Almarzouqi v Police - [2020] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA312/2020
[2020] NZCA 398

BETWEEN	RAHLA ALMARZOUQI Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Wylie and Muir JJ
Counsel:	Applicant in person BCL Charmley and ZWQ Andrew for Respondent
Judgment: (On the papers)	7 September 2020 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

Ms Almarzouqi applies for leave to bring a second appeal from concurrent decisions of the District and High Courts rejecting her application for a discharge without conviction[1] on a charge of making a false complaint to the police.[2] On that charge the District Court convicted and discharged her.[3] She was simultaneously discharged without conviction on a charge of breaching a protection order.[4] Her appeal against sentence on the former charge was unsuccessful.[5]

The test

[1]Sentencing Act 2002, s 106.

[2]Summary Offences Act 1981, s 24(a). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

[3]Police v Almarzouqi [2019] NZDC 25001.

[4]Domestic Violence Act 1995, ss 19(2)(e) and 49(1)(b). Maximum penalty three years’ imprisonment.

[5]Almarzouqi v Police [2020] NZHC 734.

Leave to bring a second appeal must not be granted unless the Court is satisfied that:[6]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

Submissions

[6]Criminal Procedure Act 2011, s 237(2).

Ms Almarzouqi does not specifically address these criteria in her submissions which are substantially a repeat of her arguments before the High Court.[7]
[7]As summarised at [17]–[19] of the High Court’s decision in Almarzouqi v Police, above n 5.
In particular, she argues in respect of the gravity of the offending that:
(a)it was wrong in principle for the sentencing Judge to proceed on the basis that the false complaint was the more serious charge having regard to the significantly greater maximum penalty prescribed by Parliament for the breach of the protection order offence; and
(b)insufficient regard was had to the fact that the offending took place within the context of prolonged domestic abuse.
In respect of the consequences of conviction she argues that:
(a)there was no adequate recognition of the discrimination that the conviction would result in for her as a Muslim woman, both in the United Arab Emirates (UAE) (if she was deported) or within the Muslim community of New Zealand (if not); and
(b)the risk of deportation was underestimated.
In support of alleged discrimination in New Zealand she now submits a letter dated 13 July 2020 from her local Member of Parliament suggesting that within the Muslim community “the shame and social and cultural stigma that come with a conviction will be amplified”.
In response, the Police submit that Ms Almarzouqi’s complaints are factual in nature and their significance is confined to the circumstances of her case. They say the appeal neither engages any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZCA 398
Decision Date: 7 September 2020 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Ms Rahla Almarzouqi for leave to bring a second appeal against her conviction for making a false complaint to the police and breaching a protection order. The District Court had convicted and discharged Ms Almarzouqi on the false complaint charge, while she was discharged without conviction for breaching the protection order. Her appeal against sentence and subsequent appeal to the High Court were both unsuccessful. The Court was required to decide whether the application met the criteria for leave to appeal, namely whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice may have occurred.

The Court found that the application did not meet the criteria for leave to appeal. The arguments presented by Ms Almarzouqi were based on the gravity of her offending and the consequences of her conviction. She argued that the sentencing judge was wrong to consider the false complaint charge more serious than the breach of the protection order charge, despite the higher maximum penalty for the latter. She also argued that insufficient regard was had to the fact that her offending took place within the context of prolonged domestic abuse, and that there was no adequate recognition of the discrimination she would face as a Muslim woman if convicted. However, the Court found that these arguments were weak and did not engage the threshold test for leave to appeal. The Court also found that the consequences of the conviction, including the risk of deportation, were properly considered by the lower courts.

The Court of Appeal declined the application for leave to bring a second appeal. The Court found that the arguments presented by Ms Almarzouqi did not meet the criteria for leave to appeal, and that there was no matter of general or public importance, or potential miscarriage of justice. The Court noted that the sentencing judge had properly considered the actual offending before the Court, and that the consequences of the conviction were also properly considered. The Court cautioned against the courts usurping the role of immigration officials, and found that there was no basis to suggest that the risks of deportation were not properly considered by the lower courts.

The Court declined the application for leave to bring a second appeal. The Court found that the arguments presented by Ms Almarzouqi did not meet the criteria for leave to appeal, and that there was no matter of general or public importance, or potential miscarriage of justice. The Court noted that the sentencing judge had properly considered the actual offending before the Court, and that the consequences of the conviction were also properly considered. The Court cautioned against the courts usurping the role of immigration officials, and found that there was no basis to suggest that the risks of deportation were not properly considered by the lower courts.

Orders