Saleem v The Queen - [2016] NZCA 425

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/2016
[2016] NZCA 425

BETWEEN	SAJID SALEEM Appellant
AND	THE QUEEN Respondent

Hearing:	30 August 2016
Court:	Wild, Courtney and Woodhouse JJ
Counsel:	No appearance for Appellant T A Simmonds for Respondent
Judgment:	8 September 2016 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against both conviction and sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

On 17 March 2016 Mr Saleem appealed against his conviction and sentence. He had been convicted on 19 January 2016 on one charge of indecent assault following a two day trial in the Auckland District Court. Mr Saleem had indecently assaulted a female passenger who he was transporting home in his taxi on the evening of 31 July 2015.
Judge Ronayne sentenced Mr Saleem to six months imprisonment.[1] In doing so, the Judge granted Mr Saleem leave to apply for substitution of a sentence of home detention if he were able to provide a suitable address.[2]
[1]R v Saleem [2016] NZDC 3174.
[2]At [21].
Subsequently, Mr Saleem did provide a suitable address and his sentence was commuted to one of six months home detention. He completed serving that sentence on 18 June.
Mr Saleem’s notice of appeal stated his grounds as follows:
1 Re conviction — against weight of evidence. Additional evidence of car mirror not produced.
2 Re sentence — manifestly excessive by not ordered CD/HD appendix expectation of community based sentence.
In a minute dated 12 August, Wild J granted Ms Green’s application filed on 27 July seeking leave to withdraw as counsel for Mr Saleem. Ms Green sought leave to withdraw because Mr Saleem declined to accept her advice that there was nothing she could responsibly advance in support of the appeal.
In his 12 August minute, Wild J suggested to Mr Saleem that pursuing an appeal against sentence was pointless, given that Mr Saleem had completed serving the commuted sentence of six months home detention.[3] But Wild J added:
However, if Mr Saleem does wish to pursue an appeal against sentence he should be at Court on 30 August ready to present oral submissions in support of his appeal against sentence.
[3]Saleem v R CA114/2016, 12 August 2016 (Minute and Directions of Wild J).
Should Mr Saleem wish to pursue his appeal against conviction, Wild J directed that Mr Saleem needed, urgently, to file and serve with the Court and the Crown brief written submissions explaining why he says his conviction was against the weight of the evidence the jury heard. Similarly, he needed to file and serve an affidavit or at least a statement setting out the “additional evidence of car mirror” he maintains was not produced at his trial.
On 17 August, the Case Manager handling this appeal sent Mr Saleem an email advising:
The above appeal is set down…

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.

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Details

Case: [2016] NZCA 425
Decision Date: 8 September 2016 at 2.30 pm

CaseChat Overview and Summary

In the case of Saleem v The Queen, the appellant, Sajid Saleem, sought to appeal against both his conviction and sentence for indecent assault. Saleem was found guilty following a trial in the Auckland District Court and was sentenced to six months imprisonment, which was later commuted to six months of home detention. The grounds of appeal were that the conviction was against the weight of the evidence and that the sentence was manifestly excessive. However, Saleem did not appear at the scheduled hearing time for the appeal, despite clear communication from the court regarding the hearing time and the requirement for him to attend if he wished to pursue the appeal. Additionally, the court found the appeal to be without merit as the evidence against Saleem was overwhelming, including CCTV footage from the taxi in which the assault occurred.

The Court of Appeal dismissed the appeal, emphasizing that Saleem did not attend the hearing and had not provided any substantive arguments to support his appeal. The court was satisfied that the appeal was meritless, as the evidence of the indecent assault was compelling and the sentence imposed was not excessive. The court further noted that Saleem's counsel had withdrawn from the case due to the lack of viable grounds for appeal. Ultimately, the appeal was dismissed, and no further orders were made.

Orders