THE QUEEN v REAZ MAHUB KHAN [2002] NZCA 253 (1 October 2002)

IN THE court of appeal of new zealand

ca83/02

THE QUEEN

V

REAZ MAHUB KHAN

Hearing:	25 September 2002
Coram:	Blanchard J Morris J Chambers J
Appearances:	L O Smith for Appellant A E Kiernan for Crown
Judgment:	1 October 2002

judgment of the court delivered by blanchard j

[1] Mr Khan appeals against his conviction after trial in the High Court at Auckland on a charge of attempted murder of his wife and against the sentence of eight years imprisonment imposed upon him.

[2] On the morning of 17 April 2001 the victim was vacuuming in the lounge of the family home when Mr Khan approached her from behind and pulled her by the hair into the kitchen.He stabbed her repeatedly in the upper chest and back area with a kitchen knife which had a blade approximately 2cm long.The victim managed to pull the knife away from the appellant at one stage but he retrieved it and continued with his attack.She was able to escape along with the couple's two young children, in front of whom the attack had occurred.They went to a neighbouring property.The appellant pursued his wife there but desisted from further attacking her when confronted by a neighbour.

[3] The victim received nine wounds, some of which, around the hands and the ear, were superficial.But two blows penetrated deep into her back.One deflected from her rib into her lung.The medical evidence was that that blow was potentially life threatening.Considerable force must have been used in the stabbings.

[4] The victim underwent surgery but has made a full recovery.

[5] Family members reported that for about three months prior to the incident Mr Khan had been acting abnormally.After he was arrested and charged he was remanded to the Mason Clinic and a series of psychiatric reports was made on him.The consensus was that Mr Khan was suffering from an acute psychotic condition but no psychiatrist was prepared to support the position that he was legally insane at the time of the stabbing.He was fit to stand trial.

[6] At the trial the defence called evidence from family members concerning the appellant's abnormal behaviour in the weeks before the attack on his wife.In a pre-trial ruling under s344A of the Crimes Act 1961 a Judge had refused to admit opinion evidence from psychiatrists concerning that behaviour.The application was renewed immediately before the trial.An order was sought that the defence could adduce evidence about Mr Khan's admission to the Mason Clinic and his treatment there together with improvements observed by family members since he began treatment for psychosis.

[7] In a brief judgment on that application the trial Judge noted that the ultimate issue for the jury was likely to be the appellant's intent.The Judge could see no basis upon which proposed the evidence would be relevant to that question.It would not assist the jury in any way.The application was dismissed.

[8] Mr Khan's wife declined to give evidence but it is not disputed that there was ample proof that it was Mr Khan who was the attacker.He in fact, in giving evidence in his own defence, implausibly claimed that he had not stabbed her.He said he remembered hearing her scream when he was in the bathroom.He had come into the kitchen and she was lying with a knife "at her back".He said he pulled the knife "off her" and helped her get up and that she had then walked out of the house.

[9] It was unsurprising given the weight of evidence that the jury did not accept this story.On appeal against the conviction Mrs Smith, for the appellant, made no attempt to say that Mr Khan was not the attacker.The appeal concerned his intent.In particular, it was Mrs Smith's submission that the defence should have been allowed to call psychiatric evidence concerning the mental disorder said to have been suffered by Mr Khan at the time of the incident.It was said that this was relevant to the question of intent.

[10] Mrs Smith was, however, unable to explain to the Court how, even if evidence concerning intent were otherwise admissible, it could have assisted the jury.There was no plea of insanity or automatism.The appellant had to be taken to have understood the nature and quality of his act and that it was morally wrong.There is nothing in the material provided to the Court on the basis of which a psychiatrist could support an opinion that in repeatedly stabbing his wife in the manner which we have described the appellant was not intent on killing her.His reasons for forming that intention would be beside the point, whether or not they were influenced by mental disorder.

[11] As Mrs Smith conceded, what was being suggested on the appellant's behalf was that with the assistance of psychiatric evidence it might have been possible to show that the accused acted with diminished responsibility.But that of course does not provide a defence in New Zealand law, although it may be very relevant to the appropriate sentence.

[12] The appeal against conviction is accordingly dismissed.

[13] The appeal against sentence is primarily based on the submission that the Judge gave insufficient weight to the mitigating factor of Mr Khan's disordered state of mind at the time of the offending.It was suggested that the Judge also erred in coming to the conclusion that Mr Khan continues to present a substantial risk of re-offending when he leaves prison, especially in relation to his wife.The Judge recorded in his sentencing notes that one of the aggravating features of the attack was that the appellant showed no remorse for his actions towards her.

[14] We have decided to adjourn the sentence appeal so that an updated psychiatric report on the appellant can be obtained from a psychiatrist at the Regional Forensic Psychiatry Services of Waitemata District Health Board.That person can be either Doctor McCormick, who provided a report to the sentencing Judge on 19 March 2002 - which is the most recent report available to us - or such other psychiatrist as Regional Forensic Psychiatry Services may think more appropriate as having had more recent oversight of the appellant.The person preparing the report should, among other things, have considered the evidence given at trial by the appellant and the family members and the report should include:

[a] An assessment of the appellant's current mental condition.

[b] An indication of the extent to which that condition has been improved by medication.

[c] An assessment of the appellant's current attitude towards his wife and extent to which the appellant accepts responsibility for attacking his wife.

[d] An assessment of the risk likely to be posed to the wife and to the community generally upon the appellant's future release from prison.

[15] In view of the pending retirement of Morris J the report should be available within a month.Counsel should liaise to make appropriate arrangements.

[16] The appeal against sentence is adjourned accordingly.

Solicitors:

Lorraine Smith, Auckland for Appellant

Crown Law Office, Wellington