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R v Ismail

R v Ismail

Case [2015] NZHC 2162 8 September 2015

Jurisdiction

Stay of Proceedings

Appeal

Admissibility of Evidence

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ORDER PROHIBITING PUBLICATION OF THE FACT OF THE HEARING, THE JUDGMENT, AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-5323

[2015] NZHC 2162

THE QUEEN

v

MUHAMMAD RIZALMAN BIN ISMAIL

Hearing: 11-12 August 2015

Counsel:

G J Burston and A R van Echten for Crown D L Stevens QC for Defendant

Judgment:

8 September 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.45 pm on the 8th day of September 2015

Solicitors:Luke Cunningham & Clere, Crown Solicitors, Wellington McWilliam Rennie, Wellington

R v ISMAIL [2015] NZHC 2162 [8 September 2015]

Table of contents

The applications  [1]
The background  [2]
The stay application  [6]
(a)The grounds of the application  [6]
(b)The publicity  [8]
(c)Counsels’ submissions  [14]
(d)Discussion  [25]

The s 147 application  [44]
Admissibility of evidence  [51]
(a)Defendant’s DVD interview  [52]
(b)The 111 call  [57]
(c)Propensity evidence  [63]
(d)The complainant’s interview  [71]

Mode of evidence application [82]
Result [88]

The applications

[1] The defendant is due to face trial on 30 November 2015 on one charge of burglary, one charge of assault with intent to commit sexual violation, and an alternative charge of indecent assault. There are three pre-trial applications:

(a)an application by the defendant for a stay of proceedings;

(b)an application by the defendant under s 147 of the Criminal Procedure Act 2011 for discharge on the charge of assault with intent to commit sexual violation; and

(c)an application by the Crown under s 101 of the Criminal Procedure Act 2011 for an order that specific items of evidence are admissible at trial.

The background

[2] The Crown case is that on Friday, 9 May 2014, the complainant was walking to a dairy near her home when she saw an Asian male apparently watching her. She walked home just as it was getting dark. She was alone at home as her flatmates were

out. She went into her bedroom and began watching a movie on her laptop computer. About half an hour to an hour after arriving home she heard a knock on her bedroom door which was slightly ajar. She said “come in” or words to that effect and a man whom she recognised as the man she had seen outside the dairy entered, not wearing trousers or underwear. She told him to get out and he grabbed her by the shoulders. She screamed and there was a struggle. She ran to the kitchen, grabbed a knife, and was able to force him out of the house and lock the door. She ran to her bedroom, grabbed her telephone, locked herself in the bathroom and called the police. In the course of that call, her flatmate’s boyfriend arrived. Both he and a neighbour who had been alerted by the noise saw a man outside the flat.…

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 Ismail

Details

AGLC: R v Ismail [2015] NZHC 2162
Case: [2015] NZHC 2162
Decision Date: 8 September 2015

CaseChat Overview and Summary

Muhammad Rizalman bin Ismail is facing trial for burglary, assault with intent to commit sexual violation, and an alternative charge of indecent assault. Ismail has made three pre-trial applications: a stay of proceedings, discharge under s 147 of the Criminal Procedure Act 2011, and an order that specific items of evidence be admitted at trial. The court heard the applications on 11-12 August 2015 and delivered judgment on 8 September 2015.

The defendant sought a stay of proceedings on the grounds that the pre-trial publicity had made it impossible for him to receive a fair trial and that allowing the trial to proceed would undermine public confidence in the criminal justice system. The court considered the extent and nature of the publicity and whether it would create a real risk of interference with a fair trial. The court found that the publicity would not prejudice a fair trial and that the actions of the complainant and TV3 did not undermine public confidence in the criminal justice system. The application for a stay was dismissed.

The defendant sought discharge on the charge of assault with intent to commit sexual violation on the grounds that a properly directed jury could not reasonably convict him on the evidence. The court found that the Crown evidence supported an inference that the defendant intended some form of non-consensual physical contact of a sexual nature, and the application for discharge was dismissed.

The Crown sought an order that four items of evidence be admitted at trial. The court found that the admissibility of the defendant's DVD interview and propensity evidence should be determined at trial, and that certain passages of the complainant's interview should be deleted. The court ruled that the 111 call was admissible.

The Crown sought directions as to the way in which the complainant's evidence was to be given. The court directed that the complainant's evidence-in-chief be given by evidential video interview and that the remainder of her evidence be given while in the courtroom but unable to see the defendant.

Orders