Mahomed v R

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 14 September 2010
• Neutral Citation: [2010] NZCA 419
• Docket Number: CA779/2009
• Court: Court of Appeal
• Date: 14 September 2010

Between

Azees Mahomed

Appellant

and

The Queen

Respondent

And Between

Tabbasum Mahomed

Appellant

and

The Queen

Respondent

[2010] NZCA 419

Court:

Ellen France, Gendall and Courtney JJ

CA779/2009

CA790/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

M M Wilkinson-Smith and C B Wilkinson-Smith for Azees Mahomed

P L Borich for Tabbasum Mahomed

M D Downs for Respondent

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Page No.
Introduction	[1]
Factual background	[3]
Refusal to admit expert evidence as to intellectual capacity	[18]
The two reports	[19]
What was before the Judge?	[24]
The ruling in the High Court	[32]
Challenge on appeal	[33]
Discussion	[35]
Refusal to admit the evidence about postnatal depression	[44]
Admissibility of the intercepted conversations	[49]
Discussion	[53]
The directions in the summing up	[68]
The linguistic evidence	[69]
The relevant directions	[70]
Evaluation	[71]
Comment on failure to give evidence	[72]
The incident in the van	[78]
The summing up	[80]
Discussion	[84]
Unreasonable verdicts — counts 2 and 4	[92]
Count 2 — was this grievous bodily harm?	[92]
Count 4 — failure to provide necessaries?	[97]
Ruling in the High Court	[100]
Discussion	[101]
Sentence appeals	[105]
Mr Mahomed	[106]
The sentencing remarks	[107]
Contentions on appeal	[110]
Mrs Mahomed	[118]
Disposition	[125]

Introduction

1 Azees Mahomed was convicted after trial of the murder of his 11 week old daughter, Tahani. He was also convicted of two charges of injuring with intent to cause grievous bodily harm to Tahani during December 2007. Mr Mahomed and his wife, Tabbasum Mahomed, were both convicted of failing to obtain necessary medical treatment for Tahani on 27 and 28 December 2007, endangering her life. Mr Mahomed was sentenced on 15 December 2009 by Harrison J, the trial judge, to life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Mrs Mahomed was sentenced to four years imprisonment. 1

2 We begin with an outline of the facts before dealing with the matters raised on the appeals.

Factual background

3 Mr and Mrs Mohamed came to New Zealand from South Africa in 2006. They were accompanied by their then one-year old daughter, Tasmia. Both are of Indian descent. Their first language is Hindi although both speak and have some understanding of English. Mrs Mahomed is more fluent in English than her husband.

4 The couple settled in Auckland. Mrs Mahomed gave birth to Tahani in October 2007. Her birth weight was normal.

5 Mr and Mrs Mahomed brought Tahani into Middlemore Hospital at about 8.15 am on 28 December 2007. She was malnourished and had suffered several injuries, some recent, others older.

6 The recent injuries comprised a fracture to the skull at the back of the head and associated serious brain injuries. These associated injuries included retinal bleeding consistent with serious force to the head. Tahani also had a fractured thigh bone of similar age to the fractured skull.

7 The older injuries included brain injury and bleeding around the brain as well as probable blindness of the left eye and retinal damage of the right eye associated with the older head injury. In addition, Tahani had a fractured shin bone of similar age to the older head injury.

8 Tahani died in hospital four days after her admission.

9 Mr and Mrs Mahomed were Tahani's sole caregivers. There was no suggestion that the fatal injuries could have been caused by any other person or accidentally. Police interviewed Mr and Mrs Mahomed separately on the day of Tahani's admission to hospital. They each said that she had “just got frightened” on the night of 27 December and then had failed to wake for her night-time feeds several times that night from about 11 pm – midnight. They said she otherwise was in good health. Both denied mistreatment or neglect. Mr Mahomed exonerated both himself and his wife. He repeatedly said they had no idea what had happened to the baby and that neither he nor his wife had been violent to her. Mr Mahomed described his wife as “very soft” with their daughter.

10 Mr Mahomed was charged with Tahani's murder and two counts of causing grievous bodily harm. The latter counts related to the older head injury and to the fractured shin bone. Both appellants were charged with failing to provide the necessaries of life following the assault that led to Tahani's death. Mrs Mahomed had phoned both her general practitioner, Dr Ahmad, and the Healthline service at around 6 am on 28 December. Both Dr Ahmad and the Healthline operator told Mrs Mahomed to take Tahani to hospital but the couple delayed doing that until around 8 am. The Crown case was that the two delayed seeking medical attention for Tahani out of fear of discovery of her non-accidental injuries.

11 Evidence was called at trial that the appellants had left Tahani unattended in their van nine days earlier while they sold jewellery at a south Auckland market.

12 Police also recorded conversations at the appellants' home under an interception warrant in the days following Tahani's death. The Crown argued at trial that these conversations showed the couple, amongst other things, discussing how to get their “stories” straight and in Mr Mahomed's case, what amounted to admissions. The latter aspect, in particular, was the subject of competing expert translation evidence.

13 At trial, there was no dispute that Tahani had died from a very serious assault. The issue was rather who had assaulted her. The appellants co-ordinated their defences in that Mr Mahomed contended that Mrs Mahomed had committed the fatal assault whilst Mrs Mahomed essentially invited the jury to conclude that she was the killer although she was not charged with murder and in the hope of securing her husband's acquittal.

14 Neither appellant testified at trial.

15 Both appellants appeal against conviction and sentence. Mr Mahomed appeals his conviction on the following grounds:

• (a) The Judge wrongly disallowed expert evidence;

• (b) The intercepted conversations were wrongly admitted;

• (c) The Judge erred in summing up in a number of respects; and

• (d) The verdicts on counts 2 and 4 (causing grievous bodily harm and failure to provide the necessaries and so endangering Tahani) are unsupported by the evidence.

16 Mrs Mahomed appeals her conviction on two grounds, namely, that the Judge failed to give a direction about the use of propensity evidence and that the verdict on count 4 is unsupported by the evidence.

17 Both appellants say their sentences are manifestly excessive.

Refusal to admit expert evidence as to intellectual capacity

18 Mr Mahomed says evidence of his low intellectual capacity should have been admitted. A preliminary issue here is what was the evidence Mr Mahomed sought to admit? As we shall see, the defence had two reports from psychologists about Mr Mahomed's intellectual capacity. Mr Mahomed says both of the reports were before the trial Judge for decision as to their admission. The Crown disputes that. The substantive question is whether the Judge was correct that the expert evidence on this point was not substantially helpful in terms of s 25 of the Evidence Act 2006 and therefore inadmissible. We take these questions in turn.

The two reports

19 Dr Joseph Sakdalan, a registered clinical psychologist, provided a report to the defence after seeing Mr Mahomed (without an interpreter) on 10 and 17 October 2009. This report was directed towards establishing Mr Mahomed's fitness to stand trial. Dr Sakdalan concluded that Mr Mahomed was fit to stand trial but explained his findings in terms of Mr Mahomed's general cognitive abilities. Dr Sakdalan observed that, applying the standard tests, Mr Mahomed had a full scale IQ of 70. Dr Sakdalan said:

Mr Mahomed's full scale IQ falls within the extremely low to borderline range of intellectual functioning. His overall thinking and reasoning abilities is in the 2 ^nd percentile rank compared to peers of his age. He is likely to [have] slight difficulties in keeping up with his peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities.

20 Dr Sakdalan concluded that Mr Mahomed did not exhibit significant cognitive impairment to the extent that it may “seriously impair” his abilities to, for example, enter a plea or provide instructions. But Dr Sakdalan said Mr Mahomed did show specific cognitive difficulties “particularly in the areas of limited English vocabulary and comprehension skills, abstract thinking and information and working memory abilities”. In addition, he said Mr Mahomed may experience “some difficulties” processing complex information in a timely way which may “negatively impact on his ability to generate an accurate response based on a full understanding and an appreciation of the information provided to him”.

21 The second report was from Mr James Webb who is also a registered clinical psychologist. He saw Mr Mahomed on 28 October 2009.

22 Mr Webb's conclusions about Mr Mahomed's intellectual abilities were consistent with those of Dr Sakdalan. Mr Webb said that Mr Mahomed's intellectual abilities were very low, at or about the level of the lower three to four per cent for his age. In everyday language, Mr Webb said that Mr Mahomed would be considered to be “slow” or “simple” although not probably formally diagnosable with an intellectual deficit. Mr Webb went on to say as follows:

The...