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…

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.

Keep reading for free

Create a free CaseChat account to read Sajjad v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 2121
Decision Date: 3 September 2015

CaseChat Overview and Summary

Abdul Sajjad appeals against his conviction in the Auckland District Court for driving with excess breath alcohol. The District Court had rejected his account of events in favour of the police account. Sajjad argues that the District Court erred in its assessment of the evidence, and that the admission of new evidence from a witness, Ms Ram, could have altered the outcome. The High Court is asked to decide whether Sajjad’s appeal should be allowed. The court must consider whether the District Court erred in its assessment of the evidence in a way that caused a miscarriage of justice, and whether the new evidence is fresh, credible, and likely to alter the outcome of the trial. The High Court found that the new evidence was fresh and credible, and could have led to a different outcome. The High Court concluded that a miscarriage of justice had occurred, and allowed the appeal, remitting the case back to the District Court for rehearing.

The High Court allowed the appeal and remitted the charges back to the District Court for rehearing.

Orders