Nabi v Police HC Auckland CRI 2009-404-272
[2010] NZHC 383
•11 February 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2009-404-000272
FAHEEM NABI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 3 February 2010
Appearances: P T R Heaslip for Appellant
A R Longdill for Respondent
Judgment: 11 February 2010 at 12:00 pm
RESERVED JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney
on 11 February 2010 at 12:00 pm pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – A Longdill
Counsel: P T R Heaslip, P O Box 4108, Shortland Street, Auckland 1140
Fax: (09) 362-0328
NABI V NZ POLICE HC AK CRI-2009-404-000272 11 February 2010
Introduction
[1] Following a defended hearing before Adams DCJ in the Manukau District Court on 5 August 2009 the appellant, Mr Nabi, was found guilty on three charges of male assaults female, two of breaching a protection order and one of theft of a cellphone. The charges all arise from allegations made by a former partner, Ms Dean. Mr Nabi has appealed his convictions on the ground that there was a miscarriage of justice resulting from error by his counsel, Mr S P Singh.
[2] The appeal is brought under s 115 Summary Proceedings Act 1957. Both counsel submitted, and I accept, that the principles applying to an appeal on the ground of miscarriage of justice s 385(1)(c) Crimes Act 1961 as explained by the Supreme Court in Sungswan v R[1] should also apply to an appeal under s 115
[1] [2006] 1 NZLR 730 SC
Summary Proceedings Act 1957 on that ground. That approach is summarised
at [70]:
…while the ultimate issue is whether justice has miscarried, considerations
of whether there was in fact an error or irregularity on the part of counsel and whether there is a real risk it affected the outcome, generally will be an
appropriate approach. If the matter could not have affected the outcome any
further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to assure justice
where there is real concern for the safety of a verdict as a result of the
conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[3] Mr Nabi has three main complaints regarding his counsel’s conduct which he says, taken cumulatively, resulted in a miscarriage of justice. First, he asserts that Mr Singh did not explain or advise Mr Nabi adequately as to his right to elect trial by jury. Secondly, Mr Singh failed to use material provided by Mr Nabi for cross- examination of the complainant. Thirdly, Mr Singh failed to call Mr Nabi’s wife to give alibi evidence.
[4] The charges against Mr Nabi related to three separate incidents during 2009. Mr Nabi had separated from his wife in early 2008 and later that year he began a relationship with the complainant Ms Dean. It was a tumultuous relationship and
both parties alleged obsessive behaviour by the other. By early 2009 Mr Nabi had
decided that he would try to reconcile with his wife. Ms Dean said that Mr Nabi continued to communicate with and visit her. It is clear that Ms Dean continued to communicate with him. The police case was as follows:
a) On 21 January 2009 Mr Nabi went to Ms Dean’s home. He held her by her hair and asked if she loved him and when she told him that she did not he punched her in the forehead which resulted in her being hospitalised.
b)On 17 May Mr Nabi went to Ms Dean’s car when she was in Otahuhu, became angry that she was still smoking and stubbed out a cigarette on her neck. This incident was the subject of a complaint to the police, who photographed the injury but (inexplicably) was not the basis of any charge.
c) On 18 May 2009 Mr Nabi came to Ms Dean’s home and became angry because he suspected she had been smoking. He took her cigarettes and threw them outside and during that incident grasped her by the wrists. When he left he took her cellphone and diary with him and never returned them.
d) On 29 May 2009 Mr Nabi met Ms Dean at a carpark in Papatoetoe.
He pressured her for oral sex then, having looked at her cellphone calls, became angry about her having called a man in Australia and punched her.
[5] Mr Nabi denied that any of these events occurred. Although he admitted being at Ms Dean’s house on 21 January 2009 he denies punching her. He denies being with Ms Dean on any of the other occasions.
[6] At the appeal hearing Mr Nabi and his wife, Ms Khan, gave evidence, as did
Mr Singh.
Failure to advise of right to elect trial by jury
[7] Mr Nabi was represented by another barrister when the charges relating to
21 January and 18 May 2009 were laid. Having received advice from that barrister,
he elected summary jurisdiction and entered not guilty pleas to those charges. Mr Singh began acting for Mr Nabi in early June 2009, soon after the charges relating to 29 May 2009 were laid. At that stage a fixture was scheduled for 16 July
2009. Following the new charges, however, a new defended hearing date of
5 August 2009 was scheduled for all the charges.
[8] There were telephone calls and at least one meeting between Mr Nabi and Mr Singh before the hearing. A few days before the hearing Mr Nabi met with Mr Singh for about 45 minutes. Neither Mr Nabi nor Mr Singh took notes. Mr Nabi says that Mr Singh did not discuss the process with him and did not tell him that he had a right to elect trial by jury. Mr Singh, however, says that did discuss the option of trial by jury and advised against that. In cross-examination before me Mr Singh said:
He had already elected summary jurisdiction and I didn’t advise him for a trial before a judge and a jury because Manukau Court what they call the family violence court now because there’s so much violence in South Auckland and no jury will acquit and I would have put my client with a likelihood of imprisonment if found guilty.
Whose decision is that?....I made that call in his interest and I advise him not
to elect trial and he went along with me. If he had insisted on a trial by jury against my opinion I would have asked the Legal Services Agency to assign
some other counsel, I would have walked away.
[9] Mr Singh gave evidence that he had practiced in South Auckland for more than 20 years. Aspects of his practice are not perfect; he does not take notes of meetings. He did not provide any written advice. However, he was clearly experienced in this type of work and alert to both the procedural and evidential issues. Mr Nabi had already made an election and entered not guilty pleas in respect of the charges involving the first two incidents. Given Mr Singh’s clear view about the prospects of success before a jury on the charges, I find that Mr Nabi was advised as to the election available to him and was content to proceed as Mr Singh recommended. Therefore, no issue arises in relation to the fact that the hearing
proceeded before a Judge alone. There is no reason to think that the outcome would have been any different before a jury.
Failure to use material provided for cross-examination
[10] There was no dispute between the parties that prior to the hearing Mr Nabi gave Mr Singh a bundle of material connected with Family Court proceedings that had resulted in protection orders being granted to both Mr Nabi and Ms Dean in respect of one another. These included Mr Nabi’s affirmation 3 June 2009 in support of his application for a protection order to which was annexed a transcript of numerous text messages and several emails sent by Ms Dean to him between 1 March and 27 May 2009. Mr Nabi saw relevance in these texts and emails and wished Mr Singh to use them in cross-examination.
[11] Mr Singh says that he examined the emails and texts. He considered that few had direct relevance and could be used to undermine Ms Dean’s credibility. These were:
·Email 2 May 2009, Ms Dean apologises to Mr Nabi and states “I won’t be present in court anymore and frm my side nothing hAPPENED”
·Text 18 May 2009, the day after an incident in which she alleged Mr Nabi burnt her with a cigarette, in which she invites sexual activity.
· Voicemail message 20 May 2009 referring to false allegations.
· Text 27 May 2009 referring to false allegations.
·Email 30 May 2009 stating “I am sorry that I did false accusations against you. Can you please forgive me. Like I told you I will have
to be in court to tell the Judge that I did a wrong statement”.
[12] Mr Singh put all of these communications to Ms Dean in cross-examination and she accepted that she had sent them. However, she gave an explanation for the references to false accusations, namely that Mr Nabi had photographs of her naked which he had threatened to post on the internet and that she was being blackmailed to retract her accusations.
[13] There were more than 150 other texts and emails that Mr Singh elected not to use in cross-examination. Mr Singh gave evidence that he made a tactical decision
to be selective about which he used. The majority of the texts had no direct relationship to any of the incidents that were the subject of charges and he considered that they could not properly be used. It is true that something could be made of the fact that in that very large number of communications Ms Dean never once mentioned being assaulted or injured by Mr Nabi. However, Ms Dean acknowledged this in cross-examination (I also note that a text on 1 February 2009 said “U hit me”).
[14] Mr Singh could not be criticised for thinking that the Judge would not permit the wholesale admission of more than 150 text messages that had no direct relevance
to the charges. Assuming, however, that the texts had been put in evidence I am satisfied that their admission would not have altered the outcome of the case.
[15] The texts were not of any assistance in establishing Mr Nabi’s whereabouts
on the dates and times when the incidents were alleged to have occurred. Nor did they contain anything that might have either supported Mr Nabi’s version of events
or undermined Ms Dean’s credibility.
[16] There were, however, risks associated with the texts and emails. There were some emails that, in both date and content, supported Ms Dean’s claim that Mr Nabi had stolen her cellphone on 18 May 2009. Although there were texts sent on virtually every day of May 2009 none were sent on 19-21 May 2009 and when they resumed the cellphone number had changed. Further, texts and emails in the period after 18 May 2009 repeatedly requested the return of the cellphone and diary.
[17] In addition, the only texts that Mr Nabi provided were those from Ms Dean to him. He maintained that he did not respond to any of them. However, while the general tenor of the messages is of unrequited love they do not convey a picture of a complete lack of response from Mr Nabi. There is a real possibility that he did respond and that this would emerge in cross-examination. Indeed, when cross- examined about the sexually explicit email referred to above Ms Dean said that it had been sent in response to a sexually explicit email from Mr Nabi (which he did not later deny).
[18] I conclude that there was no prejudice to Mr Nabi in Mr Singh’s failure to use the texts and emails. Not only is it highly unlikely the Judge would have permitted
so many texts and emails to be produced because of the lack of relevance but there was little to be gained by the production of them and on the issue of the cellphone there was a serious detriment to Mr Nabi in their production.
Failure to use alibi evidence
[19] Mr Nabi’s strongest complaint was that Mr Singh failed to call Mr Nabi’s wife, Ms Khan, to give evidence as to his whereabouts on 17 and 18 May 2009. Mr Nabi and Ms Khan both gave affidavit evidence that they were together with their daughter in Henderson on 17 May 2009. Mr Nabi had prepared both affidavits, though Ms Khan said she told him what she wanted to say. However, their affidavit evidence on this (and other) issues was couched in virtually identical terms. Mr Nabi said:
On the 17th May 2009 Shabina [Ms Khan] spent the day with our daughter
by visiting a nearby park (Covil Reserve Park)…
[20] Ms Khan said:
On the 17th May 2009, Faheem and I spent the day with our daughter by visiting a nearby park.
[21] In relation to 18 May 2009, Mr Nabi said he was at his parents’ house in
Otahuhu. He was to attend a Man Alive session but received a call from Ms Dean
about 5 pm wanting to meet and decided to go straight home. Ms Khan said that he was home by 6:30.
[22] Mr Nabi’s ground of appeal was that prior to the hearing he told Mr Singh that his wife was available to give this evidence. Mr Singh denied being told of the evidence. Mr Singh essentially says that he was never told that Mr Nabi had alibi evidence available and he first learned of it during Mr Nabi’s cross-examination when Mr Nabi told the Court that he had been in Henderson with his wife on 17 May 2009 and that she was available to give evidence.
[23] Although this was undoubtedly the major issue in the appeal there was almost nothing in Mr Nabi’s affidavit about what Mr Singh was told. In his affidavit Mr Nabi said only:
At the hearing I was distressed that my lawyer had not used any of the information that I had given, he ignored the notes I handed him, he didn’t have documents with him that he should have had, he didn’t call my witnesses…
…I had told S P Singh that I needed witnesses, the daughter, my wife etc but he didn’t do anything about that…
[24] In his evidence before me he was cross-examined on this point:
Now are you saying that you didn’t mention the fact that your wife could give evidence as to your whereabouts on 17 May, 18 May and part of 29 May to Mr Singh until the morning of the hearing?.....No that’s wrong. I did tell him before that she was available as I told my family lawyer. But when we went in the morning I did say “look she’s here as well you can talk to her”. That’s the reason she was there with me just in case she could be called.
Well what precisely do you say you told Mr Singh?.....I did say Mr Singh, this is my wife. He had already met my wife before and my wife had already told Mr Singh that I was with her and on the morning.
Are you saying your wife told Mr Singh you were with her?.....Yes
On what day?.....when she met Mr Singh I believe this is on the – she had met him twice so the first time she met him I don’t remember the date.
This is twice before the day of the hearing?.....No the day of the hearing and once before she had met Mr Singh.
And your evidence is that in your presence she said “he was with me on some of the dates”?.....From my conversation with my wife my wife did tell Mr Singh.
Are you giving evidence that you heard your wife say to Mr Singh?.....No
You’re not allowed to give evidence as to what your wife told you she said
to Mr Singh?.....Yes
Unless you were there yourself and you heard her?.....And that is true for the morning of the trial as well. It’s true on the morning of the trial I was with my wife. We went at about 9 am to the Manukau District Court and we met with Mr Sarstry as Mr Singh wasn’t there and we discussed the case with him and he said “you wait until Mr Singh comes” and when Mr Singh came he knew my wife so we talked and she said “look I’m here to give evidence as well”. So on that morning she did say that you know I’m here to give evidence as well. I say my wife is here.
Do you have a clear recollection of that conversation?.....Yes when I think about it, it was my wife saying “I’m here”. I told her – she said “I can vouch for Faheem where he was on those dates”.
And what do you say Mr Singh’s response to that was?.....Yes he said just wait here until we go in and my wife was sitting throughout the hearing and through the middle of the hearing or the later part the Judge noted when I was giving evidence that a possible witness is sitting in the courtroom and he asked Mr Singh why is she sitting in the courtroom because I believe she’s supposed to sit outside and I believe Mr Singh said its news to me or news to my ears. As he had seen my wife in the morning so he suggested that he didn’t know that my wife was there to give evidence for me.
We’ve dealt with the conversation on the morning of the hearing correct?.....Yes
Your evidence is that there was another occasion before then when your wife met Mr Singh?.....When we were together. I believe that’s the 16 July hearing that I had at Manukau District Court my wife had gone with me to give evidence but it was adjourned to the 5 August.
So you were together with your wife?.....Yes I was, yes.
And she had this conversation with S P Singh about the evidence she could give for you?.....Yes I would say – in my mind I know she has mentioned – yes on the day the 16th we were together for the case and I told Mr Singh she was there and she said “I’m here to give evidence”. The case was adjourned.
…
Now how specific were those discussions about what evidence your wife could give?.....I told Mr Singh that my family lawyer had – was in the process of drafting an affidavit for my wife to do but that could adjourn so she said hold on to that. I did say she’s available and basically I told Mr Singh and my wife was there as well. We were here she was with me on those days those exact times that she allege I was with her and now that I was living with my wife my wife was keeping tabs on me.
[25] In her affidavit Ms Khan did not refer at all to discussions with Mr Singh. Her evidence was limited to the following:
I feel sorry for Faheem that he did not get to have all the evidence before the Court. I believe it was not right that the Court did not hear from me. I do not believe that Faheem has had a fair go at court and I support his request for another hearing. Certainly, next time I would expect to be there to give evidence to the Court.
[26] On the question of what she had told Mr Singh, although initially confused, Ms Khan said that she met him on 4 June, 16 July and 5 August 2009. Nothing of consequence occurred at the first meeting on 4 June 2009, which was the day Mr Nabi was bailed. In relation to the other meetings Ms Khan said:
Have you met with him since then [4 June 2009]?.....On 16th when was
Faheem’s case, 16 July.
And can you describe what happened at that meeting?.....I was with my husband the whole time and I did mention to Mr Singh that I have taken the day off to come for this and I can say – I can witness actually for my husband.
Did you go into which offences you could be a witness for and which dates?.....No and then he was discussing a few things with Faheem because his name was not on the board. He was just Mr Singh and we’re going round looking for which courtroom to go to.
Was that the extent of the..?.....Yes that was only five minutes probably maximum six or seven minutes because they didn’t know which room to go to and was there a case or not on that day because Mr Singh had no idea the case has been escalated to another date.
That’s the second meeting?.....That’s the second meeting yes.
And was there another one?.....On 5 August when his case was actually on that day.
Describe what happened at that meeting?.....Me and my husband were there I think 9.30 and we called S P Singh and said where are you and he says he will be in court soon. We called Mr Sarstry. He said that Mr S P Singh would be in soon so he found a meeting room for us. We went in there and Mr Sarstry were going through Faheem’s documents and stuff and Mr Singh came in just before court time. He spent only five minutes with us and we went into court. That was the meeting on 5th and I didn’t have say anything because Faheem was answering and asking questions to Mr Singh and he did not ask me anything.
So you didn’t have a discussion with Mr Singh on 5 August?.....No.
[27] Mr Nabi gave evidence at the hearing and said nothing during evidence-in- chief about being in Henderson with his wife on 17 May 2009 or about being at home by 6.30 on 18 May 2009. Towards the end of cross-examination however he was asked whether anyone would give evidence that he was elsewhere when the incidents occurred and said then that his wife would give evidence:
Now on each of those incidents, other than the first one on 21 January, you say you weren’t there, you were somewhere else, is anybody going to give evidence that you were somewhere else?.....
Yes my wife, my lawyer family lawyer is in the process at the moment to get a…
So your wife is going to give evidence today that you were with her on one
of those occasions?....
On two of the occasions on the 18 and 29 May. Is that your wife at the back?.....
Yes my wife is sitting here.
That’s been listening to the evidence the entire time?..... Yes she has been, yes.
[28] Immediately after that exchange the transcript recorded the following:
THE COURT:
There is an order excluding witnesses of course. MR SINGH:
Yes things are coming as news to me. THE COURT:
Yes okay that’s fine.
[29] Mr Singh gave evidence before me to the effect that when the Court rose he approached Ms Khan and asked if she would give evidence but that she declined:
Why did you not call Mrs Nabi?....Because they did not tell me about alibi that he was with her otherwise I would have said take a seat outside the court and I will call her. The case would have been much simpler if I had advised of the alibi evidence. If I had been told about him going to his parents’ place and staying there while they were away I would have said I’d like your parents to come over and give evidence as support of his case of looking
after his parents’ place. I would have called the parents and that would have given a lot of credibility to the defence of alibi…
One of the things I never heard was the issue of alibi. The first time it was sprung was when Mr Nabi was giving evidence and I asked his wife if she wants to give evidence and she says “no I’m not getting involved”. Otherwise I would have made an application to the Judge.
[30] It was put to Mr Singh that he had manufactured the story about asking Ms Khan whether she would give evidence. It was put to him that there must have been a breakdown in communication between he and Mr Nabi on the alibi point. Mr Singh was adamant that there was not. Mr Singh maintained that he knew nothing about the alibi evidence until Mr Nabi was cross-examined and that he then approached Ms Khan but she declined to give evidence.
[31] Ms Khan denied having any discussion with Mr Singh following Mr Nabi giving evidence:
Do you recall Mr Singh coming up to you and asking you whether you were prepared to give evidence?.....He never came up to me all the time. There were only two meetings. One was after lunch – before the Court time he came five minutes before the Court time and still he was discussing stuff with Faheem because Sarstry was there with us ten to fifteen minutes noting points from Faheem’s file and evidence that he got so that Mr Singh didn’t ask me about witnessing or anything.
Mr Singh swore an affidavit stating that he did ask you and you advised him
it wasn’t true that Mr Nabi had been in Henderson when he said he was and that you didn’t want to give evidence?.....That’s not true because both meetings first on 5th Nabi was with me. I did not have any separate meeting with Mr S P Singh alone, I didn’t have any conversation with him alone.
[32] The demeanour and presentation in court of Mr Nabi, Ms Khan and Mr Singh were all similar. I draw no conclusions about credibility from that. However, when
I review all the circumstances surrounding Mr Nabi’s trial I conclude that Mr Singh was not told that alibi evidence was available and I accept that he approached Ms Khan after Mr Nabi had given evidence. My reasons are mainly connected with the inconsistencies in Mr Nabi’s evidence on various occasions which suggests that the alibi evidence did not actually exist.
[33] The incident on 17 May was said to have occurred in the middle of the day. There was evidence to support the fact that the incident occurred, namely the
physical injury consistent with Ms Dean being burnt with a cigarette which was photographed by the police. In his affirmation made in the Family Court in support of a protection order Mr Nabi said:
On 17 and 18 May, I had been in Otahuhu helping to look after my parents’
home given that they are away on holiday.
[34] This statement was made only a few weeks after the alleged incidents. Mr Nabi knew when he made that affirmation that he was facing criminal charges and that his whereabouts on 17 and 18 May 2009 would be an issue in that hearing. One could reasonably expect that, had Mr Nabi been in Henderson with his wife all day on 17 May 2009, that is what he would have said, it being a far stronger alibi than simply being alone at his parents’ house in Otahuhu. Secondly, the evidence that Mr Nabi produced of the text messages from Ms Dean did not show any on 17 May 2009. Nor did he produce evidence of any phone messages on that day (apart from a call by Ms Dean to her brother about one of her daughters). This is in contrast to the affidavit evidence of both Mr Nabi and Ms Khan that he received around 20 calls from Ms Dean on that day. The overall effect of the evidence is that there is nothing to support Mr Nabi’s claim that Ms Dean was constantly trying to contact him on 17 May 2009 and Mr Nabi has given two inconsistent explanations
for where he was on that day.
[35] The incident on 18 May occurred a little after 6 pm. Again there is some evidence that an incident occurred in the form of Ms Dean’s complaint to the police, the police photographs of the cigarettes thrown down outside and the subsequent phone messages from Ms Dean asking for her cellphone back, which tended to support her version of events. Since Ms Khan had no actual knowledge of where Mr Nabi was when he phoned her, her evidence was of no real assistance; even if Mr Nabi was home by 6.30 that did not exclude him having gone to Ms Dean’s home around 6 pm.
[36] The incident on 29 May 2009 occurred at about 2 pm and both Mr Nabi and Ms Khan said that Mr Nabi had picked Ms Khan up from work about 3.15 pm. There was, therefore, no alibi evidence prior to that time.
Conclusion
[37] I find that Mr Nabi has not established any error by Mr Singh. I do not accept that Mr Singh failed to advise Mr Nabi of his right to elect trial by jury. I do not accept that Mr Singh made any error in his treatment of the texts and emails. I do not accept that Mr Singh was told that alibi evidence was available and, indeed, I do not accept that such evidence was in fact available.
[38] The appeal is accordingly dismissed.
P Courtney J
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