Makshud Ahmed v The King - [2023] NZSC 8

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 102/2022
[2023] NZSC 8

BETWEEN	MAKSHUD AHMED Applicant
AND	THE KING Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	T-A Singh for Applicant M L Wong for Respondent
Judgment:	23 February 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Ahmed was convicted, after a jury trial, of sexual offending against a pupil in a school where he worked as a caretaker. He was sentenced to 11 years’ imprisonment with a minimum period of imprisonment of 50 per cent.
His appeal against conviction was dismissed by the Court of Appeal but the appeal against sentence was allowed, leading to the quashing of the minimum period of imprisonment.[1]
[1]Ahmed v R [2022] NZCA 411 (Miller, Duffy and Ellis JJ) [CA judgment].
Mr Ahmed seeks leave to appeal against the dismissal of his appeal against conviction.
Mr Ahmed’s defence at trial was that the alleged offending did not occur. In Christian v R this Court said that, in such circumstances, directions still need to be given to the jury on all elements of the offence, including consent:[2]
For example, it would be sufficient in a case where the defendant does not raise consent or reasonable belief in consent as issues for the Judge to outline those elements of the offence, record that the defendant has not raised an issue with those elements but make it clear that the jury must nevertheless be satisfied beyond reasonable doubt that the complainant did not consent and that the defendant did not reasonably believe he or she did. The Judge’s summary of the evidence should draw the jury’s attention to any evidence relevant to those elements.
[2]Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [36].
The Judge in Mr Ahmed’s trial did direct the jury that they had to be satisfied beyond reasonable doubt that the complainant did not consent and that Mr Ahmed did not believe that the complainant was consenting. Further, they also had to be satisfied that Mr Ahmed did not believe on reasonable grounds that the complainant was consenting. On the meaning of consent, the Judge said:
Consent means true consent freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not of itself amount to consent. Consent must be voluntarily given. Consent given because a person feels powerless or because they fear for their safety if they do not consent is not true consent.

Mr Ahmed’s proposed grounds of appeal

First, Mr Ahmed submits that the trial Judge should have given a warning to the jury that that there is no presumption in law that the age of a person means they cannot consent and further that…

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.

Keep reading for free

Create a free CaseChat account to read Makshud Ahmed v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZSC 8
Decision Date: 23 February 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand recently heard an application from Makshud Ahmed for leave to appeal against the dismissal of his appeal against conviction. Mr Ahmed was convicted of sexual offending against a pupil in a school where he worked as a caretaker. The Court of Appeal dismissed Mr Ahmed’s appeal against conviction but allowed his appeal against sentence, resulting in the quashing of the minimum period of imprisonment. The central issue in this case is whether the trial Judge gave adequate directions to the jury on the elements of the offence, including consent, when Mr Ahmed’s defence was that the alleged offending did not occur. The Court of Appeal had previously considered the same issues raised by Mr Ahmed and concluded that there was no miscarriage of justice.

The Supreme Court, in dismissing the application for leave to appeal, found that the proposed appeal did not raise any questions of general or public importance. The Court noted that the issue of consent directions when the defence is that there had been no offending had already been considered in a previous case. The Court also found that there was no risk of a miscarriage of justice, as the Court of Appeal’s analysis of the consent directions given was sound. The Supreme Court ultimately decided that there was no merit in allowing Mr Ahmed’s application for leave to appeal, and the appeal against conviction was dismissed.

This case highlights the importance of ensuring that juries are given appropriate directions on all elements of an offence, even when the defence is that the alleged offending did not occur. In this instance, the Court of Appeal found that the trial Judge had given sufficient directions to the jury, and the Supreme Court agreed. The case also underscores the principle that appeals against conviction are only allowed when there is a real possibility that the appeal would succeed, or when the issue raised is of general or public importance. In this case, neither of these criteria was met, and the application for leave to appeal was dismissed.

Orders