22 November 2018 five voluminous affidavits were filed. These were from Mr Khosrawi, his father, two brothers and a friend. All gave a consistent narrative constituting an alibi for 30 and 31 January 2017.

[30]               The most comprehensive affidavit is Mr Khosrawi’s. He described staying at his parents’ home between 8:00 am and 10:00 pm during January 2017 because of his chronic back pain. He said his father would transport him to and from the home he

6      Khosrawi v Police HC Auckland CRI-2018-404-358, 1 November 2018.

shared with the complainant, and during the day he would be cared for by a full-time care  assistant.  He  claimed  that   this  was  the  pattern  for  the   period   between 24 December 2016 to 23 April 2017.

[31]               As for 30 and 31 January 2017, he gave a detailed account which effectively precluded any opportunity to offend in the way alleged by the complainant. He also annexed a receipt for the purchase of a vacuum cleaner on 30 January 2017. It is timestamped 3:30 pm. He said it was purchased by the complainant, and by inference, suggests this renders impossible the scenario offered by some of the prosecution witnesses that the assault took place in the late afternoon or early evening.

[32]               Also produced is a copy of the Mitre 10 Mega invoice showing the purchase of a lawnmower at 1:48 pm on 31 January 2017.

Analysis – fresh evidence

[33]               Section 335 of the Criminal Procedure Act 2011 (“the Act”) governs the admission of new evidence in these circumstances. The principles are well settled. The overarching test is that new evidence should be admitted if the interests of justice required it. Generally, this will require the Court to be satisfied that the new evidence is fresh, credible and cogent.7

[34]               Mr Hardy, for the respondent, submitted that none of these sequential requirements is met. On the question of freshness he said that the suggestion the offence was committed on 31 January 2017 was raised for the first time by the complainant in her evidence. He said there is no apparent reason why, in response to that assertion and with reasonable diligence, Mr Khosrawi could not have called alibi evidence at trial. He submitted that a simple search of bank records would have identified the date of purchase as 30 January 2017 and, if the defence had required further time, an adjournment could have been sought. It was not. Secondly, Mr Hardy submitted the evidence is possibly not credible; as each witness has apparently been

7      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120], citing R v Bain [2004] 1 NZLR

638 (CA) at [22], [26].

able to recall with precision the events of a relatively mundane day over 18 months ago.

[35]               I am satisfied that the evidence is fresh in the sense that the linking of the date of the assault to the purchase of the lawnmower plainly came as a surprise to both counsel. There was no warning. The evidence of the receipts could not have, with reasonable diligence, been identified earlier. On the question of whether the evidence is credible, I am not convinced that I should treat the affidavits as incapable of belief. Mr Hardy did not point to any evidence which might support such a conclusion.

[36]               However, on the question of cogency, I am not satisfied that even if the evidence, including the evidence of alibi, had been admitted at trial the outcome would have been any different. Relatedly, I am not satisfied that there is a reasonable possibility a not guilty verdict might have been delivered had the evidence in question been adduced. My reasons follow.

[37]               First, there can be no doubt that an incident occurred between the complainant and Mr Khosrawi in early 2017. While, as the Judge observed, there was some “fluidity” around the precise date, the complainant, her son and her mother gave evidence that an assault had occurred:

(a)The complainant said she was punched by Mr Khosrawi during an argument.

(b)Her son witnessed the altercation, although it seems, he did not see the assault itself. He recalled seeing a lump or mark on the side of his mother’s head following the incident.

(c)The complainant’s mother described attending the house shortly afterwards. She saw a red mark on the side of the victim’s head, which had started to form a lump. When she confronted Mr Khosrawi he did not deny an incident occurred, but denied liability when he said “she pushed me first”.

[38]               Significantly, Mr Khosrawi told the Police on the day of the alleged assault it was the complainant who attacked him first and he did not retaliate. This statement is consistent with the mother’s account of what Mr Khosrawi told her in the immediate aftermath of the event. This supports the conclusion that the statement Mr Khosrawi made to the Police and the account he gave the mother relate to the same event.

[39]               Secondly, the Judge plainly, and in my view correctly, viewed issues of alibi as of limited relevance. In the context of the Police application to amend the charge, the Judge observed:8

“The prosecution sought to extend those dates initially to 1 February through to 30 March and eventually from 31 January to 30 March. I am willing to allow that amendment in the circumstances of the case. As it has turned out, timing has become something of a fluid issue. But the reality of this case is that it is not disputed that there was an incident. So I do not see timing as being of any great moment. There was an incident sometimes in early 2017. It is what happened during it that matters. So I do not see that issues of alibi are a problem or amending the dates are a problem.”

And later:9

“There are certainly aspects of [the complainant’s] evidence that are less than satisfactory. The defence noted that issues of timing certainly have become fluid as the case has gone on. Eventually there was an attempt to fit this event around the purchase of a mower. However, the evidence on that I would have to say is inconclusive from an admissibility point of view.”

[40]               For the same reasons as the Judge gave, I am satisfied the issue of alibi was something of a red herring. The question the Judge was required to decide was whether Mr Khosrawi had assaulted the complainant by punching her in the side of the head following an argument. That allegation remained constant throughout the course of the trial. It was not changed by references to the possible purchase of a lawnmower, which the Judge rightly gave no weight to. Had he regarded that evidence as admissible, he would have extended the amendment to include 31 January 2017. Thus, the evidence of the invoices adds nothing.

8      Police v Khosrawi, above n 1, at [12] (emphasis added).

9      At [15] (emphasis added).

[41]               The central and only issue for the Judge was whether he believed the complainant’s account beyond a reasonable doubt. Plainly he did for the reasons he gave.

[42]               I am thus satisfied that the new evidence should not be admitted on this appeal, and leave to adduce it is refused.

Has there been a miscarriage of justice?

[43]               The next question is whether justice miscarried because there is a real risk the outcome of the trial was affected by the Judge amending the date range of the charge.

Legal principles – amendment of charge

[44]               There can be no dispute that the Judge had power to amend in terms of s 133(1) of the Act. This provision permits a charge, including any particulars required to be specified, to be amended by the Court at any stage before the delivery of the verdict.

[45]               Under the predecessor to s 133(1), s 43 of the Summary Proceedings Act 1957, the Court of Appeal held information could be amended after the conclusion of evidence in a defended hearing until the delivery of verdict, reasoning:10

“The policy behind s 43 is that amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section. Whether to allow an amendment will usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any, prejudice there may be to the defendant on the other.

Consistent with s 204 of the SPA, the purpose of s 43 is that subject to questions of prejudice, variances between the proof and the charge should not result in an outright acquittal, or even a dismissal without prejudice. Not only can an information be amended in the conventional sense under s 43; a wholly different charge may be substituted.”

10     Jones v Police [1998] 1 NZLR 447 (CA)at 451.

[46]               The learned authors of Adams on Criminal Law suggest s 133 codifies the approach taken in Jones.11 More recently, this Court, citing Jones, observed:12

“The power to amend the charging document reflects the policy that, unless it would cause prejudice to the defendant, a variance between the charge and the evidence should not result in an acquittal where there is evidence of an offence.”

[47]               Mr Comeskey relies on Hodgkinson v Police.13 There Tipping J discussed the principles in relation to offence dates. When issues arise as to when offending is alleged to have occurred, Tipping J proposed two questions which should inform the Court’s response:14

(a)whether the precise date is material for any reason; and

(b)whether the defendant is materially prejudiced by an uncertainty or inaccuracy in the alleged date.

[48]               The date of an offence is not normally of such materiality it requires proof. It is generally a particular included to comply with s 17(4) of the Act, which requires sufficient particularity to fully and fairly inform the defendant of the substance of the offence which is alleged. It may also be material where specific prejudice to the defendant arises as a result of a change to when a charge is alleged to have occurred, which may result in a miscarriage of justice.

[49]               Only if the date is an essential element must it be proved. An obvious example is where an offence requires proof of the age of the complainant. However, so long as the date is not an essential element of the offence, it is open to the trier of fact to convict relative to a date different to that specified in the charge irrespective of amendment.15 A common practice is to charge an offence as having been committed “on or about” a specific date. This will justify a conviction if the evidence shows the offence was committed within a reasonable temporal proximity of that date.

11     Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA133.04].

12     McQuillan v Police [2018] NZHC 1247 at [12] (footnotes omitted).

13     Hodgkinson v Police (1994) 11 CRNZ 632 (HC).

14     At 634–635.

15     P (CA84/17) v R [2017] NZCA 319 at [40].

Generally, if the actual date of the offence is unknown, the offence should be charged as “on a day or days unknown” between two specified dates.16

Analysis – amendment of charge

[50]               Mr Comeskey submitted a miscarriage arose here because the defence prepared alibi evidence to meet the allegation the offence occurred within the original date range. When the amendment was made and the date range extended that alibi was rendered all but useless. The defence was not given the opportunity to adduce further alibi evidence, in the form sought to be admitted on appeal, to cover the new dates.

[51]               However, for the reasons already discussed, I do not accept that submission. Mr Khosrawi accepted there had been an altercation on the day the complainant alleged irrespective of the precise date. Mr Comeskey’s submission ignores the central issue the Judge was required to determine; whether an assault occurred on the evidence before him. The question of alibi did not arise. Nor can it be suggested that the amendment rendered other defences unavailable, or that the defence case would be run differently if a retrial was ordered.

[52]Accordingly, I am easily satisfied that there has been no miscarriage of justice.

Result

[53]Leave to bring the appeal out of time is granted.

[54]Leave to adduce further evidence on appeal is declined.

[55]The appeal is dismissed.

Moore J

Solicitors:

A Comeskey, Auckland

Crown Solicitor, Auckland

16     Fennell v Paterson [1948] NZLR 954 (SC) at 959.