Moh'd v Police - [2019] NZHC 165

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000095

[2019] NZHC 165

BETWEEN
MAHMOUD RAWHI MOH’D

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 February 2019

Appearances:

C G Nolan and J D Bibby for Appellant C White for Respondent

Judgment:

14 February 2019

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] On 29 August 2018, the appellant, Mahmoud Moh’d, was convicted in the District Court of assault within intent to injure under s 193 Crimes Act 1961. The appellant appeals the conviction on the basis that the Judge erred in not properly addressing the evidence of the appellant and other defence witnesses.

Background

[2] The appellant and the complainant, Mr Alhawamdeh, had been friends for a period before a disagreement resulted in their having a matter before the Disputes Tribunal. The Tribunal found against the complainant, which put an end to the friendship.

MOH’D v NEW ZEALAND POLICE [2019] NZHC 165 [14 February 2019]

[3] On 26 June 2017, the appellant and the complainant attended Cowles Stadium in Christchurch for the Eid celebration (marking the end of Ramadan). After prayers finished at about 9.00 am, both of them exited the stadium, where an altercation occurred.

[4] The appellant was charged with an offence under s 189 Crimes Act, a charge which was amended at the end of the prosecution case.

[5] The prosecutor called the appellant and two witnesses, a Mr Murray, who was unrelated to either of the parties, and a Mr Gherbi. Medical evidence was admitted as to the examination, the afternoon after the incident, of injuries to the complainant.

[6] The appellant gave evidence. He called a number of witnesses who had also been attending the Eid celebration. Most had arrived towards the end of the incident but one, a Mr Mahmoud, gave evidence as a witness of the entire incident. His evidence was that he was well known to both the complainant and appellant through their community but he is not a friend of either.

[7] The appellant’s evidence was that he had approached the complainant to talk about things, and that the complainant had responded by elbowing him in the neck. The appellant said that he pushed the complainant away whereupon the complainant fell to the ground, grabbing the appellant’s leg and thereafter screaming and shouting loudly. Other people were around. On getting up, the complainant started cursing and swearing, pushing people around and trying to come back to the appellant.

[8] The complainant’s version of events was quite different. His evidence is that he was on the phone talking to Mr Gherbi when exiting the stadium, when the appellant attacked him from behind. He said that the appellant had come up behind him and put an arm around his neck, pushing him to the ground. He said that it was like he was half-concussed. He was pushed hard to the ground. While on the ground, the appellant punched him twice in the mouth and put…

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 Moh'd v Police

Details

AGLC: Moh'd v Police [2019] NZHC 165
Case: [2019] NZHC 165
Decision Date: 14 February 2019

CaseChat Overview and Summary

Mahmoud Moh'd, the appellant, appealed against his conviction by the District Court for assault within intent to injure under the Crimes Act 1961. The basis of the appeal was that the District Court Judge erred in not properly addressing the evidence provided by the appellant and his witnesses. The court was required to determine whether the Judge's failure to explicitly address the defence evidence led to a miscarriage of justice under section 232 of the Criminal Procedure Act 2011. The court examined the conflicting evidence presented by the parties and considered whether the absence of explicit reasoning regarding the defence evidence created a reasonable possibility of a different trial outcome.

The High Court found that the District Court Judge had not adequately addressed the defence evidence, particularly the evidence of the appellant and his witnesses, which was crucial to the case. The Judge assessed the credibility of the prosecution witnesses but failed to provide any reasoning for rejecting the appellant's evidence. The court held that the failure to explicitly consider the defence evidence created a real risk that the outcome of the trial was affected, amounting to a miscarriage of justice. Consequently, the appeal was allowed, the conviction was quashed, and the proceeding was remitted to the District Court for rehearing.

The court granted leave for the appeal to be brought out of time, finding that no prejudice arose from the late filing. The court emphasised the importance of providing adequate reasoning when there are conflicting versions of events, particularly in cases where the credibility of witnesses is in question. The decision underscores the need for trial judges to explicitly address all material evidence, especially when there are competing versions of events, to ensure a fair trial and to avoid potential miscarriages of justice.

Orders