Sajjad v Police

[2015] NZHC 2121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-93 [2015] NZHC 2121

BETWEEN

ABDUL SAJJAD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 August 2015
Counsel:	G Burns for Appellant H Musgrave for Respondent
Judgment:	3 September 2015

JUDGMENT OF ANDREWS J

This judgment was delivered by me on 3 September 2015 at 9.45am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Counsel:
J Munro, Auckland

G Burns, Auckland

SAJJAD v NEW ZEALAND POLICE [2015] NZHC 2121 [3 September 2015]

Introduction

[1]      Mr Sajjad was convicted in the Auckland District Court on 18 March 2015, following a defended hearing before Judge D A Burns, on one charge of driving with excess breath  alcohol  (third or subsequent).1      He was  sentenced  to  fifty hours’ community work and nine months’ supervision and was disqualified from driving for a year and a day.  He has appealed against his conviction.

[2]      Mr  Sajjad  sought  to  adduce  an  affidavit  in  support  of  his  appeal  from Ms Preetika Ram, who says that she was with Mr Sajjad on the evening in question. Mr Burns, on behalf of Mr Sajjad, accepted that the application to adduce further evidence is out of time, but explained this delay by the difficulties Mr Sajjad has had in obtaining new counsel.  He also noted that on 22 May 2015, Mr Sajjad appeared in  person at  a callover  of his  appeal,  and  advised  his  intention to  adduce new evidence, although no formal application was made until counsel was appointed.  He therefore sought an extension of time.

[3]      For the respondent, Ms Musgrave did not oppose an extension of time to apply to adduce evidence, but opposed the application itself on the grounds that Ms Ram’s  evidence is  not  fresh,  and  is  unlikely to  have resulted  in  a different outcome.

Relevant facts

[4]      At around 3.45 am on Monday 25 August 2014, Mr Sajjad was found by a police officer asleep in the driver’s seat of his vehicle on Customs Street.  The car was clumsily parked and the engine was running.  The police officer also said that the vehicle’s headlights were on and that the vehicle was in gear.  A breath test was administered  and  Mr  Sajjad  was  found  to  be  over  the  relevant  limit.    He  was therefore charged with an EBA offence.

[5]      Mr Sajjad did not dispute this account, although he denied that the vehicle was in gear or that the lights were on.   However, the police and Mr Sajjad give

different accounts of how he came to be in this position.

1      Police v Sajjad [2015] NZDC 4952.

[6]      The Police alleged that Mr Sajjad had been drinking in Auckland city and that he went to drive home.  However, after driving a short distance, he decided he could not drive and pulled in to stop.  Because of his intoxication he parked badly, and then he fell asleep without turning off the vehicle.  On this basis, the Police alleged that Mr Sajjad had driven while drunk.

[7]      Mr Sajjad accepted that he had been drinking in the evening, but said that he only began drinking after he had stopped driving.  On his account, he was out with a friend, and it was she who parked the car.  He says it was badly parked because she urgently needed to go to a toilet.

[8]      Mr Sajjad said that the pair then drank in his car, before going to a bar for a while.  After leaving the bar, they returned to the vehicle where they fell asleep.  He said that he turned the car on, in order to keep the heater running while they slept. At some point, his friend awoke and decided to go home, leaving him sleeping alone in the car.  It was then that he was found by police.

District Court decision

[9]      Judge Burns rejected Mr Sajjad’s account as implausible.  He accepted police evidence that the vehicle was badly parked, that it had the lights on, that the engine running and that the car was in gear.   On this basis, he concluded that the only available inference was that Mr Sajjad had been driving.  The Judge also noted in passing that Mr Sajjad’s account, which included that he had parked in a taxi stand, meant that, if true, he had committed other minor offences with which he had not been charged.  The Judge also placed some weight on Mr Sajjad’s failure to call his friend as a witness or to produce evidence of his buying food or attending a bar in support of his account.

[10]     On this basis, the Judge convicted Mr Sajjad on the charge of driving with excess breath alcohol (third or subsequent).

Approach to appeal

[11]     Under s 232(4)(a) and (b) of the Criminal Procedure Act 2011, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.  It is clear that not every “error or irregularity” causes a

miscarriage  of  justice.2   The  error  or  irregularity  must  lead  to  either  of  the

consequences listed in s 232(4)(a) or (b).

[12]     A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”3 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.4

Appellant’s submissions

[13]     Mr Sajjad’s appeal grounds fall under two headings.  First, there are general criticisms of the Judge’s approach to and assessment of the evidence.  Second, there is his argument that the new evidence he seeks to adduce could alter the result.  The appeal hearing focussed on the application to adduce Ms Ram’s evidence, and it is appropriate to address that issue first.

Application to adduce new evidence

The evidence

[14]     Ms Ram gave evidence at the appeal hearing.   Her evidence covered two areas:  the events of 24/25 August 2014, and the reason why she had been reluctant

to give evidence at Mr Sajjad’s trial.

2      “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

3      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

4 At [110].

[15]     In relation to the events of the night in question, Ms Ram said, both in her affidavit, in answer to questions in cross-examination, and in answer to questions from the Court, that Mr Sajjad picked her up at around 4 or 5 pm on 24 August and he drove them into the city.  They decided to get takeaways is Queen Street.  When they got to the place they wanted to buy them, they swapped seats.  Mr Sajjad went to buy the takeaways and Ms Ram stayed in the car, in the driver’s seat, because they were stopped on a taxi stand.  When Mr Sajjad returned Ms Ram drove the car and they went and bought drinks.  When they had bought the drinks, at around 5.30 or

6 pm, Ms Ram drove to a car parking area at the end of Customs Street, in the vicinity of the Viaduct.  They parked there because Ms Ram urgently needed to use a toilet.  Ms Ram identified on a Google Map photograph the public toilets, close to where she parked the car.  She said that the car was not subsequently moved.

[16]     Ms Ram said that she and Mr Sajjad remained in the car for some hours, eating and drinking.  At around 11 pm they left the car where it was and walked for about 5 minutes to a bar (Danny Doolans) in the Viaduct.  They remained at the bar for about two hours (having more drinks) then walked back to the car.  Ms Ram got into the passenger seat and asked Mr Sajjad to turn the heater on, as it was cold.  She said that they intended just to warm themselves up before getting taxis to their respective homes. However, they both fell asleep.

[17]     Ms Ram woke up at about 3 am, and left to go home.  Mr Sajjad was still asleep in the car.   She was contacted a number of times by Mr Sajjad and his lawyers, and made a brief statement which was forwarded to the lawyers, but she did not respond further to the lawyers, and was never spoken to by the Police.

[18]     As to why she had not responded further, Ms Ram said in her evidence at the appeal hearing that in either late 2014 or early 2015 she had had to give evidence in a court case against her ex-boyfriend.  She had felt exposed in that she had had to go into intimate details about their relationship, and she had felt like she was the guilty person.  She described this as one of the worst experiences in her life, and she felt overwhelmed by it.

[19]     Further, as she was not present when Mr Sajjad was found by the Police, Ms Ram had thought she had nothing to offer.  She said that even if she had been given a summons to attend Court, she would not have come. However, more recently she had sat down with Mr Sajjad’s lawyers and realised that there was evidence she could give.

Submissions

[20]     Mr Burns submitted that the evidence is both fresh and credible and that failure to consider it would result in a miscarriage of justice.   He submitted that efforts were made from October 2014 until the trial to contact Ms Ram, but were unsuccessful.   He therefore submitted that Mr Sajjad was reasonably diligent in attempting to bring this evidence at trial, but was unable to do so.

[21]     Mr Burns also submitted that the evidence provides unequivocal support for Mr Sajjad’s account and that, given the Judge essentially determined that the police account was more believable than that offered by Mr Sajjad, the evidence could have had a significant effect on the result.

[22]     Ms Musgrave submitted that the proposed evidence is not fresh and that Mr Sajjad could have brought this evidence at trial.  She submitted that Ms Ram had given a short statement before trial and so Mr Sajjad was aware of the evidence she would give.  Had he chosen to do so, he could have summoned her.  On this basis, Ms Musgrave submitted that limited weight should be given to this evidence and that Mr Sajjad should not be given an attempt to re-litigate the charge as a result of his own failure.

Analysis

[23]     Section 335 of the Criminal Procedure Act provides a power to appellate courts hearing appeals against conviction or sentence, to accept further evidence that would have been admissible at trial.   This can be by way of the examination of witnesses, the production of documents, the appointing of an expert or referral of a discrete question to a special commissioner.  The section specifies that such orders

are to be made if the appeal court “thinks it necessary or expedient in the interests of justice”.

[24]     This section gives explicit recognition to a power which the court previously claimed under the right of appeal for a miscarriage of justice.5     Pursuant to this power, the Court would consider fresh evidence if it was of a nature sufficient to establish a miscarriage of justice.   The overarching test was whether there was a miscarriage of justice.6

[25]     Under this test, the Court of Appeal in R v Bain described the role of the appellate court as acting as a screen through which new evidence must pass.7    The court applies three different controls on the evidence, asking whether it is fresh, whether it is credible, and whether admitting it would alter the outcome of the trial. The overriding criterion  is  what  course will  best  serve the interests  of justice8.

Further:9

… the stronger the further evidence is from the appellant’s point of view. And thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court maybe inclined to accept that it is not sufficiently fresh, or not insist on that criterion being filled.

[26]     Whether  the  efforts  of  a  defendant  to  obtain  particular  evidence  were sufficient in the circumstances to show “reasonable diligence” will depend on a number of factors, including the content of the evidence itself.  Where a defendant neglects to bring readily available evidence, that itself suggests that the evidence may not be unequivocally helpful.   However, even where the defendant has not applied due diligence, this factor will not be a barrier to accepting compelling and

credible evidence.10

[27]     Ms  Ram  has  explained  why  she  was  not  forthcoming  with  evidence  at

Mr Sajjad’s trial.  Her evidence establishes that it was not for lack of diligence on the

5      Crimes Act 1961, s 381(1)(c), now repealed.

6      R v Arnold [1985] 1 NZLR 193 (CA) at 196.

7      R v Bain [2004] 1 NZLR 638 at [25]-[26].

8      At [22]–[23].

9 At [22].

10     See Banks v R [2014] NZCA 575.

part of Mr Sajjad that her evidence was not given at the trial.  In that respect, it can

be accepted that her evidence is “fresh”.

[28]     I accept that Ms Ram’s evidence could be helpful to the defence case.   It provides a second witness who supports the account which Mr Sajjad gave in his own defence.   It may serve to bolster his credibility in a significant way.   Her evidence cannot be ignored.   Given that the Judge ultimately rejected Mr Sajjad’s evidence as implausible and accepted instead the police account, it is possible that this evidence may have led the Judge to give more weight to Mr Sajjad’s account and may have led to a different outcome.

[29]      I have therefore concluded that leave should be given for Ms Ram’s evidence

to be adduced.

The Judge’s assessment of the evidence

Submissions

[30]     Mr Burns referred first to the Judge’s acceptance of the evidence for the police that the vehicle’s lights were on and that the car was in gear.   Mr Burns submitted  that  the  officer  in  charge,  who  was  the  only  police  witness  to  give evidence, accepted in cross-examination that the apparent light shining from the car’s tail lights could have been the result of the camera’s flash.  She also accepted that the photo of the front of the car showed that the lights were off, and she did not recall turning them off.

[31]     Mr Burns also submitted that the only photograph of the gear lever shows it as being in the park position.  On this basis, he submitted that the Judge was wrong to conclude that the lights were on and the vehicle was in gear and that, therefore, the Judge  should  not  have  concluded  that  there  were  material  contradictions  in Mr Sajjad’s account.

[32]     The second issue raised was the Judge’s reference to Mr Sajjad’s failure to present supporting evidence.  Leaving aside the failure to call Ms Ram as a witness, Mr Burns submitted that the evidence identified by the Judge – proof of the purchase

of Chinese takeaways and proof of purchases made at the bar – would have been entirely equivocal and would not have assisted Mr Sajjad’s case.   Such evidence would have been equally consistent with the prosecution case.  As such, Mr Burns submitted that the Judge took into account an irrelevant consideration in considering this factor to support the prosecution case.

[33]     On behalf of the respondent, Ms Musgrave submitted that the conclusions reached by Judge Burns were open on the evidence, as the officer in charge had confirmed her evidence that the lights were on in cross-examination and the evidence as to the car being in gear was not tested.  On this basis, Ms Musgrave submitted that it was open to the Judge to draw the inferences which he did about the absence of evidence which could have exonerated Mr Sajjad.11     She also submitted that the statements by the Judge as to evidence that Mr Sajjad could have brought did not imply that he misapplied the onus of proof.

Analysis

[34]     Ultimately, the Judge’s decision came down to a dispute of credibility.  The Judge accepted as credible the Police witness who contradicted Mr Sajjad’s account, and concluded that Mr Sajjad’s account was false.  It was on this basis that Mr Sajjad was convicted.  However, Ms Ram’s evidence must now be taken into account.  I am satisfied that when that evidence is considered, it is possible that the result may have been different; that is, Mr Sajjad may have been found not guilty.     As such I conclude that a miscarriage of justice has occurred, and the appeal must be allowed.

[35]     It is not possible on appeal to appropriately weigh the evidence given by Mr Sajjad and Ms Ram against the remainder of the evidence which was before Judge Burns.  The appropriate course is for the appeal to be allowed and the case to

be remitted back to the District Court for rehearing.

11     Counsel cited the judgment of Adam J in Purdie v Maxwell [1960] NZLR 599 (SC) at 605. His

Honour’s comments were adopted by the Court of Appeal in Trompert v Police [1985] 1 NZLR
357 (CA) at 358.

Conclusion

[36]     Time is extended for the application to adduce Ms Ram’s evidence, and leave

is given for that evidence to be adduced.

[37]     The appeal against conviction is allowed and the charges are remitted back to the District Court for re-hearing.

Andrews J