MOHAMED v THE KING [2023] NZCA 143

MOHAMED v THE KING [2023] NZCA 143 [3 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA2/2022[2023] NZCA 143BETWEEN ABDIHAFID MOHAMEDAppellantAND THE KINGRespondentHearing: 31 October 2022Court: French, Thomas and Mallon JJCounsel: S J Shamy for AppellantS C Baker for RespondentJudgment: 3 May 2023 at 3.30 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B Leave to adduce the evidence filed in support of the appeal to the extent thatit is not within r 12A of the Court of Appeal (Criminal) Rules 2001 and is notcredible is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Table of contentsIntroduction [1]The respective cases at trial [4]The Crown case [4]The defence case [25]Evidence on appeal [36]Affidavits [36]Mr Mohamed's account [40]Supporting evidence [43]The Crown's response [45]Evidence as to instructions to Mr Hembrow [50]Our assessment of the evidence [70]Ground 1: election to give evidence [76]Introduction [76]Assessment [77]Ground 2: failure to present his defence that George was the attacker [83]Introduction [83]Assessment [84]Ground 3: failure to investigate relevant evidence [89]Introduction [89]Assessment [90]Ground 4: inadequate advice regarding Ms Walik's statement [94]Introduction [94]Ms Walik's formal statement [95]Hearsay application [97]Reliance on Ms Walik's statement [101]Mr Mohamed's evidence on appeal [103]Assessment [106]Ground 5: Inadmissible evidence [110]Introduction [110]Identification evidence [111]Prison and deportee evidence [128]Items found at Buffon Street [133]Result [136]Introduction[1] On the afternoon of 5 December 2020, Jude Frank Okorie was stabbed in hishome by a man he described as "the Somalian guy". The Crown case was thatAbdihafid Ali Mohamed was the Somalian guy. Following a jury trial in theChristchurch District Court, Mr Mohamed was convicted on a charge of woundingMr Okorie with intent to cause grievous bodily harm.1 He was also convicted of anassociated charge of failing to assist a police officer exercising a search by failing toprovide the PIN to his phone.2 He was subsequently sentenced by the trial Judge,Judge M J Callaghan, to seven years and two months' imprisonment.31 Crimes Act 1961, s 188(1).2 Search and Surveillance Act 2021, s 178.3 R v Mohamed [2021] NZDC 24603.[2] Mr Mohamed appeals his conviction. He contends:(a) he did not make a fully informed election about whether to giveevidence because he was not sufficiently informed of relevant mattersand was given incorrect advice by his trial counsel;(b) his trial counsel did not follow his instructions to present his defenceon the basis that it was his flatmate "George" who was the person whostabbed Mr Okorie;(c) his trial counsel should have made investigations of a potential witness,Saaid Abdukadir, who could corroborate that Mr Mohamed had aflatmate called George;(d) he was not given adequate advice from his trial counsel before agreeingthat the written statement of an eyewitness, Rosmilawati Walik, couldbe admitted by consent; and(e) inadmissible evidence was admitted at his trial, namely identificationevidence from Mr Okorie, evidence that Mr Mohamed had served timein prison in Australia and was deported from that country, and evidenceof money being found at Mr Mohamed's address.[3] The Crown opposes the appeal. It says none of the matters raised byMr Mohamed give rise to a miscarriage of justice.The respective cases at trialThe Crown case[4] The Crown case was as follows. Mr Okorie had been asked by "Jerry", aperson from the same African village as Mr Okorie but who now lived in Holland, tocollect a debt for him. Mr Okorie was sent a phone number for the debtor and a photoof him. Mr Mohamed was the debtor and he had learned that Mr Okorie was lookingfor him. Mr Okorie's friend, Nasir Khadar, brought Mr Mohamed to the sleepout inHoon Hay Road, Christchurch where Mr Okorie lived. Mr Mohamed stabbedMr Okorie because he did not want to pay the debt. Mr Khadar hid the machete knifebefore the police arrived. Mr Khadar was arrested and later charged and convicted ofbeing an accessory to the stabbing.[5] The principal evidence of the stabbing was given by Mr Okorie. The Crownalso called evidence from the person who lived at the front of the Hoon Hay addressand from investigating police officers. Statements from Ms Walik, who happened tovisit Mr Okorie when the stabbing took place, and the doctor who attended onMr Okorie were admitted by consent. Telecommunications data was also relied on.Mr Khadar was not called by the Crown. A week before the trial he had told the policethat he did not want to give evidence because he feared for his safety and would staysilent. As later discussed, he gave evidence for the defence.[6] Mr Okorie gave evidence that, prior to the stabbing, Jerry had contacted himto collect the debt and sent to him, via WhatsApp, two photographs of the man (whomMr Okorie described as "the Somalian guy") and a contact cell phone number for him(referred to as the 8085 number).[7] On 3 December 2020 Mr Okorie texted the 8085 number asking for an address.He received a text reply with an address he was to go to. He went to the addressaccompanied by "two Māori men" but the person in the photographs was not there. Afriend gave him another address, and again accompanied by the two Māori guys, hewent to that address. From outside the address, Mr Okorie sent a text message to the8085 number asking for the money. He received a text response from that number.The sender of that response said his brother, who lived in Australia, would bring themoney.[8] On 4 December 2020, via Facebook messenger, Mr Okorie invited Mr Khadarto a house-warming on 5 December 2020. Mr Okorie told Mr Khadar that he recentlymoved into a new place in Hoon Hay, which was near Addington.[9] On 5 December 2020, at 1.09 pm Mr Okorie received a text message from the8085 number that said "I'm definitely going to catch you Big man". Mr Okorieresponded with a series of messages that included: "Fake man", "U think ur smart","u went to jail in Australia", "came back to New Zealand", "I'm not into that shitbusiness u are doing", "But I will destroy ur game in Christchurch", and "Go ask urfamily nasir who iam".[10] Cell phone data showed that Mr Khadar called the 8085 number at 1.58 pmthat day. Shortly after this, Mr Khadar telephoned Mr Okorie on Facebook messenger.Mr Okorie then sent a message to Mr Khadar with details of his Hoon Hay address.[11] At around 2.45 pm, Mr Khadar arrived at the Hoon Hay address. OnMr Okorie's account, Mr Khadar first went into the sleepout by himself and askedMr Okorie if he was alone. Mr Okorie confirmed that he was. Mr Khadar toldMr Okorie that he had the Somalian guy outside who wanted to talk to Mr Okorie.Mr Okorie was surprised by this because his invitation to Mr Khadar was to come tohis house for a housewarming.[12] At 2.54 pm there was a voice call of 30 seconds from Mr Khadar's phone tothe 8085 number. The Crown said that this was Mr Khadar letting Mr Mohamed knowthat Mr Okorie was in the sleepout alone.[13] Mr Okorie's evidence was that the Somalian guy came into the sleepout andpulled out a long knife. The knife was a little longer than Mr Okorie's forearm. TheSomalian guy was saying "I got you, you think you are tough. I got you now". Hewas breaking glass in the house and putting the knife under Mr Okorie's neck. Whilethis was happening, Mr Okorie's ex-girlfriend, Ms Walik, knocked and came into thesleepout. Mr Khadar took her outside. The Somalian guy said he did not want to paythe money and started stabbing Mr Okorie after Mr Okorie had tried to grab the knifeoff him. Mr Okorie received three cuts – one to the side of his torso, one under hisarmpit and one into his back. Mr Okorie fainted, Mr Khadar came in to save him andthe Somalian guy ran away.[14] The incident was heard by the person who lived at the front of the address andother neighbours. They came to Mr Okorie's assistance. A 111 call was made at3.15 pm and the police and an ambulance responded.[15] At 3.17.37 pm, 3.17.45 pm and 3.19.46 pm, there were three voice calls fromthe 8085 number to Mr Khadar's number of three seconds, three seconds and twoseconds respectively. The Crown said this was Mr Mohamed attempting to makecontact with Mr Khadar after fleeing from the scene.[16] Detective Constable Gath was one of the attending officers. He arrived at3.40 pm. Ms Walik gave Detective Constable Gath an account of what happened (aformal statement was taken from her later that day which gave an account broadlysimilar to Mr Okorie's account)4 and told the officer that she had seen Mr Khadartaking a large knife out behind the sleepout. By this time, Mr Khadar had beenarrested. Detective Constable Gath searched for the knife but could not find it. Asubsequent police search for the knife also failed to find it.[17] The ambulance had taken Mr Okorie to the hospital's emergency department.The doctor attending him observed a deep cut on his back and hip.Detective Constable Gath received word from the hospital that there was a screenshotof the offender on Mr Okorie's cell phone. He went to the hospital where Mr Okoriewas almost hysterical. Detective Constable Gath had three cell phones with him thathad been seized from the property. Mr Okorie showed Detective Constable Gath aphotograph (the first of the two photographs that Jerry had sent to him) and the officertook a screenshot of that photograph. Mr Okorie declined to give the officer the PINnumbers for the three phones.[18] On 7 December 2020 Detective Constable Gath again spoke with Mr Okorie.Mr Okorie provided him with access to the phone with the messages from Jerry,allowing him to look through the phone and take photographs of items that theDetective Constable considered to be relevant. One of the messages referred tosending details for money to go through Western Union. Another had the name"Bokhadar Sharifabden". Another was a photograph of the person Mr Okorie referredto as the Somalian guy. Mr Okorie also allowed the Detective Constable to lookthrough one of the other phones. He did not provide the officer with access to the thirdcell phone, saying that it was an old phone.4 As discussed later at [94]–[100], her statement was admitted by consent because she wasunavailable.[19] On 8 December 2020 Mr Okorie brought into the police station a sheath and acigarette packet that he said the Somalian guy had left at the address. The cigarettepacket was not forensically tested due to the time that had elapsed since the incidentand because Mr Okorie indicated it had been handled by several people. DNA testingof the sheath showed DNA from the victim and four other males but of insufficientgrade to test against any other person's DNA.[20] Detective Constable Gath carried out an internet search to identify the machetethat matched the sheath. The machete he identified had a blade length of 30 cm andan overall length of 45 cm. A machete and sheath of the same kind was later found atMr Mohamed's Buffon Street address when he was arrested on 31 December 2020.[21] Based on Mr Okorie's understanding that the Somalian guy had served jail timein Australia and had then come to New Zealand (as per the messages Mr Okorie sentto the 8085 number shortly before the stabbing5), Detective Constable Gath obtaineda list of deportees from Australia. Using time, ethnicity, age and location filters, thelist was narrowed down to three, of which Mr Mohamed was one.Detective Constable Gath commented that Mr Mohamed had a quite distinctiveblemish on his cheek which matched the photographs Mr Okorie had on his phone.He excluded the other two because they looked nothing like the person in thephotographs.[22] On 9 December 2020 Mr Okorie took part in a formal identificationprocedure.6 He was shown eight photographs. He identified the person inphotograph 2 as the Somalian guy who had stabbed him. He noted on the form: "Heis the one that stabbed me", "It is him. I know it is him. He had the knife".7 Thatperson was Mr Mohamed.[23] The Crown closed to the jury on the basis that Mr Mohamed was the personwho stabbed Mr Okorie relying on the following evidence:(a) Identification evidence from Mr Okorie:5 Refer [9] above.6 Evidence Act 2006, s 45(3).7 Emphasis in original.(i) the evidence that Mr Okorie told the police at the hospital thathe recognised the attacker as the same person in the photographJerry sent to him;8 and(ii) the evidence that Mr Okorie identified Mr Mohamed in theformal identification procedure.(b) Evidence showing the 8085 number was used by Mr Mohamed and thata person using that phone was linked to the incident:(i) Mr Okorie's evidence that Jerry had provided the 8085 numberto Mr Okorie with images of the person who matchedMr Mohamed's appearance;(ii) evidence that on 4 December 2020 the 8085 phone received atext message from a dentist about a recent dentist appointmentthat commenced "Dear Abdi";(iii) evidence that on 4 December 2020 the 8085 phone sent a textmessage that commenced "Hey it's abdi" and which made acomplaint about his neighbour at "64".(iv) evidence from the investigating officers that Mr Mohamed wasarrested at 63/10 Buffon Street on 31 December 2020,consistent with "64" being Mr Mohamed's neighbour;(v) evidence that the 8085 number texted Mr Okorie around twohours before the stabbing saying "I'm definitely going to catchyou big man"; and8 Mr Okorie's evidence was that he recognised Mr Mohamed as the person in the first photographsent to him by Jerry. He was not asked by the police when he was in hospital if he had seen thesecond photograph of this person in his phone before he was stabbed. Mr Mohamed has sinceseen one of these photographs and accepted in his evidence on the appeal that he is the person inthat photograph.(vi) evidence that Mr Khadar called the 8085 number twice beforethe stabbing and that number tried to call Mr Khadar three timesin quick succession after the stabbing at a time when thatnumber appeared to be polling off cell towers near to where thestabbing took place.(c) Evidence that a machete and a machete sheath found at Mr Mohamed'saddress when he was arrested matched a machete and sheath Mr Okoriefound at his address after the incident.(d) Evidence that confirmed Mr Mohamed was an Australian deportee,which was consistent with Mr Okorie's messages to the 8085 numberprior to the incident that he knew the Somalian guy had been to jail inAustralia and had come to New Zealand, and that Mr Mohamed wasthe only Australian deportee that matched Mr Okorie's description ofthe attacker.[24] The Crown submitted that if the attacker was not Mr Mohamed then he mustbe about the unluckiest man in the world because all the evidence pointed to him. TheCrown also submitted that Mr Khadar, who gave evidence for the defence, had nocredibility.The defence case[25] The defence case was that Mr Mohamed was not the person who stabbedMr Okorie.[26] The defence called evidence from Mr Khadar. He said his full name wasSharif Abdinasir Mohamed Khadar and he was known as Sharif Khadar, Nasir Khadaror Nasir. He explained that Abdi is a sub name and means servant of Allah and wascommon to a lot of names. His own sub name was Abdinasir.[27] He confirmed he was friends with Mr Okorie, who he knew as Frankie. Healso confirmed he knew Mr Mohamed, who he knew as Hafid Ali Mohamed. He wascloser to Mr Okorie than he was to Mr Mohamed. Mr Khadar confirmed he was atMr Okorie's address when the incident occurred with another man. He said the manwas not Mr Mohamed.[28] Mr Khadar would not say who the man was. He said that he feared for his ownsafety and that of his family if he said who it was. He had previously told the policethe person he was with was "Red". He had gone to Mr Okorie's address and told himthat Red was there to sort out a debt. Red then came into the sleepout. He did notrecall if Red was holding the knife to Mr Okorie's neck before Ms Walik's arrival.Ms Walik then arrived. Things were pretty tense at this point. He went outside withMs Walik. From outside, he could hear that something was going on in the sleepout.[29] He said he did not see Red stabbing Mr Okorie. He tried to break up the fightand fell and hit his head on the table. By the time he was waking up from the fall, Redhad gone. He took the knife and put it on the ground behind the sleepout.9 He deniedhiding it. He said he put it where it could be seen. He confirmed he had pleaded guiltyto being an accessory after the fact to wounding with intent to cause grievous bodilyharm and the basis for the charge was that he had thrown a knife from the scene of thecrime over a fence.[30] He said he did not recall the phone calls to his phone that day – he said hisphone was flat at the time of the incident which meant he was unable to call 111 on it.In cross-examination, Mr Khadar said he had been contacted by Red at about 2 pm on5 December and shortly after that he contacted Mr Okorie to get his address. Heconfirmed this was to sort out the situation with Mr Okorie. He confirmed they arrivedat Mr Okorie's address just after 2.45 pm.[31] It was put to him that he was lying about Red, and that the person he was withwas Mr Mohamed. He denied this. He confirmed that he had told the police that hedid not want to come to court. He was asked to confirm that he had denied knowingMr Mohamed when asked by the police. He said the police had asked "do you knowAbdi" and "do you know Mr Mohamed" but that, as there are lots of Abdis andMohameds in his community, he did not know who they were referring to specifically.9 Ms Walik's statement had referred to seeing the person she described as the "fat guy" taking a bigkitchen knife around the back of the sleepout.It was put to him that he lied when he said he did not know the defendantMr Mohamed. Mr Khadar said "no, I don't recall". It was put to him that he wasscared of Mr Mohamed and that was why he was lying and saying that it wasn'tMr Mohamed. He said "those are all your assumptions. That's not what I said".[32] The Crown was permitted to call rebuttal evidence fromDetective Constable Gath.10 He said that Mr Khadar was summonsed to attend Courtand the Court's summons referred to the defendant by his full name. He said that,when he met with Mr Khadar in the week before trial, he referred to "Abdi Mohamed","the defendant". He was confident that Mr Khadar knew who he was referring to.The rebuttal evidence included the following:Q. How confident are you that Mr Khadar knew you were referring toMr Mohamed, the defendant?A. There was no confusion with our conversation of what, of who wewere speaking about. It was like, he was, yeah, we were sure that wewere speaking about the defendant.Q. And to be clear, what did he say about what he knew about AbdiMohamed, the defendant?A. That he just knew him as Red, that he didn't know who he was and,yeah, only know him by the name of Red.Q Again, just because this is all very important, are you saying thatMr Khadar was talking about Abdi Mohamed as Red as the sameperson or not?A. So he was talking about, we were talking about the case and he wastalking about Abdi Mohamed as Red but didn't know who that personwas.[33] The Detective Constable gave evidence of the job sheet he completed on theday of his conversation with Mr Khadar. That job sheet included the following:He did not wish to come to court and would stay silent or say that (Abdi)Mohamed was not the person who stabbed Frankie. He would not say whodid though. He went on to say that he doesn't know Abdi Mohamed.[34] The Detective Constable thought Mr Khadar was giving him "the run-around".As recorded in his job sheet, the officer told Mr Khadar that he had seen Mr Khadar10 R v Mohamed DC Christchurch CRI-2020-009-010662, 21 September 2021 (Minute ofJudge M J Callaghan).and Abdi Mohamed arrive together at a remembrance service at the Deans AveMosque. The officer was at the Mosque as part of the police presence at the service.[35] The defence closed to the jury on the basis that they should believe Mr Khadarthat he was not with Mr Mohamed that day. The defence made the point that therewas no scientific evidence that Mr Mohamed was at the sleepout when the stabbingoccurred. The defence submitted that the Crown case relied primarily on the evidenceof Mr Okorie who the jury should find was a very unreliable witness. This was forseveral reasons: Mr Okorie was adamant that he had only two phones yetDetective Constable Gath uplifted three phones and took them to the hospital; he gavea different description of the attacker than Ms Walik had given in her statement;Mr Okorie's evidence of finding the sheath was not to be believed as, if it had beenleft at the scene, then the police would have found it when they searched the sleepout.The defence also referred to the absence of evidence from the police about howcommon this type of knife was. The defence made the point that at the time of themessages about collecting the debt the only name in those messages was notMr Mohamed's name.11 The defence submitted that Mr Okorie falsely connected theman who stabbed him with the photo on his phone, and the later formal identificationwas tainted by that false connection.Evidence on appealAffidavits[36] Mr Mohamed filed affidavit evidence in support of his appeal and was cross-examined on it. Affidavit evidence from his brother, Abdiqaaliq Ali Mohamed, wasalso filed but he was not available for cross-examination. An affidavit was also filedfrom the defendant's cousin, Saaid Abdukadir. Mr Abdukadir was cross-examined.In addition, Mr Khadar gave evidence pursuant to a summons and was cross-examined.1211 The only name in the messages was Bokhadar Sharifabden.12 Shortly before trial the possibility of an adjournment was raised on Mr Mohamed's behalf becauseof recent disclosure of an iPhone in police custody: Mohamed v R CA2/2022, 28 October 2022(Minute of French J). However, at the outset of the appeal hearing, Mr Shamy advised that anadjournment was not sought.[37] The Crown filed affidavits from Stephen Hembrow (Mr Mohamed's trialcounsel), Philip McDonnell (counsel assisting Mr Hembrow at the trial),Detective Constable Gath, Michelle Bayliss and Gaynor Burgess. The evidence of thelatter two related to the contention that a person called George had Mr Mohamed'sphone and was the attacker. Mr Hembrow, Mr McDonnell and Ms Bayliss were allcross-examined.[38] When an appeal alleges trial counsel error, affidavits responding to this groundof appeal do not require leave.13 Most of the affidavits are in this category. Theaffidavits also cover evidence that Mr Mohamed now says should have been beforethe trial judge if counsel had not mishandled the evidence.14 This Court's approach isto treat such evidence as fresh if persuaded that counsel error explains its absence fromthe record.15 If the new evidence is credible, it is cogent in that it may give rise to amiscarriage of justice. It is necessary to analyse the new evidence as a whole and inthe context of the evidence given at trial, which is a reasonably substantial task, toassess its credibility. Our finding on whether it is credible will ultimately determinewhether leave to adduce it should be granted.[39] We first consider Mr Mohamed's account of events relating to the stabbing, theevidence presented in support of this account on appeal and the Crown's response tothat evidence, before considering the more specific evidence as to Mr Hembrow'sinstructions and advice.Mr Mohamed's account[40] Mr Mohamed said that he met Ibrahim Prince, known as Jerry, when he was inprison in Australia and that Jerry wanted him to sell drugs when he got out of prisonon Jerry's behalf. On the day of his release, he was given the number for Jerry's sister.He made contact with her and was given $15,000 worth of methamphetamine.[41] He said he did not account back to Jerry or his sister for this and went on therun. He came to New Zealand in 2018. In October 2020 he received a call from a13 Court of Appeal (Criminal) Rules 2001, r 12A.14 Rule 12B. For example, Saaid Abdukadir's evidence.15 Loffley v R [2013] NZCA 579 at [58]; and S (CA88/2014) v R [2014] NZCA 583 at [15].very angry Jerry who told him he had two weeks to pay him back and the amount heowed had doubled to $30,000. Jerry also told him that if he did not do so he wouldpay for it in blood.[42] He said he then tried to borrow the money from his brother, Abdiqaaliq AliMohamed, who was in Australia. His brother refused to pay the money. The sameweek he was approached by two Somalian men who he knew from the mosque. Theywarned him that Mongrel Mob members were looking for him and had a screenshotof his face. He rang his brother, who called a high school friend of his who had tiesto the Mongrel Mob. This person was called George but he was known as Red. Hemet George who told him he would deal with Jerry. He gave George his SIM card.He ended up living at Buffon Street with George. The tenancy agreement was underMr Mohamed's brother's name (that is, in the name of Abdiqaaliq Ali Mohamed). Thetenants all used his brother's name, Abdi, when communicating with the landlord.Supporting evidence[43] Mr Mohamed sought to bolster this account with affidavit evidencepurportedly from his brother. In that affidavit Abdiqaaliq said that he contacted hisfriend to help his brother (Abdihafid). His friend's name was George Rehutai, theywent to Cashmere High School together and George was one of Abdiqaaliq's closestfriends. George was of Māori descent, was "tallish" and had a dark browncomplexion. George told Abdiqaaliq that he had ties to the Mongrel Mob and wouldbe able to smooth everything over for his brother (Abdihafid). At this time, Georgewas looking for a rental property. Abdiqaaliq was too. They agreed to share the burdenof high rent prices and living expenses by renting a house together. Abdiqaaliq gaveGeorge his passport details to use for the tenancy agreement. When Abdiqaaliq movedout, Abdihafid moved in with George. This was as a favour to Abdiqaaliq to helpGeorge with the costs.[44] Mr Mohamed also sought to bolster his account with the affidavit of SaaidAbdukadir. Saaid said he had received a call from his cousin, Abdiqaaliq Mohamed,asking him for help to lease a property. He wanted to use Saaid's tenancy records tohelp him find a place. Saaid said he did not mind doing the favour. On the viewingday for the property, he was expecting to see Abdiqaaliq but instead a man namedGeorge arrived. He described George as skinny, tall and dark-skinned and was Māorior from the "Islands". Saaid was unclear what was happening, but knew fromAbdiqaaliq that he had a good relationship with George. George filled out the tenancyagreement in Abdiqaaliq's name. Saaid later found out that Abdiqaaliq's brother,Abdihafid, started living in the property with George after Abdiqaaliq moved back toAustralia for urgent family reasons.The Crown's response[45] Gaynor Burgess' evidence responded to the evidence of Abdiqaaliq thatGeorge was a friend from Cashmere High School. She is the attendance officer at thatschool. She confirmed that Abdiqaaliq Ali Mohamed attended that school from2 September 2009 to 10 December 2010. However, the school records for that perioddid not show any person named as George Rehutai as attending the school. Moreover,the only "George" that attended the school between 2002 and 2010 had a differentsurname and attended between 31 January 2006 to 7 December 2009.[46] The evidence of Michelle Bayliss responded to the evidence that George hadlived at the Buffon Street address. She was the property manager for the address.There was an open home for the tenancy followed by an application process. She wasnot able to say whether she had met Abdiqaaliq at the open home. She confirmed shereceived an application in the names of Abdiqaaliq Ali Mohamed and SaaidAbdukadir. She received a copy of Abdiqaaliq Ali Mohamed's passport details. Sheconfirmed that, whether it was she or another person from her office who signed thetenancy, the passport photo would have been checked against the person who wassigning. She attached a copy of the tenancy agreement for the period of 17 October2020 to 21 October 2021. It was in the names of Abdiqaaliq Ali Mohamed and SaaidAbdukadir and one of the contact phone numbers given for Abdiqaaliq Ali Mohamedwas the 8085 number.[47] Ms Bayliss said the only mention of a "George" was when Saaid Abdukadircontacted her about wanting to come off the tenancy. She spoke to Saaid by telephoneon 2 September 2022 (about two weeks after Saaid had signed his affidavit for thisappeal). She asked him who was the tenant in late 2020. He told her the person livingthere was a male named George, who was Māori or Samoan, and that he lived therefor three months before Abdiqaaliq Ali Mohamed moved in.[48] Ms Bayliss' evidence also confirmed the connection of the 8085 number withthe tenancy. She used this number to contact the tenant. When she did so, she believedshe was speaking with Abdiqaaliq Ali Mohamed. She understood it was AbdiqaaliqAli Mohamed who had made the complaint on 4 December 2020 about noise from theneighbouring property.[49] Detective Constable Gath's affidavit provided further evidence of the link ofthe 8085 number with the tenancy. He reviewed the property inspection reports forthe Buffon Street property. One of the images for the 3 December 2020 inspectionshowed a piece of paper attached to the top of the door. Enlarging the image showedthat it was a message not to leave parcels at the door and to call the 8085 number.Evidence as to instructions to Mr Hembrow[50] Mr Mohamed retained Mr Hembrow on 11 August 2021. Following emailcommunications, Mr Hembrow first met with Mr Mohamed on 15 September 2021.Mr Mohamed said this was a meeting of about 30 minutes. He revised this to aboutan hour when Mr McDonnell's evidence – that it lasted one and a half hours – was putto him. He accepted it was a proper meeting in which Mr Hembrow went through theCrown case and explained that it was a strong one.[51] Mr Hembrow went through the telecommunications evidence withMr Mohamed. Mr Mohamed's evidence was that this alarmed him as, until then, hehad not understood how the case was linked to him. He said that he told Mr Hembrowthat he was not using the 8085 number. Mr Mohamed said that he "realised" themessages must have been from "George who is also known as Red". He said that hewas adamant that he did not attack Mr Okorie and he wanted to give evidence. Hesaid that Mr Hembrow expressed disbelief at his version of events.[52] Mr Hembrow agreed that Mr Mohamed's instructions at this meeting were thathe did not attack Mr Okorie and that he wanted to give evidence. He said thatMr Mohamed did not tell him about George or Red at this meeting but did say that hedid not believe it was his mobile phone. Mr Hembrow said he told Mr Mohamed thatthere were difficulties with his instructions. He said he asked Mr Mohamed where hewas at the time and whether he had credit card transactions that could place himelsewhere. He said Mr Mohamed did not provide an explanation of where he was, didnot have credit card transactions and could not provide an alibi witness.[53] Mr Mohamed was unhappy with Mr Hembrow's demeanour at the meeting. Afew days later, on Saturday 18 September 2021, Mr Mohamed sent emails toMr Hembrow. The first of these said:first of all, I don't care what you believe the outcome to be or care whether ornot you have prenotions on whether I'm guilty or not.please just represent me to the best of your abilities and please contact me assoon as possible.I still plan to maintain my not guilt[y] plea and also wish to testify on mybehalf regardless of the outcome as I understand the main facts against me are:the mobile phone, which I intend saying I have no knowledge of and havenever owned or used that number and as for the sword found in the house, Iwill stat[e] that Im [sic] not the only tenant at that property and it is not mine.[54] This email went on to set out questions to ask Mr Okorie in cross-examination.It concluded with "please call me asap you said Saturday im [sic] very conced [sic] atthis point".[55] In further emails that evening, Mr Mohamed set out questions to askDetective Constable Gath in cross-examination and points to make about Ms Walik'sstatement. The later included making the points in cross-examination of Mr Okoriethat he had told Ms Walik that he was from Jamaica and that he imported cars.[56] Mr Mohamed and Mr Hembrow met again on Sunday, 19 September 2021which was the day before the trial was to commence. Mr Mohamed's evidence wasthat he told Mr Hembrow that the debt was $15,000 that was owed to Mr Okorie'sfriend. He said he told Mr Hembrow he had been threatened and that his brother wholived in Australia had told him to give his phone to his brother's friend, George, whowas known as Red. He said Mr Hembrow told him he would not be believed, and thatit was too late to raise the issue of Red and his possession of the phone. He saidMr Hembrow wanted to recuse himself but Mr Mohamed managed to convinceMr Hembrow to continue acting for him. Mr Mohamed said he signed a writtendocument at this meeting saying he wanted to give evidence at his trial and that hewould say that he had given his phone to Red and it was Red who made the calls.[57] Mr Hembrow agreed with Mr Mohamed's evidence that they discussed thedebt at this meeting. He said he advised that raising the issue of the debt would doMr Mohamed no good because the jury might think this was a gangster attack by himto avoid paying the debt. He said he was told for the first time that the person who didthe stabbing was George, who was a flatmate and was Nigerian/Cuban. He said hewas not told how Mr Mohamed knew that George was the stabber. He said he wasalso not told of Mr Mohamed's brother's advice to give George his cell phone and northat George was known as Red. He said he told Mr Mohamed that he needed to thinkabout whether he should get another lawyer and seek an adjournment andMr Hembrow should recuse himself. He said Mr Mohamed told him he wanted thetrial to go ahead and he had faith in Mr Hembrow.[58] The document Mr Mohamed signed at this meeting was produced byMr Hembrow. It said:I Abdihafid Ali Mohamed instruct S Hembrow to cross examine at my trialstarting 20 September 2021 on the basis that it was my flatmate George whomade the phone calls on 224928085 and was the person who stabbed thevictim on the 5th of December 2020.[59] Mr Hembrow explained that he took the precaution of having Mr Mohamedsign this document because there was no evidence to back up Mr Mohamed'sinstructions. Without Mr Mohamed's specific instructions to cross-examine on thisbasis, he said that he would not have pursued this line of questioning. Mr Hembrowsaid he told Mr Mohamed that a decision would be made about whether he should giveevidence after the Crown evidence. He understood Mr Mohamed to have acceptedthat advice.[60] Mr Hembrow said that Mr Mohamed brought up the tenancy agreement for theBuffon Street address at the 19 September 2021 meeting. Mr Hembrow said that ifthe document was produced it would show that Mr Mohamed was a party to a forgeryin using his brother's name on the tenancy agreement to avoid an action against himif he defaulted on the rent or if there was damage.[61] Following the meeting, Mr Hembrow sent an email to Mr Mohamed at 5.39 pmwhich said:HiI am still at work on thisI need to advise you that calling Mr Kahdar [sic] and you giving evidence isthe very wrong thing to do in this trial.It turns it from a test of beyond reasonable doubt to who the jury thinks istelling the truth If the jury think you or Mr Kahdar [sic] are not telling the truththen the [sic] will convict you.To bring the name George in at this late stage telling me today for the firsttime gives no chance for investigation, supplying that investigation to thepolice to check out elc [sic][You] will have now seen the job sheet of the police talk to Mr Kahdar [sic]last week. I would have no confidence in what he will say.We will talk at court tomorrow[62] Mr Mohamed brought a hard copy of the tenancy agreement to Court thefollowing day. This was signed in the name of his brother and was for the period17 October 2020 and 21 October 2021. Mr Hembrow gave it to the officer in chargeto make enquiries so that Mr Hembrow could cross-examine the officer on it ifnecessary. He did this because, as at the start of the trial, Mr Mohamed was stillactively considering whether to give evidence. By the morning break, Mr Hembrowwas handed a police job sheet. Police enquires with Immigration New Zealandrevealed that Mr Mohamed's brother was in New Zealand for four days between25 January 2020 and 29 January 2020 and prior to that had not been in the country for10 years. This confirmed that Mr Mohamed's brother could not have lived at theBuffon Street address with George for any part of the tenancy.[63] Mr Hembrow considered that the cross-examination of Mr Okorie had gonewell. Mr Okorie had become "quite excitable". Mr Okorie did not know the personwho stabbed him but was adamant that it was the person on his phone whom hesubsequently identified in the photo montage procedure. At the end of the cross-examination of Mr Okorie, Mr Hembrow discussed with Mr Mohamed that suggestingto Mr Okorie the name of Mr Mohamed's alleged flatmate would be regarded by thejury as "clutching at straws". He discussed with Mr Mohamed that he did not think itwas in Mr Mohamed's interests to do this when there was no supporting informationthat George lived at the Buffon Street address. He advised Mr Mohamed that it wouldmake the defence look weak. He asked Mr Mohamed if he wanted him to questionMr Okorie about George and Mr Mohamed agreed that Mr Hembrow should not.Mr Hembrow considered there was no point in asking the police witnesses either, asthe police witnesses had no knowledge of George and there was nothing in thedisclosure about George.[64] On the second day of trial Mr Hembrow said he arrived at court at about 9 amand interviewed Mr Khadar. We understand that this was in preparation if Mr Khadarwas to give defence evidence. Mr Khadar confirmed he would give the evidence thatwas in the brief of evidence the Crown had prepared. Mr Hembrow asked Mr Khadarwhether there was any possibility that it was Mr Mohamed who was at Mr Okorie'saddress and who had caused Mr Okorie's injuries. Mr Khadar shook his head and said"no". Mr Hembrow also told Mr Khadar that Ms Walik said that Mr Khadar and theattacker were speaking in Arabic. Mr Khadar said he did not speak in Arabic with theattacker.[65] The Crown case came to an end close to 1 pm on the second day of the trial.Mr Hembrow with his junior, Mr McConnell, went to see Mr Mohamed in the holdingcell at about 2 pm. Mr Hembrow asked him whether he had made a decision aboutgiving evidence. Mr Mohamed said that he thought the trial was going well and hewould not give evidence. Mr Hembrow had Mr Mohamed sign a handwritteninstruction that he "[did] not wish to give evidence at my trial". The instruction wasdated 21 September 2021 at 2.10 pm.[66] At the same time, Mr Hembrow had Mr Mohamed sign a further handwritteninstruction concerning calling Mr Khadar to give evidence which said:I Abdihafid Ali Mohamed instruct my Barrister S Hembrow that I want himto call as a witness in my defence Sharifabdenasir Mohamed Khadar despiteS Hembrow's warning to me that Mr Khadar under cross examination by theCrown may confirm that I was present at the scene of the crime. He has alsowarned me that if Mr Khadar gave false evidence it may lead to a charge ofattempting to pervert the course of Justice against me.[67] Mr Hembrow said he recorded this instruction and asked Mr Mohamed to signit because he was concerned at the effect on the outcome and the consequences forMr Mohamed if Mr Khadar appeared to be untruthful. In accordance with thoseinstructions, Mr Mohamed did not give evidence and Mr Khadar did give evidence.[68] As discussed above, Mr Khadar said that the attacker was "Red".Mr Hembrow did not ask Mr Khadar about George because there was no basis beforethe Court to suggest that George had access to Mr Mohamed's phone and was theattacker. Mr Hembrow said that he advised Mr Mohamed that it was pointless to askMr Khadar about George and would have potentially undermined Mr Khadar'scredibility. He said Mr Mohamed agreed with this advice. Mr Hembrow checkedwith Mr Mohamed at the close of the examination in chief and again at the close of re-examination of Mr Khadar if Mr Mohamed wanted any further questions asked ofMr Khadar. Mr Mohamed said no.[69] Mr Hembrow said that during the trial Mr Mohamed handed him small slips ofpaper with questions to ask witnesses. At no stage did Mr Mohamed ask him to putquestions to witnesses about George. On the third day of the trial (22 September 2021)at 1.15 am, after all the trial evidence was completed and before closing addresses,Mr Mohamed sent an email to Mr Hembrow. This thanked Mr Hembrow for his"robust efforts" and for remaining "cool, calm and collect[ed]" when Mr Mohamedhad probably been somewhat of a "nuisance". He said he was "truly grateful" and"regardless of the outcome" wanted to say "thank you". In cross-examination on thisemail on appeal, Mr Mohamed said he was just being polite and was not being genuine.Our assessment of the evidence[70] We prefer the evidence of Mr Hembrow to that of Mr Mohamed where theirevidence differs. In particular, we prefer Mr Hembrow's evidence that the first timeGeorge was mentioned was on the Sunday before the trial and that at this timeMr Mohamed did not mention the involvement of his brother to help with his situation,nor that George was known as Red and was Māori with ties to the Mongrel Mob. Weprefer Mr Hembrow's evidence for several reasons.[71] First, our assessment is that Mr Mohamed's brother did not rent theBuffon Street address. Rather, Mr Mohamed used his brother's name to apply for thetenancy. The police inquiries at trial revealed that his brother was not in the countryat the relevant time. This confirmed Mr Hembrow's concerns, as conveyed toMr Mohamed on the Sunday, that bringing up the tenancy agreement would show thathe was a party to a forgery in applying for a tenancy in his brother's name. The checksby the property company do not exclude this. If the person letting the propertychecked the applicant's appearance against the passport photo, it is quite conceivablethat she did not notice the difference between Mr Mohamed and the photo of hisbrother.[72] Secondly, the alleged involvement of George arose only after the incriminatingphone data was shown to Mr Mohamed on the Wednesday meeting before trial.Further, in our assessment, it was not until the Sunday that the name George wasmentioned to Mr Hembrow. This is confirmed by Mr Mohamed's email on theSaturday in which Mr Mohamed said he intended on saying that the mobile phone wasnot his. Tellingly, he did not say that it belonged to his brother's friend, George, whowas going to sort out his issue with Jerry. If that really was the position, there was noreason why Mr Mohamed would not have said so to his lawyer on the Wednesday, orcertainly by the Saturday.[73] Thirdly, our assessment is that Mr Mohamed did not tell Mr Hembrow beforetrial that "George" was also known as "Red". Mr Hembrow did not believe someonecalled Red had been mentioned before the trial. According to Mr Hembrow, the personmentioned on the Sunday was Nigerian/Cuban. According to what Mr Khadar said toDetective Constable Gath before trial, Mr Khadar was referring to Red asMr Mohamed (whom he said he did not know). However, according to the evidenceon appeal of Abdiqaaliq Ali Mohamed, Saaid Abdukadir and Mr Khadar, Red wasMāori or a Pacific Islander. Again, tellingly, Mr Mohamed's handwritten instructionsto Mr Hembrow on the Sunday did not refer to Red. Those instructions also providedno detail about George.[74] Fourthly, the only detail provided about George came from the affidavit ofAbdiqaaliq Ali Mohamed who was not available for cross-examination. That detailwas shown to be incorrect. There was no George Rehutai at Cashmere High Schoolas stated in that affidavit nor any George at the school at the relevant time. WhileMr Mohamed's counsel advised us that he was no longer relying on Abdiqaaliq AliMohamed's affidavit, ostensibly because he was unavailable for cross-examination,the fact is that this affidavit was put forward in support of Mr Mohamed's appeal andthe information in it has been shown to be false by Ms Burgess' evidence. There is noother reliable evidence that either a George or a Red was involved.[75] Our assessment is that the account of George or Red as the attacker is notcredible. Mr Mohamed only came up with the name George when he needed anexplanation for why the incriminating telephone data for the 8085 number should notbe attributed to him. He mentioned the name George for the first time at the meetingwith Mr Hembrow on the Sunday before trial and said he was Nigerian/Cuban.Mr Khadar then gave evidence at the trial that someone known as Red was involved.For the purposes of the appeal, the story is now that George was known as Red andwas a Māori or Pacific Islander who was a friend of Mr Mohamed's brother.Mr Mohamed, who is African,16 said in cross-examination in the appeal hearing that,even though he allegedly lived with George, he had "assumed" George wasNigerian/Cuban based on the "lingo" he used but he didn't know his ethnicity. Thiswas an unconvincing explanation for why he thought George was Nigerian/Cubanwhen he is now said to be Māori or Pacific Islander. Further, an attacker who wasMāori or Pacific Islander is inconsistent with Ms Walik's statement that Arabic wasspoken.16 His passport shows his birthplace as Garissa. Prior to closing submissions, the Judge declinedpermission for defence counsel to inform the jury that Garissa was in Kenya. This was because ithad not been put to Mr Okorie that Mr Mohamed was born in Kenya (not Somalia) and, if thiswas to go to the jury, the Crown would have adduced evidence that people in Garissa speakSomali: R v Mohamed DC Christchurch CRI-2020-009-010662, 22 September 2021 (Ruling 2 ofJudge M J Callaghan).Ground 1: election to give evidenceIntroduction[76] This ground of appeal concerns Mr Mohamed's wish to give evidence. He hadconveyed that wish in the weekend before the trial. He decided against this during thelunch break at the end of the Crown case on the advice of his trial counsel,Mr Hembrow. It is said that Mr Mohamed's election was overborne by his trialcounsel. It is said that it meant there was no evidential basis for Mr Mohamed'scontention that he had given the 8085 phone to George and it was George who hadattacked Mr Okorie.Assessment[77] It is well established that the election whether to give evidence is a fundamentaldecision reserved to the defendant and that trial counsel have an obligation to ensurethe decision is an informed one.17 If the defendant does not make a properly informeddecision, the risk of a miscarriage of justice arises.18[78] In this case, Mr Mohamed submits that his trial counsel failed to ensure thathis election was properly informed. He submits that trial counsel should have prepareda brief of evidence that would have fleshed out the details of Mr Mohamed's account.He submits that instead, Mr Mohamed's wish to give evidence was overborne byMr Hembrow's advice that he would not be believed. He says Mr Hembrow wronglyadvised him in his email on the Sunday evening that giving evidence was the wrongthing to do because "[i]t turns it from a test of beyond reasonable doubt to who thejury thinks is telling the truth". This advice is said to be wrong because the jury wasrequired to assess whether they were sure that the Crown had proven the allegationsbeyond reasonable doubt. Evidence from Mr Mohamed would have added to the poolof evidence to be considered together and, if his evidence supported by Mr Khadarcould reasonably be true, it would raise a reasonable doubt.17 For example, see R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [73];Van der Krogt v R[2020] NZCA 512 at [29]; Judd v R [2021] NZCA 345 at [39]; Smith v R [2022] NZCA 448 at[39]–[41]; R v Scurrah CA159/06, 12 September 2006 at[17]–[20]; and Tarring v R [2016] NZCA452.18 Smith v R, above n 17, at [40]; R v Sungsuwan, above n 17, at [66] and [115]; and R v Scurrah,above n 17, at [17]–[20].[79] We do not accept this submission. Mr Hembrow was not in a position to fleshout a brief of evidence. This was not because Mr Hembrow failed in his duties. Rather,it was because Mr Mohamed had not provided any detail about George despite theopportunity to do so at the Wednesday and Sunday meetings before trial. It is clearthat Mr Hembrow was concerned about the lack of detail. That is why he hadMr Mohamed sign a written instruction to cross-examine on the basis that George wasthe attacker. Mr Hembrow took this precaution because it was a risky tactic whenthere was no information to back this up and too little time before trial for the policeto make checks about the alleged involvement of a George.[80] Further, the advice in his Sunday evening email was not wrong. AsMr Hembrow said in that email, the concern was that the jury would not findMr Khadar a reliable witness (given the police job sheet of Detective Constable Gath'srecent meeting with him). Mr Hembrow was concerned that the jury would considerthat Mr Mohamed and/or Mr Khadar were not telling the truth. In other words,Mr Mohamed's evidence in support of Mr Khadar's evidence would risk the jurytaking the view that they were both lying, which was obviously prejudicial.[81] It is plain that Mr Mohamed understood and accepted this advice when the timecame to make his election. Mr Hembrow was forceful in his advice that givingevidence would be the wrong thing to do but that was because of the real risk that thejury would form the view that Mr Mohamed was lying. We do not accept thatMr Mohamed was overborne by Mr Hembrow. Rather, Mr Mohamed was comfortablewith Mr Hembrow's conduct of the trial. Mr Mohamed's decision on whether to giveevidence was finally made after the close of the Crown case. At this time, he said toMr Hembrow that he thought the trial was going well and he would not give evidence.Mr Mohamed signed a handwritten instruction that he "[did] not wish to give evidenceat [his] trial". Before closing addresses, Mr Mohamed thanked Mr Hembrow for hisconduct of the trial. We consider Mr Mohamed's attempt on this appeal to resile fromthis thanks to be disingenuous. Indeed, that attempt it is a further illustration ofMr Mohamed's comfort with saying whatever he thinks he needs to say to advance hisinterests.[82] We dismiss this ground of appeal.Ground 2: failure to present his defence that George was the attackerIntroduction[83] This ground of appeal is related to the first ground. Mr Mohamed refers to thewritten instructions provided to Mr Hembrow the day before the trial thatMr Hembrow was to cross-examine at the trial on the basis that it was Mr Mohamed'sflatmate George who made the phone calls on the 8085 number and was the personwho stabbed Mr Okorie.19Assessment[84] Failing to follow specific instructions to advance a defence based on thedefendant's version of events is, like electing whether to give evidence, a fundamentaldecision that will generally give rise to a miscarriage of justice.20 Mr Mohamedsubmits that, without Mr Hembrow having prepared a brief of evidence setting out hisnarrative, which would form the foundation for such cross-examination, Mr Hembrowwas not in a position to follow his instructions to cross-examine on the basis thatGeorge was the attacker.[85] In this case Mr Mohamed changed his instructions on advice fromMr Hembrow. We accept Mr Hembrow's evidence that he confirmed withMr Hembrow before completing his cross-examination of Mr Okorie that he was notto cross-examine him on this basis. Mr Hembrow was rightly concerned, onMr Mohamed's behalf, that it would come across as clutching at straws by suggestingto Mr Okorie that the attacker was called George whom Mr Mohamed flatted with andwho was Nigerian/Cuban. Preparing a brief of evidence would not have assistedbecause Mr Mohamed had not given Mr Hembrow any more detail than this. Thepolice had found no evidence of a George living at the Buffon Street address and therewas no other basis for this suggestion beyond the scant information Mr Mohamed hadprovided. Mr Mohamed had declined the option of seeking an adjournment for furtherenquiries to be made of George.19 Refer above at [58].20 Smith v R, above n 17, at [41]; and R v Sungsuwan, above n 17, at [65].[86] The further information about George's involvement that Mr Mohamed hassince provided for this appeal has evolved in light of Mr Khadar's evidence that theattacker was known as Red and was Māori or a Pacific Islander. Because it hasevolved and is a made up story, it is unclear now what Mr Mohamed would have saidif he had elected to give evidence. Mr Hembrow was rightly concerned that it wouldbe harmful for the defence for Mr Mohamed to give evidence and for the jury to besatisfied that he was lying and Mr Khadar was too.[87] In short, Mr Hembrow followed Mr Mohamed's instructions. There was nocounsel error in failing to present the case on the basis that the attacker was George.[88] We dismiss this ground of appeal.Ground 3: failure to investigate relevant evidenceIntroduction[89] Mr Mohamed submits that Mr Hembrow erred by failing to investigateevidence from Saaid Abdukadir. He says Mr Abdukadir was an obvious person tospeak to as his name was on the tenancy. He says Mr Abdukadir would have supportedhis account that George was his flatmate.Assessment[90] Mr Mohamed does not say that he suggested to Mr Hembrow prior to or duringthe trial that Mr Abdukadir could support his account that George lived at the BuffonStreet address with him. Mr Hembrow's advice to Mr Mohamed was that the tenancyagreement should not be relied upon as it showed that Mr Mohamed was a party to aforgery in using his brother's name on the tenancy agreement. This was confirmedfollowing police inquiries, made at Mr Hembrow's request, that showed thatMr Mohamed's brother could not have lived at the Buffon Street address with Georgefor any part of the tenancy.[91] Moreover, the evidence before this court from Mr Abdukadir is not credible.It cannot have been the case that he thought the tenancy was for Abdiqaaliq AliMohamed because Abdiqaaliq was not in the country. Mr Abdukadir's evidence wasthat he understood at the time that Abdiqaaliq was in the country. He said he nowrealised that Abdiqaaliq must have been calling him from Australia when he said thathe needed help to rent a property and when they planned to meet at Mr Abdukadir'shouse before the viewing. However, it is not credible that Abdiqaaliq would haveplanned to meet at Mr Abdukadir's house before the viewing given that he lived inAustralia. Moreover, Mr Abdukadir's evidence was that the person who turned up atthe viewing and signed the tenancy agreement was George, who was skinny, tall anddark-skinned, and either Māori or from the Pacific Islands. Yet the evidence fromMs Burgess is that the person signing the tenancy agreement would have been checkedagainst Abdiqaaliq's passport photo and details. That photo and details are of anAfrican man, not a Māori or Pacific Islander.[92] Mr Hembrow was not in error in failing to make inquiries of Mr Abdukadir,before advising Mr Mohamed that the suggestion of George as the attacker should notbe put to Mr Okorie and advising Mr Mohamed against giving evidence in thesecircumstances.[93] We dismiss this ground of appeal.Ground 4: inadequate advice regarding Ms Walik's statementIntroduction[94] Mr Mohamed submits that he did not receive proper advice about whetherMs Walik's statement should be admitted by consent when it was apparent she wasunavailable to give evidence. He says that her evidence was problematic because shegave a description that was similar to Mr Mohamed and said that he was speakingArabic. He says the evidence needed to be tested in cross-examination if it was to beadduced.Ms Walik's formal statement[95] As noted earlier,21 a formal statement was taken by the police from Ms Walikfollowing the attack. The statement was taken at the police station and signed byMs Walik at 6.20 pm.[96] In that statement, she set out how she knew Mr Okorie (who had told her hewas from Jamacia and imported car parts) and why she was visiting him on the day hewas attacked. She described the attacker as being a slim guy, who was about 170 cmtall, with a thick beard, who was "black", was wearing sporty black clothing and whogestured at her to go away. He was speaking in Arabic to another guy who was "fat","black", "very tall" and "big". She went outside with the fat man who told her that hewas from Somalia and the other guy was from Sudan. While they were outside sheheard Mr Okorie calling out for the fat guy whose name she could not remember. Thefat guy went inside and came back with a big knife, like a kitchen knife, that had ablack handle and a "funny shape". The fat guy took the knife around the back.Mr Okorie was saying something about blood and to get the knife, and was yelling tocall the police. The fat guy was trying to help him.Hearsay application[97] Mr Hembrow received an email from Mr Taffs, the prosecutor, on 1 September2021. Mr Taffs had just received an email from the police advising that immigrationhad confirmed that Ms Walik left the country on 28 July 2021 with a destination toSingapore. Immigration did not know whether she had travelled on to anotherdestination from there but were able to say that she had not returned. Mr Taffs saidthat Ms Walik was aware of the trial date. He said he was considering making ahearsay application on the basis that she was not available if she did not return.Mr Taffs also asked whether the defence would be agreeable to the medical evidenceconcerning Mr Okorie's injuries being admitted by agreement under s 9 of theEvidence Act 2006.21 At [5] above.[98] Mr Hembrow forwarded the email to Mr Mohamed on 1 September 2020.Mr Hembrow said that he subsequently discussed these matters with Mr Mohamed bytelephone. He advised that Mr Mohamed should agree to the medical evidence beingadmitted by consent. He advised that it would avoid the doctor being given a chanceto expand on the level and seriousness of the injuries and having the jury focus on that.Mr Hembrow said that Mr Mohamed agreed with this advice.[99] In the same conversation, Mr Hembrow said that Ms Walik's evidence helpedthem because she could not identify the attacker. Because of this, he said that theCrown's application to have her read her evidence was a good thing. Subsequently,on 19 September 2020, Mr Mohamed sent an email referring to points in Ms Walik'sevidence that he wanted to use against Mr Okorie in cross-examination. These werewhere she said: "he told me he was from Jamaica", "he told me he imported car parts",and that she heard the offender say "if you call the police, you'll never see me again".Mr Hembrow's view was that to use these points, Ms Walik's statement would needto be admitted.[100] The application to admit Ms Walik's statement was to be heard by the trialjudge. At the start of the trial, Mr Hembrow advised the Judge that the evidence couldbe admitted by consent. On that basis, the Judge granted the application unopposed.22Reliance on Ms Walik's statement[101] In closing to the jury, the Crown referred to Ms Walik's statement as providinga "really good narrative" of what happened. The Crown did not directly rely on thestatement to identify the attacker. As discussed above, the Crown relied onMr Okorie's identification evidence, the phone data and Mr Mohamed's connection tothe 8085 phone to identify Mr Mohamed as the attacker.23[102] In closing to the jury, the defence agreed with the Crown that Ms Walik wasprobably the best witness as to the sequence of what happened. The defence submittedthat Mr Okorie was an unreliable witness with reference to Ms Walik's statement that22 R v Mohamed DC Christchurch CRI-2020-009-010662, 20 September 2021 (Minute ofJudge M J Callaghan).23 Refer [23] above.had been put to him in cross-examination. In that cross-examination, particularemphasis was placed on Mr Okorie's evidence that the attacker was a bigger build thanhim and that he was wearing a hoodie. This contrasted with Ms Walik's statement thatthe attacker was slim and wore a cap.Mr Mohamed's evidence on appeal[103] Mr Mohamed said in his evidence on appeal that he did not consent to thisevidence. He did not recall seeing the email sent to him on 1 September 2022 and saidthat he must have overlooked it. He said Mr Hembrow did not telephone him aboutthe evidence. He said he was first made aware on the Sunday before trial thatMs Walik was not in the country. He said he was not aware that he had the option ofopposing the admission of the statement.[104] Mr Mohamed also said that he did not see how Ms Walik's statement helpedhim. Her description of the attacker as "dark, black or dark with a beard" did not helphim as he was dark-skinned and had a beard. He did not understand how she wouldbe able to identify that Mr Okorie and the attacker had spoken Arabic and she had notmentioned seeing a two foot knife.[105] Mr Hembrow further explained his view as to why he considered it to be inMr Mohamed's interest to consent to the admission of Ms Walik's evidence. Heconsidered it was helpful that she did not identify Mr Mohamed as the attacker. Hedid not regard her evidence as particularly supportive of the Crown's case. He thoughtthat, if she did give evidence (if she was able to be located), there was the risk that shewould remember something more, or even that she would see Mr Mohamed in courtand identify him. If she could not be located, he thought that the application to admither hearsay statement would be granted. He made a note of Mr Mohamed's consentto the statement being admitted at the bottom of her evidence.Assessment[106] We prefer Mr Hembrow's evidence to Mr Mohamed. We have alreadyassessed Mr Mohamed as not being truthful about George. We consider his evidence,that Mr Hembrow did not discuss whether to consent to Ms Walik's statement beingadmitted, is not credible. It is quite unlikely that Mr Hembrow would consent to theCrown's hearsay application without obtaining instructions from his client. It is alsoquite unlikely that Mr Hembrow would obtain Mr Mohamed's consent, withoutmaking it clear that Mr Mohamed did not have to consent. Mr Mohamed's email toMr Hembrow, with questions to ask Mr Okorie based on that statement, is consistentwith a discussion between them about her evidence.[107] In R v Sungsuwan, Gault J said:24[66] There will be cases in which particular acts or omissions of counselmay in retrospect be seen to have possibly affected the outcome but they weredeliberately judged at the time to be in the interests of the accused. In somecases the accused will have agreed or acquiesced – only to complain afterconviction. Where the conduct was reasonable in the circumstances the clientwill not generally succeed in asserting miscarriage of justice so as to gain thechance of defending on a different basis on a new trial. Normally an appealwould not be allowed simply because of a judgment made by trial counselwhich could well be made by another competent counsel in the course of anew trial.[108] Mr Hembrow's advice was reasonable in the circumstances and could well bemade by another competent counsel if there were a new trial. In any event, in contrastwith the situation Gault J referred to, we consider the decision to admit Ms Walik'sstatement could not have affected the outcome. The Crown case was a very strongone. Mr Okorie had the opportunity to identify his attacker and was adamant it wasthe person whose photograph he had been sent. His identification was supported bythe phone data and the evidence that linked Mr Mohamed to that data. Ms Walik'sstatement provided at least some basis to challenge that identification. There was verylittle else on which to do so. It was well open to the jury to reject Mr Khadar'sevidence as unreliable.[109] We dismiss this ground of appeal.24 R v Sungsuwan, above n 17.Ground 5: Inadmissible evidenceIntroduction[110] This ground of appeal concerns evidence that Mr Mohamed says should nothave been admitted at his trial.Identification evidence[111] Mr Mohamed submits that Mr Okorie's identification of him in the photomontage was unsafe and evidence of it should not have been admitted. He submitsthat it is impossible to know whether Mr Okorie identified Mr Mohamed in the photomontage based on his memory of the person in the photographs in his phone or basedon his memory of the person who stabbed him. Further, given his identification ofMr Mohamed based on the photographs in his phone, he submits the photo montageidentification had no probative value.[112] Mr Mohamed relies on R v Ryan in support of his submission.25 This caseconcerned identity evidence of a police constable. In the execution of her duties, shehad stopped a car to check its registration details. The constable asked for the driver'sname, date of birth and address. She checked the details in the police NationalIntelligence Application (NIA) database. The NIA database included a photograph forthe name and date of birth the driver had provided. She noted that, like the driver, theperson in the photograph had a distinctive neck tattoo and eyebrow piercing. Thiscaused her to believe that the driver was the person in the photograph. The NIAdatabase also confirmed that the person's licence was suspended.26[113] The constable advised the driver that the vehicle would be impounded. Thedriver took off and later abandoned the car and absconded. The person whose nameand date of birth had been given to the constable when stopped for the registrationcheck was later apprehended and charged. This person claimed that it was his brotherwho was the driver of the vehicle at the relevant time.2725 R v Ryan [2021] NZCA 147.26 At [7].27 At [12].[114] This led to a challenge to the officer's identification of the driver with referenceto the NIA database photograph on the grounds that the formal procedure under s 45of the Evidence Act had not been carried out.28 As the procedure was not followed,the question for the Court was whether there was "good reason for not following aformal procedure".29 If there was, then the constable's identification of the driverbased on the photograph in the NIA database was admissible against him on thecharges unless he proved, on the balance of probabilities, that the evidence wasunreliable.[115] The constable gave evidence at the admissibility hearing that she had lookedat the person's NIA profile 13 or 14 times when she was writing her first formalstatement a month after the incident giving rise to the charges. She had looked at itagain numerous times when completing her second formal statement. She said shehad not conducted a formal identification because she had already viewed the NIAphotograph. She understood that, because she would have a memory based on thephotograph, she could no longer do the formal procedure.30[116] In those circumstances, the Court found there was a good reason for notconducting the formal procedure. It could not be said with any certainty that theformal process would test her recall of the driver rather than her memory of the NIAphotograph. Further, a firm identification in the formal process would give rise to areal risk of prejudice. That is because it would arguably bolster the constable's originalidentification but in an unfair way – since the formal identification was likely to bebased on the officer's memory of the photograph rather than their memory of the driverfrom the incident.31[117] That case can, however, be compared with Gibbins v R, the facts of which arecloser to the present.32 That case involved an identification witness who lived in anupstairs flat. His landlord lived in the downstairs flat. She showed the witness a videoof her new boyfriend. A short time later, when returning to his flat in the early28 The formal procedure under that section is the photo montage procedure.29 Evidence Act 2006, s 45(1).30 At [20]–[22].31 At [43]–[44].32 Gibbins v R [2015] NZCA 462.morning, the witness was stabbed by a man wearing a hoodie who demanded moneyand methamphetamine. The witness was interviewed by the police on the same day.He said the person who stabbed him was his landlord's boyfriend and that herecognised him from the video his landlord had shown to him. On the same day, heidentified the landlord's boyfriend from a photo montage of eight photographs in aformal procedure.33[118] Admissibility of the identification in the formal procedure was challenged asunreliable. This was because of the risk that this identification depended on thewitness' recollection of what he had seem on the video rather than his recollection ofthe assailant at the time of the attack. This Court rejected this argument. It consideredthat doubts about its reliability were matters for cross-examination and an appropriatewarning under s 126 of the Evidence Act would be given by the trial judge.34[119] Another example is Johnson v R.35 In that case, the victim identified hisattacker as someone he had "seen around" and "met" before but who was not afriend and not someone he associated with. He subsequently identified the sameperson in a formal procedure. This Court considered that there was strictly norequirement for police to have carried out a formal procedure given that the victim hadrecognised his attacker.36 It noted that in some cases there is a need for caution aboutthe use of a formal procedure where identification is based on recognition. However,it depended on the circumstances. In this case it was prudent to conduct a formalprocedure because the victim knew the person he identified as the attacker but notwell.37[120] In the present case, whether it was necessary or not, a formal procedure wasconducted. It was arguably prudent to conduct this procedure as a check on thereliability of Mr Okorie's identification based on the photograph Jerry had sent to him.The first of those, and the one that Mr Okorie said he identified his attacker from, isat an angle and the person appears to be wearing a hat, and has facial hair above his33 At [3]–[8].34 At [14]–[15].35 Johnson v R [2021] NZCA 233.36 At [28], referring to Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17]; and R vEdmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [65].37 At [29].lips and an obvious beard. The passport photograph used in the photo montage showsan image that is not at an angle, the person is not wearing a hat and has less obviousfacial hair. It was at least some relevance to the jury that Mr Okorie identifiedMr Mohamed in the photo montage (rather than identifying someone else or notrecognising Mr Mohamed).[121] The fact that the identification may have been based more on Mr Okorie'smemory of the photograph received from Jerry than his memory of the incident wassomething that the defence could point to. However, that was a matter for the defenceto raise, the Judge to direct on and the jury to assess.[122] Mr Hembrow cross-examined Mr Okorie on whether he accurately recalled theattacker given the differences in his recollection to that of Ms Walik. He put it toMr Okorie that, when he looked at the photo montage and identified Mr Mohamed, hehad in mind the picture on his phone. Mr Okorie said: I know who stabbed me. I know who stabbed me to this picture. I know.I'm not confusing my memory. I know who stabbed me when I see this picturepolice show me.[123] Mr Hembrow also put it to Mr Okorie that an alternative was that he falselyaccused Mr Mohamed because he did not want to tell the police who really had stabbedhim. It was suggested that this was why Mr Okorie did not give the police access toall of his phones. Mr Okorie rejected this, again repeating that he knew who stabbedhim, he was not confused and he showed photograph two in the montage to the policeas the person who stabbed him.[124] The defence closed to the jury on the basis that the photo montageidentification was very unsatisfactory. It was suggested that Mr Okorie had been ableto pick out Mr Mohamed in the montage because he had in his mind the pictureapparently sent to him by Jerry. It was also suggested that Mr Okorie was falselyaccusing the person whose photo was on his phone and that the police made noenquiries of Jerry to confirm or otherwise Mr Okorie's version of events.[125] In summing up, the Judge gave detailed and full directions on identification.Several times he referred to the defence contention that the identification ofMr Mohamed in the photo montage was flawed and unsafe because it was tainted byhaving looked at the photo on his phone shortly before identifying Mr Mohamed inthe photo montage. The Judge provided a warning of the need for special cautionbefore relying on identification evidence and the reasons why special caution wasnecessary in accordance with s 126 of the Evidence Act. The Judge discussed thiswith direct reference to matters in this case that were relevant to the jury's assessmentof whether Mr Okorie's identification was reliable. These matters included thatMr Okorie did not know Mr Mohamed and only had the photo sent by Jerry prior tothe incident from which to identify him at the time of the attack, the attack was in themiddle of the day, there was no evidence that Mr Okorie's view of the attacker wasobstructed, the whole incident for Mr Okorie would have been traumatic andMs Walik's description was a little different, and that Mr Okorie had seen thephotograph in his phone in hospital before the photo montage identification.38[126] We consider identification evidence from the formal procedure did not giverise to a risk of a miscarriage of justice. The evidence was admissible. It had someprobative value in confirming Mr Okorie's identification of the attacker as the personin the photograph sent to him by Jerry. The risk of prejudice through the identificationin the formal procedure being a recollection of the photograph rather than the attackerwas before the jury to assess from the defence cross-examination and closing addressand the Judge's summing up. The jury were also warned to be especially cautiousbefore relying on the identification evidence.[127] We dismiss this ground of appeal.Prison and deportee evidence[128] Mr Mohamed submits that the evidence that he had been to prison and wasdeported should not have been admitted. He says there was nothing to indicate thatthe attacker, as opposed to the debtor, had been deported. He also says that the policedid not have sufficient information from Mr Okorie within which to narrow his inquiry38 We also note that, twice during the cross-examination Mr Okorie volunteered that the person whostabbed him was the person who was behind Mr Hembrow in the courtroom. The Judge gave astrong direction explaining why this kind of identification was unreliable and that the jury was tocompletely disregard this evidence. There was no challenge to this aspect of the evidence and theJudge's directions about it.to deportees between 2018 and 2019. Finally, he says that what Mr Okorie told thepolice about this was double hearsay and not admissible to prove the truth of itscontents.[129] We do not accept this submission. The information that Mr Mohamed had beento prison and was deported was relied on as circumstantial evidence. It supportedMr Okorie's identification that his attacker was the person whose photo Jerry had sentto him and who was the same person as photo two in the photo montage (who it is notdisputed was Mr Mohamed). Mr Okorie understood that this person owed a debt toJerry, had been in prison in Australia and was recently deported. That understandingput Detective Constable Gath on inquiry as to who had been recently deported. Hisenquires revealed that Mr Mohamed had been in prison in Australia and had beendeported. This was proven through Detective Constable's enquires, not through theadmission of the text messages on Mr Okorie's phone. It was relevant to the jury'sassessment of whether Mr Mohamed was the attacker that he had been to prison andwas recently deported.[130] We accept there was the risk of some prejudice to Mr Mohamed from the juryknowing that he had been to prison and was deported from Australia. However, theprobative value of that information in supporting Mr Okorie's identificationoutweighed its prejudicial effect. If Mr Hembrow had sought to object to thisevidence, that objection would not have been upheld.[131] The limited use that could be made of the evidence was made clear to the juryby the Crown, Mr Hembrow and the trial judge. The Crown told the jury in openingthe case and in its closing address that this evidence was irrelevant except for thepurposes of identification and that it would be improper to use it in any other way.Mr Hembrow made the same point in his closing address. The trial judge carefullydirected the jury about this evidence in his summing up. He gave the usual directionthat the jury were to put aside prejudice in assessing the evidence. He specificallydirected the jury, in firm terms, both towards the beginning and towards the end of hissumming up, that the jury were not to reason that because Mr Mohamed was deportedfrom Australian for criminal offending he must be guilty of the charges.[132] We dismiss this ground of appeal.Items found at Buffon Street[133] Lastly, Mr Mohamed submits that evidence of money found at Mr Mohamed'saddress should not have been admitted at this trial. However, his submissions do notelaborate on this point. The relevance of this evidence was only that Jerry had askedMr Okorie to collect a debt from the person whose photo Jerry sent. It might be saidthat its relevance was somewhat peripheral and potentially prejudicial.[134] However, in our view a miscarriage of justice did not arise from this evidencebeing before the jury. The jury were already aware that the attacker had been to prisonin Australia and had been deported and that he owed a debt to Jerry that Mr Okoriehad been asked to collect. The evidence of cash at Mr Mohamed's house wasconsistent with this narrative and realistically did not give rise to any additionalprejudice. The defence submitted to the jury that the money found at the address wasirrelevant. As noted, the jury were properly directed not to use prejudice in assessingthe evidence and specifically directed not to do so in relation to the prison anddeportation evidence. Moreover, as we have earlier said, this was a very strong Crowncase. It relied on Mr Okorie's identification evidence, supported by the phone dataand the evidence that linked Mr Mohamed to the 8085 number. The Crown had noneed to place any reliance on the items found at Mr Mohamed's house and did not doso.[135] We dismiss this ground of appeal.Result[136] The appeal against conviction is dismissed.[137] We decline leave to adduce the evidence filed in support of the appeal to theextent that it is not within r 12A of the Court of Appeal (Criminal) Rules 2001 and wasnot credible.Solicitors:Addington Law Centre, Christchurch for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent