Mazidabadi v The Queen
[2012] NZCA 315
•19 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA632/2011 [2012] NZCA 315 |
| BETWEEN ALI MOHAMMED MAZIDABADI |
| AND THE QUEEN |
| Hearing: 9 July 2012 |
| Court: Arnold, Potter and MacKenzie JJ |
| Counsel: N G Cooke for Appellant |
| 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 Charges relating to the traffic matters for which he had been arrested were withdrawn.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 5 May 2004. As a consequence of his deportation he was not able to apply for re-admission to New Zealand for a period of five years. During this period, it appears that his partner spent time with him in Iran and the couple had a New Zealand-born child. After five years had elapsed, the appellant applied to return to New Zealand. He sought a work visa on relationship grounds. He was granted a temporary visa, primarily on the basis that his wife and child were New Zealand citizens. The appellant, his immigration agent and the immigration official who granted the temporary visa knew of the unresolved arson charge.
The appellant returned to New Zealand on 13 July 2010. On 30 September 2010 he was arrested for failing to appear at his July 2000 trial and was remanded for callovers. On 11 March 2011, he applied for a stay of his prosecution on the arson charge, on the ground of undue delay and abuse of process. Judge Wilson QC declined that application.[1] Following a jury trial before Judge Field in June 2011, the appellant was convicted and sentenced to a term of imprisonment of three years, nine months.[2]
Basis of appeal
[1] Mazidabadi v R DC Auckland CRI-1999-004-269830, 26 May 2011.
[2] R v Mazidabadi DC Auckland CRI-1999-004-269830, 15 July 2011.
Mr Cooke argued that the appellant’s right to be tried without undue delay had been breached. The appropriate remedy, he submitted, was to quash the conviction or reduce his sentence. Mr Cooke accepted that there could be no breach in relation to the period prior to April 2004 when the appellant was apprehended. This was because that period of delay resulted from the fact that the appellant did not appear for his trial but absconded and could not be traced. He was therefore responsible for any delay to that point.
Rather, Mr Cooke focussed on the period after the appellant’s apprehension on 27 April 2004 until his deportation on 5 May 2004. He argued that the Crown should have executed the warrant in this period. The effect of Mr Cooke’s argument was that, because the Crown did not execute the warrant then, it was an abuse of process for it to proceed with the prosecution after the appellant’s return to New Zealand on a temporary visa in 2010. Mr Cooke did not argue that the appellant suffered any specific prejudice to his right to have a fair trial as a consequence of the delay. Instead, he focussed on the general prejudice to the appellant of having the prosecution hanging over his head for such a long period.
Our evaluation
Sections 25(a) and (b) of NZBORA provide respectively that everyone charged with an offence has “the right to a fair and public hearing by an independent and impartial court” and “the right to be tried without undue delay”. These are separate rights, so that even though an accused has had a fair trial, his or her right to be tried without undue delay may have been breached.[3] The right to be tried without undue delay “is directed to the time that elapses between arrest and final disposition”.[4] This Court has explained the purpose of the right as being to minimise pre-trial restraints and other personal disadvantages and anxieties for persons who are presumed to be innocent until proven guilty at trial.[5] In Attorney General’s Reference (No 2 of 2001) Lord Bingham explained the right’s rationale as follows:[6]
A defendant who is not guilty should have the opportunity of clearing his name without excessive delay. A guilty defendant, facing conviction and punishment, should not have to undergo the additional punishment of protracted delay, with all the implications it may have for his health and family life.
[3] Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [9] and [11].
[4] Williams at [10].
[5] See R v Hamer CA324/02, 26 June 2003 at [130] (cited in Williams at [8]).
[6] Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72 at [16].
As we have said, the appellant does not allege that he did not have a fair trial as a result of the delay. Mr Cooke did note that certain evidentiary material had been destroyed, but that occurred prior to 2004 and occurred because the material was considered to be hazardous. Mr Cooke did not seek to persuade us that the appellant’s presentation of his defence was in any way hampered as a consequence. The prejudice that Mr Cooke relied upon was that resulting to the appellant from having the charge hanging over him, unresolved, for such a lengthy period.
This brings us to the question of what amounts to undue delay. In Williams v R the Supreme Court said that whether there has been undue delay in a particular case “is a function of time, cause and circumstance”.[7] The Court went on to say that “[w]hether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted”.[8]
[7] Williams, above n 3, at [12].
[8] Ibid.
In the present case, on the face of it, there has been excessive delay: the appellant was charged on 22 September 1999 but not tried and convicted until 17 June 2011. However, whether the delay is “undue”, giving rise to a breach of the right protected by s 25(b), is another matter.
The trial was ready to proceed on 31 July 2000, when a firm fixture had been given. However, the appellant failed to appear and was not apprehended until April 2004. As noted, Mr Cooke rightly accepted that any delay to this point is solely attributable to the appellant.
For the period from 5 May 2004 to 13 July 2010 the appellant was outside New Zealand, having been deported as an overstayer. Subject to Mr Cooke’s argument about what should have happened in late April/early May 2004, this period of delay is also attributable to the appellant as his deportation and subsequent prohibition on applying for re-entry into New Zealand for five years resulted from his unlawful presence in New Zealand as an overstayer.
Finally, for completeness, we note that there has been no suggestion of any undue delay in the prosecution following the appellant’s return to New Zealand in 2010.
Accordingly, we turn to the crucial period, namely 27 April to 5 May 2004. To reiterate, at the 28 April hearing, the police prosecutor advised the Court that there appeared to be an outstanding arrest warrant for the appellant in relation to an arson charge. Having indicated that there should be some liaison between the police and the Immigration Service as to what should happen, the Judge ordered that the appellant could be held for up to seven days to enable him to be deported.
When the appellant came before the Court again on 4 May, the lawyer for the Immigration Service advised the Court that the appellant was to be deported the following day. Nothing was said about the warrant or the arson charge. It appears that the Napier police did make enquiries of their colleagues in Auckland as to the whereabouts of the arson file, but as the file manager had left the police by that point, the file was not located prior to the appellant’s deportation on 5 May 2004.
Mr Cooke said, rightly, that the appellant was under no obligation to raise the question of the unexecuted warrant when he appeared before the District Court.[9] Rather, he argued that the “state officials” present at the two Court hearings had the responsibility to advise the Court of what was intended in relation to the unexecuted warrant. By virtue of s 316 of the Crimes Act 1961, the police were obliged to execute the warrant and their failure to do so within the week at issue was “inexcusable”. Mr Cooke said that the consequences of this for the appellant were severe, as now that he has been convicted, he again faces the prospect of deportation. The appellant’s deportation in 2004 was, he argued, in lieu of a trial on the arson charge.
[9] Williams, above n 3, at [12].
Where a criminal charge is not heard within a reasonable time as a result of some action or inaction by a public authority, s 25(b) may well be breached. But we do not consider that there was any breach of s 25(b) in the present case. The police were under no obligation to make a decision about the arson charge prior to the appellant’s deportation, having located him only a few days earlier in Napier. The police file was an aged one and was held in Auckland. Understandably, it could not be located immediately. The Immigration Service was not responsible for the appellant’s prosecution: its concern was the proper administration of the immigration laws.[10] The lawyer representing the Immigration Service was not acting for the police. Moreover, Mr Cooke’s reliance on s 316 of the Crimes Act is misconceived. That section deals with the duty of a person who is effecting an arrest, not with the period within which an arrest warrant must be executed.
[10]See R v H-B (1993) 10 CRNZ 563 (HC) at 568, where a similar argument raised in relation to the Social Welfare Department was dismissed.
In the result, then, we consider that most of the period of delay between charge and trial is attributable to the appellant. Where an accused person is responsible for delay, that might be treated as acquiescence in the delay, or as a waiver of the right to a trial without undue delay,[11] or simply as one of the factors going to whether the delay was “undue”.[12] But whatever analysis is adopted, the accused person’s s 25(b) right will not have been infringed. That is the position in the present case.
[11] See Dufty v Police [2004] DCR 424 (HC).
[12]See Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 424 per Cooke P and 428 per Casey J, citing R v Morin [1992] 1 SCR 771 at 787, and M (CA427/2011) v R [2012] NZCA 270 at [81]–[88].
Further, we note that the appellant well knew when he returned to New Zealand in 2010 that the arson charge was unresolved and can have no complaint that the police pursued it.
As we have concluded that there has been no breach of the appellant’s s 25(b) right in the present case, the question of remedy does not arise.
Decision
For these reasons, the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
2
0