Khan aka Rafiq v Police

[2013] NZHC 664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-291 [2013] NZHC 664

BETWEEN  RAZDAN KHAN (AKA RAFIQ) Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         On the papers

Judgment:      28 March 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 27 March 2013 at 5.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email:  [email protected] )

Copy to:            Appellant, P O Box 13683, Onehunga, Auckland 1643

RAZDAN KHAN (AKA RAFIQ) V NEW ZEALAND POLICE HC AK CRI-2012-404-291 [28 March 2013]

[1]      On 12 February 2013, I dismissed Mr Rafiq’s (as he prefers to be known) appeal against conviction and sentence on a charge of using words in a public place with intent to offend or insult, contrary to s 4(1)(b) of the Summary Offences Act

1981.

[2]      Mr Rafiq applies for leave to appeal to the Court of Appeal against my decision.    He  advised  that  he  did  not  propose  to  appear  at  any hearing  of  his application and I am deciding the application on the basis of full written submissions filed by both parties.

[3]      By s 144 of the Summary Proceedings Act 1957, leave to appeal may be granted  against  any  determination  on  a  question  of  law  if  the  question  of  law involved is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4]      In R v Slater[1] it was said that the approach to an application for leave under s 144 should be as follows:

Section  144  was  not intended to  provide a  second tier of appeals  from decisions of a District Court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the  determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[1] R v Slater [1997] 1 NZLR 211; (1996) 14 CRNZ 189 (CA).

[5]      The charge was brought against Mr Rafiq after he allegedly abused two police officers who went to an address in Onehunga to check on compliance with his bail conditions.  At the hearing in the District Court Mr Rafiq disputed the evidence of the police officers that he yelled and swore and made highly derogatory comments about one of the police officers.

[6]      On appeal,  I rejected  Mr Rafiq’s  complaint  that  the Court  had  failed  to

adequately consider claims of violence against him by the police and that the police

officers lied to the Court.  I found the hearing to have been fair and the Justices of the Peace to have had proper regard to the evidence.  I went on to consider whether the facts as found by the Justices of the Peace supported a conviction.  I concluded that the abuse directed by Mr Rafiq at the police officer was insulting and highly inflammatory and that the conviction should not be disturbed.

[7]      In his notice of application for leave to appeal, Mr Rafiq purports to identify numerous questions of law.   Ms Mills has helpfully suggested that they can be broadly characterised as complaints going to Mr Rafiq’s main proposed grounds of appeal which appear to be that there was a breach of the right to justice[2] and the right

not to be subject to torture.[3]     If Mr Rafiq is contending that the only possible

inference the Court could have drawn, on the facts found, was that there was a breach of NZBORA, there is a question of law. [4]    However, I agree with Ms Mills that is not the position here.  The District Court preferred the evidence of the police officers.   Their evidence was that Mr Rafiq subjected them to profane and inflammatory abuse.  the Justices of the Peace’s findings were fully available to them on the evidence and, as I found, their findings supported a conviction.

[2] New Zealand Bill of Rights Act 1990 (NZBORA) s 27.

[3] NZBORA s 9.

[4] Auckland City Council v Wotherspoon [1990] 1 NZLR 76.

[8]      There has been no error of law identified which meets the requirements of s 144 of the Summary Proceedings Act 1957.  The application for leave to appeal

must be dismissed.