R v Samsudeen - [2017] NZHC 3229

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE FINAL DISPOSITION OF TRIAL.

NOTE: PUBLICATION RESTRICTIONS APPLY PURSUANT TO S 19(1) OF THE BAIL ACT 2000. SEE DLM68927.HTML

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-004-005092

[2017] NZHC 3229

THE QUEEN

v

AHAMED AATHILL MOHAMED SAMSUDEEN

Hearing: 18 December 2017

Appearances:

H Steele for Crown

A Holland for Applicant/Defendant

Judgment:

19 December 2017

JUDGMENT OF VENNING J

Bail application

This judgment was delivered by me on 19 December 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland Counsel: A Holland, Auckland

R v SAMSUDEEN [2017] NZHC 3229 [19 December 2017]

[1]Mr Samsudeen faces the following charges:

(a)nine charges of knowingly distributing objectionable material under the Films, Videos and Publications Classification Act 1993 (the Act);

(b)one charge of possession of an offensive weapon;

(c)one charge of failing to assist in the exercise of a search power; and

(d)two charges of using a document for pecuniary advantage.

[2] Mr Samsudeen is currently remanded in custody for trial in this Court on 9 July 2018. He seeks bail.

[3] I take the background to the charges from the Police summary of facts. Mr Samsudeen is a Sri Lankan citizen who arrived in New Zealand in October 2011. He currently holds a New Zealand returning resident’s visa.

[4] In March 2016 Mr Samsudeen operated a Facebook account. The account was drawn to the attention of the Police. It contained videos and pictures of graphic war-related violence, and comments advocating violent extremism and expressing support for terrorists involved in the Paris attacks on 13 November 2015 and the Brussels’ bombing which occurred on 22 March 2016. The Police spoke to the defendant at his home address on 29 April and 25 May 2016. He was formally warned that possession of such material was an offence. The defendant was reported as being apologetic. He told the Police he had closed down the Facebook account.

[5] On 7 July 2016 the defendant re-opened the Facebook account. He later opened another Facebook account under a different name. On 20 October 2016 Police discovered the new Facebook accounts and through further inquiries detected a number of objectionable pictures and videos on them. The inquiries disclosed the defendant was then operating three separate accounts. The accounts were monitored and revealed numerous postings which included videos and pictures considered to be objectionable in terms of the Act because of the violence depicted in them.

[6] A witness who formerly flatted with the defendant reported his concerns to the Police about the defendant. He said the defendant had stated he wanted to go to Syria to fight for Islamic State and if prevented from doing so he would do something “outside in the street” and “kill someone with a knife”.

[7] The defendant was arrested at Auckland International Airport on 19 May 2017 when about to depart New Zealand to Malaysia and onwards to…

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 [2017] NZHC 3229
Case: [2017] NZHC 3229
Decision Date: 19 December 2017

CaseChat Overview and Summary

Ahamed Aathill Mohamed Samsudeen faces a series of serious charges, including distributing objectionable material under the Films, Videos and Publications Classification Act 1993, possession of an offensive weapon, failing to assist in the exercise of a search power, and using a document for pecuniary advantage. Samsudeen, who is currently remanded in custody, sought bail pending his trial scheduled for July 2018. The legal issues the court had to address pertained to whether the risk of Samsudeen offending while on bail could be sufficiently mitigated by the proposed living arrangements and conditions.

The court found that there was a real risk Samsudeen would offend if granted bail, either by distributing further objectionable material or committing an act of violence. The court considered that Samsudeen had shown a disregard for police warnings and had continued distributing objectionable material under different Facebook accounts. Furthermore, the evidence of a former flatmate, who reported Samsudeen's intentions to commit acts of violence, was deemed reliable and consistent with Samsudeen's Facebook posts and the nature of the distributed material. The court was also concerned about the proposed bail address, which could potentially facilitate Samsudeen's access to electronic devices and the internet.

The court ultimately concluded that the risk of Samsudeen offending while on bail could not be satisfactorily addressed by the proposed conditions. Taking into account the discretionary factors under section 8(2) of the relevant legislation, the court found there was just cause for continued detention. Consequently, Samsudeen's bail application was declined.

Orders