R v Aghabiggi CA408/05

[2006] NZCA 415

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA408/05

THE QUEEN

v

MOSHEN AGHABIGGI

Hearing:         16 May 2006

Court:            Chambers, Baragwanath and Venning JJ Counsel:     W T Nabney for Appellant

K B F Hastie for Crown

Judgment:      31 May 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Baragwanath J)

[1]      This  appeal  is  against  the  appellant’s  conviction  following  trial  before Judge PA Moran and jury in the District Court at Christchurch on sex and fraud charges.    They  were  of  sexual  violation  of  A  by  unlawful  sexual  connection (oral sex), attempted sexual violation of A by rape, obtaining a pecuniary advantage,

namely $35,000, from A by deception and without claim of right and attempting to

R V AGHABIGGI CA CA408/05 31 May 2006

obtain a pecuniary advantage, namely $40,000, from B by deception without claim of right.   The Crown alleged that the appellant represented that he could arrange New Zealand residence for A and B if they paid him.

[2]      The grounds of appeal were miscarriage of justice affecting the two sexual offences  because  there  was  late  disclosure  of  a  record  of  the  date of  A’s first complaint to the police; that the trial Judge erred in declining to adjourn the trial to enable a defence witness to be called; that the summing up did not properly direct the jury as to the elements of the dishonesty charges; and that it failed to direct the jury as to the meaning of “attempt”.

Refusals of adjournment

[3]      The trial was due to begin on Monday 19 September 2005.  On the afternoon of the previous Friday, 16 September, defence counsel applied for an adjournment. He was instructed that the $35,000 alleged by the Crown to have been obtained by deception from A was in fact a willing loan by her for the purpose of a carpet purchase in Germany by a relative of A’s from a Mr Mahdavi.  Mr Mahdavi was said to have been recently discharged from the intensive care unit of the Sana Hospital in Teheran and was unable to endure a flight to New Zealand; in any event he would not be returning and his evidence would have to be obtained through video link. Counsel advised the Court that the accused from the outset had informed him of the existence of such a person but had been unable to locate him until very recently. Counsel had not spoken to the alleged witness and did not know what he might say about the accused’s explanation.

[4]      The Judge rejected the explanation.  He ruled that the identity of the witness had been long known to the accused and viewed with deep suspicion the revelation that the supposed witness had been discovered in Teheran virtually on the eve of the trial.    The Judge  observed  that  the  trial  included  allegations  of sexual  violation against a complainant who was herself soon to travel to China.   The trial date had been fixed on 5 August 2005.  The application was dismissed.

[5]      The  Judge  then  directed  that  the  evidence  of  Mr Mahdavi  might  be transmitted to the jury by video link.  On 19 September defence counsel advised that it was not clear whether a video link with Teheran could be achieved during the week or indeed at all.  Defence counsel renewed his application for adjournment.

[6]      The Judge declined the application on the grounds it was still not clear what if anything the witness might say and whether a video link would be feasible if the trial were adjourned.  The Judge accepted that the evidence the witness might give would be important to the accused if  it  corroborated his evidence  for  obtaining moneys from A.  But because he regarded the explanation as far-fetched he was not prepared to adjourn the trial on the basis that evidence might possibly be called that might possibly corroborate it.

[7]      In his evidence at trial the appellant asserted that the large sums of money given to  him by A had  nothing to  do with getting  her  New  Zealand  residence. He produced a carpet brochure and said that A had seen the brochure, loved the rugs and took photographs of them with a digital camera and sent them to her father’s best friend.  He said that Mr Mahdavi was a distant relation, originally from Iran but resident in Germany and was in the rug business but at present was in Iran for some six months for a celebration for his son.  He said it was arranged that he would give Mr Mahdavi’s details to A’s uncle Lee Chan or Chen.   A gave the money to the appellant  in  Christchurch,  New  Zealand  and  Chen  collected  the  carpets  from Mr Mahdavi in Frankfurt, Germany.

[8]      The appellant produced a printed form written in German with the name “Mahdavi” in bold at the top referring to an oriental carpet business in Frankenthal. The document was described as a receipt and invoice.   The date of the transaction was hand-written as 31 July 2004 using European script for the numbers 1 and 7. In hand-writing under the word “addressee” was “Hr [Mr] LEE CHAN”.  It referred to two silk carpets, one described as of 12 square metres and its price as NZ$17,500 and another of 9 square metres with a price of NZ$15,000, a total of NZ$32,500. At the foot of the document appeared the imprint of a formal stamp bearing the name and address of “MAHDAV GMBH”.  Added to the document in a different hand and written in German was:

Explanation:  this  sum  has  been  given  to  Mr  Mohsen  Aghabiggi  in

New Zealand dollars in Christchurch New Zealand.

[9]      Mr Nabney told us he had sent a fax to the address printed on the Mahdavi document  but  received  no  reply.    No  attempt  was  made  to  check  the  printed telephone number either before the hearing in this Court or, importantly, during the period prior to the trial.

[10]     A second defence exhibit in the Chinese language was not translated either for the jury or for this Court.  We infer that it does not help the appellant’s case.

[11]     Although there has been ample time to explore it both before the trial and before the hearing in this Court there is simply no evidentiary basis to establish that Mr Mahdavi  would  confirm  the  appellant’s  account  of  the  carpets  transaction. Moreover it is notable that A denies that she has any uncle “Chen”.

[12]     In the absence of any evidence of what, if anything, Mr Mahdavi could say the appellant has not established any wrong or miscarriage of justice resulting from the refusals of the adjournment.

Delayed disclosure of police document and non-recall of A

[13]     This ground relates to delay in the police disclosure to the defence of a form which recorded the date on which A first complained to the police and the alleged failure of the Judge to permit recall of A for cross-examination upon it. Notwithstanding the statutory direction that in sex cases there may be good reason for delay, the date of complaint and whether there is delay are matters potentially germane to the credibility of a complainant.

[14]     A had been flatting at the appellant’s property.   She gave evidence that in response to his assertion that he could secure her New Zealand residence if she gave him $20,000.  She paid him that sum on 23 July 2004.  A few days later he tried to rape her.  She said that she left the appellant’s flat on 11 or 12 August and went to the police station “something like between 14 or 15 of August”.

[15]     It  was  the  Crown’s  obligation  to  provide  to  the  defence  all  relevant documents held  by the police prior to trial to  ensure in terms of s 24(d) of the New Zealand Bill of Rights Act 1990 that the accused has the right to adequate time and facilities to prepare his defence.   The authorities are discussed in R v Dawson (2004) 2 NZELR 126 (CA).

[16]     Defence counsel had made repeated requests for disclosure of all relevant documentation: a letter of 17 February 2005 addressed to the Christchurch police; letters of 17 March, 23 March and 13 May 2005 directed to Detective Constable Smart; and an email dated 15 September 2005 to Crown counsel.

[17]     Further  oral  requests  were  made  by  the  defence  to  Crown  counsel  on

16 September 2005, the Friday before the trial was due to begin and again in the morning of Monday 19 September.   Crown counsel confirmed to defence counsel that having consulted with the officer-in-charge Detective Constable Smart there were “no other documents”.

[18]     The trial began on 19 September 2005.  Without the offence report, defence counsel challenged her account and put to her in persistent cross-examination that she  did  not  contact  the  police  in  mid-August  but  only  three weeks  later,  on

6 September 2004, when she made her written statement.   A further theme of that cross-examination was that when the complainant first spoke to the police she had not  initially  complained  of  sexual  violation,  her  concerns  being  limited  to  the

$35,000 the appellant obtained from her.

[19]     After the defence had committed itself at length to the 6 September 2004 date,    in    the    afternoon    of    20 September    2005    Crown    counsel    asked Detective-Constable Smart:

Now yesterday  when she gave evidence the witness  A…  was  asked  by [defence counsel] about when it was she first made a statement to the police and/or first went to the police station and made a complaint and why there was some period of time between that complaint and her giving a formal statement.  Have you managed to check that out overnight?

The officer replied “Ah yes I have, yep.”  He was asked:

When was it that A… first – is recorded as having gone into the central police station?

A.        The 13th  of August she went to central police station and was at

11.15 am.

[20]     At that point defence counsel asked to see the Judge in the absence of the jury.  The argument and evidence of the detective on the voir dire took a little over an  hour.  It  emerged  for  the  first  time  that  the  “related  offence  report”  of

17 September 2004 recorded the date of the  first  complaint  as 13 August  2004. It confirmed  the  complainant’s  account  that  she  had  gone  to  the  police  station “something like between 14 or 15 of August”.

[21]     The officer was cross-examined on the voir dire as to why the report had not been disclosed earlier.  Defence counsel elicited that the officer did not believe that on 13 August A had said she had been raped and that he thought that the complaint had been entered as  an immigration scam.  Before us, Mr Nabney did not contend that the withholding had been deliberate and described the failure as due to carelessness.  He submitted that the defence had been prejudiced at trial by the late disclosure of the 17 September report.

[22]     In ruling as to the admissibility of the document, the Judge found that it appeared that the detective constable was mistaken but that he had not deliberately withheld the document.  The Judge recounted the complainant’s initial evidence that she reported the alleged sex incident when she first went to the police station but later said that she reported only the loss of money and the immigration scam, but did not  mention  the  sexual  assault  until  she  was  interviewed  on  16 September. The Judge observed:

[5]       And so to that extent the defence has got some material to work with if the jury accepts that she went to Christchurch Central reporting an immigration scam and not a rape but if however she did report the sexual assault to the central police station on 13 August but is telling the jury that she did not then, an issue arises as to her credibility.

[23]     The  Judge  ruled  that  the  evidence  was  plainly  admissible  in  terms  of relevance.   As to its lateness he expressed the view that there was no evidence of prejudice and ruled the evidence admissible.

[24]     Defence counsel then said:

I have one further application arising out of that now… that the complainant be recalled so that I can cross-examine her and then the prejudice will be undone and I accept that.

The Judge responded:

Her evidence is that she went to the police Central and she only reported the immigration scam and she did that within days of 12 August… that’s her evidence.

MR GREIG: Well if I can close on that then I’m happy with that.

[25]     Crown counsel agreed that the complainant first complained to the police on

13 August but did not then mention the sexual assault. That was not referred to until she was interviewed on 16 September.  The Judge observed:

It seems Mr Greig that we are at one.

MR GREIG: And that’s the best of a bad job sir.

[26]     On production of this transcript before us Mr Nabney elected not to pursue the ground that the Judge had erred in ruling against a defence submission that A should be recalled.  While trial counsel’s recollection in this affidavit in this Court is accurate when he deposes    “I asked the Judge to recall [A] so that I could further and  properly  cross-examine  her”  he  was  in  error  in  adding  “That  request  was refused.”

[27]     The  question  remains  whether,  as  Mr Nabney  submits,  there  has  been miscarriage of justice by reason of the delayed disclosure and the defence embarking upon the line of questions that would not have been advanced if counsel had been aware of the document.  In the end the delayed disclosure, although regrettable, did not prevent defence counsel from getting before the jury the vital point that A’s first complaint  related only to  fraud and there was a  month’s delay until the sexual

allegations.    While  disclosure  would  have  saved  the  defence  the  indignity  of cross-examining on an incorrect basis we are not persuaded that of itself this deficiency is of such moment as to materially affect the fairness of the trial.

[28]     We return to its significance in the context of the whole case.

The summing up on count 3

[29]     On count 3 the defence advanced two factual contentions:

a)        The money was obtained not for anything to do with immigration but because of the carpet transaction; and

b)       even if the money was obtained for immigration purposes the only fraud was on the Immigration Service and not on the complainant.

[30]     Mr Nabney submitted that the Judge had failed to give proper directions as to the latter defence.

[31]     The jury was supplied with written directions which included:

OBTAINED MONEY BY DECEPTION [Count 3]

Crown to prove beyond reasonable doubt that:

1        The accused obtained money from [A]

2He had no claim of right to that money – i.e. he had no belief that his obtaining the money was lawful

3        He told [A] that

•    if they lived together and she paid him a large sum of money, he could get her permanent residency

•    the more she paid the quicker PR could be obtained

•    he had a friend in government who could facilitate it

4        [A] paid him the money because she believed him

5        What he told her was untrue and he knew it

6He intended to deceive [A] – i.e. he intended to deliberately mislead her

[32]     These directions were approved by defence counsel.   While it remains the responsibility of the Judge to ensure that proper directions are given the defence approval is material to the issue of miscarriage.

[33]      The points raised by Mr Nabney were:

a)       If what motivated A to pay the $35,000 was the appellant’s assertion that “if they lived together and she paid him a large sum of money, he could get her permanent residency” (element 3, first assertion), then that was, in context, true, or at least he thought that was true, with the consequence  that  element  5  would  not  be  satisfied.    Mr Nabney accepted  that  a  fraud  was  being  committed  on  the  Immigration Service; but his point in that regard was that neither the appellant nor A intended to tell the Immigration Service that the relationship or marriage was a sham.   Nor was either going to tell the Immigration Service about a payment to the appellant.

b)       Even if that is wrong, the Judge failed to explain adequately causation

(element 4).

c)       The Judge failed to explain whether any one of the assertions under element 3 would suffice or whether all three had to be proved.  If all three  had  to  be  proved,  then  the  amount  of  the  fraud  was  only

$15,000, as assertions 2 and 3 were not  made until after the  first payment of $20,000 had been made.  This is the “timing” argument.

[34]     The answer to point (a) is that the Judge did not give such a direction because it is legally erroneous.  What the jury had to look at was all the evidence of what the appellant had said prior to the handing over of each instalment.  The appellant is not entitled to choose just those parts of the story which suit his case.  It is clear in the way the Judge set out the directions that, in order to satisfy element 3, the Crown had to prove all three statements.  If, at the very least, the jury believed statements 2 and

3  were  said,  then  the  appellant’s  argument  (a)  clearly  falls  to  the  ground.

This suggested defence was not available in respect of those two assertions which, if said, were clearly false.

[35]     Point  (b) is the contention that the jury the  jury were not  given explicit guidance  as  to  the  need  for  causal  connection  between  deceptive  conduct  and A’s handing  over  the  $35,000.     Adams  on  Criminal  Law  (looseleaf  ed)  at [CA240.04] states:

The section requires that the accused’s obtaining of property and causing of loss be “by any deception”… the use of the word “by” requires the Crown to show a causal connection between the deception of the obtaining or  the causing  of  loss.     The  deception  was  a  substantial  factor,  though  not necessarily the only substantial factor, in the obtaining or causing loss.

[36]     Adams cites in support R v King [1987] 1 QB 547 (which however refers to “operative cause”) and R v Hamilton (1991) 92 Cr App R 54 (which applies the test of “induced at least in part”). The Queensland Court of Appeal has held that it is sufficient if the false pretence was only a minor factor: R v Anderson [2000] 2 QdR

393 at 395-7.   We find it unnecessary to resolve the issue.   The first defence had been  the  carpet  defence;  if  that  was  a  reasonable  possibility  the  payments  had nothing to do with immigration at all.  Failing that the issue was really whether the appellant had made the statements set out in element 3.  If the jury rejected the carpet defence and accepted that the appellant had made the three statements then (subject to the timing argument, argument (c)) there could realistically be no issue about the fact that A had paid the money in response to the appellant’s assertions to her.

[37]     There remains the timing argument.  The appellant obtained the $35,000 in instalments: the first of $20,000, and the next three of $5000 each.   Mr Nabney submitted that only the first statement in element 3 had been said before the $20,000 was paid; the remaining statements, if made, were not made until after its payment. He said that the Judge had not distinguished between the statements, which might have misled the jury.  That was because the jury might have concluded that the first statement was true or at least believed to be true by the appellant, in which event the receipt of the $20,000 was not wrongful.

[38]     There are, we think, two answers to this contention.  First, on the Crown case, the first and third statements were both made before any money was paid.  A gave evidence that the appellant had told her “he had a person in the Government who could do this [that is, get her residency] and he would pay that person some money” before she paid any money to him.  The defence accept that the third statement, if made, was untruthful, as the appellant must have known.  So this argument fails on the facts.

[39]     Secondly, in any event, the point is too subtle to carry weight.  The approved directions sheet  simply described the first element as the accused having “obtained money from [A]” (emphasis added) and fourth element as A paying him “the money because she believed him” (again, emphasis added).  Clearly, at trial, counsel saw it as being immaterial as to the exact amount paid and as to the timing of the instalments.   The contest was to as whether any money at all had been paid as a result of deception on the appellant’s part.   Even if only $15,000 was paid as a consequence of the second and third statements, that would not affect the appellant’s liability under this count.

Count 4

[40]     In relation to count 4 the appellant argued that there had been misdirection in failing to require the jury to consider whether the appellant’s conduct was too remote to amount  to an attempt.   But the submission did not  withstand examination in oral argument.   It is clear that the appellant’s oral representations might well have led to an immediate payment by B in which event the charge would have been not of attempting but of the full offence.

Is there miscarriage?

[41]     We stand back and look at the trial as a whole.  While the delayed disclosure of the 17 September report was unfortunate and the directions on “causation” under count 3 were minimalist, we are satisfied that neither causes any real concern as to the trial process.  There was no miscarriage of justice.

[42]     It follows that the appeal must be and is dismissed.

Solicitors:
Crown Law Office, Wellington