The Queen v Khan

[2006] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/05

THE QUEEN

v

MOHAMMED AZAN KHAN

Hearing:23 February 2006

Court:Robertson, Randerson and Panckhurst JJ

Counsel:C J Robertson for Appellant

A R Burns for Crown

Judgment:7 March 2006 

JUDGMENT OF THE COURT

A        APPEAL AGAINST CONVICTION DISMISSED.

B        Further submissions directed in the sentence appeal.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

[1]       In June 2005, the appellant was convicted after a jury trial in the District Court at Auckland on one count of male assaulting a female contrary to s 194 Crimes Act 1961.

[2]       On 29 July 2005 he was sentenced by District Court Judge Gittos, who had presided at the trial.  He was fined $3,500, ordered to pay reparation of $1,500, and placed on supervision for nine months on standard conditions with a special condition that he take such programmes for anger management as the probation officer directed.

[3]       The charge arose from an altercation between the drivers of two motor vehicles at an Auckland service station.  The complainant Ms Robson was driving one of the vehicles and alleged she was assaulted by the driver of the other vehicle who she identified as the appellant.  The appellant’s defence was that he was not the driver of the second vehicle.  Rather, he was a passenger in the vehicle and the driver was a Mr Imtiaz Ali.

[4]       The appeal is against both conviction and sentence.  The appeal against conviction is advanced on three grounds:

(a)that the Judge misdirected the jury in answer to a question received from the jury after their retirement;

(b)unfairness in relation to the complainant’s identification of the appellant from a photo montage and the production of the montage in evidence; and 

(c)failure by the police to disclose that the complainant’s daughter had made an informal identification of Mr Ali outside the courtroom during the appellant’s trial.

[5]       The appeal against sentence is advanced on the basis that the combination of the fine and reparation were manifestly excessive and were imposed without adequate information before the Court as to the appellant’s financial circumstances.

Factual background

[6]       It was undisputed that at about 9.30am on 7 October 2003 a limousine approached the Glen Innes Shell Station and attempted to enter its forecourt via an exit.  At the same time Ms Robson was driving her car out of the same exit.  There was insufficient room for the vehicles to manoeuvre and they both came to a standstill. 

[7]       Ms Robson alleged that, in the course of a heated and emotional interchange, the driver of the limousine leaned out of his car and snapped the side view mirror off her car.  Then, when she put her hand on the window to stop the other driver causing further damage, he took hold of her arm and forced her fingers back in an unnatural way causing pain and ongoing suffering requiring medical treatment.

[8]       The Crown lead evidence from Ms Robson and her daughter (who was a passenger in Ms Robson’s car) and the police officer in charge of the case.  The defence called the appellant and Mr Shaukat Ali, who was a backseat passenger in the limousine.  He is related to the appellant and is the father of Imtiaz Ali (the man who the appellant claimed was the driver).

[9]       The identity of the driver dominated the trial but there was also an alternative argument that there was no assault as alleged by the complainant and her daughter, and that Ms Robson hurt her hand while gesturing out of the window and hitting her hand on the wing mirror. 

The misdirection point

[10]     The Judge summed up to the jury in a conventional manner and no issue is taken with it.  After the jury had been deliberating for about four hours, they sent a message to the Judge:

The jury are unable to agree with a decision after lengthy analysis of the evidence given. Most are of the opinion that insufficient evidence has been given by both the prosecution and defence.

[11]     In the jury’s absence, the Judge discussed the matter with counsel.  No objection was taken to his proposal that there should be a direction in terms of R v Papadopoulos [1979] 1 NZLR 621.

[12]     The jury returned to Court and the Judge gave them a conventional warning in terms of this Court’s formulation in Papadopoulos.  He then said:

Reading your comment, here I must confess to being a little puzzled by the view that you have not had evidence sufficient.  You have had really all that there is available and that is commonly a problem that confronts juries and judges too that in the perfect world we would often like to know more about something but you have got to make a decision with what has been presented to you, and it may be that analysing it for a considerable time you may have reached some degree of confusion.  The issue seems, if this observation is helpful to you, to me to be reasonably simple.  If you are satisfied that the evidence of the two complainants, that is Mrs Robson and her daughter, is truthful and is not mistaken, if you are quite sure about that, that these two ladies have given you truthful evidence and that they are not mistaken about what they say then your clear duty is to convict the accused.  If you are not at all sure about that then your clear duty is to acquit him.  So it boils down to that really.  I will ask you now to retire and reconsider.

[13]     The appellant contends that these comments amounted to a misdirection because when the Judge said they should find him guilty if they believed the complainant and her witness, he was thereby effectively directing the jury to ignore the evidence of Mr Khan and his witness.

[14]     Mr Robertson submitted that a proper direction required the Judge to remind the jury at that stage that the burden of proof was on the Crown and that the jury should not reject the evidence put forward by the defence without giving it due consideration.  He said the Judge ought to have repeated the direction he had earlier given them in his summing up.  This had proceeded on conventional lines setting out the three possible conclusions the jury could reach in respect of the defence evidence.

[15]     Mr Burns for the Crown submitted that the Judge’s response was sufficient in light of the comprehensive summing up which had covered all relevant points including a direction to consider both the prosecution and defence evidence.  He submitted that, as the defence case was that the complainant and her daughter were wrong about the identity of the driver, the Judge, by inviting the jury to assess the truth and accuracy of the complainant’s evidence, was implicitly covering the defence case and the direction was not unsafe or unfair in terms of Randall v R [2002] 1 WLR 2237, 2251 (PC).

Discussion

[16]     Two of the Judges are not persuaded that the Judge’s response to the jury’s question could have misled the jury as to the onus of proof or was in any other way defective such as to lead to a real risk of a miscarriage of justice. 

[17]     In their view this was a short trial focussing essentially on the single issue of whether the appellant had been proved beyond reasonable doubt to be the driver of the vehicle.  The evidence was completed in one day and the Judge summed up the following morning.  In his summing up, the Judge reminded the jury to consider the whole of the evidence; directed on the credibility and reliability of witnesses; emphasised the onus and standard of proof; warned the jury of the special need for care when relying on identification evidence; and carefully summarised the case for the Crown and the defence.  At the end of the summing up, the Judge directed the jury very fully on the effect of the appellant and his witness giving evidence:

I said to you that I would say something more about the fact that the accused has given evidence.  I just underline for you that that is not something was obligatory for him to do.  The fact that he has given and called a witness to give evidence on his behalf does not mean that he has taken on the responsibility of proving himself innocent.  The onus of proving guilt remains on the Crown.  But where there is defence evidence, it is often said that essentially possible three conclusions can come from it.

Firstly, you may think that the defence evidence is credible and reliable and a convincing answer to the Crown’s case.  If that is the case, if you accept what the accused and his relatives say as the truth, then obviously your verdict will be one of not guilty.

But such evidence can have another effect.  Although you may think that it is not entirely convincing, it may leave you unsure about what the real position is.  In other words, it raises a reasonable doubt in your minds and if you are in the position where you say, well, I don’t know whether I believe them or not, then you are in a situation of reasonable doubt and, once again, your appropriate verdict would be one of not guilty.

The third possibility is that you may think that such evidence is entirely unconvincing or part of it is entirely unconvincing and reject it as being unworthy of belief.  In other words, you might accept the Crown’s view that this is something that has been put up to try and deal with a difficult situation and it is not true.  If that is the view that you reach, and it is entirely a matter for you, you should be careful not to jump from that conclusion to an automatic conclusion of guilt.

If you do not accept the evidence that the accused has given, if you do not believe him, then you just put that evidence to one side and go back to the other evidence, the rest of the evidence, the Crown case, and ask yourselves, does that evidence persuade me to the point where I am quite sure without any reasonable doubt about this matter?  If it does, then your proper course is to convict.  If it does not, your proper course is to acquit.

[18]     There is no challenge to any part of the Judge’s summing up and we are all satisfied it fairly and accurately covered the essential directions of law required as well as the respective cases for the Crown and defence.

[19]     The jury’s question made it clear they were considering all the evidence on both sides as they had been directed to do.  The jury’s concern was that there was insufficient evidence to reach a conclusion.  The Judge properly directed them in response that their task was to come to a decision on the basis of the material they had before them.  He observed that the issue was reasonably simple.  If they were “quite sure” that the evidence of Ms Robson and her daughter was truthful and not mistaken (which the Judge emphasised by repetition) then their duty was to convict.  On the other hand, if they were not sure then their duty was to acquit.

[20]     Two Judges are satisfied this was an adequate direction.  Ideally, the Judge could have referred expressly to the onus of proof although the emphasis placed on the need to feel “sure” was a shorthand method of doing so.  Likewise the need to consider all the evidence could have been mentioned.  But they accept Mr Burns’ submission that this was implicit in the simple statement that the jury had to be sure they could accept the evidence of Ms Robson and her daughter before they could convict and, if not, they must acquit.  The only issue of substance was whether the appellant had been correctly identified as the driver of the vehicle.  The jury had to be satisfied beyond reasonable doubt that they could accept the evidence of Ms Robson and her daughter on that point, before they could convict.  It must have been obvious to the jury that the appellant disputed the point and that they had to take his evidence into account in deciding whether they could be sure Ms Robson and her daughter were correct on this issue.  In light of the Judge’s full directions given earlier in the day in relation to proof and the evaluation of evidence, they do not consider there was any real risk of a miscarriage of justice, notwithstanding that four hours had elapsed since the summing up.

[21]     The other Judge was uneasy about the use of a Papadopolous direction in these circumstances, but if it were to be employed then particular care was required to ensure that balance was maintained.  He was persuaded that the jury message should have alerted everyone to the fact that the question of onus needed emphasis.  The jury comments could have suggested that the defence was being seen as having some obligation to provide sufficient evidence.  He was concerned that the trial Judge, having said that the issue seemed to him to be “reasonably simple”, only specifically mentioned one perspective on their task.

[22]     One Judge considered that this was inappropriate and had the potential to mislead the jury.   Having, in a careful and balanced way, presented the competing issues in the summing up does not provide immunity from the fact that, at this critical time (when the jury had made clear that they were struggling to reach a unanimous verdict and they considered there was an inadequacy of evidence), the District Court Judge said nothing directly about the onus of proof.

[23]     As the jury could only convict if they were satisfied that the defence evidence that Mr Khan was not the driver could not reasonably be true, what was said by the Judge was only one side of the coin.  As a consequence one Judge was not confident that the jury would continue to apply all that had previously been said in the summing up. 

[24]     In accordance with the view of the majority, we find that no miscarriage of justice was established so as to make the conviction unsafe.

The montage point

[25]     To understand these contentions, some further context is required.  Mr Imtiaz Ali, the man who the appellant and the defence witness, Mr Shaukat Ali, said was the driver, was originally charged with the assault.  On 24 February 2004 Mr Imtiaz Ali made a statement to the police in which he said he was the driver of the vehicle at the relevant time.  This led to the charge against him.  We also note that, subsequent to Mr Khan's conviction, Mr Imtiaz Ali has been charged with attempting to pervert the course of justice (by reason of his assuming responsibility for being the driver), a charge upon which he presently awaits trial.

[26]     The complainant in the present case identified Mr Khan from a montage prepared by the police which contained photographs of eight men of Indian appearance.  At trial, she gave evidence of making the photographic identification.  Correctly, the prosecutor did not seek to introduce the montage as an exhibit.  However, the trial Judge intervened, asked whether it was to be produced, questioned then defence counsel as to whether there was any objection to its production and, there being no objection, required that it be produced as an exhibit because it constituted "the best evidence".  This was contrary to good practice as explained in R v Russell [1977] 2 NZLR 20 (CA). This Court accepted that photographs previously shown to identifying witnesses should not normally be produced as an exhibit. If of course defence counsel wants the montage produced in order to challenge the identification evidence, then to that end it should be made available by the Crown. But it is not for the trial Judge to assume the initiative, much less for him to secure production of the montage as the best evidence.

[27]     A related point was based upon answers given by the complainant not at the appellant's trial, but at the preliminary hearing of the case against Mr Imtiaz Ali for attempting to pervert the course of justice.  Ms Robson said in answer to a question:

"There's one thing clear.  The photographs that you saw had numbers on them under the photographs so you knew that they had been in trouble with the police before? ..... That's right, correct."

Based on this, Mr Robertson submitted that this new information cast doubt on the reliability of the identification itself.  Although the montage produced as an exhibit at Mr Khan's trial did not have numbers beneath the photographs of the eight men, if the photographs actually shown to the witness did have numbers, then her identification of the appellant was suspect, or at the very least should have been challenged with reference to whether the photographs were numbered.

[28]     A final point in relation to the montage was Mr Robertson's argument that evidence in relation to it should have been excluded because, in fairness, a photograph of Mr Imtiaz Ali should have been included in order to provide a real test to the identifying witness, Ms Robson.  We note the Crown response to this contention, namely that the police did not have a photograph of Mr Ali to include in the set of eight.  It is also relevant to observe that having inspected the montage, it posed an effective test.  The eight photographs were of men of like age and appearance.  Mr Ali, we understand, is a somewhat younger man.

[29]     We are not persuaded that any of these points, individually or collectively, suggest the possibility of a miscarriage.  No objection was taken to Ms Robson's evidence that she had identified Mr Khan from a montage of photographs.  Although that montage should not have been produced as an exhibit, unless defence counsel sought as much, we do not think that production caused prejudice.  The Judge gave appropriate warnings to the jury concerning the need not to draw any adverse conclusions based on the circumstance that the police had a photograph of the appellant.  Nor do we consider that whether or not the photographs shown to Ms Robson had numbers on them is of particular moment.  In reaching these conclusions we are influenced by two matters in particular.  We are satisfied that the montage posed a good test for the identifying witness.  Moreover, Ms Robson consistently indicated in her evidence that the appellant was not a stranger to her.  He was someone she had seen on other occasions, of which she gave examples, in the Glen Innes area.  This factor indicates that the true significance of the photographic evidence was that it constituted the means by which a name (the appellant's) was put to a face which was known to the complainant.

The informal identification

[30]     This ground of appeal also arises as a result of evidence given at the preliminary hearing in relation to Mr Imtiaz Ali.  The complainant's daughter was asked whether she had seen either the driver or the passenger from the limousine subsequent to the incident on 7 October 2003.  She replied that she had and explained that during Mr Khan's trial in the District Court she identified Mr Ali in the corridor outside the courtroom.  Mr Robertson's complaint was that defence counsel should have been appraised of this identification, which was known to the Crown since it was a police officer who asked the witness whether there was anyone in the area whom she recognised.

[31]     We do not think there is any substance in this point.  It seems apparent that the prosecutor at Mr Khan’s trial was not appraised of the out of court identification either.  Had he been, the obvious course would have been to have the complainant’s daughter bolster her identification of the appellant by saying that, “What’s more, I have seen the passenger outside the courtroom earlier today” (or words to that effect).  Such evidence would have enhanced the Crown case.  By contrast, we are unable to see how defence counsel could have turned this development to advantage.

Sentence appeal

[32]     Mr Khan also appealed against the sentence on the basis that the fine and reparation were manifestly excessive.  Counsel argued that the Judge penalised Mr Khan for electing trial by jury which was his right under the New Zealand Bill of Rights Act 1990, and that, in setting the fine at the level he did, his primary concern was recovering the costs of the jury trial which is not in conformity with the Sentencing Act 2002.

[33]     Counsel particularly complained that the Judge had failed to request a probation officer to prepare a reparation report which, it was submitted, was in all the circumstances necessary, and that the Judge failed to consider Mr Khan’s ability to pay fines or the fact that he was confined to a wheelchair and receiving a sickness benefit.

[34]     On this aspect of the case, Mr Burns submitted that the sentence was not manifestly excessive and that the Judge had not tried to recover the costs of a jury trial but rather acted to constructively restore the harm caused by Mr Khan as an alternative to imprisonment.

[35]     Mr Burns accepted that a person who elects trial by jury should not receive a greater sentence than would otherwise have been imposed, but submitted that the Judge was likely to have imposed the same sentence if he had taken a more conventional route.  He argued that the Judge was under no obligation to order financial reports and told us from the Bar that, in the course of sentencing, his counsel had been specifically asked if Mr Khan could pay a fine and was advised that this was possible.  That this happened is not accepted by the appellant.

Discussion

[36]     We accept the appellant’s submission that the Judge’s sentencing comment regarding Mr Khan’s decision to elect a jury trial was wrong and inappropriate.

[37]     He said:

The matter is aggravated really in a sense by your failure to accept responsibility for what you have done to the extent that a matter which perhaps ought ordinarily to have been dealt with in the summary jurisdiction of this Court and dealt with quite promptly has been turned into a major trial, as much as something like this can be, and you have gone to the full length of taking the matter before a jury to protest your innocence in circumstances where a positive identification seems to me to have been very plainly made.  You have thus imposed yourself on the public purse to the full extent possible in order to try and avoid responsibility for your wrong doing.

[38]     It is difficult to read these words without concluding that it was the Judge’s view that the choice to elect trial by jury was an aggravating factor.  It should not have been referred to in these terms.

[39]     The Judge was not under a legal obligation to direct that the appellant provide a declaration as to his financial capacity (s 41(3) Sentencing Act 2002) or to order a reparation report (s 33(1)).  But a Judge must have accurate information about the financial situation of a person to be sentenced particularly when imposing a total financial impost of $5,000 which had to be paid within 28 days in default of which he was to serve two months’ imprisonment.  The importance of this is underlined as this man was a sickness beneficiary.

[40]     An offenders’ financial situation is always a matter for consideration under s 40(1) of the Sentencing Act.  There was dispute before us as to whether or not the Judge was specifically told that Mr Khan had agreed that he could pay a fine of $5,000 within 28 days with help from family members rather than going to prison.

[41]     Upon conviction, the Judge’s sentencing options were limited by reason of this man’s physical condition.  It is essential, wherever a Court determines to deal with a matter by way of monetary penalty, that there is clear and unequivocal material as to what is realistic before the course of action is pursued.

Conclusion

[42]     For the reasons discussed, the appeal against conviction is dismissed, but we have insufficient material to reach finality in respect of the sentence appeal.

[43]     The appellant may file an affidavit within ten days setting out his full financial position in respect of both income and capital.  There may also be brief submissions with regard to that new evidence on his behalf.

[44]     If this occurs, the Crown may respond on this point within a further ten days.

[45]     At the conclusion of that time, we will issue a further judgment dealing with the sentence.  In the absence of any additional material from Mr Khan, we will assume that there was advice to the District Court Judge that he could pay $5,000 within 28 days with help from family members and the sentence appeal will be dismissed.

Solicitors:
Crown Law Office, Wellington