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Moh'd v Police [2019] NZHC 165 (14 February 2019)

Last Updated: 1 March 2019

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] On 29 August 2018, the appellant, Mahmoud Moh’d, was convicted in the District Court of assault within intent to injure under s 193 Crimes Act 1961. The appellant appeals the conviction on the basis that the Judge erred in not properly addressing the evidence of the appellant and other defence witnesses.

Background

[2] The appellant and the complainant, Mr Alhawamdeh, had been friends for a period before a disagreement resulted in their having a matter before the Disputes Tribunal. The Tribunal found against the complainant, which put an end to the friendship.

MOH’D v NEW ZEALAND POLICE [2019] NZHC 165 [14 February 2019]

[3] On 26 June 2017, the appellant and the complainant attended Cowles Stadium in Christchurch for the Eid celebration (marking the end of Ramadan). After prayers finished at about 9.00 am, both of them exited the stadium, where an altercation occurred.

[4] The appellant was charged with an offence under s 189 Crimes Act, a charge which was amended at the end of the prosecution case.

[5] The prosecutor called the appellant and two witnesses, a Mr Murray, who was unrelated to either of the parties, and a Mr Gherbi. Medical evidence was admitted as to the examination, the afternoon after the incident, of injuries to the complainant.

[6] The appellant gave evidence. He called a number of witnesses who had also been attending the Eid celebration. Most had arrived towards the end of the incident but one, a Mr Mahmoud, gave evidence as a witness of the entire incident. His evidence was that he was well known to both the complainant and appellant through their community but he is not a friend of either.

[7] The appellant’s evidence was that he had approached the complainant to talk about things, and that the complainant had responded by elbowing him in the neck. The appellant said that he pushed the complainant away whereupon the complainant fell to the ground, grabbing the appellant’s leg and thereafter screaming and shouting loudly. Other people were around. On getting up, the complainant started cursing and swearing, pushing people around and trying to come back to the appellant.

[8] The complainant’s version of events was quite different. His evidence is that he was on the phone talking to Mr Gherbi when exiting the stadium, when the appellant attacked him from behind. He said that the appellant had come up behind him and put an arm around his neck, pushing him to the ground. He said that it was like he was half-concussed. He was pushed hard to the ground. While on the ground, the appellant punched him twice in the mouth and put his foot on his throat, causing him not to be able to breathe. He stated that the appellant threatened to blow him up. People gathered and they tried to calm the appellant down. They held him back.
[9] On his medical examination, the complainant was found to have a swelling of the lower and upper lips with evidence of dried blood, a tender neck with slight swelling, small abrasions to knuckles of his right hand and an undisplaced fractured superior horn of the right thyroid cartilage.

[10] One prosecution witness, Mr Murray, said he observed the entire incident from approximately five metres away. On his evidence, the “big guy” (which was clearly a reference to the appellant) walked straight up to the “little guy” (which was clearly a reference to the complainant). The complainant was on his cell phone. The appellant slapped the complainant a few times from behind and then as the complainant came to face him, he head-butted the complainant causing the phone to drop to the ground. When the complainant was down on the ground, the appellant stood on him. After the complainant got up they were both “at each other”. He did not see the complainant hit the appellant. He did not see the complainant grabbing the legs of the appellant. He did not see the complainant elbow the appellant.

[11] A further prosecution witness, Mr Gherbi, gave evidence of having been engaged in a telephone call from the complainant around the time of the incident. He and the complainant had become separated as they were leaving the stadium. The call lasted 28 seconds. Mr Gherbi stated that the conversation came to an end because the complainant was not talking any longer. He says that a few minutes later he heard screaming. He then came upon the latter part of the incident. He said he saw blood on the complainant’s mouth. The complainant was swearing at everybody and pushed Mr Gherbi.

[12] The appellant’s witness, Mr Mahmoud, gave evidence as to being present through the entire incident at a distance of 2-3 metres. His evidence is that the two were walking towards one another. The complainant, when up next to the appellant, elbowed him in the neck. The appellant pushed the complainant back, the complainant falling on the ground. The complainant kicked the appellant’s legs and started screaming and yelling. The appellant tried to get away. Other people went to break the two up and tried to separate them. The complainant was very aggressive and was screaming and swearing at everybody. In the course of the two being separated, the complainant slapped Mr Mahmoud on the face.
[13] Other witnesses were called by the appellant but all arrived towards the end of the incident, when the complainant was back up on his feet.

Principles on appeal

[14] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may allow an appeal against conviction only if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.¹

Submissions

Appellant’s submissions

[15] Mr Nolan, for the appellant, submits that the Judge erred in not properly addressing the evidence of the appellant and other defence witnesses. Had his Honour done so, Mr Nolan contends that there may have been a reasonable doubt such as to mean that the charge was not proved.

[16] Mr Nolan submits that the Judge did not, in his judgment, give an explanation as to why he did not accept the evidence of the appellant and his witnesses. He refers to several cases in which the courts have recognised that a Judge may be required to give explicit reasons for a conclusion of fact.

[17] In his judgment for the Court of Appeal in R v Connell, Cooke J stated that:²

...there are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice.

¹ Section 232(4) Criminal Procedure Act 2011.

² R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237.

On the issue of credibility, Cooke J noted:³

When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[18] Mr Nolan also referred to Boulton v Police, where this Court allowed an appeal against conviction because the trial Judge did not address the explanation provided by the defendant.⁴ Mander J stated:⁵

Where an explanation has been offered and put in evidence it is incumbent on the trial Court to explicitly address that explanation before accepting the proven circumstances have established the charge beyond reasonable doubt.

[19] Finally, Mr Nolan cited the decision of the Court in Wilkie v Police,⁶ in particular the observation of Ronald Young J in relation to the conflicting evidence of two witnesses:⁷

In a case such as this where the only two witnesses to the relevant events have quite different stories to tell about the essential issue, I consider it is part of the obligations of a Judge to say why he or she rejects a defendant's evidence (if that is the case) as untrue. This is the obligation to ensure that the reasons given are “adequate to the occasion”.

I accept and understand in making these observations that the Judge was in a summary court and extensive reasons are not required. However, the appellant was convicted of assault, always a serious crime. He is entitled to know when he gives evidence why the Judge considered his evidence to be untrue.

[20] Mr Nolan submits that the Judge gave no consideration to Mr Mahmoud’s evidence. Mr Mahmoud was an eye-witness for the defence who, like Mr Murray, was not friends with either party. Mr Nolan submitted that this failure, along with the failure to specifically examine the appellant’s evidence, meant the conviction must be considered unsafe.

³ At 238.

⁴ Boulton v Police [2016] NZHC 1474 at [21].

⁵ At [14].

⁶ Wilkie v Police HC Wellington CRI-2011-485-19, 14 June 2011.

⁷ At [17]-[18].

Submissions for the respondent

[21] Mr White, for the respondent, submits that there was nothing to suggest the Judge erred in his assessment of the facts to such an extent that a miscarriage of justice has occurred.

[22] Mr White submitted that weight should be placed on findings of fact made by the trial judge, having had the benefit of hearing the witnesses at first-hand.⁸ He submitted that the decision of the Judge was reasonable, indeed inevitable on the evidence. He suggests that the Judge may have found the appellant and Mr Mahmoud unreliable because they both said that they did not see the complainant on the phone at the time. The appellant’s case was contradicted by the evidence relating to the complainant’s phone conversation with Mr Gherbi (that being the oral evidence of the two of them together with a log record of Mr Gherbi’s telephone conversation).

[23] Mr White also presented compelling submissions as to other matters of evidence which the Judge might have pointed to (but did not) to justify a conclusion that the evidence of Mr Mahmoud should be rejected as unreliable or lacking credibility.

Leave to appeal

[24] The application for appeal was filed one day out of time, but Mr White accepts that no prejudice arises from that. Leave is granted to bring the appeal out of time.

Discussion

[25] The Judge, when describing the evidence given by Mr Murray, gave a conclusion as to his credibility and reliability saying:

I am satisfied that the witness concerned was in the position to give a version of events that he described to the Court and over a lengthy period of cross- examination he did not resile from the initial evidence of seeing the big fellow as being the aggressor.

⁸ Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].

[26] The Judge’s assessment of Mr Murray’s evidence is contained in seven paragraphs.

[27] The Judge clearly assessed whether Mr Murray’s, and thereby the complainant’s, version of events was credible. However, his Honour did not explicitly discuss whether the appellant’s version of events was credible.

[28] No reason is stated for rejecting the appellant’s evidence. The attack on that evidence had been on the basis of credibility.

[29] Then there was the evidence of the appellant’s witness, Mr Mahmoud. He similarly was cross-examined on a credibility basis.

[30] Mr Mahmoud, as did Mr Murray, witnessed the altercation. But his evidence as I have summarised it (at [12] above) was more closely aligned to the appellant’s version of events.

[31] The Judge’s ultimate assessment of Mr Murray’s evidence was, as I have noted, contained in seven paragraphs. But his Honour referred to Mr Mahmoud’s evidence in a single sentence: “I am satisfied the complainant did not, as one defence witness made out in his evidence, make himself fall to the ground.” The judgment does not contain any further explanation given for this finding. There is also no discussion of the other aspects of Mr Mahmoud’s evidence, or its closeness to the appellant’s evidence. The similarities not discussed include the appellant and the complainant meeting face to face; the appellant pushing back the complainant; the witnesses’ rejection of suggestions that the complainant had been on the phone; that the appellant had slapped him and headbutted him; and then stood on his neck.

[32] The findings of a trial judge on the facts must be treated with a level of deference, because of the advantage of hearing the evidence at first hand. The trial Judge is not required to engage in a “lengthy exposition” of reasoning, as Cooke J put it, in R v Connell.⁹ What is required is an explanation of how material evidence was assessed, particularly where there are two conflicting versions of material events. It

⁹ R v Connell, above n 2, at 237.

is quite possible, as suggested by Mr White, that there was sound unexpressed reasoning of the Judge in finding the complainant witnesses more credible and reliable than those of the appellant. The reasoning, however, was not addressed in the judgment.

[33] Where there were two competing versions of facts and where there has been no explicit consideration of one side of that evidence in the judgment, the approach I apply in the circumstances of this appeal is to ask whether the absence of explicit consideration created a risk or reasonable possibility that a “not guilty” verdict would have resulted from an explicit reasoning process.

[34] I conclude that there is such risk. The basis of that conclusion can be illustrated by reference to one aspect of the evidence on which Mr White put some emphasis – the involvement of the phone in the complainant’s hand. Mr White described that evidence along with other evidence such as in relation to the complainant’s physical injuries as cumulatively indicating that the defence was so impossible that all the incidents could not have occurred in the way the appellant’s witnesses asserted. In other words, the Judge was entitled to reject their defence evidence as not credible. But taking the cell phone as an example, the judgment does not record whether the defence evidence on the cell phone was rejected on either credibility grounds or reliability grounds. In the context of that part of the incident, which on the evidence would have lasted only part of one minute, findings of either credibility or reliability would have been open. If there had then been a finding short of credibility on the phone issue, it might have impacted when set against other aspects of the evidence in the overall assessment of the evidence. In the absence of an explicit assessment of the defence evidence by the Judge who had the benefit of hearing the witnesses, the reasonable possibility exists that a different trial outcome may have occurred. I find that there has been a miscarriage of justice in terms of s 232 of the Criminal Procedure Act and that the absence of explicit consideration of defence evidence created a real risk that the outcome of the trial was affected.

Outcome

[35] The appeal is allowed.
[36] The conviction of the appellant is quashed.

[37] The proceeding is remitted to the District Court for rehearing.

Osborne J

Solicitors:

Raymond Donnelly, Christchurch Anselm Williams Barrister, Christchurch