Khan aka Rafiq v Police

[2013] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-291 [2013] NZHC 169

BETWEEN  RAZDAN KHAN (ALSO KNOWN AS RAZDAN RAFIQ)

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2013

Counsel:         Appellant in person

KV Mills for Respondent

Judgment:      12 February 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 12 February 2013 at 11.00 a.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 (ALSO KNOWN AS RAZDAN RAFIQ) V NEW ZEALAND POLICE HC AK CRI-2012-

404-291 [12 February 2013]

Introduction

[1]      After a defended hearing before two Justices of the Peace in the Auckland District Court, Mr Rafiq (the name by which he prefers to be addressed) was convicted 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.[1]   He was ordered to pay a fine of $200 and Court costs.  Mr Rafiq appeals against conviction and sentence.

The evidence

[1] Police v Khan DC Manukau CRI-2012-092-5210, 24 July 2012.

[2]      At the time of the incident giving rise to the charge, Mr Rafiq was living with his sister at an address in Onehunga.   He was on bail at the time, a condition of which was that he reside at that address.   Two police officers, Detective Sergeant Hamish McDonald and Detective Tobias Stallworthy, went to the address to check on compliance with bail conditions.  Mr Rafiq was not present when they first called. They made further enquiries and returned to the address.   According to evidence given by both police officers, Mr Rafiq emerged from the home and immediately started yelling abuse at Detective Sergeant McDonald.  He demanded to know who he was and asked whether he was “this white bastard who spoke with my sister this morning?”

[3]      Detective Stallworthy then arrested Mr Rafiq.  As the police officers escorted him off the property, he continued yelling abuse, calling Detective Sergeant McDonald a “mother fucker”, “white cunt”, “white arsehole” and claiming that he had recently had sex with his mother when she was menstruating.  He continued to direct abuse of this nature to Detective Sergeant McDonald while he was placed in a police patrol car and transported to the Manukau Police Station.

[4]      Mr Rafiq’s conduct attracted the attention of neighbours.   People emerged

from  neighbouring  houses  in  response  to  the  noise.    One  of  the  neighbours, Ms Gabrielle Limatau, gave evidence that she was leaving her house in a taxi with

her daughter when her attention was attracted by the shouting.  She said she heard Mr Rafiq shouting and one of the police officers trying to calm him down.  Because she was talking to the taxi driver, she could not hear exactly what was said but she believed he was swearing.

[5]      Mr Rafiq gave evidence.  He disputed the police officers’ evidence.  He said he did not get angry, describing his mood as “slight unhappiness”.  He claimed the detectives were violent towards him and that he did not shout until he was tightly handcuffed.  He denied swearing or abusing the police officers.

Justices’ decision

[6]      The Justices preferred the evidence of the prosecution witnesses. They said:

[5]       Now it seems to the Court that you were upset at being arrested for breach of bail and you were responding by yelling, shouting and swearing, and the Court does accept the independent witness’ evidence Mr Limatau as independent to this matter to the effect that she said that you were yelling out words which she could not identify, but that you were yelling and using words and were angry.  And we also prefer the evidence of both detectives who gave evidence today under oath with regard to the language which was used, which the Court finds was intended to insult or offend, and therefore we find that the charge has been proven.

Grounds of appeal

[7]      In an amended notice of appeal handed up at the hearing, Mr Rafiq alleged that the hearing was unfair, that the police officers gave perjured evidence and that the conviction could not be supported on the evidence.  He claimed the Justices of the Peace were “racist Europeans” and that witnesses and Court staff were “corrupted”.  I do not propose to spend any time on these unsupported allegations. There is nothing to indicate that Mr Rafiq did not receive a fair trial.

[8]      Mr Rafiq complained that the Court failed to consider claims of violence against him by the police and that the police officers lied to the Court.  Although he made allegations of violence when he gave evidence, Mr Rafiq did not put these allegations to the police officers in cross-examination.   He put to Detective Stallworthy that he lied to Mr Rafiq about the purpose of his visit, and Detective

Stallworthy accepted that he had done so and explained the reasons.   That is something  that  the  Justices  of  the  Peace  were  entitled  to  take  into  account  in assessing his credibility.  It provides no basis, however, for questioning their decision to prefer the evidence of the prosecution witnesses.

[9]      It remains to consider whether the facts as found by the Justices of the Peace support a conviction.

The offence

[10]     Section 4(1)(b) of the Act provides:

In any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person.

[11]     The elements of the charge against Mr Rafiq are accordingly that he: (a)      in any public place;

(b)      addressed any words to a person;

(c)      with intent to offend or insult that person.

Public place

[12]     “Public place” is defined in s 2(1) of the Act as:

Public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward.

[13]     Section 2(2) elaborates on the definition as follows:

Without limiting the definition of the term “public place” in subsection (1) of this section, for the purposes of this Act, a person is in a public place if he is in any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle, which is in a public place.

[14]     The grounds of a private house is not a place that is open to or is being used by the public.  Nor, in my view, is the shared driveway which police used to escort Mr Rafiq to the police car.   However, the roadside where the abuse continued is plainly a public place as is, by virtue of the extended definition of “public place” in s

2(2), the police car.[2]

Intent to insult or offend

[2] See also Police v Tito HC Whangarei A6/94, 18 May 1994.

[15]     The question of whether the words used were intended to insult or offend must be considered in the light of the decision of the Supreme Court in Brooker v Police.[3]   In order to warrant the intervention of the criminal law, the conduct must be

at a level which is beyond what a reasonable citizen should be expected to bear.[4]

What a reasonable citizen should be expected to bear must be considered in light of the right to freedom of expression in s 5 of the New Zealand Bill of Rights Act 1990. The freedom should be limited only to an extent that is reasonable and can be demonstrably justified in a free and democratic society.[5]

[3] Brooker v Police [2007] 2 NZLR 91.

[4] At [90] per Tipping J.

[5] At [91] per Tipping J. See also the comments of Blanchard J at [59].

[16]     The implications of Brooker on a charge under s 4(1)(b) were discussed by John Hansen J in Evans v R.[6]     He was also considering abuse directed at police officers.  Referring to the discussion of Gleeson CJ in Colman v Power,[7]   he accepted that the fact that the words in question were directed to a police officer may be relevant.  By virtue of their role, police officers may be less susceptible to insult than

members of the general public.  John Hansen J found, however, that suggestions to police officers that they would rape and otherwise sexually abuse the offender’s girlfriend were calculated to hurt their personal feelings and went beyond what any person should be expected to hear.

[6] Evans v R HC Invercargill CRI-2007-425-000024.

[7] Colman v Power (2004) 209 ALR 182 (HCA) at [16].

[17]     In my view, the abuse directed by Mr Rafiq at Detective Sergeant McDonald was no less insulting and highly inflammatory.   It  went well beyond  what any

reasonable citizen should be expected to bear.

Sentence appeal

[18]     Mr Rafiq is a student who already has a number of qualifications.  He owes a substantial amount in student loans.  However, I heard nothing to indicate that he is unable to pay the fine of $200 which was well within the range available to the Justices.

Result

[19]     The appeal against conviction and sentence is dismissed.