Khan (aka Rafiq) v Auckland Transport

[2022] NZHC 3263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2022-404-351

[2022] NZHC 3263

BETWEEN

RAY RAZDAN RAFIQ KHAN (also known as RAZDAN RAFIQ)
Appellant

AND

AUCKLAND TRANSPORT

Respondent

Hearing:

5 December 2022

Appearances:

The appellant in person

K England for the respondent

Judgment:

6 December 2022

JUDGMENT OF CAMPBELL J

[Application for extension of time to appeal and for leave to bring second appeal]

This judgment was delivered by me on 6 December 2022 at 4.00 pm

Registrar/Deputy Registrar

KHAN v AUCKLAND TRANSPORT [2022] NZHC 3263 [6 December 2022]

[1]    The respondent, Auckland Transport, alleged the appellant, Mr Rafiq,1 had parked his car longer than the time shown on a parking sign. Auckland Transport issued him with a $12 parking fine. Mr Rafiq sought a hearing. The matter was heard before two Justices of the Peace. The Justices of the Peace found the allegation proved. They ordered Mr Rafiq to pay the $12 fine and Court costs of $30.

[2]    Mr Rafiq appealed to the District Court. On 3 July 2020, Judge E M Aitken dismissed his appeal.2 Mr Rafiq applies for leave to appeal to this Court.

[3]    I decline to grant leave to appeal.   Mr Rafiq filed his application for leave    to appeal well out of time. He has not provided an adequate explanation for his delay. The proposed appeal has no merit and would not raise any matter of general or public importance. There is no risk of a miscarriage of justice.

Background

[4]    Mr Rafiq was issued with an infringement notice by Auckland Transport     on 10 August 2018. Auckland Transport alleged Mr Rafiq had parked his car outside a school, in an area where parking was restricted to ten minutes on school days between 2.30 pm and 3.30 pm, for more than ten minutes.

[5]    The infringement notice imposed a fee of $12. Mr Rafiq sought a hearing. The hearing was before two Justices of the Peace on 21 November 2018. Mr Rafiq pleaded not guilty. The Justices of the Peace heard evidence from the parking warden that he had observed the car parked outside the school for more than ten minutes. The warden gave evidence of the parking signs either side of the car. The warden had taken photographs of the car and of the parking signs. These were produced as exhibits. Also produced as an exhibit was a hearing request form in which Mr Rafiq admitted to being the driver of the car.

1      Mr Rafiq prefers to be called this name.

2      Rafiq v Auckland Transport [2020] NZDC 12647.

[6]    Mr Rafiq cross-examined the parking warden on whether 10 August 2018 was a school day and on the parking signs. Mr Rafiq elected not to give or call evidence.

[7]    In his closing to the Justices of the Peace, Mr Rafiq submitted that “strict liability doesn’t apply to this fine”. This was because it was a small matter that should not be brought to the Court’s attention. He said:

… it’s a vexatious abuse of the Court system. Twelve dollars, they want to have a Court case. Giving infringement fines, they’re based on discretion, so the strict liability didn’t apply.

[8]    After a brief adjournment, the Justices of the Peace delivered their decision. They found the allegation proved. They said the matter was one of strict liability. That the parking warden had a discretion whether to issue an infringement notice did not detract from it being a strict liability offence. They found that the charge was not vexatious. Once the matter was before the Court, the Court had to deal with the matter. They ordered Mr Rafiq to pay a fine of $12 together with Court costs of $30.

[9]    Mr Rafiq appealed to the District Court. His appeal was heard by Judge E M Aitken on 1 July 2020. The Judge’s decision, delivered on 3 July 2020, dealt with the following arguments raised by Mr Rafiq in support of his appeal:

(a)That the Registrar of the District Court had misplaced his first notice of appeal. Judge Aitken noted that a second notice was filed shortly thereafter and proceeded to the hearing before her.

(b)That the Justices of the Peace should have recused themselves as they were “local people running the judiciary”.3 Judge Aitken held this argument was entirely lacking in merit.

(c)That the Justices of the Peace were biased because they conducted the hearing unfairly by accepting fabricated evidence from the parking warden. Judge Aitken said this was a serious allegation. She noted that Mr Rafiq had not put to the parking warden any allegation that his

3 At [14].

evidence was fabricated, nor produced before the Justices of the Peace or on appeal any evidential basis for his allegation. The Judge concluded this submission was therefore without merit.

(d)That the Justices of the Peace had failed to consider that Auckland Transport was a “vexatious agency” in that it had prosecuted Mr Rafiq before.4 Judge Aitken found there was no evidence to support this.

(e)That the Justices of the Peace should have refused to hear the prosecution because it wasted judicial time. The Judge said the effect of this argument was that judicial officers should prevent Auckland Transport from enforcing its parking rules. That was untenable. Further, it was Mr Rafiq who elected to have a hearing on the matter. The Justices of the Peace were obliged to proceed to hearing unless Mr Rafiq withdrew his request and agreed to pay the fine.

(f)That the Justices of the Peace had failed to understand the evidence. Judge Aitken said there was clear evidence from which the Justices could conclude that Mr Rafiq’s car was parked for more than ten minutes in an area clearly limited to ten-minute parking.

(g)That the strict liability regime did not apply because the parking warden should have exercised a discretion not to prosecute. Judge Aitken accepted that the parking warden may have had some discretion. But he was entitled to issue the infringement notice where the grounds were made out, “as they clearly were here”.5

(h)That the Justices of the Peace were not competent. Judge Aitken said that Mr Rafiq had not pointed to anything in the evidence or the law  to found such an assertion.

4 At [21].

5 At [32].

[10]   Having found that none of Mr Rafiq’s grounds were made out, the Judge dismissed the appeal.

[11]   Judge Aitken then addressed an issue that Mr Rafiq had raised as to his financial circumstances in the context of the fine and the costs order. She held that the $12 fine could never  be  said  to  be  excessive  and  that  the  costs  order  was in accordance with the relevant regulations.6

Mr Rafiq’s notice of application for leave to appeal

[12]   Mr Rafiq wishes to bring a second appeal. Under s 237 of the Criminal Procedure Act 2011, Mr Rafiq may bring a second appeal only with the leave of this Court. Under s 239, Mr Rafiq was required to file his notice of application for leave to appeal within 20 working days of Judge Aitken’s decision (though this Court may, at any time, extend the time allowed for filing the notice). That meant that Mr Rafiq had to file his application by about 4 August 2020.

[13]   The Court’s records show that Mr Rafiq filed his notice of application for leave to appeal in September 2022, more than two years out of time. The notice bears a date stamp of the High Court appearing to suggest it was filed on 17 July 2020. However, the Registry has advised that the notice was filed with that date stamp already on it.

[14]   Before  the  first  callover  of  this   application,   Auckland  Transport  filed  a memorandum noting Registry’s advice that the notice of application was filed with the date stamp already on it and noting that the application appeared to be well out  of time. At callover on 14 October 2022, Gault J directed Mr Rafiq to file and serve an affidavit confirming  the circumstances and timing of the filing of his notice      of application for leave to appeal, “including how the 17 July 2020 date stamp came to be on his notice of application”.

[15]Mr Rafiq filed an affidavit dated 19 October 2022. He deposed:

The stamped date of the notice of application for leave to appeal was 17 July 2020. I cannot have recollection of date stamp and confirm may be out of time and thereby, require extension of time to appeal.

6      At [39]–[40].

[16]   That was the only substantive content in Mr Rafiq’s affidavit. He did not depose to the time at which he filed his notice  of application for leave,  other than  to confirm it might have been out of time. If his application was out of time, he did not offer any explanation for his delay.

[17]   Subsequently, Mr Rafiq filed a notice of application for an extension of time to seek leave to bring a second appeal, dated  18 November 2022.  In that  notice,  Mr Rafiq said:

(a)He “appeared to file the application for leave to appeal within the statutory timeframe … but unfortunately was not registered for some unforeseen circumstances”.

(b)The delay in bringing the application was occasioned by “mistake     of procedural and communication errors between the appellant and registry such as misplacement of that original form”.

(c)There were some reasons for the late filing of his application (assuming it was late). These included that he was reliant on public computers and COVID-19  lockdowns  had  closed  public  libraries;  he was  on a sickness benefit, bankrupt and financially incapacitated; and he was engaged in other civil leave applications and reading scientific textbooks.

[18]   Mr Rafiq also filed submissions in support of his application for an extension of time, dated 18 November 2022. In those submissions, Mr Rafiq stated that his notice of application “was filed in 2020 but as expressed in the affidavit dated        19 October 2022, there is no recollection as to the filing circumstances such as misplacement of that copy”. Mr Rafiq also said that his “[g]eneral reasons for delays” had been explained in his notice of application dated 18 November 2022 and that there was no prejudice to Auckland Transport.

[19]   In oral submissions at the hearing, Mr Rafiq told me that he had filed his application for leave on 17 July 2020.

Issues on application

[20]There are three issues to determine:

(a)Did Mr Rafiq file his application for leave to appeal in time?

(b)If his application was filed out of time, should an extension of time be granted?

(c)If an extension of time is granted, should leave be granted for a second appeal?

Did Mr Rafiq file his application for leave to appeal in time?

[21]   The Court Registry advised that Mr Rafiq’s application was filed in September 2022 and that the notice, as filed, already had a date stamp of 17 July 2020. That the application was filed in September 2022 is confirmed by the Registry having sent notice of the application to Auckland Transport on 20 September 2022 and having emailed the District Court asking for a copy of its file on 23 September 2022.

[22]   Gault J directed Mr Rafiq to file and serve an affidavit confirming, among other things, the timing of the filing of his notice of application for leave to appeal. The only thing that Mr Rafiq said in his affidavit about timing was to “confirm [it] may be out of time and thereby, require extension of time to appeal”. That his application was filed well out of time is consistent with Mr Rafiq’s inactivity with respect to the appeal since July 2020. If, as Mr Rafiq submitted to me (but did not depose), he had filed the application in July 2020, I would have expected Mr Rafiq to make some enquiries of the Registry as to why his application had not been progressed. There is no evidence that, in the more than two years from July 2020, Mr Rafiq made any such enquiries.

[23]   For these reasons, I am satisfied that Mr Rafiq filed his application for leave to appeal in September 2022, more than two years out of time.

Should an extension of time be granted?

[24]   Under s 239 of the Criminal Procedure Act, the court may, at any time, extend the time for filing a notice of application for leave to appeal. The court’s discretion to extend time is not unfettered. The touchstone is the interests of justice.7 The onus is on the applicant to demonstrate some special features that lead to the conclusion that justice requires that time be extended. Relevant considerations include the strength of the proposed appeal, the length of the delay and the reasons for the delay.8 If the applicant fails to provide a satisfactory explanation for the delay, time should be extended only where the proposed appeal is overwhelming on the merits.9

[25]   Here, Mr Rafiq’s delay was more than two years. This is substantial. Mr Rafiq did not provide any reasons for his delay in his affidavit. He provided some reasons in his notice dated 18 November 2022. Despite those reasons not being in an affidavit, I have decided to consider whether they provide a satisfactory explanation for his delay. In my view, they do not:

(a)I acknowledge that the closure of public libraries as a result of COVID-19 restrictions may have made it difficult for Mr Rafiq to file his application within time. However, that does not explain a two-year delay through to September 2022.

(b)I do not accept that there is any evidential basis for Mr Rafiq’s vague assertion of “procedural and communication errors” between himself and this Court’s Registry.

(c)The other matters to which Mr Rafiq referred (that he was on a sickness benefit, bankrupt and financially incapacitated, and that he was engaged in other matters) do not explain a two-year delay in filing    an application in relation to a straightforward matter.

7      R v Knight [1998] 1 NZLR 583 at 587.

8      At 589.

9      R v Latifi [2007] NZCA 372 at [4].

[26]   In these circumstances, time could be extended only if Mr Rafiq’s appeal was overwhelming on the merits. Mr Rafiq submitted that his proposed appeal had good merits. He made several points.

[27]   First, he said the offence was not proven beyond a reasonable doubt based   on the evidence adduced by Auckland Transport. I have summarised, above, the evidence before the Justices of the Peace. I have read the transcript of the hearing. There was a clear basis for the decision of the Justices of the Peace. Indeed, given the evidence and Mr Rafiq’s limited challenge to it, I consider that any other decision would have been most surprising.

[28]   Secondly, Mr Rafiq submitted Judge Aitken failed to conclude that “strict liability is based on the discretion of the court, and can take account of circumstances and should be based on serious matters”. As a matter of law, these propositions are simply incorrect.

[29]   Thirdly, Mr Rafiq said the “appeal matter” was “of not serious type and do not meet the threshold requirements to even prosecute as judicial resources are limited”. Mr Rafiq is correct that judicial resources are limited.   But it does not follow that,   if a person challenges a parking fine or other alleged minor infringement, the prosecutor must exercise its discretion by  withdrawing the prosecution.  Nor does   it mean that, if a person appeals a conviction for such a matter, the appeal court must summarily allow the appeal so as to save judicial resources. There would otherwise be little incentive for anyone to ever obey parking rules and a host of other rules that make life reasonably tolerable.

[30]   Fourthly, Mr Rafiq submitted the parking restriction was “an apparent violation of freedom of movement” because it restricted his right to access public properties such as roads. But this does not mean that the parking restriction is invalid.

[31]   Finally, Mr Rafiq submitted  that  Judge  Aitken  “erred  in  [her]  discretion in respect to the application of strict liability”. Mr Rafiq was unable to point me to any

authority in support of the proposition that the court has such a discretion. I consider that the court does not.10

[32]   I conclude that Mr Rafiq’s proposed appeal has no merit.   Consequently,      I decline his application to extend the time allowed for him to file his application for leave to bring a second appeal.

Should leave be granted for a second appeal?

[33]   Given my above findings, it is not necessary for me to determine whether leave should be granted for a second appeal. But, because that issue was addressed in the written submissions and at the hearing, I shall determine it.

[34]   The Court must not grant leave to bring a second appeal unless satisfied that either:11

(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.

[35]   The first threshold will be met where the proposed appeal gives rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”.12   Conceivably, two of Mr Rafiq’s contentions would raise issues    of general principle: the contention that Auckland Transport’s parking restriction breached his freedom of movement, and the contention that the court has a discretion in respect  of  the  application  of  strict  liability.  But,  even  where  that  threshold is crossed, leave should not be granted where there is no prospect of success. For the reasons set out in the previous section of this judgment, neither of Mr Rafiq’s contentions has any prospect of success.

10     Rafiq v Auckland Transport [2019] NZHC 2791 at [16].

11     Criminal Procedure Act 2011, ss 237 (conviction appeals) and 253 (sentence appeals).

12     Keenan v R [2005] NZSC 63 at [5], McAllister v R [2014] NZCA 175 at [36].

[36]   As to the miscarriage of justice limb, the applicant for leave must show that there is  an argument reasonably  available that the court below is  in  error, though  it is not intended that every error will give rise to a miscarriage.13 Mr Rafiq has not shown any error at all in Judge Aitken’s decision. The Judge carefully considered each of the challenges that Mr Rafiq made to the decision of the Justices of the Peace. For the reasons set out earlier, I agree entirely with the way in which the Judge dealt with all of those challenges.

[37]Accordingly, I decline to grant leave to Mr Rafiq to bring a second appeal.

Result

[38]   I decline Mr Rafiq’s application to extend the time allowed for him to file his application for leave to bring a second appeal.

[39]I decline to grant leave to Mr Rafiq to bring a second appeal.

Campbell J

13     McAllister v R [2014] NZCA 175 at [37] and [38].