Mohamad v Police - [2017] NZHC 2290

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-404-000440 [2017] NZHC 2290

BETWEEN
AHMAD KADIM MOHAMAD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 September 2017

Counsel:

CJ Tennet for Appellant
JD Simpson for Respondent

Judgment:

21 September 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 21 September 2017 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
CJ Tennet, Wellington.
Meredith Connell, Auckland.

MOHAMAD v POLICE [2017] NZHC 2290 [21 September 2017]

The case

[1] Mr Mohamad was convicted of indecent assault and trespass after a Judge-alone trial before Judge Treston.1 Mr Mohamad appeals conviction. Various grounds of appeal are pursued. To the extent they permit a unifying theme, it is that Mr Mohamad has suffered a miscarriage of justice in consequence of trial error.2

[2] One or more appeal grounds raised, at least indirectly, trial counsel competence. Mr Mohamad swore an affidavit criticising aspects of
Ms Bridie Murphy’s performance. Ms Murphy responded by affidavit following a waiver of privilege. I declined leave for cross-examination because Mr Mohamad did not allege contravention of any instruction, and the points raised in relation to
Ms Murphy could be assessed objectively by reference to the record. 3 And

submission.4

Background

[3] The complainant is Mr Mohamad’s former wife. The pair married in 2005. They divorced in 2009. Mr Mohamad and the complainant have two children, of whom Mr Mohamad has custody.

[4] The relevant events occurred on 16 February 2016, and into the next morning. After telephone contact initiated by Mr Mohamad, the complainant and Mr Mohamad met in a car park in Te Atatu. Mr Mohamad then followed the complainant home. Once there, the complainant said Mr Mohamad “groped” her bottom. The complainant went to the toilet. She sent a text message to her friend to call Police. When she returned from the toilet, the complainant asked Mr Mohamad to leave. The complainant said Mr Mohamad jumped on her, touched her breasts and then “sucked”
on her neck for up to ten seconds. The complainant sent a second text message to her

1      Police v Mohamad [2016] NZDC 21156.
2      Criminal Procedure Act 2011, s 232.
3      Criminal Procedure Rules 2012, r 8.7(4).
4      Neither party resisted this course.

friend to call Police. They arrived while Mr Mohamad was still at the complainant’s home.

[5] Constable Filipo spoke with the complainant, who seemed “stressed out and scared”. The officer photographed the complainant’s neck. It appeared to show “a fresh red mark”.

[6] Another officer arrested Mr Mohamad. Constable Filipo spoke to

Mr Mohamad at the Police station. Mr Mohamad gave a written statement. He said the complainant had invited him to her home. Mr Mohamad denied indecently assaulting her.

[7] Mr Mohamad testified. The Judge considered his evidence “evasive, misleading, unconvincing and voluble”.5 Conversely, the Judge considered the complainant to be “consistent, clear and concise even under strong cross-examination”.6 The Judge found the charges proved.

A “fresh” red mark?

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 Mohamad v Police

Details

AGLC: Mohamad v Police [2017] NZHC 2290
Case: [2017] NZHC 2290
Decision Date: 21 September 2017

CaseChat Overview and Summary

Mr Mohamad appeals his conviction for indecent assault and trespass. The appeal is dismissed. The appeal grounds permit a unifying theme: trial error has resulted in a miscarriage of justice. One or more grounds raised, at least indirectly, trial counsel competence. Mr Mohamad’s affidavit criticised aspects of trial counsel’s performance. The court declined leave for cross-examination of trial counsel, because the points raised could be assessed objectively by reference to the record and submission. The appeal grounds concern: (1) the admissibility of evidence the complainant had a “fresh” red mark on her neck; (2) the Judge’s ruling preventing the complainant’s alleged remarks in a telephone conversation being put to her; (3) the complainant’s brother’s failure to attend the hearing; (4) a possible breach of the Bill of Rights Act in relation to the taking of the appellant’s statement; and (5) the Judge’s criticism of the appellant for needing an interpreter. The appeal grounds fail. The court accepted the officer’s description of the injury as “fresh” constituted inadmissible opinion evidence. However, the error did not affect the outcome. The complainant’s brother’s failure to attend the hearing did not prejudice the appellant. The court was satisfied the statement was lawfully obtained. The court did not criticise the appellant for needing an interpreter. The court accepted the precise timing of events was of little significance. Mr Mohamad’s GPS data lacked cogency. The appeal is dismissed.

Orders