R v Ali - [2007] NZCA 343

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/07 [2007] NZCA 343

THE QUEEN

v

IMTIAZ ALI

Hearing: 23 July 2007
Court: Chambers, Keane and MacKenzie JJ Counsel: B J Hart and A J Trenwith for Appellant
K Raftery for Crown

Judgment: 10 August 2007 at 10 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted, but the appeal is dismissed.

BAn order is made prohibiting publication of this judgment and the reasons therefor in the news media or on the internet or in any other publicly accessible database until final disposition of the trial.
Publication in a law report or a law digest is, however, permitted.

R V ALI CA CA68/07 10 August 2007

REASONS OF THE COURT

(Given by Keane J)

[1] Imtiaz Ali is shortly to go to trial for attempting to pervert the course of justice. He is alleged on 23 February 2004 to have made a false statement to a police officer investigating a complaint of assault. The Crown contends that Mr Ali asserted that on 7 October 2003, the date of the assault complained of, he was the driver of a limousine to whom the complainant had attributed the assault. He denied any assault. His uncle, Mohammed Khan, has since been identified as the driver and convicted of the assault.

[2] The Crown has an unequivocal statement from Mr Ali on 23 February 2004 that he was the driver on 7 October 2003. The issue at his trial will be whether the Crown can prove that he was not. The Crown will rely on Aroha and Isabelle Robson, the complainant and her daughter, who at Mr Khan’s trial identified him as both the limousine driver and the assailant; Aroha Robson having identified Mr Khan some months after the incident from a photo montage. To prove that Mr Ali was the passenger the Crown will rely on Isabelle Robson, who just before Mr Khan’s trial began saw Mr Ali sitting outside the courtroom and recognised him as the passenger.

[3] The evidence which Mr Ali seeks to impugn has previously been examined by this Court in Mr Khan’s unsuccessful appeal (R v Khan CA312/05 7 March
2006). He attacked as unfairly incomplete the photo montage from which Aroha Robson had identified him. It ought, he said, to have included a photograph of Mr Ali. He maintained also that his counsel should have been told before the trial began that Isabelle Robson had just informally identified Mr Ali. This Court found neither argument cogent. This Court will inevitably be slow to depart from its previous findings in respect of similar challenges to the same evidence, although of course the entry into force of the Evidence Act 2006 changes the law under which Mr Ali’s…

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 R v Ali

Details

AGLC: R v Ali [2007] NZCA 343
Case: [2007] NZCA 343
Decision Date: 10 August 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Ali saw the appellant appealing against the admissibility of evidence in his upcoming trial for attempting to pervert the course of justice. The court was tasked with deciding whether certain evidence, particularly visual identification evidence from witnesses, was admissible under the new Evidence Act 2006 and whether it was obtained fairly. The appellant argued that the photo montage used for identification was unfairly incomplete and that his identification was obtained in unfair circumstances. The court examined the admissibility of the evidence under the new legislative framework and the common law principles that previously applied. The court found that the photo montage was a fair test and that the identification evidence was relevant and admissible, with any issues regarding its reliability to be determined by the jury. The court held that the evidence was more probative than prejudicial and thus upheld the decision of the lower court to admit the evidence. The appeal was dismissed.

The final order of the Court was that the application for leave to appeal was granted, but the appeal was dismissed. The Court also made an order prohibiting the publication of the judgment and the reasons therefor in the news media or on the internet or in any other publicly accessible database until the final disposition of the trial, with the exception of publication in a law report or law digest.

Orders