Kazemi v Police [2014] NZHC 2505 (13 October 2014)

Last Updated: 3 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000009 [2014] NZHC 2505

BETWEEN	MOHAMMAD SADEGH KAZEMI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 September 2014
Appearances:	G Burns for Appellant E L Woolley and A R Longdill for Respondent
Judgment:	13 October 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 13 October 2014 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date.............................}

KAZEMI v NZ POLICE [2014] NZHC 2505 [13 October 2014]

Introduction

[1] Following a defended hearing before Judge Wade in the North Shore District Court on 9 and 18 September 2013,¹ Mohammad Kazemi was found guilty on one charge of indecently assaulting a female over the age of 16.² He was sentenced to

12 months’ supervision and 150 hours of community work. He appeals his conviction on the ground that there was a miscarriage of justice resulting from errors by his counsel in the preparation and conduct of his case.

[2] In relation to the preparation the complaint is that no signed brief was obtained and evidence that may have assisted the defence was not obtained. In relation to the conduct of the trial it is said that counsel was not properly prepared and failed to lead evidence and cross-examine on crucial issues.

[3] Where an appeal is brought on the basis of trial counsel error the question that determines the appeal is whether there was a miscarriage of justice, not merely whether there was an error. In Sungsawan v R Tipping J described the correct approach:³

It follows that, when counsel’s conduct is said to have given rise to a miscarriage of justice, the Court must ask itself first, whether something can fairly be said to have gone wrong with the process of justice in the way the appellant was represent at the trial. If that is so, the Court must then ask itself whether what has gone wrong has deprived the appellant of the reasonable possibility of a not guilty or more favourable verdict. If the answer is no, there will be no real risk of an unsafe verdict and thus no miscarriage of justice. If the answer is yes, there will have been a miscarriage of justice, irrespective of whether what has gone wrong amounts to negligence on counsel’s part. It may sometimes be convenient to start with the second question. If the appellant has not been deprived of the reasonable possibility of a more favourable verdict, that will ordinarily be the end of the matter.

It is appropriate to emphasise that this approach should not be regarded as giving the appellant the ability to speculate on what the outcome might have been if different tactical or other decisions had been made or different advice had been given by counsel as to the content or presentation of the defence. Nor should the appellant be able to rely on speculative points to impugn counsel’s advice which he has accepted or acquiesced in at the time. The appellant must establish a real as opposed to a speculative risk of an unsafe verdict and must show that the impugned conduct of counsel has clearly

¹ _{NZ Police v Kazemi DC North Shore, CRI-2012-044-004914, 18 September 2013.}

² _{Crimes Act 1961, s 135.}

³ Sungsawan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [115] – [116].

caused that risk. If, as in the case, there was potential for both advantage and disadvantage to the appellant in a course which he claims counsel should have taken, the reality of the risk to the verdict must be assessed with both those aspects in mind.

The alleged offending

[4] The alleged offending occurred in August 2012. Mr Kazemi was 48 years old. He had previously worked as a painter but because of an injury to his back had decided to retrain as a barber and was attending a hairdressing course. The complainant was a 16-year-old girl attending the same course.

[5] Mr Kazemi gave the complainant a ride home one rainy night. She said he offered her the lift home. He said she asked for a lift. She said he put her bag in the back of his van and forced her to sit in the middle seat next to him, not on the seat with the seat belt. He said he put her bag in the front and she sat next to him because the seat was dirty. The complainant said that after a time he stopped the car and put his hand between her legs at her thighs and kissed her on the cheek and neck. She turned her head away to avoid being kissed on the lips.

[6] Because the complainant was worried she also pressed the redial function on her phone to call her boyfriend so that he could hear what was going on. She said that they then resumed the journey. Mr Kazemi was saying things such as he had had a dream about her, that he knew she felt the same way and he was rubbing her leg as he was saying this, asking her to keep it a secret. When they reached her address he did not want to let her go and held her seat belt but she managed to get out, reaching over and grabbing her bag from the back. She was visibly upset when she reached her house.

Preparation of the case

Lack of a written brief of evidence

[7] Mr Kazemi initially consulted Mr Moroney. According to Mr Moroney there were three or four meetings before the hearing. At the first meeting another solicitor in the same firm, Mr Utting was also present. His function appeared to be to type a brief of evidence for Mr Kazemi based on the discussion that was taking place

between him and Mr Moroney. Mr Kazemi said in evidence that he had not known that Mr Utting was a lawyer until the day of the trial.

[8] The brief of evidence that Mr Utting typed was sent to Mr Kazemi. A copy was provided to me without objection from the Crown. It is reasonably lengthy and appears to have followed the complainant’s brief of evidence (which I do not have). It includes Mr Kazemi’s statements that:

(a) About 20 minutes before the complainant asked for a lift home Mr Kazemi had asked the teacher if he could go because he had neck pain and a headache but that she insisted he stayed because there was something she wanted to talk to him about;

(b) The front seat was a mess and dirty. Mr Kazemi told the complainant that she could sit in the middle he did not put any bags in the back because the van was a painting van. The bags (his and the complainant’s) both went in the front and the complainant was sitting with her legs tucked over her bag;

(c) He was tired, grumpy, in pain;

(d) The van did not have power steering and he could not drive it with one hand;

(e) At a point on Pupuke Road, Mr Kazemi stopped at a traffic light. The complainant began to talk about a stolen iPhone and her suspicions that one of the other students had taken it. Mr Kazemi told her that it was not right to make the accusation but she continued talking. He had a very bad headache. The conversation made him angry and asked why was she telling him because it’s not his business, then he told her to shut up. From that point she was very quiet and seemed upset. When he got to her house he apologised to her and she said not to worry.

[9] On the front of the brief are handwritten notes. It was not clear whose notes they were. They include the note “manual car”.

[10] Although Mr Kazemi complained of the lack of a written brief the brief that was prepared appeared to cover all the relevant matters. The fact that it was not signed did not make any difference.

Failure to call witnesses

[11] Mr Moroney agreed that Mr Kazemi suggested potential witnesses, being the teacher and another student from the course to give evidence about his behaviour in the class. Mr Moroney did not consider that this evidence would assist because it was unrelated in time and place to the incident that was the subject of the charge. He advised against calling these witnesses and Mr Kazemi took this advice.

[12] Mr Mororney’s advice overlooked the possibility of having a witness corroborate Mr Kazemi’s account of feeling unwell and asking to be released from class early. Enquiries should have been made. However, no affidavit evidence was provided as to what the witnesses would have said. There is, therefore, no basis on which to conclude that Mr Moroney’s advice regarding witnesses or his failure to contact them would have made any difference to Mr Kazemi’s case.

Propensity evidence

[13] There is one other aspect of the preparation that is of concern, though it was not raised as a ground of appeal. The complainant had alleged that, in addition to the incident giving rise to the charge, Mr Kazemi had touched her bottom in class one day and that his general demeanour and attitude towards the girls in the class was inappropriate. That was a matter of concern but it appears that no step was taken to confirm the status of that evidence. Mr Moroney said that he had understood that the police were not relying on that evidence. He did not say what the basis for that belief was. There was no pre-trial challenge to determine its admissibility. As I discuss later, the police did lead that evidence and it would inevitably have had a damaging effect.

Change of counsel

[14] One last thing is striking about the preparation for this hearing, namely the unfortunate series of events that led to three changes of counsel, with Mr Utting

assuming conduct of the case on only an hour’s notice. Mr Utting considered that he was fully familiar with the case but, as I discuss later, the conduct of his cross- examination suggests that he was not.

[15] Two hearing dates in February and May 2013 were adjourned because of

Mr Moroney’s other commitments. A third hearing date was allocated for

9 September 2013 but by then Mr Moroney was engaged in a long trial and was, again, unavailable. On the Friday before the hearing Mr Utting briefed Mr Skinner. Mr Skinner took the file home with him over the weekend to familiarise himself with the issues. He had another commitment in the Manukau Court on the Monday but expected to be able to deal with it in time. Unfortunately, things did not work out that way and he, too, was unavailable. At the luncheon adjournment he returned the file to Mr Utting for him to conduct the hearing.

[16] Mr Utting said that he was already familiar with the file from preparing the brief of evidence and having reviewed it in order to brief Mr Skinner the previous week. The Judge allowed him an hour to discuss the case with Mr Kazemi before beginning the hearing. The complainant gave her evidence and Mr Utting cross- examined her. The hearing was then adjourned to 18 September for Mr Kazemi to give evidence. Between 9 September and 18 September, Mr Utting met with Mr Kazemi to take him through his brief of evidence and prepare him for giving evidence. However, Mr Kazemi did not want to go through his brief.

[17] The preparation of the hearing was less than optimal. However, in itself, this would not necessarily have led to a miscarriage of justice.

Conduct of hearing

[18] It is relevant to note that Mr Kazemi came to New Zealand from Iran in 1991. His English is good but he had an interpreter in court at both the second day of hearing in the District Court and the appeal. In his affidavit given for the purposes of the appeal, Mr Utting said that, with hindsight, he considered this to be the correct decision. I too had the impression that Mr Kazemi’s English would not have picked up subtleties in questions and instructions.

Failure to consider alternative explanation for complainant being upset

[19] The first error asserted was failure to put to the complainant that Mr Kazemi had shouted at her and this provided a motive for the complaint because it caused her to become upset. What Mr Utting put to the complainant was that Mr Kazemi “was reluctant to take you home as he was feeling sick”. The complainant rejected that on the basis that “If he was feeling sick he would have left, he’d been there until 4 o’clock that day...”

[20] A little later Mr Utting did put to the complainant that “Mr Kazemi told you that he was in a lot of pain that day” which the complainant denied. He also put that Mr Kazemi was “quite hunched over the wheel” which was also denied.

[21] Mr Utting did not put to the complainant that Mr Kazemi had been angry, annoyed at her talking and that he had told her to shut up and that this was the reason that she was upset. These were the critical issues from Mr Kazemi’s perspective because they explained why the complainant might have been upset and angry enough to complain.

[22] Ms Woolley, for the Crown, submitted that, although it was not put to the complainant, Mr Kazemi himself did not offer this alternative explanation for the complainant being upset during his evidence-in-chief or cross-examination. This is correct; Mr Utting’s only question on the topic was:

Q: While you were driving her home what happened?

A: Nothing actually, as I mentioned I had back pain, neck pain and not much conversation between us.

[23] Later Mr Utting asked Mr Kazemi how the trip had ended and he answered:

As usual I parked the car she came out and so she took her bag thanks me again and said “oh you’re a very good friend Mohammad, thank you”.

[24] The Judge then asked whether the complainant was upset at all and

Mr Kazemi answered “No, no”.

[25] When Mr Kazemi gave evidence before me he said that the reason he had not described the incident in the car when he shouted at the complainant was that he had been waiting for questions about that from Mr Utting. It was clear from his evidence before me that Mr Kazemi did not understand the process by which his evidence would be led and recalled only being told by Mr Moroney that his answers should be “in the direction of his or their questions ... I was so confused not to know where and what to say in relation to each question”. He was clearly expecting an indication from Mr Utting as to when he should give his account of being annoyed with and shouting at the complainant.

[26] Mr Utting did not elicit a description from Mr Kazemi about what “not much conversation” actually meant, what the complainant had said to Mr Kazemi and what Mr Kazemi had said to the appellant. There was ample scope for Mr Utting to draw from Mr Kazemi the account given in his brief of evidence without asking leading questions. This was a significant error on Mr Utting’s part and left no alternative explanation for why the complainant should have been so upset.

[27] It is true that Mr Kazemi had the opportunity to give his account during cross-examination, when the prosecutor put to him the evidence that the complainant’s father had given that when she arrived home she was very upset and crying. Mr Kazemi did not offer any explanation as to why she should have gone from not upset when she got out of the van but upset by the time she got to the house. However, this was a result of the same misunderstanding described earlier about how to respond to questioning. Further, had the explanation been offered under cross-examination it would clearly have been open to criticism for not having been offered earlier.

Failure to determine if van an automatic

[28] The second error was the failure to cross-examine the complainant over whether Mr Kazemi’s van was manual or automatic. This was relevant because of the complainant’s evidence that Mr Kazemi had had his hand on her leg for the rest of the drive home. Mr Kazemi said that that was not possible because he needed two hands to drive. Mr Utting did make an attempt to cross-examine on this point but either did not know or could not recall whether the van was manual or automatic

and, as a result, could make no progress. This part of the cross-examination proceeded as follows:

Q: And that as he was driving, it’s a manual van, I think it’s a manual

van, do you recall?

A: No I don’t study if his van’s a manual or automatic but I’m pretty

sure it was automatic if he had one of his hands on my leg.

[29] In his affidavit given for the purposes of the appeal Mr Utting explained that while he was cross-examining he turned to Mr Kazemi to ask whether the vehicle was manual and Mr Kazemi replied “No” but Mr Kazemi said he had not actually understood the question. I note that this cross-examination of the complainant took place on the first day of the trial, when the interpreter was not present. Given that this was an important point to make, it is one that Mr Utting should have confirmed before he started the cross-examination.

Failure to consider prior inconsistent statement

[30] The third complaint is that Mr Utting failed to cross-examine on the complainant’s prior inconsistent statement; when Mr Utting put to her in cross- examination that she had kissed Mr Kazemi on the cheek when she first got into the car by way of thanking him for the lift she denied that. However, Mr Burns asserted (without objection) that the complainant’s brief of evidence (which I do not have) included a statement that she had kissed Mr Kazemi. This is something that should have been cross-examined on, given the complainant’s strong assertion in evidence that she would not have kissed Mr Kazemi.

Failure to object to evidence

[31] Finally, I would add to the concerns over Mr Utting’s conduct of the trial that he did not object to evidence that the complainant gave about Mr Kazemi’s conduct in class. The complainant said in examination in chief that:

He’s very, in class he was very flirty with young girls, um, actually a group of my friends actually told him to go away at one point because he was saying quite creepy things ...

Once when we were in class he was moving behind me and he actually touched my bum as he walked past me and I remember that incident.

[32] Mr Moroney had been quite specific in his understanding that the Police did not intend to adduce this evidence, though, as I have noted, there was no challenge pre-trial to clarify the issue. At the trial no foundation was laid in trial in terms of the evidence being led as propensity evidence, and there was no charge relating to this alleged prior touching. The status of this evidence ought to have been clarified well before the trial and, in the absence of such clarification ought to have been the subject of an objection by Mr Utting.

Was there a miscarriage of justice?

[33] I am satisfied that, for a number of different reasons relating to the conduct of the hearing, Mr Kazemi did not have the opportunity to give his account of what had happened on the day in question and, further, that important issues that would have undermined the complainant’s evidence were not explored in cross-examination. Not all of these matters are due to error by counsel; Mr Kazemi clearly did not understand the procedure for giving evidence and, in particular, the fact that counsel could not ask leading questions. This may very well have been a genuine misunderstanding by Mr Kazemi of what he had been told by Mr Moroney, as a result of his inadequate English language skills. However, that could have been overcome by Mr Utting as he led Mr Kazemi’s evidence. He had plenty of scope to elicit the evidence without asking impermissible leading questions.

[34] The Crown case did not rely entirely on the complainant’s evidence however. The complainant’s partner, Mr Wallace, gave evidence that he received a text from the complainant telling him that Mr Kazemi “was giving her a ride and had kissed her and was being very creepy towards her”. Mr Wallace replied to the text. He did not receive a response but then received a phone call where he could hear a male voice in the background. Mr Wallace’ evidence was that he could hear the male voice:

He was apologising, saying, um, saying “sorry I hope we” you know, “keep it a secret and not tell anybody”. It was quite muffled. I could only pick up parts of the conversation, um, also I heard him say that, ah, saying “I thought you felt the same way about me” um “I’ve seen the way you look at me” and yeah.

[35] After that Mr Wallace heard the complainant come home crying, shaky and upset, and saying that Mr Kazemi had “kissed her and been very creepy towards her”.

[36] The complainant’s father also gave evidence. He said that when the complainant came home she was crying and trembling and that she told him “that Mohammad had tried to kiss her”.

[37] It is evident that what was described by the complainant’s partner and father could only have related to an indecent assault by kissing. Neither referred to the touching of the complainant’s thighs. That left only the complainant’s evidence on that aspect. That was significant in two ways. First, it was much less serious and, secondly, Mr Kazemi had always said that there had been kisses between them. In his police interview the interview records:

Kazemi speaks of cultural greetings.

MH “so I kissed her cheek, she did the same”.

[38] In his evidence Mr Kazemi referred to kisses between them though on his account it was the complainant kissing him by way of thanks.

[39] In all of these circumstances evidence that tended to undermine the complainant’s credibility was crucial. I am satisfied that the errors in the conduct of the trial did produce a real risk of an unsafe verdict with the result that there has been a miscarriage of justice.

[40] There is one further issue. The charge of indecent assault was not particularised in any way. The Crown case was put on the basis that Mr Kazemi kissed her on the face and neck and put his hand between her thighs. These were two very different acts, potentially two separate assaults. The Judge found that:⁴

[17] I have no hesitation at all in rejecting the defendant’s denials. I entirely accept the evidence of the complainant and of the other prosecuton witnesses, that he did indeed touch her on the inside of her thigh whilst simultaneously trying to kiss her on the lips.

[18] I, therefore, am satisfied beyond reasonable doubt that there was a deliberate application of force by him to her body. It is not the most serious of indecent assaults but I am sure, applying the standards of the community, any right thinking member of the community would regard it as indecent for a man of nearly 50 years of age to stroke the thigh and try to kiss a girl young enough to be his grand-daughter and therefore, I am also satisfied that he knew perfectly well when he did that that his conduct would be regarded as indecent and yet he deliberately decided to continue with it.

[41] In Mason v R the Supreme Court considered the difficulties of defending composite charges that involve two very different acts of assault:⁵

The essential requirement emerging from case law is that, if particular acts of alleging offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging) then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count.

[42] In the present case there was a real prospect of defending both charges, but on separate grounds. Because both parties had acknowledged that kisses had passed between them on previous occasions it is entirely possible that the kiss might not have been viewed as an indecent assault. And because the only evidence of touching came from the complainant, whose credibility was susceptible to impeachment, there was a prospect of a reasonable doubt on that count. For these reasons I am satisfied that there was a miscarriage of justice.

Result

_{[43] The appeal is allowed. The conviction is quashed. There is to be a retrial.}

P Courtney J