R v Samsudeen - [2018] NZHC 1522

NOTE: PUBLICATION RESTRICTIONS APPLY PURSUANT TO S 19(1) OF THE BAIL ACT 2000. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-005092

[2018] NZHC 1522

BETWEEN
AHAMED AATHILL MOHAMED SAMSUDEEN

Applicant

AND

THE QUEEN

Respondent

Hearing: 22 June 2018

Appearances:

A J Holland and D A Manning for Defendant H D L Steele for Crown

Judgment:

25 June 2018

JUDGMENT OF COURTNEY J

SAMSUDEEN v R [2018] NZHC 1522 [25 June 2018]

Introduction

[1] Mohamed Samsudeen is a 28-year-old Sri Lankan man who has lived in New Zealand for five years and has refugee status here. He has no criminal convictions in New Zealand. He is, however, currently facing nine charges of knowingly distributing objectionable material,1 two of using a document for pecuniary advantage,2 one of possessing an offensive weapon3 and one of failing to assist in the execution of a search warrant.4 He is for trial in July 2018.

[2] In December 2017, Venning J refused bail because he considered that there was a real risk that Mr Samsudeen would offend if granted bail either by distributing further objectionable material or by committing a violent offence. Since then the Office of Film and Literature Classification (Classification Office) has examined the publications that are the subject of the charges under the Films, Videos and Publications Classification Act 1993 (FVPC Act) and concluded that the publications are not objectionable outright but are classified as objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years. The Crown has applied for a review of that decision by the Film and Literature Review Board (Review Board).

[3] Mr Samsudeen has made a fresh bail application, relying on the Classification Office’s decision as a significant change in his circumstances.

Alleged offending

[4] The most serious charges against Mr Samsudeen are those brought under the FVPC Act. They relate to images posted by Mr Samsudeen on Facebook showing war-related violence, including a number said to have been inflicted on Muslims. Some of the images were graphic and extreme, such as that of a baby stabbed through his or her abdomen and a baby decapitated. The charge of possessing an offensive

1      Films, Videos and Publications Classification Act 1993, s 123(1)(d), which carries a maximum penalty of 14 years’ imprisonment.
2      Crimes Act 1961, s 228(1)(b), which carries a maximum penalty of seven years’ imprisonment.
3      Crimes Act 1961, s 202A(b)(b), which carries a maximum penalty of three years’ imprisonment.
4      Search and Surveillance Act 2012, s 178, which carries a maximum penalty of three months’ imprisonment.

weapon relates to a large hunting knife found under Mr Samsudeen’s bed when the police executed a search warrant at his flat. The other charges are relatively minor fraud charges.

Change in circumstances?

[5] Mr Holland, for Mr Samsudeen, argues that, as a result of the Classification Office’s decision, the strength of the evidence and seriousness of the available…

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 [2018] NZHC 1522
Case: [2018] NZHC 1522
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of Samsudeen v R involves Mohamed Samsudeen, a 28-year-old Sri Lankan refugee in New Zealand, who faces nine charges of distributing objectionable material, two charges of using a document for pecuniary advantage, one charge of possessing an offensive weapon, and one charge of failing to assist in the execution of a search warrant. Samsudeen's application for bail was initially refused in December 2017 by Venning J, who considered there was a real risk that Samsudeen would offend if granted bail. Samsudeen's fresh bail application relied on a decision by the Office of Film and Literature Classification that the publications in question were not objectionable outright but were classified as objectionable except if the availability of the publication was restricted to persons who have attained the age of 18 years.

The court had to decide whether the Classification Office’s decision constituted a significant change in circumstances for the purposes of bail and, if not, whether there was a real risk that Samsudeen would offend while on bail. The court found that the Classification Office’s decision did not constitute a significant change in circumstances because the Crown had applied for a review of the decision, which meant that the Classification Office’s decision had no effect until the Review Board made its decision. The court also found that there was a real risk that Samsudeen would offend while on bail, based on evidence of Samsudeen’s interest in watching videos about ISIS, his wish to go to Syria to fight for ISIS, his statements to the effect that if he could not travel to Syria then he would seek to kill someone in New Zealand, the fact that he had acquired a knife and that he knew how to make a bomb. The court concluded that the severity of the punishment likely to be imposed would not result in Samsudeen serving longer on remand than any sentence imposed.

The application for bail was dismissed.

Orders