Mohamed v The King

[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;…