The Queen v Ghabachi [2007] NZCA 285 (11 July 2007)

Last Updated: 21 August 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA357/06

[2007] NZCA285

THE QUEEN

v

MOJTABA GHABACHI

Hearing: 26 June 2007

Court: William Young P, Randerson and Panckhurst JJ

Counsel: P T Eastwood for Appellant
K Raftery for Crown

Judgment: 11 July 2007 at 11am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

An appeal based on new evidence

[1] The appellant was convicted upon a charge of injuring with intent to injure following a trial in the District Court at Auckland. Subsequently, he was sentenced to nine months imprisonment, with leave to apply for home detention.
[2] The appeal against conviction is based solely upon the availability of additional evidence from a psychiatrist concerning the appellant’s mental health at the time relevant to the charge.
[3] The defence at trial was that Mr Ghabachi assaulted the complainant in self-defence. The jury was satisfied that self-defence did not avail the appellant.
[4] Where an appeal is advanced on the ground of the discovery of fresh evidence two broad issues fall for consideration. First, is the requirement that the evidence be fresh in the sense that it was not available at the time of the trial. The second inquiry is whether the evidence is credible and cogent, in the sense that if given along with the other evidence in the case the jury might reasonably have been led to return a different verdict. These principles are well-settled; see the cases gathered in R v Bain [2004] 1 NZLR 638 (CA) at paras [18]-[20].
[5] In this case we find it unnecessary to dwell upon the first requirement, that the evidence was not available at the time of the trial. As to that issue, we hold doubts, but for reasons which will become apparent the preferable course is to assess the cogency of the intended evidence.

The new evidence

[6] A psychiatric report has been obtained from Dr Rul Mendel. The report confirms that Mr Ghabachi is 30 years of age, was born in Iran and came to New Zealand as a refugee about 11 years ago. Since then he has struggled to adjust in a new culture, including encountering difficulties in obtaining satisfactory employment.
[7] The report contains an account obtained from Mr Ghabachi in relation to the incident which led to his conviction. This, it appears, is substantially consistent with the account given by the appellant to the jury. Under the heading “Psychological/Psychiatric Factors of Significance” Dr Mendel expresses this opinion:

Mr Ghabachi has been suffering from a depressive disorder for a considerable time by the time of the incident. That by itself would render him more vulnerable to stress, more sensitive to any perceived threats and invasion of his privacy. There is also evidence that Mr Ghabachi is suffering from Post Traumatic Stress Disorder as a result of a previous assault and a bad experience he had in a previous relationship.

[8] The report also contains a conclusion in which the psychiatrist expresses the view that the appellant did act in self-defence to a perceived threat on the day of the incident. As Mr Raftery rightly observed, evidence of this kind is plainly inadmissible, but the witness’s evidence concerning psychological and psychiatric factors would be admissible.

Could the intended evidence reasonably have led the jury to return a different verdict?

[9] We of course accept that the opinion evidence of Dr Mendel is credible, but whether it is cogent in the required sense is another matter. To assess that issue it is necessary to refer to at least the essence of the respective cases.

The Crown case

[10] The relevant incident occurred on 3 March 2005. The appellant was the tenant of a house on the Ellerslie Panmure Highway. He commenced to rent the property in late January 2005. The property manager who arranged the lease gave evidence, including that Mr Ghabachi was told that his landlord intended to carry out work on the house in the near future. For that reason the rental was reduced by $60 to $250 per week.
[11] On 3 March 2005 the complainant Mr Udy went to the address in the course of his employment. Mr Udy is a builder aged 61 years at the time. His intention was to deliver some building materials to the site in anticipation of undertaking work there. Mr Ghabachi was at home. He had not been forewarned of Mr Udy’s arrival.
[12] At sentencing the trial Judge, Judge Kiernan, summarised the effect of the Crown case in these words:

[4] The jury heard of an exchange of words between you and him. You came out of the house and the Crown case was that you were verbally abusive and aggressive to Mr Udy. You were excitable. You were concerned at what you saw happening. The jury also heard that Mr Udy swore at you and he told them he decided to leave.

[5] His evidence was that he got into his vehicle and he started to drive off the property. You ran in front of his vehicle. You smashed your fist on the bonnet and you tried to get the driver’s door open. Mr Udy tried to drive on. You held onto his tee-shirt through the open window and then punched him to the head area through the window. He said you punched him four times. He stopped the vehicle in the middle of the road. He suffered injuries to his head, his face and his arms and as you know he needed medical treatment for them. He had to have stitches in his face for a wound above his eye and he had bruising and black eyes.

[13] The Crown also called an independent witness. She was a passerby who was waiting to turn off a side road onto the Ellersie Panmure Highway. She heard yelling. This attracted her attention to two men who were walking towards Mr Udy’s vehicle. She described the younger man as yelling at the older one and pushing him. The older person got into his truck and was assaulted through the window. The truck commenced to move, but the assault continued, with the older man leaning over to the passenger’s side with his hands held up in a defensive position. Eventually the older man stopped his truck, got out and the witness supplied contact details to Mr Udy so that she was available as a witness, if required.
[14] There was also medical evidence as to the complainant’s injuries. These included a nasty laceration above the left eye and other more superficial facial injuries, including two black eyes.

The defence case

[15] We again adopt the expedient of using the trial Judge’s summary from her sentencing remarks:

[6] Your defence at your trial was one of self-defence. You used reasonable force to defend yourself, and also you said to the jury you had no intention to cause injury. Your case was that you were the victim of an unprovoked attack by Mr Udy. He hit you first, you said, outside the vehicle and you were only defending yourself and then trying to stop him leaving before the police, whom you had called, arrived. It was your evidence that he hit your face with the driver’s door and threw a punch at you and then you punched him to defend yourself.

[16] Mr Ghabachi adduced evidence concerning injuries he sustained on the day. These were minor compared to those of Mr Udy. In addition, the police evidence confirmed that there had been a struggle at the time of Mr Ghabachi’s arrest, which event tended to compromise interpretation of the injury evidence.

Discussion

[17] The intended new evidence would be relevant to a jury’s assessment of the circumstances on the day as Mr Ghabachi believed them to be. As Mr Eastwood stressed in the course of his submissions, Dr Mendel’s evidence would have supplied a basis for the jury to better evaluate the situation from the appellant’s perspective. Thereby, the jury may have gained the appreciation that in the appellant’s mind Mr Udy’s arrival was an invasion of his privacy and, in light of the bad language directed towards him, that Mr Udy posed a threat to the appellant’s wellbeing.
[18] Even so, we are not persuaded that the proposed new evidence could reasonably have led the jury to return a different verdict. This was a strong Crown case. Although Mr Udy accepted that he had directed some offensive comments to Mr Ghabachi, he denied that he had acted in a physically aggressive manner, much less violently towards the appellant. His evidence was materially confirmed by the evidence of the independent witness, who not only observed the incident as it unfolded, but then took the trouble to park her car and provide personal details to Mr Udy so that she might be called as a witness. This woman also observed at first hand the injuries suffered by the complainant.
[19] In these circumstances we think it unrealistic to suggest that the evidence of Dr Mendel could have influenced the verdict. The essential and determinative issue in the case was which of two inconsistent accounts of the incident was to be believed. The jury obviously accepted the complainant’s version of events. At that point a guilty verdict became inevitable.
[20] We cannot conceive that, in the circumstances of this case, the proposed new evidence could have influenced a different outcome in relation to the credibility issue. The evidence did not lend substance to Mr Ghabachi’s account, indeed it may have had the reverse effect, by providing to the jury a basis to appreciate why the appellant acted in the manner which Mr Udy described.
[21] For these reasons the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington