R v Samsudeen - [2020] NZHC 3006

ORDER PROHIBITING PUBLICATION OF 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.

NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF

APPLICANT/DEFENDANT UNTIL FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-007098

[2020] NZHC 3006

THE QUEEN

v

AHAMED AATHILL MOHAMED SAMSUDEEN

Hearing: 12 November 2020

Appearances:

H Steele and A Mateni for Crown

B Sellars QC and S J Bird for Defendant

Judgment:

12 November 2020

ORAL JUDGMENT OF VENNING J

Section 147 application

Solicitors: Meredith Connell, Auckland Counsel: B Sellars QC/S J Bird, Auckland

R v SAMSUDEEN [2020] NZHC 3006 [12 November 2020]

[1] Ahamed Samsudeen faces trial on a number of charges in this Court. He seeks a discharge under s 147 of the Criminal Procedure Act 2011 (CPA) in relation to three charges alleging possession of an offensive weapon.

[2]The three charges are:

(a)Charge 1 – possession of an offensive weapon – s 202A(4)(b), Crimes Act 1961 – that on or about 19 May 2017 at Auckland, he had in his possession an offensive weapon, namely a hunting knife, in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury or the threat or fear of violence;

(b)Charge 2 – possession of an offensive weapon – s 202A(4)(a), Crimes Act 1961 – that on or about 8 August 2018 at Auckland without lawful authority or reasonable excuse, had with him in a public place a knife;

(c)Charge 3 – possession of an offensive weapon – s 202A(4)(b), Crimes Act 1961 – that on or about 9 August 2018 at Auckland had in his possession an offensive weapon, namely a throwing star, in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury or the threat of violence or the fear of violence.

Principles

[3] The principles to apply on such applications are well understood and settled. The Court may dismiss a charge under s 147(4)(c) of the CPA if satisfied as a matter of law a properly directed jury could not reasonably convict the defendant of that charge.

[4] The issue is whether the evidence is sufficient in law if accepted to prove the case. If it is then the issue should be left to the jury.1

1 Parris v Attorney-General [2004] 1 NZLR 519 (CA).

Background

[5] Mr Samsudeen is a Sri Lankan citizen who arrived in New Zealand in October 2011. He is ethnically Tamil and Muslim by faith. I understand his refugee status is under review.

[6] Between November 2015 and March 2016 the New Zealand Police were alerted to two Facebook accounts under the names ‘Aathill Ahamed’ and Aathill Al- Ceyloni Al-Moori’ which were being used to post Islamic extremist themed material,…

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 Samsudeen

Details

AGLC: R v Samsudeen [2020] NZHC 3006
Case: [2020] NZHC 3006
Decision Date: 12 November 2020

CaseChat Overview and Summary

Ahamed Samsudeen has sought a discharge under section 147 of the Criminal Procedure Act 2011 in relation to three charges of possessing an offensive weapon. The court had to decide whether the evidence was sufficient to prove the charges, which would allow the matter to go to trial. The Crown argued that the defendant's possession of the weapons, together with the content of his internet posts, showed an intention to use them to commit an offence involving bodily injury or the threat or fear of violence. The defendant argued that the evidence was insufficient to show the requisite intention. The court dismissed the application in relation to the second charge, but granted the application in relation to the first and third charges. The reasoning was that there was insufficient evidence to support a finding that the defendant intended to use the weapons in the way described by the relevant section of the Crimes Act. The physical disconnect between the defendant and the weapons, and the absence of any other suggestion of legitimate use, meant that there was no evidence to support a finding that the defendant intended to use the weapons to commit an offence involving bodily injury or the threat or fear of violence. The application in relation to the second charge was dismissed because there was sufficient evidence to support a finding that the defendant had the knife with him in a public place, and that there was no lawful authority or reasonable excuse for him having the knife. The final order was that the defendant is discharged under section 147 of the Criminal Procedure Act 2011 in relation to charges 1 and 3, and the application in relation to charge 2 is dismissed.

Orders