R v Ali

Case [2016] NZHC 2223 12 September 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-092-6886 [2016] NZHC 2223

THE QUEEN

v

FEROZ ALI

Hearing:
22, 23, 24, 25, 26, 29, 30, 31 August 2016

1, 2, 6, 7, 8, 9, 12, 13, 14 and 15 September 2016

Counsel:

L Clancy and J M Pridgeon for Crown
P J Broad and S Leith for Mr Ali

Judgment:

12 September 2016

Reasons:

20 September 2016

REASONS FOR RULING (NO. 3) OF HEATH J

Solicitors:
Crown Solicitor, Manukau
Counsel:
P J Broad, Auckland
S Leith, Auckland

R v ALI [2016] NZHC 2223 [12 September 2016]

CONTENTS

(a) Background [5]

(b) The Crown case in outline [8]

(c) Section 98D(1)(b): elements of the trafficking charges [20]

(d) Principal liability [29]

(e) Party liability: s 66(2) [35]

(f) Admissibility issues: hearsay?

(i)        Direct evidence [44]

(ii)       The co-conspirators’ rule [49]

(g) Extra-territorial reach [55]

Introduction  [1] Charges 1 – 15: the trafficking charges

Charges 16 – 30: aiding and abetting unlawful entry into [58] New Zealand
Charge39: aiding and abetting a person to unlawfully remain in [66] New Zealand

Reliability directions [69] Introduction
[1] Mr Ali was tried, over 18 sitting days, on fifteen charges alleging that he trafficked in human beings by deception (the trafficking charges),1 fifteen of aiding and abetting a person to enter New Zealand unlawfully (the unlawfully entering charges),2 and one charge of aiding and abetting a person to remain in New Zealand unlawfully (the unlawfully remaining charge).3 The Crown case was completed on 8
September 2016. Mr Ali elected not to call or give evidence.

[2] On 9 September 2016, I heard argument on the way in which the jury should be directed on all charges. After the hearing, I asked the Registrar to advise the jury that they would not be required to attend for closing addresses until Tuesday,
13 September 2016. That was done to enable a ruling on all issues to be given on

12 September 2016, so that counsel were aware of the basis on which they could close to the jury.

[3] I gave a ruling on 12 September 2016.4 I said that I would give reasons for my ruling later. These are those reasons.

1      Crimes Act 1961, s 98D(1)(a). The charges fell to be considered in the context of the provision as it stood immediately before the enactment of s 5 of the Crimes Amendment Act 2015 on 7
November 2015.
2      Immigration Act 2009, s 343(1)(b), in the form amended by s 15(1) of the Immigration A ct 2013 from 19 June 2013.
3      Ibid, s 343(1).
4      R v Ali [2016] NZHC 2153. Counsel closed to the jury on 13 September and I summed up on 14

[4] I deal with the issues raised at the hearing on 9 September 2016 in the following order:

(a) I explain the background to the trafficking charges and give my reasons for holding that the Crown was entitled to close on the basis either that…

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 [2016] NZHC 2223
Case: [2016] NZHC 2223
Decision Date: 12 September 2016

CaseChat Overview and Summary

Feroz Ali was charged with human trafficking and aiding and abetting unlawful entry into New Zealand. The court considered the legal basis for the Crown to close its case. It was held that the Crown could close on the basis that Mr Ali was either a principal offender or a party under s 66(2) of the Crimes Act 1961. The court also considered admissibility issues in relation to hearsay evidence. The court held that statements made by Geeta and/or Sanjana to complainants in Fiji were admissible as direct evidence, on the grounds that evidence of them was not being adduced to prove the truth of their content. The co-conspirators’ rule was also considered and the court held that the out of Court statements by Geeta and Sanjana to third parties were admissible against Mr Ali. The court also considered whether, if the Crown were to close on the basis of party liability under s 66(2), the fact that Geeta and Sanjana made their statements to the complainants in Fiji put the participation of Geeta and Sanjana beyond the reach of a New Zealand Court’s jurisdiction. It was held that s 7 of the Crimes Act 1961 applied. Finally, the court considered the basis on which the jury should be directed on the aiding and abetting charges and decided that there was sufficient evidence to leave this defence to the jury. Verdicts of guilty on all charges were returned on 15 September 2016.

Orders