MOHAMMED V R [2016] NZCA 254

MOHAMMED V R [2016] NZCA 254 [14 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA433/2015[2016] NZCA 254BETWEEN AIYAZ MOHAMMEDAppellantAND THE QUEENRespondentHearing: 24 May 2016Court: Stevens, Woodhouse and Wylie JJCounsel: R P Chaudhry for AppellantB D Tantrum and P J Arnold for RespondentJudgment: 14 June 2016 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] In March 2015 the appellant, Mr Mohammed, was found guilty following a trial by jury presided over by Judge Treston in the Manukau District Court of:(a) nine charges of offering to supply methamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1975;(b) seven charges of possessing methamphetamine for supply, contrary to s 6(1)(f); and(c) six charges of supplying methamphetamine, contrary to s 6(1)(c).[2] Mr Mohammed was subsequently sentenced by Judge Andrée Wiltens tothree years' imprisonment, to be served concurrently, on all charges.1[3] Mr Mohammed appeals his convictions on three grounds. In summary, he asserts that:(a) Judge Treston erred in refusing an application for an adjournment;(b) the actions of his trial counsel resulted in a miscarriage of justice; and(c) Judge Treston erred in his summing-up.All other matters raised in an amended notice of appeal filed on 16 November 2015 were abandoned.[4] Mr Mohammed also appeals his sentence. He says that the sentence imposed was manifestly excessive.[5] The notice of appeal was filed out of time. The Crown was neutral on the grant of an extension. Although the delay was not adequately explained, the Crown suffered no prejudice. We therefore grant the application for an extension of time to appeal.The verdicts[6] The jury found that Mr Mohammed was a low level supplier of methamphetamine. The offending occurred between 31 October 2012 and 5 February 2013. Mr Mohammed offered to supply 1.8 grams of methamphetamine, possessed for supply a further 1.2 grams and supplied 1 gram.1 R v Mohammed [2015] NZDC 11679.[7] The Crown case was based on text messages sent and received on a particular number associated with an identified cellphone. It was not disputed at trial that the text messages referred to methamphetamine dealing. The question for the jury was whether or not Mr Mohammed, or one of his employees, a Mr Narayan, had sent and received the text messages.[8] The Crown adduced evidence that:(a) the cellphone was found beside Mr Mohammed's bed when the policesearched his home;(b) Mr Mohammed initially admitted to the police that the cellphone was his;(c) Mr Mohammed said that he had had the cellphone for a period of some six or seven months, including the period over which the offending took place;(d) Mr Mohammed's wife said that she had given the cellphone to him, and that she frequently contacted him on the cellphone;(e) Mr Narayan said that the cellphone belonged to Mr Mohammed;(f) Mr Narayan denied using the cellphone to send or receive the relevant text messages;(g) the cellphone was used to send a text message on Mr Mohammed'sbirthday. The person who sent the message said in the message that it was his birthday; and(h) a number of the text messages referred to Mr Mohammed by name.The jury must have accepted some or all of this evidence and concluded that it was Mr Mohammed who sent the relevant text messages on the cellphone.Appeal against conviction[9] Against this background we deal with each of the grounds of appeal advanced by Mr Chaudhry on behalf of Mr Mohammed.Did Judge Treston err in refusing an adjournment?[10] In order to understand this ground of appeal it is necessary to traverse briefly the progress of this matter through the District Court.[11] The offending occurred between 31 October 2012 and 5 February 2013. The indictment was laid in mid 2013. The matter was first called before the District Court on 30 August 2013. Since then Mr Mohammed has been represented by six different counsel. The details are as follows:Name of counsel Dates retained as counsel for Mr MohammedMr Koya 30 August 2013 – 1 May 2014Mr Wiles 9 May 2014 – 21 May 2014Mr Hesketh 5 June 2014 – 21 January 2015Ms Wilkinson-Smith 22 January 2015 – 17 February 2015Mr Wintour 17 February 2015 – 6 March 2015Mr Kahn 27 February 2015 – 2 March 2015[12] We note as follows:(a) Mr Koya advised that he was no longer instructed when the matter was called before the District Court on 1 May 2014. As a result the matter was initially stood down. When the matter was called afresh, Mr Wiles appeared. He said that he had not been properly instructed, but that he had been asked to act and that he needed to confirm that legal aid would be granted. Judge Andrée Wiltens adjourned the proceedings to 7 May 2014 so that this could be confirmed.(b) On 7 May 2014 a Ms Singh appeared on instruction from Mr Wiles. She confirmed that Mr Wiles would be ready for trial. The matter wasset down for trial (as a standby fixture) for five to six days to commence on 16 June 2014.(c) There was a further call-over on 5 June 2014. Mr Hesketh then appeared for Mr Mohammed. He advised that Mr Wiles would be seeking leave to withdraw. Mr Hesketh sought an adjournment. This application was declined by Judge Ryan. The Judge directed that the matter would proceed, as a standby fixture, on 16 June 2014.2(d) Pre-trial applications were then filed and the trial could not proceed on 16 June 2014. Rather, the pre-trial applications were heard and a ruling was made on them by Judge Andrée Wiltens.3(e) Sentence indications were then sought and given. They were not accepted and, on 19 November 2014, the trial was set down to commence on 2 March 2015.(f) It subsequently transpired that Mr Hesketh was unable to continue acting. He withdrew and Ms Wilkinson-Smith was appointed in his stead by the Legal Services Agency. Unfortunately she also was unable to continue acting for Mr Mohammed.(g) On 17 February 2015 Mr Wintour was appointed to act for Mr Mohammed. Mr Wintour immediately contacted the Public Defence Service and uplifted the file. It had been well prepared. All pre-trial matters had been dealt with. There were briefs on the file for Mr Mohammed. Mr Wintour telephoned Mr Mohammed and arranged to meet him at the Manukau District Court for a call-over on 19 February 2015. Mr Mohammed initially failed to attend, but eventually they met for approximately 20 minutes.(h) Mr Wintour arranged to meet Mr Mohammed again at his chambers on 23 February 2015. Mr Mohammed failed to keep that2 R v Mohammed DC Manukau CRI-2013-092-2477, 5 June 2014 (Minute of Judge Ryan).3 Mohammed v R DC Manukau CRI-2013-092-2477, 14 October 2014.appointment. An appointment was rearranged for the following day. Again, Mr Mohammed failed to appear.(i) On 25 February 2015 Mr Mohammed telephoned Mr Wintour and said that he wanted an adjournment. Shortly thereafter, Mr Mohammed contacted Mr Wintour again, and said that he was too busy to meet him that week.(j) Eventually Mr Mohammed agreed to meet Mr Wintour on 26 February 2015. This meeting took place. It lasted approximately an hour and a half to two hours. Mr Wintour was able to take full instructions from Mr Mohammed. Over the following weekend, Mr Wintour read and prepared the file for trial.(k) On 2 March 2015 Mr Mohammed failed to surrender his bail to the District Court at 9 am as directed. Rather, he surrendered his bail to the High Court. The trial was due to start before Judge Treston at 10 am. At 10 am, Mr Mohammed arrived at the District Court with a solicitor, a Mr Kahn, who advised Mr Wintour that he had been instructed. Mr Wintour advised the Court of this. Mr Kahn, appearing for Mr Mohammed, indicated to Judge Treston that he had received instructions from Mr Mohammed the previous Friday, and that he had been led to believe that the matter was for call-over only on 2 March 2015. He requested an adjournment.[13] Judge Treston declined an adjournment.4 He took the view that Mr Mohammed was frustrating the trial process. He recorded that Mr Wintour had been appointed as counsel and that he had briefed Mr Mohammed. He noted that Mr Wintour was familiar with the file and ready to proceed, either as counsel, or as an amicus to assist the Court. After making enquiry he recorded that Mr Kahn was not in a position to act on behalf of Mr Mohammed. Having decided that the trial would proceed, the Judge advised Mr Mohammed that it was for him to decide whether he wanted Mr Wintour to continue to act as his counsel. The Judge told4 R v Mohammed [2015] NZDC 3016 (Ruling 1).Mr Mohammed that if he did not want Mr Wintour to act, he would have to act for himself, and that Mr Wintour would be appointed as an amicus.[14] Mr Mohammed chose to proceed with Mr Wintour acting on his behalf.[15] Mr Kahn then applied again for an adjournment. He argued that Mr Mohammed had not had sufficient opportunity to give Mr Wintour full instructions. Judge Treston declined this second application.5 He noted the factual sequence we have summarised above. He recorded that he also had given Mr Mohammed the benefit of "a further hour plus" to speak to Mr Wintour and to give him any additional instructions.[16] Mr Mohammed now argues that the Judge erred in refusing an adjournment.[17] The law is clear. Judge Treston had a discretion whether or not to grant the adjournments requested.6 The applications for the adjournment fell to be considered on the facts. The fact that a refusal of the adjournments could have resulted in the withdrawal of counsel leaving Mr Mohammed unrepresented was not, by itself, a ground for the adjournments. Judge Treston was entitled to have regard to whether Mr Mohammed was seeking to manipulate the system by his uncooperative behaviour, and to the public interest in the prompt and efficient administration of justice. The fundamental requirement was that Mr Mohammed received a fair trial.7[18] This Court will not lightly disturb a decision not to adjourn a trial, taken in the exercise of the available discretion. It will not interfere unless the Judge concerned has made an error in principle, considered irrelevant matters, failed to consider relevant matters, or was plainly wrong.8[19] Mr Chaudhry did not point to any specific error made by Judge Treston in declining the adjournment. Rather, he broadly submitted that an adjournment was necessary in order to ensure a fair trial.5 R v Mohammed [2015] NZDC 3022 (Ruling 2).6 District Courts Act 1947, s 28E (now repealed).7 R v Hill [2004] 2 NZLR 145 (CA) at [42].8 Kacem v Bashier [2010] NZSC 112, [2011] 2 NZLR 1 at [32].[20] In our view, Judge Treston did not err in declining the two requests for an adjournment and there was no effect on Mr Mohammed's right to a fair trial.[21] It was clearly open to Judge Treston to conclude that Mr Mohammed was seeking to frustrate the trial. The numerous changes in counsel attest to this. Mr Mohammed has since asserted that he was not responsible for those changes. It is noteworthy, however, that he has proffered no explanation in respect of three of the withdrawals (Mr Koya, Mr Wiles and Ms Wilkinson-Smith). Further, his reluctance to engage with Mr Wintour points to his intent to frustrate the trial process, as does his last minute attempt to instruct Mr Kahn and his advice to Mr Kahn that the matter was only for call-over on 2 March 2015. Mr Mohammed must have been aware that the matter was for trial as he had spent some time giving instructions to Mr Wintour. The fact that Mr Mohammed surrendered his bail at the wrong Court on the morning of the trial also points to his intent to frustrate the trial process.[22] Mr Mohammed was not left unrepresented. Mr Wintour was fully briefed and ready to proceed. He ended up representing Mr Mohammed. Mr Mohammed wished to engage Mr Kahn but the right to instruct counsel of choice is not absolute. The primary question is whether Mr Mohammed received a fair trial.9 We are confident that this occurred. Mr Mohammed received competent and thorough legal representation from counsel who was fully prepared and able to proceed. Judge Treston was aware that Mr Wintour was recently appointed. He accommodated this by granting ample time during the course of the trial for Mr Wintour where necessary to take further instructions from his client. There was no prejudice to Mr Mohammed, and it cannot be said that an unfair trial eventuatedfrom Judge Treston's refusals to adjourn the trial.[23] This ground of appeal must fail.Did Mr Wintour's actions as trial counsel result in a miscarriage of justice?[24] Mr Chaudhry submitted that there are four questions to be answered:9 Clark v Registrar of Manukau District Court [2012] NZCA 193, (2012) 9 HRNZ 498 at [95].(a) Should Mr Wintour have acted when he was the subject of a complaint by Mr Mohammed to the Legal Services Agency dated 19 February 2015?(b) Should Mr Wintour have continued to act after Mr Mohammed instructed Mr Kahn to act for him?(c) Why did Mr Wintour not act on Mr Mohammed's instructions, inparticular to seek an adjournment of the trial given that he had only recently been appointed as trial counsel?(d) Was Mr Mohammed made aware of his right not to give evidence at the trial?[25] Mr Wintour gave evidence before us. We considered that he was a reliable and credible witness. His evidence was intrinsically plausible. It was consistent with the limited documentary material available. Where there was any conflict of evidence between Mr Wintour and the contents of Mr Mohammed's affidavits, wehave preferred Mr Wintour's evidence.[26] There are two answers to the first question posed by Mr Chaudhry:(a) The letter Mr Mohammed wrote to the Legal Services Agency dated 19 February 2015 was annexed to an affidavit from Mr Mohammed'sfather. There is no reference to Mr Wintour in the letter. Read objectively, it is not a letter of complaint about Mr Wintour. Rather, the letter comprises a catalogue of various misadventures Mr Mohammed asserts he has suffered. There is an oblique reference to Ms Wilkinson-Smith, and an allegation that she had failed to comply with the terms and conditions of her appointment. There is no reference in the letter to Mr Wintour, and no complaint about him.(b) Mr Wintour stated that he was unaware of the letter to the Legal Services Agency, both when he interviewed Mr Mohammed on 26 February 2015, and throughout the trial.[27] There is no factual basis for the criticism made of Mr Wintour in this regard.[28] We turn to the second issue posed. Mr Wintour did not know that Mr Mohammed had instructed Mr Kahn to act for him on 26 February 2015. Mr Wintour only became aware of this on the morning of the trial when Mr Mohammed arrived at Court with Mr Kahn. Mr Wintour quite properly informed Judge Treston. Mr Kahn then applied for an adjournment, twice, on behalf of Mr Mohammed. When those adjournments were declined, Mr Kahn left the Court. At that stage, and faced with the possibility of appearing on his own behalf, Mr Mohammed reinstructed Mr Wintour, and the trial proceeded with Mr Wintour acting as counsel. Again this ground of complaint must fail.[29] It was next submitted that Mr Wintour did not act on Mr Mohammed'sinstructions, in particular to seek an adjournment of the proceedings. Mr Wintour in giving evidence agreed that he did not advance a third application for an adjournment on the morning of 2 March 2015. He did not think that he was then instructed to do so. It is clear that Mr Mohammed did say that he wanted an adjournment on 25 February 2015. As it transpired, two applications for an adjournment were advanced by Mr Kahn. Even if Mr Wintour had been instructed to apply for an adjournment for a third time, there would have been no point in advancing such an application. It is inconceivable that any third application would have been granted. There was no proper basis for it. Mr Wintour had obtained Mr Mohammed's instructions; he had all he needed to defend the case. The file had been well prepared by the Public Defence Service. The trial did not involve matters of any great complexity. Indeed, it was a straightforward trial, involving one simple issue. Mr Wintour is an officer of the Court, and he could not responsibly have suggested to the Court that he or his client needed an adjournment because he was not properly instructed or because he had not had time to fully prepare matters.[30] Mr Chaudhry suggested that support for his argument that Mr Wintour was not fully instructed can be found in the fact that Mr Wintour did not cross-examine one of the Crown witnesses – Mr Narayan – on two statements made by defence witnesses. Mr Mohammed had advised that he wanted to call defence evidence. Mr Wintour wanted to meet and brief these witnesses prior to trial. Mr Mohammed did not make them available or finalise his instructions in this regard. The final instructions were only given after Mr Narayan had completed his evidence. Responsibility for the failure to introduce Mr Wintour to the defence witnesses lies squarely with Mr Mohammed. Mr Wintour ran the defence that Mr Mohammed had equipped him to run.10 Further, and in any event, the matters that should have been put to Mr Narayan, if Mr Wintour had been introduced to the witnesses in a timely fashion by Mr Mohammed, were of little significance in the context of the trial as a whole.[31] Mr Chaudhry also complains that Mr Mohammed was not fully informed by Mr Wintour of his right not to give evidence.[32] Mr Mohammed filed an initial affidavit complaining of Mr Wintour'sconduct as trial counsel on 10 November 2015. He there asserted that Mr Wintour did not properly advise him of his right not to give evidence. Mr Wintour filed an affidavit in response, in which he deposed that, at the conclusion of the Crown case, he advised Mr Mohammed of his rights to give and/or call evidence. He deposed that Mr Mohammed decided to give evidence against his advice. Mr Wintour annexed to his affidavit a file note recording Mr Mohammed's instructions. That filenote reads as follows:I, Aiyaz Mohammed, have been advised by my counsel, N. Wintour, not to give evidence in person at my trial. I refuse to take this advice and instruct that I intend to give evidence.The document was signed.[33] Mr Wintour gave similar evidence before us. He was cross-examined in relation to it and he did not resile from his position.10 Hall v R [2015] NZCA 403 at [94].[34] Mr Mohammed did not respond in person to Mr Wintour's affidavit. Rather,his father filed an affidavit on his behalf, in which he said that when he went to visit his son in prison, his son said words to the effect that he did not write or sign the document. The father also says that his son asked him to lodge a complaint with the police and the New Zealand Law Society.[35] The father's statement regarding Mr Mohammed's assertions is clearlyhearsay.11 It is inadmissible. Further, we consider that the bald assertion that Mr Mohammed did not sign the document is scurrilous and self serving. It is made without any evidential support. If an assertion of that sort were to be responsibly made, we would expect that it should be supported by an affidavit from a document examiner, who could advise whether or not the signature on the document and Mr Mohammed's signature on other documents come from the same person. We therefore reject Mr Mohammed's (hearsay) assertion that he did not sign thedocument instructing he wanted to give evidence at trial.[36] Where the conduct of trial counsel is put in issue, the ultimate question to be decided is whether justice has miscarried.12 Here there is no bona fide complaint against Mr Wintour. We do not consider that he misconducted himself in any way. Indeed, we consider that his conduct of the trial was thorough, professional and competent. It cannot be said that there was any miscarriage of justice.Judge Treston's summing-up[37] In his written submissions Mr Chaudhry challenged a number of paragraphsin Judge Treston's summing-up. In the course of his oral submissions he modified these submissions. He initially challenged paragraphs [3] and [4] in the summing-up. In his oral submissions he accepted that those paragraphs were"benign". He challenged paragraphs [27] and [36] in his written submissions, butagain conceded in his oral submission that those paragraphs did not contain any error or misdirection. His challenge came down to two sentences in the summing-up –one in paragraph [62] and the other in paragraph [65].11 Evidence Act 2006, s 4, definition of "hearsay statement".12 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]; R v Scurrah CA159/06, 12 September 2006 at [13]–[14]; R v Hill [2015] NZCA 403 at [8]–[12].[38] Those paragraphs read as follows:So the Crown immediately said the issue is was it the accused's phone anddid he use it? And its submission, that is the Crown, said that it was overwhelming evidence that it was his phone. And the way that the evidence has developed, the Crown case is probably even stronger than it first was.Everybody seems to like to talk in headings and the Crown, itself, said,"Right, there are three headings. General matters," and reminded you aboutthe onus or burden of proof, using your common sense and whether or not the evidence has a ring of truth. Second, why you should reject the accusedcase and thirdly why you should accept the Crown's case. They are general matters that I have just referred to, really, but the accused case about Mr Narayan being the dealer does not really ring true.(Emphasis added.)[39] Mr Chaudhry submitted that the sentences in italics were effectively a direction by the Judge to the jury that it should accept that the prosecution case was more tenable than the defence case.[40] Read in context, it is clear that the Judge was doing no more than summingup the Crown's closing. Both of the challenged sentences in the summing-up mirror,even to the extent of using the same words, Crown counsel's closing address to thejury.[41] The Judge started his summary of the Crown closing at paragraph [60] and concluded at paragraph [75]. At paragraph [76] he started to summarise the defenceclosing, starting with the words "[o]n the other hand". Seen in the round, thecomments, which in isolation appear inappropriate, were simply part of the Judge'ssummary of the Crown case. In seeking to attribute more to them, Mr Chaudhry has taken them out of context.[42] The Judge summed up the Crown and defence cases. There was no lack of balance and the summing-up was not unfair.[43] Again this ground of appeal must fail.Sentence appeal[44] Mr Chaudhry submitted that the sentence of three years imposed by Judge Andrée Wiltens was harsh as it was based on possession for supply and supply of only 2.2 grams of methamphetamine. He also argued that the sentence failed to take into account mitigating factors personal to Mr Mohammed, and that, as a result, the sentence was manifestly excessive.[45] We do not accept these submissions.[46] The guideline sentence for offending of this kind is the judgment of this Court in R v Fatu.13 Mr Mohammed's offending fell within band one identified inthat decision. Band one applies to cases involving the low level supply of methamphetamine – that is, less than 5 grams. A sentence of two to four years'imprisonment is appropriate in such cases.[47] We consider that Judge Andrée Wiltens took a benevolent and pragmatic approach in assessing the amount of methamphetamine involved. He took the view that, given there were convictions for offering to supply, possession for supply and actual supply, there was a risk of double counting were he to add up all of the methamphetamine involved and sentence on the basis that the offending involved 4 grams of methamphetamine.14 Rather, he took as the lead offences the possession for supply convictions and the supply convictions, which involved a total of 2.2 grams of methamphetamine. This approach assisted Mr Mohammed.[48] The sentence imposed for the offending in issue was clearly within range –arguably at the lower end of the available range.[49] Personal mitigating factors will generally play little or no part in sentencing for serious drug related offending, unless they are relevant either because they contributed in some way to the offending or on purely compassionate grounds.1513 R v Fatu [2006] 2 NZLR 72 (CA).14 R v Mohammed, above n 1, at [2].15 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612; R v Wang [2014] NZCA 409.[50] Mr Mohammed did not have an unblemished criminal record, although he had no previous convictions for drug related offending. The pre-sentence report recorded that he continued to deny his offending and to blame Mr Wintour. He was considered to have an offending-supportive attitude and a lack of insight into his offending. His risk of reoffending was considered to be moderate. No personal circumstances that could possibly be taken into account in sentencing were raised in the report. Nor did Mr Chaudhry put before us any personal mitigating factors that might have been relevant.[51] The sentence imposed was not manifestly excessive. The appeal against sentence is dismissed.Result[52] The application for an extension of time to appeal is granted.[53] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent