AHMED V R [2016] NZCA 252

AHMED V R [2016] NZCA 252 [14 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA81/2015[2016] NZCA 252BETWEEN FAISAL MOHAMED AHMEDApplicantAND THE QUEENRespondentHearing: 25 May 2016Court: Stevens, Woodhouse and Wylie JJCounsel: S K Green for ApplicantI R Murray for RespondentJudgment: 14 June 2016 at 11.30 amJUDGMENT OF THE COURTA Leave to bring the application for special leave to appeal out of time is granted.B The application for special leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, Mr Ahmed, seeks special leave to appeal convictions entered against him following an incident in September 2007. The convictions followed guilty pleas to two charges: male assaults female, contrary to s 194(b) of the Crimes Act 1961; and resisting the police, contrary to s 23(a) of the Summary Offences Act 1981.[2] On 18 December 2008, Mr Ahmed was sentenced by Judge McNaughton in the District Court at Auckland to 12 months' imprisonment.1 The Judge made a hybrid order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Ahmed be committed to hospital and detained as a special patient.[3] Mr Ahmed served his sentence and was released in 2010.[4] Mr Ahmed belatedly appealed his conviction and sentence. On 26 September 2014, Courtney J dismissed the appeal against conviction, but allowed his appeal against sentence.2 A conviction and a discharge were substituted in order to preserve Mr Ahmed's ability to apply for citizenship in this country.[5] Mr Ahmed then applied for leave to appeal Courtney J's decision under s 144of the Summary Proceedings Act 1957. Courtney J found that most of the grounds of appeal put forward either had already been considered on the previous appeal, or could not be considered because Mr Ahmed had not waived privilege.3 She held that none of the proposed grounds raised a question of law, let alone a question of law of such general or public importance as to warrant a second appeal.4 As such, the application for leave to appeal was declined.[6] Mr Ahmed now applies for special leave to bring a second appeal against his convictions. The application for special leave was filed out of time. Mr Ahmed says he did not apply in time because he was in hospital. The Crown does not oppose the application for an extension of time, and accepts it has not been prejudiced. On this basis, we grant leave to Mr Ahmed to bring the application seeking leave for a second appeal, notwithstanding that the application was filed out of time.Background[7] On 6 September 2007 Mr Ahmed was at the public counter of the Auckland Central Police Station watchhouse. He was behaving erratically and was asked to1 Police v Ahmed DC Auckland CRI-2008-004-27207, 18 December 2008.2 Ahmed v Police [2014] NZHC 2370.3 Ahmed v Police [2014] NZHC 2671.4 At [4].leave. He left but returned later in the day carrying a suitcase, demanding to be arrested and put in prison.[8] Mr Ahmed was approached in the waiting room area by Senior Sergeant Dianne Capper. She asked him to leave more than once, but he refused. She pickedup Mr Ahmed's bag to move it outside. He then attacked her without warning. He repeatedly punched her in the head. Senior Sergeant Capper managed to pin Mr Ahmed's arms by his side to prevent him from further punching her. Undeterred,he began to strike her about the face and head using his knee.[9] Other police officers were quick to intervene and they restrained Mr Ahmed. Mr Ahmed continued to struggle and fight with these police officers.[10] As a result of the attack, Senior Sergeant Capper received cuts to her mouth, damage to her teeth, bruising, swelling and soreness in her head area.[11] Mr Ahmed was arrested and placed into a cell, where he continued to behave aggressively. He offered no explanation for his actions.Proposed grounds of appeal[12] Mr Ahmed's proposed grounds of appeal are not particularly clear. In the application, which Mr Ahmed prepared himself, he baldly asserts that he was innocent of the charges, because he was acting in self-defence, and that the District Court Judge erred in convicting him. He further says that:(a) he was not adequately represented by counsel;(b) the District Court Judge was not made aware of the mitigating factors surrounding the charges;(c) there was inadequate disclosure by the police;(d) CCTV footage of the incident was inadmissible;(e) he did not resist the arrest;(f) there was no evidence of any injury to the Senior Sergeant;(g) the medical report was not accurate;(h) he pleaded guilty in the hope of getting a discharge without conviction; and(i) he was given leave to vacate his guilty pleas but was not informed of this.[13] Many of these grounds were considered and rejected by Courtney J when shedealt with Mr Ahmed's appeal against conviction and sentence.[14] Ms Green subsequently filed helpful written submissions on Mr Ahmed'sbehalf and she appeared before us when the appeal was heard.Relevant statutory provision[15] The application for leave to appeal falls to be determined under s 144 of the Summary Proceedings Act. This Court may grant leave if it is of the opinion that"the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision".5[16] This Court has emphasised that "neither the determination of what comprisesa question of law, nor the question whether that point of law raises any question ofgeneral or public importance, are to be diluted".6Analysis[17] First, we note that the matters raised by Mr Ahmed involve questions of fact, not questions of law.[18] Secondly, any proposed appeal question has to be tenable.7 In this regard we note:5 Summary Proceedings Act 1957, s 144(3).6 R v Slater [1997] 1 NZLR 211 (CA) at 215.7 Candy v Auckland City Council CA371/02, 25 February 2003 at [15].(a) The proposed appeals involve an incident that occurred almost a decade ago. Mr Ahmed faced an overwhelming police case. He pleaded guilty to the resulting charges. He was represented by counsel when he entered the pleas. Mr Ahmed was assessed by a consultant psychiatrist at the time. He was considered to be fit to plead. It is difficult to see that there is any realistic prospect of an appeal against the convictions succeeding.(b) To advance the ground of appeal suggesting that he was not adequately represented, Mr Ahmed would need to waive privilege. This was carefully explained to him by Courtney J. Despite this, no waiver has been granted. As a result there is no factual basis on which any appeal could succeed.There is nothing to suggest that any of the proposed grounds of appeal are tenable.[19] Thirdly, to the extent that any of the potential grounds of appeal could potentially raise issues of law, there is nothing to suggest that the proposed issues are of general or public importance, or that there is any other reason for leave to be granted. We observe that, as a result of the High Court appeal, Mr Ahmed received an extremely merciful and lenient sentence.[20] The application for special leave must fail.Result[21] Leave to bring the application for special leave to appeal out of time is granted, but the application for special leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent