Mohamed v Attorney-General - [2021] NZHC 1842

SUPPRESSION ORDERS EXIST IN RELATION TO THIS JUDGMENT: SEE [37].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1257

[2021] NZHC 1842

UNDER The Judicial Review Procedure Act 2016

IN THE MATTER

of an application for declaration that the decision refusing its application for recusal was wrong at law

BETWEEN

RAIHAN MOHAMED

Applicant

AND

ATTORNEY-GENERAL

First Respondent

DISTRICT COURT AT AUCKLAND

Second Respondent

Hearing: 20 July 2021

Appearances:

M J Taylor-Cyphers for Applicant S T L Teppett for First Respondent

No appearance for Second Respondent (abides decision of the Court)

Judgment:

21 July 2021

JUDGMENT OF LANG J

[on application for judicial review]

This judgment was delivered by me on 21 July 2021 at 3.30 pm,
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MOHAMED v ATTORNEY-GENERAL [2021] NZHC 1842 [21 July 2021]

[1] Mr Mohamed is to stand trial by jury in the District Court at Auckland on charges of sexual offending. The trial is scheduled to commence on 26 July 2021. Judge K Lummis has been assigned to preside at the trial.

[2] Up until her appointment as a Judge of the District Court earlier this year Judge Lummis was a partner in the Auckland law firm Meredith Connell. Mr Brian Dickey of that firm currently holds the warrant as Crown Solicitor at Auckland. The partners and staff solicitors of Meredith Connell act as counsel for the Crown in criminal proceedings in both the District and High Courts. Prior to her appointment the Judge regularly appeared as counsel for the Crown in criminal proceedings before both Courts. As a partner of the firm she was also responsible for supervising staff solicitors who appeared as counsel for the Crown in those proceedings.

[3] Mr Mohamed requested Judge Lummis to recuse herself as trial Judge for three reasons. First, Mr Samuel Teppett has been assigned as prosecutor for Mr Mohamed’s trial. The Judge was formerly one of the partners responsible for Mr Teppett’s supervision, although not in relation to the prosecution of Mr Mohamed. Secondly, the Judge signed a Crown Prosecution Notice when the Crown Solicitor’s office first assumed responsibility for the prosecution of the charges against Mr Mohamed. Thirdly, Mr Mohamed alleges that the Judge made comments during two television interviews in 2019 suggesting that she holds strong views about trials involving charges of the type that he faces.

[4] These factors led Mr Mohamed to ask the Judge to disqualify herself from presiding over his trial. The Judge declined to do so in an oral decision delivered on 18 June 2021.1 Mr Mohamed seeks judicial review of that decision.

Grounds of review

[5] On Mr Mohamed’s behalf Ms Taylor-Cyphers advances two broad grounds of review. First, she contends the Judge “failed to take into account the relevant consideration of apprehended bias adequately”. Secondly, she contends the Judge took

1 R v Mohamed [2021] NZDC 13208.

into account an irrelevant consideration. This was the likely…

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.

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Details

Case: [2021] NZHC 1842
Decision Date: 21 July 2021

CaseChat Overview and Summary

Mr Mohamed, who is to stand trial on charges of sexual offending, sought judicial review of a decision of Judge Lummis declining his application for her recusal. Mr Mohamed advanced two grounds of review. First, he contended the Judge failed to adequately take into account the relevant consideration of apprehended bias. Secondly, he contended the Judge took into account an irrelevant consideration in reaching her decision. The court found the first ground had merit in relation to the Judge’s failure to explain why the fact that she had signed a Crown Prosecution Notice did not amount to apparent bias. However, the court concluded that the Judge’s failure to take into account the relevant consideration of apprehended bias was not reviewable because a fair-minded and fully informed observer would not consider the connection between the Judge and the prosecutor or the fact that the Judge had signed the Crown Prosecution Notice created a real possibility that the Judge may not preside impartially over the trial. The court found the second ground of review had no merit because there was no evidential basis on which to assess whether the Judge took into account an irrelevant consideration. The application for judicial review was dismissed. Suppression orders were made to protect Mr Mohamed’s fair trial rights.

Orders