Khan v R [2016] NZCA 165 (3 May 2016)

Last Updated: 11 May 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA598/2015 [2016] NZCA 165
BETWEEN	SHER AFZAL KHAN Applicants
AND	THE QUEEN Respondent
CA599/2015
BETWEEN	YOUMNA KHAN Applicant
AND	THE QUEEN Respondent

Hearing:	7 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	Sher Afzal Khan in person for Applicants A J Ewing for Respondent
Judgment:	3 May 2016 at 11.30 am

JUDGMENT OF THE COURT

The applications for leave to bring second appeals are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] The applicants (the Khans), have already unsuccessfully appealed their convictions to this Court. The Court is treating the Khans’ notices of appeal as applications for leave to bring second appeals to this Court. Stevens J so directed in a minute dated 17 November 2015.^[1]
[2] The applicants therefore face the challenge of persuading this Court that “a substantial miscarriage of justice would result if fundamental error in procedure is not corrected”.^[2] There is, in this Court’s judgment in Wong v R, an explanation of what that involves in a situation such as the present one, where first appeals have been dismissed following a full hearing. Essentially, this Court will reopen its decision only in exceptional circumstances when the interests of justice require and where there is no effective alternative remedy available.^[3]
[3] In R v Smith and the other Taito cases, the appellant had not been afforded a genuine right of appeal, as guaranteed by s 25(h) of the New Zealand Bill of Rights Act 1990.^[4] The procedures this Court had followed in dealing with Mr Smith’s appeal were “contrary to fundamental conceptions of fairness and justice”.^[5]
[4] By contrast, there was no such failing in Wong. Mr Wong had been accorded a proper appeal in this Court: he was represented by counsel who filed extensive submissions on his behalf, the Court heard oral argument and it delivered a reasoned decision in writing addressing the various grounds raised. Mr Wong had unsuccessfully sought leave from the Supreme Court to appeal against that decision.^[6] This Court accepted the Crown’s submission that Mr Wong was simply seeking to raise a further ground of appeal that could have been raised in his earlier appeal. It was not a case where Mr Wong sought to reopen this Court’s earlier decision. Rather, he sought a second appeal to this Court.^[7] His application for leave to bring a second appeal to this Court was accordingly dismissed.
[5] The present applicants are in the same position as was Mr Wong. It is for that reason they face the jurisdictional threshold set out at the start of [2] above.

Background

Factual

[6] The applicant Mrs Khan fell and broke her arm on 17 June 1993.
[7] Mrs Khan applied to the Accident Compensation Corporation (ACC) for earningsrelated accident compensation. The relevant forms were filled out by the applicant Mr Khan and signed by Mrs Khan. The forms stated that Mrs Khan was employed by Ideal Leather Manufacture^[8] Ltd (Ideal) earning $500 per week.
[8] On the basis of the information in the claim forms, Mrs Khan was paid earningsrelated weekly compensation of $400 gross (80 per cent of $500) from 25 June 1993 until 17 April 1996, when the compensation was terminated. She received a gross total of $59,136.45 compensation.
[9] ACC terminated Mrs Khan’s compensation because investigations had revealed that Mrs Khan had not filed any tax returns for the relevant years, nor had Ideal filed PAYE returns supporting the earnings Mrs Khan had claimed she received from Ideal.
[10] The Khans were arrested on 18 April 1996 and each charged with two counts of using a document with intent to defraud.^[9] The fraudulent documents were the application for entitlement and the supporting earnings certificate.
[11] Shortly after the Khans were arrested, Mrs Khan sought a review of ACC’s decision to terminate her earnings-related compensation. Because the review was not carried out within the statutory time frame, it was deemed to have been determined in Mrs Khan’s favour.^[10] That decision was advised to the applicant’s then counsel, Mr Keith Reid, in a letter dated 6 May 1997. But, in that same letter, ACC advised that it would again cease paying Mrs Khan earnings-related compensation from 10 September 1996 (three months from the date Mrs Khan had lodged her review application) because it was not satisfied that she was entitled to it.^[11]
[12] The Khans were tried before Judge Nicholson QC and a jury in the Auckland District Court. They were represented by Mr Cagney. The trial lasted some three weeks. Eighteen witnesses gave evidence, including five called by the defence. Both Mr Khan and Mrs Khan gave evidence.
[13] The jury found both Mr and Mrs Khan guilty on both charges.
[14] Judge Nicholson sentenced Mr Khan to six months imprisonment and imposed a fine of $1,000 on Mrs Khan.

Procedural

[15] Both Mr and Mrs Khan appealed their convictions and Mr Khan also appealed his sentence.
[16] Mr Khan applied for bail pending the determination of his appeal. That application was dismissed by this Court in a judgment delivered on 22 October 1997.^[12] At the end of that judgment the Court fixed 24 November 1997 for the hearing of the appeal.
[17] The appeals were not heard until 3 March 1998. At the hearing, counsel for the Khans, Mr Cassidy, advised the Court that Mr Khan did not wish to pursue his appeal against sentence.
[18] The Khans’ appeals against conviction were dismissed in a judgment of the Court delivered on 9 March 1998.^[13] In summary, the grounds of appeal advanced by the Khans and this Court’s decision on them were:

• (a) Prejudicial evidence: In the course of his evidence, a Crown witness had made various comments impugning Mr Khan’s character and had accused Mr Khan of forging the witness’s signature.

This Court considered Judge Nicholson had adequately dealt with the impugning comments and forgery allegation elicited by the prosecutor: the Judge had immediately ruled that evidence out and directed the jury to ignore it because Mr Khan was not facing a charge of forgery. All the other evidence challenged by the Khans had been adduced by defence counsel in the course of his very lengthy crossexamination of the witness for the understandable purpose of challenging the witness’s credibility. Although the witness is not named in this Court’s judgment, in the course of the hearing before us, Mr Khan accepted it was Mr Mohammed Aslam Khan. Mr Aslam Khan had worked for the applicants until he resigned following various disagreements. There was major animosity between the applicants and Mr Aslam Khan at the time of the trial. This Court concluded: “We see nothing in this ground of appeal.”^[14]

(b) Prosecutorial misconduct: The Khans complained about an answer the prosecutor had elicited when re-examining a witness who was an ACC fraud examiner. The prosecutor had the witness correct an answer he had given the Court, stating that the investigation into the trial matters had started on 6 October 1994. The impugned questions and answers were:

[Counsel for the defendants] also asked you about the date the investigation started and you mentioned a date 6 October 1994? ... Yes sir.

Can you confirm that that was in relation to another issue? ...Yes it was.

And the investigation concerning what is before the Court started at a later time? ... Yes it did.

The Court did not consider this clarification amounted to prosecutorial misconduct, and did not see it as causing significant prejudice in the course of the long trial.

(c) Unfair summing-up: In his closing, defence counsel put it to the jury that the most telling part of the two critical documents was the inclusion of Mrs Khan’s Inland Revenue Department (IRD) number on the earnings certificate. Counsel suggested to the jury that this was inconsistent with an intention to deceive. At the end of his summingup the Judge commented to the jury to the effect that, had the Crown had the opportunity to respond to the point about inclusion of the IRD number, it might well have said that omission of the IRD number would be suspicious. Probably the first thing the ACC would have done was to contact the employer advising that the IRD number was required. The Judge pointed out to the jury “Even to get off the ground [in respect of the compensation application] the correct number just had to be given”.

It was common ground that defence counsel had immediately objected to the Judge’s comment. Having considered the evidence, the closings and the summingup, this Court saw no problem with the Judge’s comment. The Judge was entitled to comment in order to create a balance on this aspect of the trial, and no unfair prejudice to the defence had resulted. This point also failed.

(d) Mrs Khan’s conviction on count 2: This Court’s judgment records that Mr Cassidy, who appeared for the Khans on their appeal, “responsibly accepted that there was sufficient evidence for a reasonable jury to convict both appellants”. From that concession Mr Cassidy excluded Mrs Khan’s conviction on count 2 — fraudulent “use” of the earnings certificate. Although Mr Khan had given evidence that he would definitely have spoken to Mrs Khan at the time he completed that certificate, Mrs Khan gave evidence that she had never seen it and was not aware it had been filled out. When confronted with Mr Khan’s evidence, Mrs Khan replied:

Yeh. ... He told me he was filling in the form for the ACC but he didn't tell me what it is all about. I haven't seen it before.

This Court considered it was for the jury who had seen and heard both the Khans give evidence to find what the factual position was. The Court also referred to the relationship between the two key documents: both had to be completed before compensation could be claimed.

A second aspect of this ground of appeal was a challenge to the way the Judge directed the jury in respect of count 2 against Mrs Khan. The Court set out the relevant part of the Crown case and of the summingup, and concluded the latter put the matter fairly and squarely to the jury. So this final ground of appeal was also dismissed.

Grounds for seeking leave to bring second appeals

[19] These are variously contained in affidavits signed (though not properly sworn or affirmed) by Mr and Mrs Khan in Australia on 4 February 2016, in the applicants’ written submission filed on 29 February and in the oral submissions Mr Khan made to us at the hearing on 7 April.
[20] Having considered all this material, we are satisfied that it comes nowhere near meeting the high threshold spelt out at the start of [2] above.
[21] Nothing the Khans have raised suggests any risk that their first appeals to this Court were irregular with the result that a substantial miscarriage of justice would result if second appeals were not permitted to correct the position.
[22] Indeed, nothing new is raised by the Khans. Rather, as Ms Ewing submits for the Crown, the matters advanced by the Khans are all attempts to reopen matters canvassed in their trial and on the first appeal.
[23] We do not intend going into each matter the Khans have raised. It suffices to give five examples, selected at random. First, Mr Khan submitted that if two other people were regarded as employees of Ideal then Mrs Khan should also be treated as having been employed by Ideal. When we inquired of Mr Khan, he confirmed that the two people he was referring to were Ms Miriam Bormans and Ms Nirmala Mishra. Both those people were Crown witnesses in the trial. Their employment with Ideal, and the contentious issue of whether Mrs Khan was similarly employed, and if so to what extent and on what terms, was thoroughly canvassed at the trial.
[24] Secondly, Mr Khan submitted that all the blame for the situation that had led to the Khans’ arrest, trial and conviction, must lie with the ACC. That was because the ACC did not investigate Mrs Khan’s claim to earnings-related compensation until 1996. Among the Crown witnesses at the trial were:

• (a) Three ACC officers, who gave evidence about Mrs Khan’s compensation claim and the ACC’s investigation of it.
• (b) Two private investigators contracted to the ACC, who gave evidence about their investigation of the claim for the ACC.
• (c) One investigating officer with the IRD, who gave evidence about the IRD’s part in the ACC investigation of the claim.

[25] The Khans thus had every opportunity, through cross-examination of these witnesses, to lay an evidentiary foundation for a submission to the jury that they were criminally blameless, and that the fault all lay with the ACC. Quite apart from that, this point is meritless. It is tantamount to a submission that a person who makes a fraudulent claim should not be found criminally responsible if the fraud is not discovered and terminated by an early investigation.
[26] Thirdly, in his affidavit sworn 4 February 2016 Mr Khan states:

3. I was not the Director or shareholder in Ideal Leather manufacturer Ltd.
4. I was not the owner of my wife self-employed business she was T/A Youmna Khan Genuine Manufacturer, which name was change in to Ideal leather Manufacturer in July 1992.
5. In November 2014, I requested ACC to provide us copy of the ACC file and notes under the official information Act
6. We received in May 2014, Martin Williscroft ACC examining officer 2 April 1996 5 pages Memorandum and copy of the letter he sent to Inland Revenue^[[15]]
7. Mr Williscroft advise the head office and the Inland Revenue that I am the sole director of the Ideal leather manufacturer Ltd which was the false information
8. Thus Mr Williscroft memorandum and letter we came to know why we were convicted
9. Therefore I travel to New Zealand and engaged Mr Mark Ryan to deal with the matter.
10. Since the new evidence came in to my knowledge in 2014, I acted therefore there has been no delay from us.

[27] Perhaps only two points need to be made about this. First, at page 245 of the notes of evidence taken at the Khans’ trial in the District Court, there is this exchange between the prosecutor and Mr Khan:

17. At the time you filled out Exhibit 2 [you] were still a Director of Ideal Leather Manufacture Ltd weren’t you ?
1. Yes.

[Exhibit 2 was the application for entitlement dated 13 December 1993, produced by the witness Ms Lesley Parker.]

[28] That answer was given by Mr Khan in the context of being cross-examined as to why he had written on the claim form that Mrs Khan had been employed by Ideal from 1 April 1992 when the company was not incorporated until 28 August 1992 — some five months later.
[29] The second point is that we reject the suggestion that “new evidence” came to Mr Khan’s knowledge in 2014. Mr Williscroft was a Crown witness in the trial. He was an examining officer with the ACC. He gave evidence, and was cross-examined at considerable length, about the ACC’s investigation of Mrs Khan’s compensation claim and about the contents of the ACC’s investigation file.
[30] Further, the Khans sued Mr Keith Reid, who acted for them from May 1996 until October 1997 in respect of some, but not all, aspects of their dealings with the ACC. In a judgment he delivered on 30 October 2009, Allan J held the Khans’ claim against Mr Reid was statute barred and struck it out.^[16] The judgment records in detail some of Mr Reid’s communications with the ACC, including the letter (referred to in [11] above) the ACC wrote to Mr Reid on 6 May 1997 referring to the ACC’s decision of 19 April 1996 to cease paying Mrs Khan compensation. The judgment also sets out a letter Mr Reid wrote to the Khans on 21 May 1997 enclosing a copy of the ACC’s 6 May 1997 letter. In that letter Mr Reid refers to Mrs Khan’s application for review of the ACC’s decision to cease compensation being “hampered by the lack of what I call ‘hard evidence’ – wage books, PAYE details, tax certificates etc[17]”.¹⁷ We are quite unable to accept that the Khans were not aware until 2014 of the reasons why ACC decided to cease paying Mrs Khan earnings-related compensation.
[31] Fourthly, the applicants’ written submissions assert that Mr Aslam Khan was the sole owner and director of Ideal. It criticises defence counsel and the trial Judge for failing to direct the jury that this was the position and asserts that Mr Aslam Khan perjured himself in his evidence. As will already be clear, the applicant Mr Khan accepted under cross-examination that he was a director of Ideal at the time he filled out the two critical documents. Further, and again as already mentioned, Mr Aslam Khan was a Crown witness. He was cross-examined at very considerable length and in minute detail. There was every opportunity to put this to Mr Aslam Khan.
[32] Fifthly, and finally, the applicants’ submissions launch an attack on Mr Cassidy, who represented them on their first appeal. They allege he was drinking before the hearing (“3/4 glass of alcohol over lunch at a hotel near the court”). They criticise counsel for accepting “under the influence of alcohol that there was sufficient evidence jury to convict us”. Three points about this. The Khans state in their written submissions that Mr Khan travelled to Wellington with Mr Cassidy to attend the hearing of the first appeal in this Court, which was on 3 March 1998. If Mr Khan did not agree with the concession Mr Cassidy made, he could and should have raised it with Mr Cassidy at the time. It is simply too late to raise this point 18 years later. Second, this Court’s judgment on the first appeal records that counsel for the Khans “responsibly accepted that there was sufficient evidence for a reasonable jury to convict both appellants”.^[18] In other words, Mr Cassidy’s concession accorded with this Court’s view that there was a sufficient evidentiary basis for the convictions under appeal. Third, the Khans unsuccessfully sued Mr Cassidy in the High Court. That proceeding was struck out, including on the ground that the Khans’ allegation of negligence was doomed to fail.^[19]
[33] We reiterate: the Khans have come nowhere near meeting the high threshold for leave to bring second appeals, spelt out at the start of [2] above.
[34] We add two observations. First, the Khans’ affidavits and submissions show an unwillingness to accept that they had a full and fair trial, and an equally full and fair appeal hearing. They now need to come to terms with that reality.
[35] Second, the Khans’ affidavits and submissions, and the two civil proceedings they have unsuccessfully brought, disclose a propensity to blame everybody but themselves for their criminal offending. They unsuccessfully sued the barrister who appeared for them on their first appeal. They unsuccessfully sought to blame the lawyer retained to act for them in their dealings with the ACC. And now, before us, they have sought to lay all the blame on the ACC. None of that reflects any credit on them. They should desist.

Result

[36] The applications for leave to bring second appeals are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Khan v R CA598/2015 and CA599/2015, 17 November 2015.

^[2] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [36].

^[3] Wong v R [2011] NZCA 563 at [12] and [13](b).

^[4] R v Smith, above n 2; and see R v Taito [2003] UKPC 15, [2003] 3 NZLR 577.

^[5] R v Smith, above n 2, at [25]; and R v Taito, above n 4, at [20].

^[6] Wong v R [2010] NZSC 14.

^[7] Wong v R, above n 3, at [14] and [16].

^[8] At several points in past proceedings, as well as the matter presently before this Court, the word “Manufacture” has been erroneously replaced by “Manufacturer” and “Manufacturing”. But the New Zealand Companies Register is unequivocal.

^[9] This is a crime under s 229A of the Crimes Act 1961.

^[10] By operation of s 90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992.

^[11] Pursuant to s 73(1) of the Accident Rehabilitation and Compensation Insurance Act. See Khan v Reid HC Auckland CIV-2009-404-1721, 30 October 2009 at [7].

^[12] R v Khan CA426/97, 22 October 1997.

^[13] R v Khan CA409/97 and CA416/97, 9 March 1998.

^[14] At 5.

^[15] This material was not annexed to Mr Khan’s affidavit and is not before this Court.

^[16] Khan v Reid, above n 11.

^[17] At [8].

^[18] R v Khan, above n 12, at 2.

^[19] “Even had the court not described the concession as responsible, the making of the concession would not go nearly far enough to raise a tenable case in negligence.”: Khan v Cassidy HC Auckland CIV-2009-404-1724, 11 September 2009 at [23].