The Queen v Ghabachi - [2007] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND
CA357/06
[2007] NZCA285
THE QUEEN
v
MOJTABA GHABACHI
Hearing:26 June 2007

Court:William Young P, Randerson and Panckhurst JJ
Counsel:P T Eastwood for Appellant

K Raftery for Crown

Judgment:11 July 2007 at 11am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
An appeal based on new evidence
[1]       The appellant was convicted upon a charge of injuring with intent to injure following a trial in the District Court at Auckland. Subsequently, he was sentenced to nine months imprisonment, with leave to apply for home detention.
[2]       The appeal against conviction is based solely upon the availability of additional evidence from a psychiatrist concerning the appellant’s mental health at the time relevant to the charge.
[3]       The defence at trial was that Mr Ghabachi assaulted the complainant in self-defence. The jury was satisfied that self-defence did not avail the appellant.
[4]       Where an appeal is advanced on the ground of the discovery of fresh evidence two broad issues fall for consideration. First, is the requirement that the evidence be fresh in the sense that it was not available at the time of the trial. The second inquiry is whether the evidence is credible and cogent, in the sense that if given along with the other evidence in the case the jury might reasonably have been led to return a different verdict. These principles are well-settled; see the cases gathered in R v Bain [2004] 1 NZLR 638 (CA) at paras [18]-[20].
[5]       In this case we find it unnecessary to dwell upon the first requirement, that the evidence was not available at the time of the trial. As to that issue, we hold doubts, but for reasons which will become apparent the preferable course is to assess the cogency of the intended evidence.
The new evidence
[6]       A psychiatric report has been obtained from Dr Rul Mendel. The report confirms that Mr Ghabachi is 30 years of age, was born in Iran and came to New Zealand as a refugee about 11 years ago. Since then he has struggled to adjust in a new culture, including encountering difficulties in obtaining satisfactory employment.
[7]       The report contains an account obtained from Mr Ghabachi in relation to the incident which led to his conviction. This, it appears, is substantially consistent with the account given by the appellant to the jury. Under the heading “Psychological/Psychiatric Factors of Significance” Dr Mendel expresses this opinion:
Mr Ghabachi has been suffering from a depressive disorder for a considerable time by the time of the incident. That by itself would render him more vulnerable to stress, more sensitive to any perceived threats and invasion of his privacy. There is also evidence that Mr Ghabachi is suffering from Post Traumatic Stress Disorder as a result of a previous assault and a bad experience he had in a previous relationship.

[8] The report also contains a conclusion in which the psychiatrist expresses…

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 The Queen v Ghabachi

Details

AGLC: The Queen v Ghabachi [2007] NZCA 285
Case: [2007] NZCA 285
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the appeal case of The Queen v Ghabachi, the appellant, Mojtaba Ghabachi, sought to appeal his conviction for injuring with intent to injure, which was handed down by the District Court at Auckland. The appeal was premised on new evidence from a psychiatrist regarding the appellant's mental health at the time of the incident. The appellant had argued that he acted in self-defence, a claim which was rejected by the jury. The Court of Appeal was tasked with determining whether the new psychiatric evidence could have reasonably influenced the jury's verdict.

The central legal issues revolved around the availability of the new evidence and its cogency. The Court considered whether the psychiatric evidence was truly new and not available at the time of the trial, as well as whether this evidence was credible and cogent enough to potentially sway the jury's decision. Established principles from precedents, including R v Bain, were referenced to guide the Court's assessment.

Upon reviewing the psychiatric report from Dr Rul Mendel, the Court found that while the evidence was credible, it did not possess the cogency required to have reasonably led the jury to a different verdict. The report indicated that the appellant had been suffering from a depressive disorder and Post Traumatic Stress Disorder, which might have influenced his perception of threat and stress levels. However, the report concluded that the appellant acted in self-defence, a viewpoint deemed inadmissible. The Court acknowledged the relevance of the psychological factors but concluded that they did not substantiate the appellant's self-defence claim. Given the strong Crown case, supported by consistent testimonies and evidence, the Court found it unrealistic to suggest that the new evidence could have changed the jury's decision. Consequently, the appeal against conviction was dismissed.

Orders