Mohamed v The King

Case [2023] NZCA 143


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA2/2022
 [2023] NZCA 143

BETWEEN

ABDIHAFID MOHAMED
Appellant

AND

THE KING
Respondent

Hearing:

31 October 2022

Court:

French, Thomas and Mallon JJ

Counsel:

S J Shamy for Appellant
S C Baker for Respondent

Judgment:

3 May 2023 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

BLeave to adduce the evidence filed in support of the appeal to the extent that it is not within r 12A of the Court of Appeal (Criminal) Rules 2001 and is not credible is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Table of contents

Introduction  [1]

The respective cases at trial  [4]

The Crown case  [4]

The defence case  [25]

Evidence on appeal  [36]

Affidavits  [36]

Mr Mohamed’s account  [40]

Supporting evidence  [43]

The Crown’s response  [45]

Evidence as to instructions to Mr Hembrow  [50]

Our assessment of the evidence  [70]

Ground 1: election to give evidence  [76]

Introduction  [76]

Assessment  [77]

Ground 2: failure to present his defence that George was the attacker  [83]

Introduction  [83]

Assessment  [84]

Ground 3: failure to investigate relevant evidence  [89]

Introduction  [89]

Assessment  [90]

Ground 4: inadequate advice regarding Ms Walik’s statement  [94]

Introduction  [94]

Ms Walik’s formal statement  [95]

Hearsay application  [97]

Reliance on Ms Walik’s statement  [101]

Mr Mohamed’s evidence on appeal  [103]

Assessment  [106]

Ground 5: Inadmissible evidence  [110]

Introduction  [110]

Identification evidence  [111]

Prison and deportee evidence  [128]

Items found at Buffon Street  [133]

Result  [136]

Introduction

  1. On the afternoon of 5 December 2020, Jude Frank Okorie was stabbed in his home by a man he described as “the Somalian guy”.  The Crown case was that Abdihafid Ali Mohamed was the Somalian guy.  Following a jury trial in the Christchurch District Court, Mr Mohamed was convicted on a charge of wounding Mr Okorie with intent to cause grievous bodily harm.[1]  He was also convicted of an associated charge of failing to assist a police officer exercising a search by failing to provide the PIN to his phone.[2]  He was subsequently sentenced by the trial Judge, Judge M J Callaghan, to seven years and two months’ imprisonment.[3]

    [1]Crimes Act 1961, s 188(1).

    [2]Search and Surveillance Act 2021, s 178.

    [3]R v Mohamed [2021] NZDC 24603.

  2. Mr Mohamed appeals his conviction.  He contends:

    (a)he did not make a fully informed election about whether to give evidence because he was not sufficiently informed of relevant matters and was given incorrect advice by his trial counsel;

    (b)his trial counsel did not follow his instructions to present his defence on the basis that it was his flatmate “George” who was the person who stabbed Mr Okorie;

    (c)his trial counsel should have made investigations of a potential witness, Saaid Abdukadir, who could corroborate that Mr Mohamed had a flatmate called George;

    (d)he was not given adequate advice from his trial counsel before agreeing that the written statement of an eyewitness, Rosmilawati Walik, could be admitted by consent;…

Continue reading Mohamed v The King

Sign in free to access the full text

Details
AGLC
Mohamed v The King [2023] NZCA 143
Case
[2023] NZCA 143
Decision Date

CaseChat Overview and Summary

Abdihafid Mohamed appeals his conviction for wounding with intent to cause grievous bodily harm and for failing to assist a police officer. Mohamed was sentenced to seven years and two months imprisonment. Mohamed contends that his trial counsel failed to properly inform him of his decision whether to give evidence; failed to follow his instructions to present his defence that it was Mohamed’s flatmate George who was the attacker; failed to investigate relevant evidence; gave him inadequate advice regarding the admission of a witness statement; and that inadmissible evidence was admitted at his trial. The Crown opposes the appeal, saying none of the matters raised give rise to a miscarriage of justice. The Court finds that Mohamed did not make a fully informed election to give evidence and that his trial counsel did not adequately investigate relevant evidence. However, the Court finds that the trial counsel’s advice was reasonable and the errors did not give rise to a miscarriage of justice. The appeal against conviction is dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.