HILDIID v THE NEW ZEALAND POLICE [2021] NZHC 1965

HILDIID v THE NEW ZEALAND POLICE [2021] NZHC 1965 [30 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2017-085-553[2021] NZHC 1965BETWEEN AHMED HIRS HILDIIDAppellant/ApplicantAND THE NEW ZEALAND POLICERespondentHearing: 21 July 2021Counsel: C J Tennet for the Appellant/ApplicantR E Harcourt for the RespondentJudgment: 30 July 2021JUDGMENT OF CULL J[1] In 19 September 2017, Mr Hildiid was found guilty of common assault1 andconvicted and fined $800, with additional court costs of $130 in the District Court atWellington.2 He now applies for leave to appeal out of time and to adduce freshevidence.Background of the offending[2] Because the appeal requires leave, being three and a half years after theconviction and sentence, no notes of evidence have yet been transcribed. The factsare therefore taken from the summary of facts, which the Judge ultimately accepted.[3] On 16 February 2017 at around 2 pm, the complainant was walking from hiscafé on Riddiford Street towards a dairy also located on this street. He was intending1 Crimes Act 1961, s 196; maximum penalty one-year imprisonment.2 New Zealand Police v Hildiid [2017] NZDC 21222.to replenish supplies for his café there. He then saw Mr Hildiid driving past him as hewas crossing the road. The complainant and Mr Hildiid were well known to eachother. They had a long history of ill-will toward each other and were not friends. Thecomplainant became concerned for his safety and quickly moved to the dairy, statingthat he intended to seek refuge there. He said the defendant parked his car at the busstop near the dairy and got out of the car, confronting the complainant on the footpath.When the complainant tried to get away, Mr Hildiid punched him on the back of thehead and then on his back, pursuing the complainant into the dairy. The police werecalled.[4] Mr Hildiid denies the offending. He said that he was driving along RiddifordStreet on 16 February 2017 with his windows down. He first saw the complainant onthe other side of the road, standing outside McDonalds. McDonalds is in the oppositedirection from the complainant's café and the dairy, to where the complainant said hewas heading. He said the complainant began yelling abuse at Mr Hildiid and gesturedat him. Mr Hildiid says he continued driving and pulled up at the dairy as he neededa new phone card. At that time, the complainant had run from McDonalds to the rearof Mr Hildiid's car and hit the car with his hands. They had an argument by the driver'sdoor about the complainant touching his car and approaching him. They proceeded tothe back of the car for a minute or so. Mr Hildiid says that he may have been gesturingwith his hand raised but did not touch the complainant or assault him. During thistime, he says that the complainant approached a truck driver, whose delivery truck wasin front of his vehicle. The complainant asked the truck driver to be his witness. Thetruck driver laughed and said leave me alone. The complainant then went into thedairy and Mr Hildiid drove off.The District Court Decision[5] The Judge found Mr Hildiid guilty of the assault. He said that this case wouldhave been challenging to decide, but for the eyewitness account of Mr Cocker.3[6] Mr Cocker was an employee of a hardware store in the building directlyadjacent to the dairy. He told the Court that he was outside at the time of the incident3 At [13].having a smoke, and standing approximately about the width of the courtroom awaywith an unobstructed view. Both the complainant and Mr Hildiid were unknown tohim. He described the "guy from the car'" (Mr Hildiid) getting out and abusing the"other fellow". The complainant was side on to him, while the defendant was facinghim. He said that Mr Hildiid was shouting at the complainant. The complainant hadhis hands up, apparently to try and protect himself and did not say much. Mr Cockerthen described Mr Hildiid swinging at the complainant at force and hitting him on theside of the head, causing the complainant to move backwards. He said the complainantlooked scared. Mr Cocker describes that Mr Hildiid desisted only when a solidly builtman got out of a van nearby.4[7] The Judge considered Mr Cocker to be a reliable witness who provided aconsistent account of events when cross examined.5 He noted Mr Hildiid's allegationsthat Mr Cocker was not an independent witness and that Mr Hildiid said that he sawthe complainant and Mr Cocker talking. He believed that they had colluded and werelying about what had happened. However, the Judge rejected this view, stating therewas no evidence to support this as a reasonable possibility. He said there was nothingin the way Mr Cocker gave his evidence that suggested "he was doing anything otherthan relating events as he honestly recalled them."6[8] The Judge concluded:7I accept that the account of events is not consistent entirely with first of all thecomplainant's affidavit that he swore in other proceedings and also of coursewith some of the evidence of Mr Cocker. But having considered that, I amsure on the evidence that the defendant did strike Mr Ahmed and that wasintentionally striking him on the head around the side or the back of his head.Whether he further assaulted him by striking him on the back I cannot be sure.However, the assault is proved to that extent, namely that he struck him on thehead, and so the case is proved.Mr Hildiid's applications[9] On 6 April 2021, Mr Hildiid filed a notice of application for leave to appealout of time and to adduce fresh evidence. His application is filed approximately three4 At [13]–16].5 At [17] and [20].6 At [20].7 At [22].and a half years after Mr Hildiid's conviction and sentence. It is advanced on thefollowing grounds:(a) the Judge erred in fact and in law in that inadequate reasons were givenfor the decision;(b) the Judge erred in drawing inferences which led to the guilt of theapplicant; and(c) there is a miscarriage of justice in that there is fresh evidence whichwould have altered the verdict and resulted in a dismissal of the charge.This fresh evidence includes a further eyewitness to the event, andfurther evidence impugning the independence of the prosecutionwitnesses.Fresh evidence application[10] Mr Hildiid's application is to adduce fresh evidence from Mr John Lyde, alicenced private investigator hired by the applicant to investigate the incident;Mr Yandall, another eye witness to the incident; and from the applicant and his partner,Ms Ali. The affidavits filed for this hearing address both trial issues and the freshevidence obtained by Mr Hildiid.[11] I deal first with the trial issues.Trial issues[12] There was an interpretation problem during the trial that Mr Hildiid saysnegatively impacted his ability to defend his charge. Although Somalian, theinterpreter had a different dialect to him. Both Ms Ali and Mr Hildiid recall thatMr Hildiid would make long statements to the interpreter, who would give just shortanswers in English. There was a particular difficulty in communicating to the Courtthe place where the complainant first interacted with him. Mr Hildiid was trying tosay "McDonalds", but the interpreter did not know what that was, and told the Judgeit was a takeaway shop. This was ultimately corrected by the prosecutor. However,this was dismissed quickly by the Judge, who, when advised that it was located beyondthe produced google map, said it was "quite a distance".[13] Mr Hildiid and Ms Ali both affirm that Mr Hildiid's previous counsel was toldabout the complainant's history, the GPS information available from Mr Hildiid's carand the challenge to Mr Cocker's independence. Counsel did not use or act on thisinformation.New eyewitness[14] Mr Hildiid discovered a further eyewitness to the incident — a Mr RalphYandall — whom he happened to run into by chance while changing his tyres outsidehis address on Adelaide Road. Mr Hildiid initially stopped Mr Yandall to borrow alug wrench. He records that he thought Mr Yandall looked familiar at the time andwas trying to recollect if he was the same person who witnessed the incident betweenhimself and the complainant. He asked Mr Yandall if he remembered him from anargument that took place in early 2017 on Riddiford Street involving another Africanmale. Mr Yandall said that he did remember him and in particular recalled Mr Hildiid'sblue car. Mr Hildiid told him that he had been charged and convicted of assault.Mr Yandall expressed his concern about this. He said he had a clear view of theargument and confirmed Mr Hildiid's recollection of events. This included his seeingthe truck in front of Mr Hildiid's car and the complainant speak to the truck driver.[15] Mr Yandall has provided an affirmation to this effect to the Court. This wassworn on 13 June 2018. Mr Yandall recalls walking south along Riddiford Street afterwork to get some food from Domino's pizza. He says this was around 3 pm. He hadjust crossed the intersection of Donald McLean Street and Riddiford Street, past theTAB. As he approached a bus shelter, he noticed a person walking fast-paced on theother side of the street, who then crossed the road and approached a blue car outsidethe dairy. The driver (Mr Hildiid) got out of the car and said, "why are you followingme". He says both men were standing on the road facing each other on the driver'sside. They began to speak angrily in another language. This proceeded onto thefootpath. The complainant then started walking towards a delivery truck that wasparked in front of the blue car, to where the truck driver was standing. Mr Hildiidremained behind on the footpath, observing the conversation, then walked back alongthe footpath towards the blue car, driving south. He said he did not see anyone elsewitnessing what was happening. He says he had a clear view of what happened thewhole time. The argument lasted approximately one minute and at no stage did he seeMr Hildiid strike the complainant.Location of the car[16] Mr Lyde records his investigation of the incident. He examined the GPS co-ordinates of Mr Hildiid's car and concluded that Mr Hildiid did not park where thecomplainant suggested he was parked. Rather than in the bus stop, as alleged, he wasparked in the marked car park directly outside the dairy. Mr Lyde also conducted ahistorical check on the bus stop outside the dairy through Metlink. He says Metlinkconfirmed that at the time of the incident, two buses would have stopped in that busstop which the complainant states was obstructed by Mr Hildiid's vehicle.[17] Mr Hildiid and Ms Ali record that counsel at the time of the trial knew thatMr Hildiid's car had a GPS system, but he did not check it or take that informationany further, nor question the complainant about it. They say that this is important inlight of the history of ill-will between the complainant and Mr Hildiid and provides abasis on which to challenge the complainant's credibility.Distance from McDonalds to the Dairy[18] During Mr Lyde's scene examination, he paced the distance between the firstpoint of contact alleged by Mr Hildiid (outside McDonalds) to the dairy. He indicatesin his affidavit that this distance was 160 paces.8 This is relevant to the Judge'sdismissal of Mr Hildiid's account of events in finding the distance betweenMcDonalds and the dairy "too far" for the complainant to run in pursuit of Mr Hildiid.8 In Mr Lyde's affidavit he says that this was a distance of 537 metres, but it appears from GoogleMaps that the distance is 220 metres from McDonalds to the dairy.The ongoing dispute between the complainant and Mr Hildiid[19] Mr Hildiid also records a long history of ill-will between the complainant andhimself. Although raised with his previous counsel, it was not pursued during the trial.The complainant had supported Mr Hildiid's ex-wife after their separation, includingher pursuit of an unfounded protection order. Mr Hildiid's ex-wife had complainedthat Mr Hildiid had made a throat-cutting gesture at her while in his vehicle.Mr Hildiid had a taxi camera in his private vehicle and was able to provide solidevidence that this complaint was false. He sought removal of the protection order.The complainant swore an affidavit saying that Mr Hildiid was lying, because he couldalter the timing on the vehicle's camera. This was rebutted by a letter from the camerasupplier, confirming the camera is NZTA approved, had to be installed by a specificmechanic, and that footage could not be edited in any way, nor accessed directly byMr Hildiid at all. The Judge issued a memorandum saying that whoever wascommitting perjury would face consequences. The protection order was dismissed, asMr Hildiid's ex-wife chose not to give evidence after receiving the memorandum. Thecomplainant was therefore not able to challenge the affidavit.[20] Mr Hildiid says that the harassment and lies from the complainant havecontinued since his 2017 conviction. He has started to wear a BodyCam vest. Thecomplainant has even randomly turned up at the places where Mr Hildiid takes hischildren to extra Math and English classes.Leave to appeal out of time[21] The Criminal Procedure Act provides a right of first appeal against bothconviction and sentence.9 The Act provides that a notice of appeal must be filed within20 working days after the date of the sentence for the conviction appealed against.10However, the Act also provides the Court discretion to extend the time for filing anotice of appeal.119 Criminal Procedure Act 2011, s 229(1).10 Sections 231(2) and 248(2).11 Sections 231(3) and 248(4).[22] In determining applications to extend the time for filing, the touchstone is theinterests of justice in the particular case.12 This requires the Court to balance the widerinterests of society in the finality of decisions against the interests of the individualapplicant.13 The factors relevant to that issue were summarised in R v Lee as follows:14 factors of relevance to the balancing test include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, the practical utility of anyremedy sought, the extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown.[23] The strongest factor favouring an extension of time to appeal is the merits ofthe appeal.15 However, any reasons for the delay are also a central consideration.16 Along delay can be a major factor weighing against leave, and where unexplained, canbe decisive.17 The Court will only entertain an appeal that is many years out of timein exceptional circumstances.18Strength of the Appeal[24] The merits of the appeal in this case depend largely on the fresh evidenceMr Hildiid seeks to admit. This is contained in the affidavits of the applicant, as wellas the affidavit of his partner, Ms Ali, and Mr John Lyde, the private investigator hiredin this case. Thus, the admissibility of the fresh evidence must also be determinedwhen making this assessment. The test for fresh evidence is that elucidated by thePrivy Council in R v Lundy.19 The Court of Appeal recently restated this test in R vJohnson:2012 R v Knight [1998] 1 NZLR 583 (CA) at 587, as cited recently by the Court of Appeal in Smith v R[2021] NZCA 169 at [5].13 At 587.14 R v Lee [2006] 3 NZLR 42 (CA) at [99].15 R v Lee, above n 14 at [108]; and Smith v R [2020] NZCA 221 at [3]–[4].16 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA at [14].17 R v Lee, above n 17, at [115].18 Butcher v R [2015] NZCA 102 at [7]. In Butcher, the application for an extension of time wasdeclined. The applicant had pleaded guilty to assaulting his wife on 7 September 2010 and didnot file an appeal against his conviction and sentence until 26 June 2014, almost four years later.It was held that there was no satisfactory explanation for the delay in filing the appeal and no basisfor criticising the performance of his lawyer.19 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120].20 Johnson v R [2021] NZCA 171 at [67].A person who appeals a conviction cannot as of right refer the applicant courtto new evidence. For new evidence which was not presented at trial to beadmitted on appeal, it must be:(a) credible;(b) fresh (that is, the evidence could not, with reasonable diligence, havebeen produced at trial); and(c) cogent (that is, the evidence, in combination with the other evidenceat trial, might reasonably have led to a finding of not guilty if it hadbeen called at the trial.[25] I will deal with the fresh evidence first.Fresh evidence[26] Mr Yandall provides a second eye-witness account of the assault. It clearlysatisfies the freshness and cogent branches of test. This account could not have beenproduced at trial as it was happenstance that Mr Hildiid found him after theDistrict Court hearing. The eye-witness who refutes that the complainant was everpunched may well have cast a reasonable doubt on the Judge's perception thatMr Hildiid committed the assault, particularly as the Judge acknowledged that thiswas a finely balanced case in which he relied heavily on an eyewitness to reach hisdetermination. Differing eyewitness accounts of the event may call into question thecredibility of Mr Cocker. Mr Hildiid attempted to raise this issue at trial, questioningMr Cocker's independence from the complainant, but the Judge dismissed thecredibility challenge.[27] The respondent accepts Mr Yandall's evidence was not obtained through afailure of diligence. However, Ms Harcourt submits that as the evidence was not fileduntil April 2021, the evidence does not fit the description of "freshness". I do notaccept this argument. The freshness test concerns whether something was available attrial or not. Any delay in filing that information will be assessed as a separate andgeneral consideration as to whether leave to appeal out of time should be granted.[28] The main ground of contention from the respondent is to Mr Yandall'scredibility. It is submitted that Mr Yandall's affirmation is internally inconsistent. Hefirst states that only the complainant was aggressive. However, he then allegedlycontradicts this, by stating that the pair were both "speaking angrily to each other",that there was ill feeling between the two, Mr Hildiid was telling the complainant to"do it", and that the applicant may have been gesturing with his hands raised.[29] Second, the respondent says Mr Yandall does not describe the complainanthitting the appellant's car in his affirmation. Mr Yandall, however, says he had a clearview of what happened. Ms Harcourt submits this is inconsistent and casts doubt onthe appellant's version of events. She says further that if Mr Yandall did not see thecomplainant hit the appellant's car, it is also probable he failed to observe a punch tothe head.[30] Finally, on the credibility issue, the respondent contends that Mr Yandall'sdescription of the complainant as "walking fast" is inconsistent with Mr Hildiid'saccount that the complainant was chasing him at speed.[31] Mr Yandall appears to be an independent and cogent witness. I consider thathis evidence raises the real likelihood that a miscarriage of justice may have occurred.Any issues regarding the inconsistency between the appellant's and Mr Yandall'saccount of events does not mean Mr Yandall is not credible. His account should betested at trial.[32] Turning to Mr Lyde's evidence, Mr Hildiid submits that the evidence ofmeasurements, maps and GPS co-ordinates are relevant, given the determination bythe Judge of the distance to the dairy. The respondent objects, saying this evidence isirrelevant to the matter in dispute as both Mr Hildiid and the complainants' agree thatthe confrontation took place outside Mr Hildiid's car which was by the dairy. Therespondent says its exact location is not important.[33] I am unable to uphold the respondent's submission. This case was finelybalanced (but for the evidence of Mr Cocker), with each party maintaining his ownaccount of the incident. The case turns on the credibility of the complainant,particularly in light of the history between the complainant and Mr Hildiid. Further,verifying the distance between McDonald's and the dairy where the altercation tookplace may well support Mr Hildiid's assertion that the complainant pursued him.[34] I consider the evidence satisfies both the freshness and cogent threshold. Whilethis evidence existed at the time of the trial, Mr Hildiid has gone to some lengths toobtain it. He has hired a private investigator to conduct an intensive sceneexamination. His evidence of the scene is both relevant and credible.[35] The respondent submits that the evidence provided to Mr Lyde by Metlink ishearsay. No statement has been provided from Metlink personnel, nor records of thediscussion between Mr Lyde and Metlink personnel have been filed. Although therespondent doubt the likelihood Metlink would have access to data that shows theprecise time of the precise location of buses on a date two years earlier, this evidencecan be challenged at trial. The affidavit of Mr Lyde was provided to this Court on afresh evidence application to indicate the nature of the potential errors and the meritsof an appeal. Whether this evidence includes hearsay statements or is unreliable willbe matters for the trial Judge to rule on.[36] For completeness, I reject Mr Hildiid's submission that there is fresh evidencerelating to the bias of the eyewitness that arises from Mr Lyde's interview withMr Cocker. It is questionable how a witness dining at a café once or twice establishesa relationship with the owner/complainant but this may be tested at trial. The issue ofMr Cocker's independence will be a matter for a new trial, where Mr Cocker can beproperly cross-examined on what he told Mr Lyde.[37] The fresh evidence of Mr Yandall, if accepted, may call into question theaccuracy or veracity of Mr Cocker's account. It could potentially be said that MrYandall's evidence that the complainant reached out to other witnesses, asking themto back up his story, negatively impacts the credibility of Mr Cocker. However, I donot accept there is any other fresh evidence directly corresponding to Mr Cocker'salleged bias.The merits[38] In any appeal, the Court must be satisfied that the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice has occurred.A miscarriage of justice is any error, irregularity or occurrence in or in relation to oraffecting the trial that created a real risk of affecting the trial outcome or resulting inan unfair trial or nullity.21[39] I consider there is merit in Mr Hildiid's appeal. In particular, the interpretationissues detailed in Mr Hildiid and Ms Ali's affidavits raise fair trial issues that need tobe addressed, namely, whether Mr Hildiid's ability to present a defence wascompromised.22 The fresh evidence of Mr Yandall as well as scene evidence ofMr Lyde, particularly when taken in the context of the ongoing nature of the disputebetween the complainant and the applicant, potentially cast doubt on the complainant'sveracity and version of events. This weighs in Mr Hildiid's favour.Reasons for Delay[40] Regarding the delay in filing the appeal, both parties take polarised positions.The respondent submits that the evidence of the eyewitness Mr Yandall was receivedin 2018. This was nearly three years ago. The delay cannot be justified. Further, thechallenges made by Mr Hildiid regarding the competence of trial counsel and thealleged inadequacy of the interpretation service at trial are matters that arose at trial.Therefore, there was no reason for a significant delay in filing a notice of appeal.[41] Mr Tennet submits there are valid reasons for the delay. Until receiving thefresh evidence of Mr Yandall, he submits there was no firm grounds for the appeal.Following this, Mr Hildiid changed lawyers and sought to hire a private investigator,for which he had to save money before doing so. The private investigator was engagedin February 2019 and his affidavit of evidence sworn on 13 August 2019.[42] The following delays were a result of Covid-19. In December 2019,Mr Hildiid went on a planned trip to Ethiopa. He was advised not to file his appealbefore he left, as he was to be out of the country for a significant period of four and ahalf months and would not be contactable by the court. However, the Covid-19pandemic and the shutting of transit borders prevented him from returning to21 Criminal Procedure Act 2011, s 232.22 New Zealand Bill of Rights Act 1990, s 25(e).New Zealand until almost 11 months after his departure. He arrived back inNew Zealand on 7 November 2020 and came out of isolation on 21 November 2020.[43] There was then a delay between November and April 2021, when the notice ofappeal was filed. Mr Tennet submits that the further delay should also not be countedagainst Mr Hildiid. Mr Hildiid was struggling to adjust back to life in New Zealandfollowing a longer than expected trip away, and Counsel were out of town on trial.The applications were filed in the absence of Counsel.[44] I accept the reasons for the delay. Mr Hildiid should not be penalised for takingsteps to strengthen any chance of a successful appeal before filing the application.Mr Hildiid did not stop in his pursuit of fresh evidence after discovering a furthereyewitness. He took steps to hire a private investigator. Ms Ali, in her affirmationrecords even further efforts that have be taken to support his case, although to no avail.This has included contacting the fish and chip shop where Mr Hildiid says the truckdriver spoken to by the complainant during the incident was making deliveries, in anattempt to track down the truck driver. I accept the delays that occurred following theobtaining of Mr Lyde's affidavit were out of his control. Although a lengthy delay,there is a reasonable explanation for it and it should not be determinative against theapplication for leave to appeal.Other factors[45] In terms of other factors relevant to this assessment, the applicant submits thatthis was a minor charge. Any stress on witnesses will be minimal. There is also astrong interest in the applicant's appeal rights, particularly when considering the longhistory of malice between the applicant and the complainant. It is also advanced thatthe importance of finality in proceedings should be lessened for lower charges.[46] The respondent submits that if the application to file out of time is granted, theadministration of justice, and namely the goal of achieving finality, will suffer.Further, any appeal will cause prejudice to the respondent. The significant delay willhave had an impact on the ability of witnesses to remember the events that took place.It is said that this was highlighted in Mr Lyde's affidavit, who, when interviewing thewitness Mr Cocker, said he was "unable to remember anything really".[47] There is the risk that witnesses will not recall the event accurately. However,as the merits of the appeal and the explanation for delay weigh in Mr Hildiid's favour,I do not accept that this risk is greater than the fair trial risks that may result if theapplication for leave to appeal was declined.Conclusion[48] Weighing up all these factors on balance, I consider that it is in the interests ofjustice for the substantive appeal to be heard. The combination of trial issues, thenature of the ongoing dispute between the complainant and the applicant, and the freshevidence which potentially calls into question the truth of the initial eyewitness andbolsters Mr Hildiid's version of events (the scene evidence and the affirmation ofMr Yandall) could mean the verdict reached at trial was the wrong one. This shouldbe explored in an appeal. There is an adequate explanation for Mr Hildiid's delay infiling the notice of appeal and the issue of delay should not prevent a potentialmiscarriage of justice being corrected.Result[49] I grant Mr Hildiid leave to appeal his conviction out of time.[50] I grant the application to adduce fresh evidence of Mr Lyde regarding the GPSco-ordinates of Mr Hildiid's car, measurements of distances collated during hisintensive scene examination and the historic Metlink information (subject to any trialJudge's ruling), as well as the fresh evidence of Mr Yandall.Cull JSolicitors:Justice Chambers, Petone for the AppellantCrown Solicitor's Office, Wellington for the Respondent