Kahn v Police
[2024] NZHC 2430
•28 August 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2024-463-000060
[2024] NZHC 2430
BETWEEN PAUL JAMES KAHN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 August 2024 Appearances:
Mr Khan in person
A A Maino for the Respondent
Judgment:
28 August 2024
TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA TAHANA JUDGMENT OF TAHANA J
This judgment was delivered by me on 28 August 2024 at 11.00am
…………………………
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Gordon Pilditch, Rotorua Copy to the Appellant
KAHN v NEW ZEALAND POLICE [2024] NZHC 2430 [28 August 2024]
Hei tīmatanga kōrero / Introduction
[1] Mr Paul Khan was convicted and discharged for COVID-19 related offences in a decision dated 22 August 2022 of Judge P G Mabey KC at Rotorua District Court. He was charged with failing to comply with a COVID-19 order by refusing to wear a face mask in a shopping mall;1 obstructing a police officer by refusing to give identifying particulars;2 and failing to appear.3
[2] Mr Khan now seeks an extension of time to appeal his conviction.4 His notice of appeal dated 10 May 2024, is approximately one year and seven months out of time.
[3] Before considering whether leave should be granted to appeal out of time, I briefly set out the relevant background.
Kōrero / Background
[4] Mr Khan’s first two convictions relate to an incident on 8 September 2021, at which time New Zealand was under COVID-19 alert level three. He was in Rotorua Mall and was observed not wearing a face mask in contravention of alert level three restrictions. Mr Khan was approached by a security guard and asked to put a face mask on or show an exemption document. Mr Khan was offered a mask but refused it. The police then attended and again requested he wear a face mask. He declined and subsequently refused to provide his details to the attending officer.
[5] Mr Khan’s third conviction for failing to appear arose on 2 March 2022 where, having been released on bail in November 2021, he failed to attend court.
Te whakataunga a Te Kōti-ā-rohe / District Court decision
[6] The Judge was satisfied that the evidence established beyond reasonable doubt that the elements of the charges were made out.
1 COVID-19 Public Health Response Act 2020, s 26(1). Maximum penalty of imprisonment for a term not exceeding 6 months’ imprisonment or a fine not exceeding $5,000.
2 Section 27(1) and (4). Maximum penalty of 6 months’ imprisonment or a fine not exceeding
$5,000.
3 Bail Act 2000, s 38. Maximum penalty imprisonment of one year, or a fine not exceeding $2000.
4 Criminal Procedure Act 2011, s 231(3).
[7] The Judge having outlined the relevant law under the COVID-19 Public Health Response Act 2020 (COVID-19 Act), convicted Mr Khan on the charges under that Act. The Judge also convicted him on the breach of bail charge noting that Mr Khan did not defend the charge.
[8] The Judge then considered an appropriate sentence. Having regard to his lack of previous convictions, the fact that he had been subject to COVID-19 restrictions and had not reoffended and given the sincerity of his beliefs, he considered it appropriate to convict and discharge Mr Khan. No penalty was imposed.
Te Ture / Legal principles
[9] Mr Khan has a right to appeal his conviction.5 An appeal must be filed within 20 working days of the date of sentencing.6 The first appeal court may, at any time, extend the time for filing a notice of appeal or notice of application for leave to appeal.7
[10] The onus is on Mr Khan to provide sufficient information to satisfy the court that a grant of leave is in the interests of justice.8 In R v Knight, the Court of Appeal noted that, in determining this issue, the Court must balance:9
…[T]he strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[11] If leave is granted, the appeal must be allowed if the Court is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.10 A miscarriage of justice means any error, irregularity or occurrence affecting the trial which created a real risk that the outcome of the trial was
5 Criminal Procedure Act, s 229.
6 Criminal Procedure Act, s 231(2).
7 Criminal Procedure Act 2011, ss 231(3) and 213.
8 R v Davis [2007] NZCA 577 at [13].
9 R v Knight [1998] 1 NZLR 583 (CA) at 589.
10 Section 232(2)(b).
affected, or otherwise resulted in an unfair trial or trial that was a nullity.11 A real risk arises if there is a reasonable possibility another verdict would have been reached.12
Kōrerorero / Discussion
Reasons for delay
[12] Mr Khan explained that since the District Court decision he has had an “evolution of intelligence” which has resulted in him becoming more aware of important instruments such as He Whakaputanga – the Declaration of Independence.
[13] Mr Khan submitted that it is difficult to see how the law is moral, upright and just in circumstances where Māori and other indigenous peoples have been demoralised by the law. His challenge is not to the decision of the Judge but to the laws. Mr Khan believes that all of humanity and cultures have a place, and we should value diversity and uniqueness.
[14] Many of the arguments advanced by Mr Khan on appeal were advanced before the trial Judge, who carefully set them out at [21] of the judgment. The sincerity of Mr Khan’s beliefs was one of the reasons for the Judge finding it appropriate to convict and discharge Mr Khan. His increase in knowledge does not appear to be the real reason for the delay.
Grounds of appeal
[15] I take from Mr Khan’s submissions that his real issue is with the history of colonisation and its impact on Māori and other indigenous peoples. It is this history that causes Mr Khan to question the morality of laws, especially when, as explained by Mr Khan, the reality on the ground is that people are suffering and living in poor conditions. In effect, Mr Khan argued that the laws have not served to improve the lives of Māori so lack any moral authority.
11 Section 232(4).
12 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85;
and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
[16] Tikanga Māori also does not appear to be a basis for Mr Khan’s appeal. Mr Khan acknowledged that he is subject to tikanga. The law recognises tikanga. In this regard, the Supreme Court in Ellis v R unanimously recognised that tikanga has been and will be recognised in the development of the common law.13 Tikanga will need to be considered where it is relevant to the circumstances of a case.14 Tikanga is also relevant to explaining the social and cultural framework for the actions of Māori parties.15
[17] Mr Khan accepted he is bound by tikanga but did not explain how the Judge’s decision was contrary to tikanga or explain the relevance of tikanga to the COVID-19 Act. I noted that many marae were also imposing similar restrictions at the relevant time, which Mr Khan acknowledged but did not necessarily accept was appropriate. Mr Khan’s primary argument was that the laws do not apply because of the history of Aotearoa New Zealand.
[18] The validity of Mr Khan’s arguments as to the morality of the law was not a matter that the Judge was required to determine and consider. The Judge did not therefore err by proceeding to consider whether the elements of each charge were established beyond reasonable doubt. Mr Khan did not seek to challenge the Judge’s findings in that regard.
[19] For the reasons above, I am not satisfied that Mr Khan’s reason for the delay or the strength of his proposed appeal justify granting leave to appeal. There are other fora within which Mr Khan can advance his arguments regarding the morality of our laws given the history of colonisation. That was not an issue that the trial Judge was required to consider and determine.
13 Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19].
14 At [117].
15 At [118].
Result
[20]For these reasons, the application for an extension of time to appeal is declined.
Tahana J