The Queen v Khan

[2007] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/06
[2007] NZCA 41

THE QUEEN

v

SALEEM PAUL KHAN

Hearing:15 February 2007

Court:Arnold, Panckhurst and Priestley JJ

Counsel:T Sutcliffe for Appellant

P K Feltham for Crown

Judgment:6 March 2007 at 3.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Indecent acts in a public place

[1]       Following a District Court jury trial before Judge Maze the appellant was found guilty upon two counts of performing an indecent act in a public place, being acts of masturbation undertaken in circumstances where young girls could observe him.  He appeals against those convictions on the grounds that conduct of his then trial counsel denied him the opportunity to give evidence in his own defence.  Complaint is also made that in two regards trial counsel failed to cross-examine witnesses in terms of the appellant’s instructions.

[2]       Affidavits directed to these issues were filed by the appellant and his former counsel.  We also heard cross-examination of both deponents.  As will become apparent the findings in relation to this evidence are largely determinative of the appeal.  However, before we explain those findings it is convenient to describe the nature of the Crown case.

The Crown case

[3]       At the relevant time, March-May 2005, the appellant was the owner of a red two door Honda Integra motorcar, registration number WY1236.  The vehicle was reasonably distinctive since it had a rear spoiler, black mouldings on the side of the doors and silver alloy five spoke wheel rims.

[4]       Although the indictment contained only three counts of performing indecent acts in public places, evidence was adduced relating to five incidents in total.

[5]       The first such incident was at about 8.30am on 21 March 2005.  Two young girls were walking to school.  They noticed a car following them.  It then passed them and stopped on the street, before finally driving off as the girls ran into school.  On account of their concern the girls noted the registration number of the car (WY1236) and reported it to the school office manager.  The police were advised and a constable spoke to the appellant about the matter.  He said that there must have been a mistake in relation to the registration number. 

[6]       On 14 April 2005 at about 4.00pm a 10 year old girl left home to bike to a friend’s house.  A red car approached her, crossed to her side of the road and stopped.  The driver beckoned to the girl, who called out to her brother before she ran home.  Her brother, aged 15 years, identified the car as a red Honda Integra.  The boy called out to the driver, who was then out of the car, and the driver returned to the vehicle and drove away.

[7]       A week later a visitor to the children’s household noticed a red Honda Integra car driving slowly by with the driver looking into the family’s driveway.  He took the registration number of the car, being WY1236.

[8]       The events giving rise to count one occurred at about 3.50pm on 28 April 2005.  Two 9 year old girls were talking on the roadside.  A car drove past, turned around and parked beside them.  The driver opened his door and asked some questions of the girls.  One of them noticed that he was masturbating himself.  A complaint was made to a mother of one of the girls.  She phoned the police at 3.51pm.  At trial, evidence was adduced as to the description of the car and the driver, but the car registration number had not been taken.  The appellant was found guilty upon this count.

[9]       Count two concerned 7 May 2005.  Sisters aged five and seven years were playing at the front of their house.  A car drove up (to the end of a cul-de-sac), stopped and the driver opened his door and beckoned to the older of the two girls.  She described him as “jumping up and down on his seat” with his hands in his lap.  A complaint was made to the girls’ mother who contacted the police.

[10]     Two days later the 7 year old was again outside her home, this time with her father, when the same car drove past and circled the end of the cul-de-sac in the wrong direction.  The girl told her father it was the same car and he obtained the registration number, WY1236.

[11]     In relation to this count the appellant was found not guilty.  Ms Feltham argued that the most likely interpretation of the verdict was not that the jury doubted the evidence of identification, rather that the evidence of an indecent act was insufficient.  Having considered the extent of the evidence, we tend to agree.

[12]     The third count also related to 7 May 2005.  At about 2.15pm two girls aged 7 and 5 were playing at the end of a cul-de-sac (in a different street).  A car entered the street, stopped in the middle of the road and the driver opened the door and told the girls to “come here”.  The driver had his trousers unzipped and was holding his penis.  The mother of one of the girls observed these events from her living-room window.  She was talking to her husband on a cordless telephone at the time.  Being concerned, she went outside and called the girls away from the vehicle.  The driver closed the door and drove off.  The mother (who we will refer to as Mrs F) noted the registration number, WY1236.  She telephoned the police and gave the number to an operator at the police call centre.

[13]     On 10 May 2005 a detective spoke to the appellant concerning the last incident.  He said that he was both the owner of the red Honda Integra and the regular user of that vehicle.  He denied any involvement in the events which had occurred three days earlier.  On advice, Mr Khan declined to participate in a full interview.

Defence case

[14]     Two defence witnesses were called.  The first was a university student and colleague of the appellant.  Her evidence was relevant to 21 March 2005 (the day of the first incident involving two girls walking to school at about 8.30am).  The effect of her evidence was that she and the appellant attended a lecture that day which commenced at 9.00am.  She did not recall the appellant ever being late for a lecture.  At the request of trial counsel she had driven the distance from the scene of the incident to the university, in 16 minutes.  She further estimated that it would take five minutes to park and walk to the lecture theatre.

[15]     The appellant’s mother gave evidence with reference to count one, the incident which occurred at about 3.50pm on 28 April 2005 (para [8]).  She said that she had visited the appellant at his home that afternoon arriving at about 3.20pm and leaving a short time later.  After leaving she realised that she had forgotten to mention something to her son and, while stationary at traffic lights, she had telephoned him on his mobile phone.  This call was made at 4.04pm.  Notice of alibi was given with reference to this evidence.

The accused does not give evidence at trial

[16]     The major ground of appeal is that whether through incompetence, or confusion, trial counsel effectively denied the appellant the opportunity to give evidence in his own defence.  Trial counsel, Mr McIvor, and the appellant were cross-examined in relation to their affidavits.  In light of that evidence we have formed a clear view concerning this aspect of the appeal.

[17]     It is common ground that a number of meetings occurred in the build-up to trial.  As well as the appellant, his mother and stepfather attended most of these.  The Crown evidence and information obtained on disclosure was analysed and discussed.  Mr McIvor also explained aspects of the trial process to his client, who had no previous experience of the criminal justice system (and no previous convictions).  The issue of Mr Khan giving evidence was also discussed.  Mr McIvor gave advice to the effect that if the accused gave evidence he would be exposed to cross-examination, which would not be easy and counsel doubted that there was much which Mr Khan could contribute, beyond a denial of the allegations.  He was concerned that the main plank in the prosecution case would be reinforced, since the appellant accepted that he was the habitual user of the Honda Integra.  Mr McIvor's perception was that by the commencement of the trial a decision had been taken that only the other two witnesses would be called for the defence.

[18]     Mr Khan’s perception, and that of his mother and stepfather in their affidavits, was somewhat different.  The appellant said that any decision that he would not give evidence was tentative in nature, and his inclination remained that he should do so.  Mr Khan was adamant that counsel did not explain to him the rule of practice that if an accused is to give evidence he or she must ordinarily be called before other defence witnesses.  Mr McIvor was clear that advice as to this practice was given. 

[19]     With reference to the trial the accounts were also at variance.  Mr McIvor said that, although it always remained open for Mr Khan to revisit the issue of his giving evidence, such did not occur and accordingly he opened the defence case on the basis that only the other two witnesses would be called.  In cross-examination he acknowledged that he did not obtain a signed instruction from the appellant confirming his election not to give evidence.  He said that he regarded Mr Khan as an intelligent and informed client, from whom he did not think it necessary to have the protection of a signed instruction.  He thought he had consulted with him in the cells shortly before opening the defence case to the jury.  Mr McIvor further said that nothing occurred during the trial, or in its aftermath, which indicated to him that his client was dissatisfied about not giving evidence before the jury.  Inclusion of a ground to that effect in the notice of appeal was the first inkling he had of this issue.  It came as a surprise to him.

[20]     Mr Khan’s recollection was quite different.  He said that he still did not appreciate at the end of the Crown case that, if he was to give evidence, he would need to be the first defence witness.  With reference to Mr McIvor’s opening, Mr Khan said he could not recall its content and, in any event, he did not appreciate that there would be a difficulty in his giving evidence after the other two witnesses. 

[21]     We have been provided with a copy of the defence opening.  It is clear in its terms that only two witnesses were to be called and as to what they would say.

[22]     Mr Khan continued by explaining that, after hearing the evidence of his university colleague and his mother, he formed the clear view that it was necessary for him to give evidence.  He told Mr McIvor this.  Counsel said it was “too late”.  Mr Khan said he was shocked to learn this, but felt he had no option but to accept counsel’s advice.  Mr McIvor has no recollection of any such exchange.  In cross‑examination he said that if he had received an instruction to this effect, he would have sought leave from the trial Judge to call Mr Khan out of turn.  However, the need did not arise.

[23]     Both in his affidavit in reply and in cross-examination, the appellant said that after the trial at a debriefing he raised the issue of his not giving evidence with Mr McIvor.  He added that Mr McIvor’s response was “you are a pretty emotional kind of guy and I don’t think you would have held up well in the stand anyway”.  Although this exchange was not put directly to Mr McIvor in cross-examination, the tenor of his evidence was that no complaint was raised, at least until the written notice of appeal was framed.

[24]     It is important to note that the jury trial did not represent the end of the professional association between lawyer and client.  The trial took place in February 2006.  In May of that year Mr McIvor represented Mr Khan in relation to a further charge which was heard summarily.  Mr Khan gave evidence.  He was found not guilty.  In June 2006 the notice of appeal to this Court was filed.  The relevant ground of appeal alleged that “trial counsel failed in his duty to competently present my defence in that I was not called to give evidence ….”

[25]     As can be seen there is a marked contrast in the two versions.  Integral to Mr Khan’s account was his assertion that he told Mr McIvor at trial, although belatedly, that he wished to give evidence and was told it was too late.  By contrast, Mr McIvor had no recollection of this.  We are satisfied that if Mr Khan had insisted on giving evidence, and at a late point in the trial, counsel would recall it.  We prefer the evidence of Mr McIvor.  It remained consistent throughout.  In summary he said that a decision was taken in the build-up to trial that Mr Khan would not give evidence, and his instructions did not change at trial. 

[26]     By contrast Mr Khan’s account became more detailed over time.  His reply affidavit included the assertion that a complaint was made at the debriefing meeting and, in cross-examination, he attributed to Mr McIvor the specific response to which we have referred (para [23]).  Had this occurred, and in the manner described, Mr McIvor could not but have remembered it.  And the circumstance that the professional relationship continued through to the conclusion of the summary hearing in May 2006 is also, we think, at odds with the appellant’s version of events.

[27]     For these reasons we do not accept there was any misunderstanding between counsel and client resulting in a denial of the opportunity for the appellant to give evidence.

[28]     In terms of R v Sungsuwan [2006] 1 NZLR 730 (SC) our factual finding means that there was no error or irregularity on the part of trial counsel and therefore on the facts of this case no basis for the further inquiry concerning whether the risk of a miscarriage of justice was occasioned. This is not one of those rare cases where counsel’s conduct, although reasonable, might nevertheless have led to a miscarriage of justice – Sungsuwan per Gault J at [67]. We are satisfied that Mr Khan made an informed decision not to give evidence and that the advice which prompted that election was soundly based. The case is not one where, on account of the absence of evidence from an accused, the risk of a miscarriage arose. Rather, the indications are the other way; that had Mr Khan given evidence the Crown case would likely have been strengthened.

Failure to follow instructions in cross-examination

[29]     Mr Sutcliffe raised two matters under this head.  The first concerned cross‑examination of Mrs F, who gave evidence in support of count three, being that she had observed untoward conduct in the street involving her daughter, another girl and the offender, which she promptly reported to the police call centre, including reference to the car registration number.

Cross-examination of Mrs F

[30]     The complaint is that Mr Khan instructed trial counsel to put to Mrs F that she had no independent memory of the registration number of the vehicle, and that she was in fact given that information by the police.  It was the case that with reference to other sightings, where a registration number was not obtained in the first instance, the police had given the appellant’s registration number to witnesses in case the vehicle should return to the particular vicinity.  No doubt it was this background which prompted the instruction from Mr Khan to trial counsel.

[31]     In fact counsel did cross-examine Mrs F concerning whether she had a clear unobstructed view of the number at the relevant time.  She said that she had and that she “got all of the number”.  Nothing more was put to her on this issue.  We are satisfied that given the answers which his preliminary questions elicited, it was well open to Mr McIvor to reach the judgment that the further question he had been instructed to ask would not bring a favourable response.

[32]     And the wisdom of that judgment has been confirmed by affidavit evidence received on appeal.  A transcript of the call made by Mrs F to the call centre was produced.  It confirmed beyond all doubt that she supplied the number WF1236 at a very early point in the call and without prompting.  There is nothing to suggest that prior to observing the relevant events Mrs F had any contact with the police or that she received any information concerning a car registration number.

[33]     This ground of appeal must also fail.

Cross-examination of Detective Treloar

[34]     The contention with reference to this witness is that trial counsel failed to follow instructions by cross-examining the detective concerning whether there were any reports to the police about the driver of a red car acting in an untoward manner, after the date of the appellant’s arrest.  Mr Khan instructed that this line of inquiry be pursued because, after his arrest, he placed his car in a locked enclosure and did not use it for an appreciable period.  If, therefore, there were any reports pertaining to sightings of a red car at this time, such would lend substance to the contention that WY1236 could have been wrongly identified on previous occasions.

[35]     This thesis, however, suffered a fatal blow in the course of cross-examination of Mr McIvor.  Concerned not to ask questions at trial to which he did not know the answer, counsel made inquiries prior to trial whether the police had received reports of sightings of a red vehicle in the post-arrest period.  They had not.  Hence, to have asked Detective Treloar the question would have represented a tactical error and resulted in an answer of no assistance, if not adverse, to the defence case.  Accordingly this ground of appeal also fails at the first hurdle.

Conclusion

[36]     The appeal against conviction is dismissed.

Solicitors:
Till Henderson King, Hamilton, for Appellant
Crown Law Office, Wellington