Mohamed v The King - [2023] NZSC 117

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 58/2023
[2023] NZSC 117

BETWEEN	ABDIHAFID ALI MOHAMED Applicant
AND	THE KING Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	S J Shamy for Applicant S C Baker for Respondent
Judgment:	4 September 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant has filed an application for leave to appeal from the decision of the Court of Appeal dismissing his appeal against conviction for wounding with intent to cause grievous bodily harm.[1]

Background facts

[1]Mohamed v R [2023] NZCA 143 (French, Thomas and Mallon JJ) [CA judgment].

The facts are set out in the judgment of the Court of Appeal.[2] To put the application in context we need only describe, in very broad terms, the Crown and defence cases at trial. The Crown case was that the victim, Mr Okorie, had been asked to collect a debt from the applicant. He was given a phone number for the debtor and photographs of him. The applicant learnt Mr Okorie was looking for him. Mr Khadar, a friend of the victim, brought the applicant to Mr Okorie’s home. The Crown said that the applicant stabbed Mr Okorie to avoid paying the debt. Mr Khadar hid the weapon, a machete knife. He was later convicted of being an accessory to the stabbing. At trial the main witness was the victim. The Crown also relied on telecommunications data and on evidence about a machete and sheath subsequently located at the applicant’s address. These were consistent with the size of a sheath Mr Okorie said he found at his home.
[2]At [4]–[35].
The case for the defence was that the applicant was not the person who stabbed Mr Okorie. The defence called evidence from Mr Khadar who was initially to give evidence for the Crown. He said the man at Mr Okorie’s address when the stabbing took place was not the applicant but he would not say who the man was. He had previously told the police that the person he was with was “Red”.

The proposed appeal

The applicant says that the Court of Appeal’s rejection of his complaints about the conduct of his trial counsel requires this Court to clarify the obligations of trial counsel to meet with their client in a timely manner, obtain a brief of evidence, and obtain fully informed instructions on matters fundamental to the defence. The proposed appeal would have the Court consider a number of particular aspects of preparation for and conduct of the trial as we now discuss briefly.

The failure to prepare a brief of evidence

First, the applicant says trial counsel, Mr Hembrow, should have developed a full brief of evidence. He is critical of what he says were inadequate pre‑trial meetings and in light of this questions whether the election not to give evidence was fully informed. (Prior to trial the applicant said he wanted to give…

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 Mohamed v The King

Details

AGLC: Mohamed v The King [2023] NZSC 117
Case: [2023] NZSC 117
Decision Date: 4 September 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal by Abdihafid Ali Mohamed against his conviction for wounding with intent to cause grievous bodily harm. The case arose from an incident where the applicant allegedly stabbed a man, Mr Okorie, to avoid paying a debt. The applicant claimed the Court of Appeal erred in rejecting his complaints about his trial counsel's conduct. Specifically, he argued that his counsel failed to prepare a brief of evidence, deviated from his instructions during cross-examination, admitted hearsay evidence by consent, and allowed inadmissible evidence regarding his criminal history and a photographic montage.

The Supreme Court examined whether the proposed appeal raised questions of general or public importance concerning the responsibilities of trial counsel. The Court noted that the Court of Appeal had already considered the applicant's claims and found that the fundamental decisions made during the trial were fully informed. The Court of Appeal had determined that the applicant's election not to give evidence was informed, despite the lack of a full brief of evidence. Regarding the deviation from instructions, the Court of Appeal found that the applicant had changed his instructions. The Court of Appeal also found that the admission of hearsay evidence by consent and the photographic montage was reasonable and did not result in a miscarriage of justice. The Supreme Court agreed with the Court of Appeal's assessment, concluding that the proposed appeal did not raise significant legal issues warranting further review. Consequently, the application for leave to appeal was dismissed.

Orders