Mazidabadi v The Queen - [2012] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA632/2011
[2012] NZCA 315

BETWEEN ALI MOHAMMED MAZIDABADI
Appellant

AND THE QUEEN
Respondent

Hearing: 9 July 2012

Court: Arnold, Potter and MacKenzie JJ

Counsel: N G Cooke for Appellant
B D Tantrum for Respondent

Judgment: 19 July 2012 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

In 1999 the appellant, Mr Mazidabadi, was charged with arson, specifically setting fire to his estranged wife’s home. He was ultimately convicted after a jury trial in 2011. In this appeal, he argues that his conviction should be quashed, or his sentence reduced, on the ground that his right to have a trial without undue delay, as recognised in s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), has been breached.

Factual background

In August 1999, the appellant started a fire at the home of his estranged wife in Auckland, using petrol as an accelerant. He was charged with arson in September 1999. His trial was set down for 31 July 2000 in the Auckland District Court but he failed to appear on that date. As a consequence, a warrant for his arrest was issued.
Despite extensive police enquiries, the appellant successfully evaded detection until 27 April 2004, when he was stopped by the police in Napier for a driving offence and provided false particulars. He was arrested, at which point it was discovered that he was unlawfully in New Zealand, his work permit having expired in January 2000. By this stage he had a new partner. The appellant was served with a removal order under s 54 of the Immigration Act 1987 (the Act).
The appellant appeared in the Napier District Court on 28 April 2004. Present at the hearing were the duty solicitor for the appellant, a lawyer for the Immigration Service and a police prosecutor. The Court was advised that the appellant was an overstayer who was to be deported. There was an application for a warrant of commitment under s 60 of the Act, which was granted. The police prosecutor advised the Court that there seemed to be a warrant for the appellant’s arrest in relation to an arson charge and that he was endeavouring to make further enquiries about that. Charges relating to the traffic matters for which he had been arrested were withdrawn. The Court remanded the appellant in custody for seven days, on the basis that, if he had not been deported before that date, he was to be brought before the Court again.
There was a further brief hearing on 4 May 2004 before another District Court Judge, attended by another duty solicitor for the appellant and the lawyer for the Immigration Service. The Court was advised that the appellant was due to be deported the following day. No mention was made of the arrest warrant or the arson charge.
The appellant was then deported to Iran on…

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 Mazidabadi v The Queen

Details

AGLC: Mazidabadi v The Queen [2012] NZCA 315
Case: [2012] NZCA 315
Decision Date: 19 July 2012

CaseChat Overview and Summary

In the case of Mazidabadi v The Queen, the appellant was convicted in 2011 of setting fire to his estranged wife's home in 1999 and was sentenced to a term of imprisonment. He appealed on the basis that his right to be tried without undue delay, as protected by s 25(b) of the New Zealand Bill of Rights Act 1990, had been breached. The court was required to determine whether the delay in bringing the appellant to trial amounted to an undue delay and whether the delay breached his rights under s 25(b).

The court considered the arguments presented by the appellant's counsel that the delay in executing the arrest warrant after the appellant was apprehended in 2004 constituted an abuse of process. The court noted that the period of delay prior to 2004 was attributable to the appellant, as he had absconded and could not be traced. The court also found that the period of delay from 2004 to 2010 was attributable to the appellant, as he had been deported and was prohibited from re-entering New Zealand for five years. The court focused on the period of delay between the appellant's apprehension in 2004 and his deportation in the same year, and whether this delay amounted to an undue delay.

The court held that the delay in executing the arrest warrant did not amount to an undue delay as the police were not under an obligation to make a decision about the arson charge prior to the appellant's deportation. The court found that the police were not responsible for the appellant's prosecution and that the Immigration Service was not responsible for the appellant's prosecution either. The court further held that most of the period of delay between charge and trial was attributable to the appellant, and therefore, his right to be tried without undue delay was not infringed. The court concluded that the appeal against conviction and sentence was dismissed.

In summary, the court found that the delay in bringing the appellant to trial did not amount to an undue delay and did not breach his rights under s 25(b) of the New Zealand Bill of Rights Act 1990. The appeal against conviction and sentence was dismissed.

Orders