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NOTE: COURT OF APPEAL ORDER (PROHIBITING REPORTING OF THE EXISTENCE OF COUNTS SUBJECT TO A TRIAL BY JUDGE ALONE) STILL EXTANT.
IN THE SUPREME COURT OF NEW ZEALAND
SC 97/2010 [2011] NZSC 52
TABBASUM MAHOMED
v
THE QUEEN
SC 117/2010
AZEES MAHOMED
v
THE QUEEN
Hearing: 17 February 2011
Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ
Counsel: P L Borich for Appellant Tabbasum Mahomed G J King and C B Wilkinson-Smith for Appellant Azees Mahomed M D Downs and K A L Bicknell for Crown
Judgment: 19 May 2011
JUDGMENT OF THE COURT
The appeals are dismissed.
REASONS
Para No
Elias CJ, Blanchard and Tipping JJ [1] McGrath and William Young JJ [21]
ELIAS CJ, BLANCHARD AND TIPPING JJ
(Given by Tipping J)
This appeal is concerned with what the Evidence Act 2006 calls propensity evidence. In his reasons William Young J has comprehensively set out the circumstances of the case and the issues that arise. We can therefore move straight to a consideration of those issues.
Section 40(1) defines propensity evidence as evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved. Propensity evidence does not include evidence of an act or omission that is one of the elements of the offence for which a person is being tried. The definition of propensity evidence covers a propensity in relation to a specific person as well as a propensity to behave or think in a particular way as regards persons more generally.
The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law. The Act substantially codified that case law and it is preferable, and consistent with s 10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.
Section 43 deals with cases like the present where propensity evidence is offered by the prosecution about defendants. The prosecution may do this only if the…
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
AGLC
Mahomed v R [2011] NZSC 52
Case
[2011] NZSC 52
Decision Date
CaseChat Overview and Summary
The Supreme Court dismissed the appeals of Azees and Tabbasum Mahomed, who were convicted of multiple charges relating to the death of their daughter, Tahani. The appeals concerned the admissibility of evidence about a van incident in which the parents left Tahani in a hot van at a shopping centre. The Court of Appeal had ruled that the evidence was admissible. The Court held that the evidence was relevant to the case and its probative value outweighed any prejudicial effect. The Court found that the trial judge's summing up to the jury was adequate and did not result in a miscarriage of justice. The appeals were dismissed.