Kahn v Police - [2024] NZHC 2430

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…

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.

Continue reading Kahn v Police

Details

AGLC: Kahn v Police [2024] NZHC 2430
Case: [2024] NZHC 2430
Decision Date: 28 August 2024

CaseChat Overview and Summary

Mr Paul Khan sought an extension of time to appeal his conviction for COVID-19 related offences, which were issued by Judge P G Mabey KC of the Rotorua District Court on 22 August 2022. Khan was convicted of failing to comply with a COVID-19 order by refusing to wear a face mask in a shopping mall, obstructing a police officer by refusing to give identifying particulars, and failing to appear. His appeal, filed on 10 May 2024, was approximately one year and seven months out of the statutory time limit. The primary legal issue before the court was whether Mr Khan's application for an extension of time to appeal should be granted. The court considered Mr Khan's reasons for the delay, his proposed grounds of appeal, and the impact of granting leave on the administration of justice.

In assessing the application, the court noted Mr Khan's explanation for the delay, which he attributed to an "evolution of intelligence" and increased awareness of instruments such as He Whakaputanga – the Declaration of Independence. The court concluded that Mr Khan's challenge was not to the decision of the trial Judge but to the laws themselves, particularly their morality in light of the history of colonisation and its impact on Māori and other indigenous peoples. The court observed that the trial Judge had already considered similar arguments and found them insufficient to alter the outcome of the trial. Furthermore, the court found that tikanga Māori was not a relevant basis for Mr Khan's appeal as he acknowledged being bound by it but did not explain how the Judge's decision was contrary to tikanga or its relevance to the COVID-19 Act. The court determined that Mr Khan's proposed grounds of appeal did not justify granting leave to appeal as they did not address the trial Judge's findings on the elements of each charge. The court also noted that there were other fora within which Mr Khan could raise his arguments regarding the morality of the laws.

The court declined Mr Khan's application for an extension of time to appeal, finding that the reasons for the delay and the strength of the proposed appeal did not justify the grant of leave. The court held that the trial Judge did not err in proceeding to consider whether the elements of each charge were established beyond reasonable doubt. It was not an issue the trial Judge was required to determine.

The court's decision was final, and no further appeal was permitted.

Orders