Mohamad v Police
[2017] NZHC 2290
•21 September 2017
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 RespondentJudgment:
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?
[8] The background to Mr Tennet’s primary ground of appeal is as follows.
[9] Constable Filipo spoke with the complainant at approximately 1.40 am. As observed, the complainant seemed “stressed out and scared”. Constable Filipo took a statement from her. The officer then took photographs of the complainant’s neck. The officer was asked to describe what she noticed. She said she saw what “looked like
… a fresh red mark … on the right-hand side” of the complainant’s neck.
[10] Mr Tennet contends the officer’s description of the injury as “fresh” should not have been given. In support of this proposition, Mr Mohamad seeks to adduce evidence from Dr Clare Healy, a general medical practitioner. Dr Healy has, since trial, looked at the photographs of the complainant. Dr Healy says it is not possible for an observer to know if the red mark on the neck was fresh, as it is not possible to
date an injury of this nature. Mr Tennet submits inadmissible and inaccurate evidence was advanced by the prosecution, resulting in a miscarriage of justice.
[11] Opinion evidence is inadmissible unless governed by either s 24 or s 25 of the Evidence Act 2006.7 The two sections draw a distinction between lay opinion and expert opinion evidence. The latter is governed by s 25 of the Act, and only admissible if the fact-finder is likely to obtain substantial help from the expert opinion evidence.
[12] Constable Filipo’s evidence was not expert opinion evidence as the officer was merely attempting to describe what she saw. And, neither she nor the prosecution contended the officer had medical or other applicable expertise. So, s 25 can be put to one side.
[13] Lay opinion evidence is governed by s 24 of the Act, which provides:
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
[14] In Bracken v R the Court of Appeal said it was commonplace for lay witnesses to describe evidence with reference to an opinion, “even in colourful terms”.8 Obvious examples include lay opinion evidence in relation to a person’s age, sobriety and presentation (the person appeared to be angry, distressed, scared etc).9 Another example of lay opinion evidence is vehicular speed (the car was going really fast).10
[15] It is commonplace for Police officers to refer to the presence of blood or apparent blood when describing a crime scene. And, to refer to marks, scuffs and so on. All of which suggests the disputed evidence was admissible as lay opinion, particularly given the officer’s careful phraseology: it “looked like … a fresh red mark”.11 But as against this, the authors of Cross on Evidence say it is “axiomatic
non-expert opinion evidence is not admissible when the subject matter of the evidence
7 Evidence Act 2006, s 23.
8 Bracken v R [2016] NZCA 79 at [54].
9 Mathew Downs (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA24.2].
10 As above.
11 Emphasis added.
would require the expertise of an expert”.12 And, Dr Healy’s evidence, which I admit in the interests of justice,13 is that even an expert cannot accurately date a bruise.
[16] Consequently, I accept Mr Tennet’s submission reference to the injury’s apparent freshness constituted inadmissible opinion evidence. However, I am satisfied the error did not affect the outcome for the two reasons advanced by Mr Simpson.
[17] First, the significance of this evidence lay not in the officer’s description of the injury as fresh, but in the observation of an injury to the neck immediately proximate to the incident, in circumstances in which the complainant said Mr Mohamad caused the injury.
[18] Second, Judge Treston referred to the fact of an injury but not its alleged freshness in concluding the evidence provided support for the complainant’s account. So, on the face of the record, the inadmissible (and inaccurate) evidence formed no part of the Judge’s decision.
[19] For completeness, Mr Tennet contended reference to freshness had influenced the Judge’s assessment of the evidence because the Judge referred to the injury as a “hickey”; so too Constable Filipo. However, the complainant used this phraseology to describe the injury. And, the term “hickey” is commonly used to describe a mark or injury of this nature.
Telephone calls between Mr Mohamad and the complainant
[20] The complainant was closely questioned in cross-examination about her telephone calls with Mr Mohamad. Judge Treston twice asked about the relevance of this questioning. Mr Tennet submits the Judge improperly precluded a relevant line of inquiry.
[21] It is clear from the record the Judge did not actually preclude any questioning on this topic. Rather, the Judge invited attention to the relevance of the questioning
but not more. No error or irregularity is established.14
[22] In any event, the point is without merit as the telephone records were not material. While the complainant’s initial testimony referred only to one telephone call from Mr Mohamad, the complainant did not go so far as to say there were no further phone calls. In cross-examination, the complainant accepted there were a number of telephone calls between her and Mr Mohamad that night. The complainant said some of the calls were to locate Mr Mohamad’s phone, which had been misplaced. Moreover, Mr Mohamad accepted being at the complainant’s home that evening. Indeed, he was found there by Police.
A witness who declined to attend Court
[23] The complainant’s brother, R, made a statement dated 22 April 2016 in which he said he overheard his wife and complainant on the telephone on 9 February 2016. R said the complainant told his wife of a plan to seduce and frame Mr Mohamad.
Mr Mohamad provided the statement to Ms Murphy. Ms Murphy spoke to R in the week before the hearing. R said he would come to Court to testify. Consequently, Ms Murphy did not serve a summons on R.
[24] R did not attend the hearing. Ms Murphy telephoned him. R said he was unavailable. Ms Murphy sought an adjournment. The Judge declined the application. His Honour’s ruling has not been transcribed. Mr Tennet contends this sequence gave rise to a miscarriage of justice. I disagree:
(a) Ms Murphy’s decision not to summons R was reasonable because R had made a statement and said, proximate to the hearing, he would attend Court.15
(b)R knew of the hearing. Ms Murphy’s telephone call to R to inquire why he was not at Court puts that beyond doubt.
14 Criminal Procedure Act, s 232.
15 Mr Tennet acknowledged summonsing an apparently co-operative witness can be counterproductive, as the witness may misinterpret the issue of a summons as “heavy-handed”.
(c) R told Ms Murphy he was unavailable. The terse nature of the explanation implies R chose not to attend.
(d)R’s statement is problematical. He does not say how he was able to date the conversation to 9 February 2016. Nor does R explain how he could hear what the complainant said to his wife on the telephone: the complainant was at the other end of the telephone call.
(e) Material aspects of the statement appear contrived. For example, R says he overheard the complainant say she would “convince the cops with my story as proof that he tried to force me to have sex with him”; and, “I will seduce him, manipulate my way and get marks on my body so when I call the cops he will wear it”.
(f) R has not sworn an affidavit in support of the appeal. There is no evidence he would be prepared to testify in accordance with his statement of April 2016. The point assumes significance in light of R’s decision not to attend trial.
[25] To recapitulate, I am not persuaded trial counsel erred in not summonsing R. Nor I am persuaded that decision or the Judge’s decision to decline an adjournment caused a miscarriage of justice. It appears R was not prepared to testify in accordance with his statement, which given its difficulties, is hardly surprising.
[26] Mr Tennet also contends the Judge wrongly prevented Ms Murphy from putting to the complainant what she allegedly said to R’s wife in the telephone call. The Judge’s ruling has not been transcribed but the hearsay rule seems to have influenced the Judge’s thinking.16 Mr Tennet contends there was nothing to preclude the complainant’s alleged remarks being put to her, for, what she allegedly said in the conversation—unlike others—would not constitute hearsay evidence. I agree.
[27] However, the gravamen of the conversation was addressed in cross-examination. Ms Murphy taxed the complainant with fabricating the
allegations, and “setting up” the whole incident. And, Mr Tennet acknowledged the defence case was “forcefully put” to the complainant. Moreover, what R said about the conversation was hearsay evidence, as he was not a witness.17
[28] It follows Mr Mohamad was not disadvantaged in not being permitted to put to the complainant what she allegedly said to R’s wife. Given the complainant’s evidence, there is no reason to believe she would have accepted the conversation occurred. And, a denial it occurred could not be disproved in R’s absence.
A breach of the Bill of Rights Act?
[29] In his affidavit, Mr Mohamad says he was informed of but not given an opportunity to exercise his right to counsel. Rather, Constable Filipo took a (signed) statement without inquiring whether he wished to speak to a lawyer. Ms Murphy explored this issue with Constable Filipo before Judge Treston. The officer denied breaching the New Zealand Bill of Rights Act 1990.
[30] Mr Tennet’s written submissions on this issue appeared to contend the Judge failed to address a possible breach of the Bill of Rights Act in relation to the taking of the statement. In oral argument, Mr Tennet acknowledged the point was not one he could pursue with vigour. That stance was responsible. No application was made to the Judge to exclude the statement. And, Mr Mohamad’s affidavit does not record an instruction to Ms Murphy to seek its exclusion. The exculpatory nature of the statement likely explains Mr Mohamad’s trial stance.
[31] In any event, I am satisfied it was open to the Judge to admit the statement as lawfully obtained. Constable Filipo testified:
(a) She informed Mr Mohamad of his rights upon arrest at the complainant’s home.
(b)Mr Mohamad said he understood them, and the two communicated without difficulty.
(c) She again informed Mr Mohamad of his rights at the Police station. Mr
Mohamad again confirmed he understood them.
(d)She told Mr Mohamad if he wanted a lawyer, he would need to wait for one to arrive (given the time of day). Mr Mohamad did not want to wait.
(e) Mr Mohamad made no request for a lawyer.
(f) Mr Mohamad signed his statement without objection or comment.
[32] In evidence before Judge Treston, Mr Mohamad emphasised English is his second language. He said he did not understand his rights. However, by then,
Mr Mohamad had lived and worked in New Zealand for 10 years. Mr Mohamad answered some questions in English (rather than through the interpreter). Materially, Mr Mohamad did not inform Constable Filipo he did not understand his rights, nor did he request an interpreter or lawyer. And, Mr Mohamad accepted he did not inform Constable Filipo he could not understand English. As noted above, Mr Mohamad signed his statement.
[33] Against this background, it was open to Judge Treston to conclude the statement was lawfully obtained. Furthermore, because the Judge regarded
Mr Mohamad as an unreliable witness, it is highly likely to the point of being almost certain this is what the Judge would have concluded if the issue had been raised at the hearing.
Unfair criticism Mr Mohamad could speak English?
[34] Mr Tennet “strongly” pursued a submission the Judge erred in rejecting
Mr Mohamad’s evidence, in part by concluding Mr Mohamad had needlessly required the services of an interpreter at the hearing. The passages of concern to Mr Tennet were:18
[34] In relation to his language, he said that he needed an interpreter but conceded that he had been in New Zealand for some 10 years and was working as a truck driver.
[35] On at least one occasion I observed him answering a question which had been put in English before the interpreter could even translate it. I say at least one occasion because it had happened on at least two occasions and maybe even more.
[36] He had never told the police that he did not understand his Bill of Rights and caution. He had never told the police that he needed an interpreter during the course of his dealing with them. He signed the statement, exhibit 1, without objection or comment. He said in evidence that he kept saying to the police that he did not understand, which as a matter of interest was never put to Constable Filipo, and then said he did not say that. His evidence was contradictory.
[35] I read the judgment differently. Paragraphs [34] and [35] above explain the Judge’s conclusion Mr Mohamad—contrary to his testimony—did understand his rights as conveyed by Police. The record supports this interpretation, for this issue was live at trial. The prosecutor put to Mr Mohamad he did not tell the Police he needed an interpreter. Mr Mohamad accepted that proposition. The Judge then asked a series of questions on this topic. His Honour concluded Mr Mohamad did understand his rights. Consequently, I do not read the decision as holding or implying the Judge relied upon trial use of an interpreter as relevant to credibility generally.19
Timing
[36] Much of Mr Mohamad’s affidavit was concerned with timing. Mr Mohamad says he withdrew cash from an ATM in East Tamaki at 11.39 pm and Ms Murphy did not put that evidence before the Court. Mr Mohamad also says his mobile telephone records movements by GPS and the associated data demonstrates he arrived at the complainant’s home at approximately 12.39 pm. Mr Tennet submitted this material would have been of assistance to Mr Mohamad as it provided support for his account.
[37] Ms Murphy says Mr Mohamad did not tell her about withdrawing cash from an ATM. It is unnecessary to resolve this dispute because contrary to Mr Tennet’s
submission, the precise timing of events was of little significance.
19 Mr Tennet noted the Judge admonished Mr Mohamad at the hearing for grinning and “carrying on” while the complainant gave evidence. However, the record implies the Judge was concerned about Mr Mohamad’s behaviour as potentially affecting the complainant’s testimony.
[38] To elaborate, the complainant accepted in cross-examination Mr Mohamad might not have arrived at her home until “closer to 12.25 am”. In evidence,
Mr Mohamad said he arrived at the complainant’s address between midnight and
12.30 am. It follows Mr Mohamad did not commit himself to an exact arrival time. Neither did the complainant. Moreover, Police did not arrive at the complainant’s home until 1.20 am at the earliest. Constable Filipo’s notebook recorded her arrival time as 1.40 am. And to repeat the obvious, Mr Mohamad was found at the complainant’s home. Even on Mr Mohamad’s account, he had been there for at least
50 minutes before Police arrived.
[39] For the same reasons, the GPS data appended to Mr Mohamad’s affidavit also lacks significance.
[40] Mr Tennet submitted an arrival time of 12.39 am is inconsistent with the complainant’s friend calling Police at that time, as on the complainant’s account,
Mr Mohamad had been there for some time before she sent the first text message to her friend. However, the precise time of the friend’s telephone call to the Police was not in evidence. But even if one assumes that call was made at 12.39 am, there are difficulties with the GPS data. First, the data is not fresh. Mr Mohamad’s affidavit records he did not inform Ms Murphy of the data as he thought “we were going to win the case easily”. I consider this explanation inherently implausible. Most litigants are anxious to put their best case before a Court. Indeed, the law requires as much. Moreover, if Mr Mohamad believed the GPS data was so important to his case, he would have brought it to the Court’s attention.
[41] Second, the complainant said Mr Mohamad misplaced his telephone for a time. So, its location and Mr Mohamad’s were not necessarily co-terminus.
[42] Third, the data has not been examined or verified by an expert. Instead,
Mr Mohamad has merely annexed as an exhibit—and without explanation—what he says constitutes reliable GPS data in connection with his telephone’s movements. To highlight the problem, a number of the printed data entries contain a box which appears to imply the data can be edited. Mr Mohamad did not address this point in his affidavit. Indeed, as observed, Mr Mohamad did not explain the data. In these
circumstances, the data has little if any cogency. And, it is not fresh. I decline to receive it.20
Result
[43] All of the appeal grounds fail. The appeal is dismissed.
[44] I thank Mr Tennet for his assistance in relation to a difficult brief, and
Mr Simpson for his submissions on behalf of the Crown, some of which I have incorporated to the judgment.
……………………………..
Downs J
20 R v Bain, above n 13.
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