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R v Chatha

R v Chatha

Case [2008] NZCA 547 10 December 2008

Breach of Contract

Jurisdiction

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA685/2007
[2008] NZCA 547
THE QUEEN
v
ARSHAD MAHMOOD CHATHA
Hearing:23 September 2008 and 30 October 2008

Court:Glazebrook, Rodney Hansen and Miller JJ
Counsel:A Shaw and A J Ellis for Appellant

N P Chisnall for Crown (on 23 September 2008)
N P Chisnall and B Vanderkolk for Crown (on 30 October 2008)

Judgment:10 December 2008 at 4.00 pm

JUDGMENT OF THE COURT

A The appeal against conviction and sentence is dismissed.
BMr Chatha is to present himself at the Palmerston North High Court at 10.00 am on Monday 15 December 2008 to commence his prison term.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Procedural history  [8]
Factual background  [15]
The respective cases  [21]
Documents in Pakistan  [32]
Applications made for variation of bail  [34]
Evaluation  [47]
Requirement to be present at trial and bail  [50]
Background  [50]
Submissions  [57]
Evaluation  [62]
Recusal applications  [75]
Background  [76]
Submissions  [84]
Evaluation  [86]
Information about the trial process  [94]
Submissions  [96]
Evaluation  [98]
Right to legal representation  [104]
Background  [107]
Evaluation  [116]
Election not to call evidence  [130]
Background  [131]
Evaluation  [145]
Application for discharge  [154]
Complaints about summing up  [159]
Direction on Mr Chatha not giving evidence  [160]
Fair trial issues  [164]
Balance  [171]
Sentence appeal  [173]
Submissions  [173]
The legislation  [175]
Sentencing remarks  [176]
Evaluation  [185]
Result  [197]
Introduction
[1]       Mr Chatha was convicted on 21 August 2007, after a trial in the High Court at Wellington before MacKenzie J and a jury, of six counts pertaining to immigration fraud. Those charges comprised:
(a)Five counts against s 229A of the Crimes Act 1961 of taking or dealing with a document with intent to defraud, each of which carries a maximum penalty of seven years imprisonment; and
(b)One count against s 264 of the Crimes Act of possessing an implement for forgery, which carries a maximum penalty of ten years imprisonment.

[2] Mr Chatha appeals against both his conviction and the sentence of two years imprisonment, which was imposed by MacKenzie J on 16 November 2007.
[3] The conviction appeal is advanced on a number of grounds:
(a)Mr Chatha’s right to present his defence was wrongly impeded by Mr Chatha being refused permission to return to Pakistan to retrieve documents and to brief witnesses;
(b)MacKenzie J wrongly required Mr Chatha to be present at his trial and the conditions of bail imposed on Mr Chatha during the trial unfairly and/or unreasonably impeded Mr Chatha’s exercise of his right to present his defence;
(c)Ronald Young and MacKenzie JJ failed to consider Mr Chatha’s recusal applications;
(d)Information about the trial process was not provided to Mr Chatha at the proper times;
(e)Mr Chatha was not informed of his right to legal representation. Further, the appointment of an amicus curiae was wrongly terminated;
(f)MacKenzie J failed to deal with an application for discharge on the charge of possessing an implement for forgery;
(g)MacKenzie J wrongly ruled that Mr…

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 Chatha

Details

AGLC: R v Chatha [2008] NZCA 547
Case: [2008] NZCA 547
Decision Date: 10 December 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed Mr Arshad Mahmood Chatha's appeal against his conviction and sentence for immigration fraud. The Court rejected Mr Chatha's arguments that his right to present his defence was impeded by being denied permission to travel to Pakistan, MacKenzie J wrongly required his presence at trial, and MacKenzie J failed to consider his recusal applications. The Court also found that Mr Chatha's right to information about the trial process was not violated, and that he was not denied the right to legal representation. The Court further held that MacKenzie J's direction that Mr Chatha could not give evidence in relation to the defence exhibits and his summing up to the jury were proper. The Court rejected Mr Chatha's argument that the sentence was unlawful and excessive. The appeal against conviction and sentence was dismissed, and Mr Chatha must now serve his sentence of imprisonment. He is to present himself at the Palmerston North High Court at 10.00 am on Monday 15 December 2008 to commence his prison term.

Orders