Khan v Police

[2012] NZHC 3418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000360 [2012] NZHC 3418

BETWEEN  RAZDAN KHAN Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 December 2012

Appearances: Appellant in person

K V Mills for Respondent

Judgment:      13 December 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 13 December 2012 at 11:30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

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

Fax: [phone] – K Mills

Copy to:             R Khan, P O Box 13683, Onehunga, Auckland 1643

Email: [email protected]

KHAN V NZ POLICE HC AK CRI-2012-404-000360 [13 December 2012]

Introduction

[1]      Mr Khan was convicted following a judge alone trial before Judge Harvey in the Auckland District Court on 3 September 2012 on one charge brought under the Harassment Act 1997 and two under the Postal Services Act 1998 (PSA).   In my judgment 1 November 2012 I allowed the appeal against the Harassment Act conviction and dismissed the appeal against the two PSA convictions.   Mr Khan applies for leave to appeal my decision in relation the PSA convictions.

[2]      The various grounds of appeal identified in Mr Khan’s written submissions

can be summarised as follows:

(a)      The Court should not have listed the appeal against those convictions for hearing at the same time as the appeal against the Harassment Act charge;

(b)I  was  biased  against  him  because  of  his  race  and  favoured  the respondent and this was a breach of his rights under the New Zealand Bill of Rights Act 1990 (BORA);

(c)      I wrongly took account of the police DVD interview and failed to take into account Judge Harvey’s aggressive conduct towards him in relation to the admissibility of that DVD; and

(d)I failed to take consider assaults against him by the Police and other police misconduct.

[3]      Mr Khan’s application for leave to appeal falls to be determined under s 144 of the Summary Proceedings Act 1957, which provides for a second appeal from a District Court decision.  However, in the interests of finality a second appeal must involve a question of law which “by reason of its general or public importance or for any other reason” justifies submission to the Court of Appeal.1     In  R v Slater,

Thomas J set out the general principles to be applied in considering an application under s 144:2

Section  144  was  not intended to  provide a  second tier of appeals  from decisions   of   the   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 High Court other than when the conditions it has specified in sub ss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question that point of law raises a question of general or public importance, are to be diluted.

Should the appeal against the Postal Services Act convictions have been heard with the appeal against the Harassment Act charge?

[4]      Mr Khan’s Notice of Appeal in relation to Judge Harvey’s judgment was allocated the number CRI-2012-404-360.   In asserting that the appeal against the PSA convictions was not supposed to be heard in October 2012, Mr Khan relied on Woolford J’s callover minute of 12 October 2012.     Mr Khan was under the impression that, as a result of this minute, his appeal against the PSA charges would be heard later than his appeal against the Harassment Act charge. Woolford J said:

[1]       This is the first call of this appeal.   Mr Khan expressed a wish to have this appeal heard as a matter of priority.   He advises me that he has another appeal, CRI-2012-404-291, which has already been set down for a hearing at 2.15 pm on Monday, 29 October 2012.  He wishes to have this appeal  heard  before  that  appeal.    The  respondent  does  not  oppose  that course.

[2]       Accordingly, this appeal is set down for a hearing at 2.15 pm on

Monday, 29 October 2012 …

[3]       The first appeal, CRI-2012-404-291, is accordingly adjourned for

hearing at 2.15 pm on Tuesday, 5 February 2013 …

[5]      The Court file relating to CRI-2012-404-291 relates to an entirely different appeal.  It is an appeal from a conviction entered in the Manukau District Court on

24  July 2012  for  using  language  intended  to  insult  or  offend.    It  is  clear  that Woolford J was referring to that appeal as the one to be heard on 5 February 2013. The  appeal  that  was  the  subject  of  the  callover  was  the  appeal  against  Judge Harvey’s decision, which was clearly directed to be heard on 29 October 2012.

[6]      The  respondent  provided  written  submissions  in  advance  of  the  appeal. Those were provided later than required by the timetable, apparently as a result of initially being sent to the wrong post office box number.   I am satisfied, however, that Mr Khan had them in sufficient time to prepare for the hearing of the appeal.  In its written submissions, the Crown’s counsel noted that it appeared that there was no appeal being taken against that part of Judge Harvey’s decision dealing with the PSA charges.  This assumption was understandable because in his Notice of Appeal Mr Khan referred only to the charge under the Harassment Act 1997 and made no mention of the PSA charges.   However, during the course of the appeal Mr Khan made it clear that he was challenging the entire decision.

[7]      Ms Longdill, who appeared for the Crown at the appeal hearing, indicated that she could, nevertheless, argue the appeal against the PSA convictions.  Mr Khan, too, was able to articulate the grounds of appeal against those convictions.  He did raise his belief that the appeal against those convictions was to be heard on a later date.   However, I accepted Ms Longdill’s advice that the later date related to an entirely different appeal. As I have discussed, that is the correct position.

[8]      It is possible that Mr Khan may have misunderstood Woolford J’s minute and not  been  expecting  to  deal  with  the  appeal  against  the  PSA convictions  on  29

October 2012.  However, no additional material was required to hear that aspect of the appeal.  Mr Khan was able to make submissions regarding the charges (which I have recorded and considered in my decision).  There is no basis on which to think that Mr Khan was prejudiced by that misunderstanding and I am satisfied that no question of law arises from it.

Bias

[9]      Mr Khan submitted that he did not receive a fair hearing, as he was entitled to under BORA because of bias on my part against him because of his race and toward the respondent because it was represented by female European counsel.  Mr Khan gave no specifics to support his belief of bias, other than the fact that I dismissed that aspect of his appeal.  I do not accept that I was biased in the manner asserted.  There is no basis on which to justify my granting leave to appeal for this reason.

The Police DVD interview

[10]     Mr Khan complained that I had wrongly accepted and relied on the evidence contained in his police interview.   The significance of the interview was that it contained admissions by Mr Khan that he had sent the letters.  Mr Khan argued that I should not have relied on the evidence because of police misconduct in obtaining the admission and the Judge’s aggression towards him in relation to the admissibility of the DVD.

[11]     During the District Court hearing Mr Khan had put to the police officer that the officer had told him he did not need a lawyer.  The officer did not respond to that because the question was overtaken by the discussion regarding the admissibility of the DVD, which I discuss below.   In argument on the appeal Mr Khan made a different assertion of misconduct, namely that  he had  only made the admission because he was told he would get bail. Although Mr Khan had made this assertion in his evidence-in-chief, it had not been put to the officer in cross-examination.   My failure to take this new assertion into account cannot be an error warranting a second appeal.  It is apparent that the Judge did not regard that evidence as material because Mr Khan had, by then, indicated that he was not challenging the admissibility of the DVD.

[12]     Mr Khan maintained that he had wished to challenge the admissibility of the interview but did not so do because the Judge was “aggressive” with him and that I should not have accepted the evidence for that reason.  This was an assertion that Mr Khan made during submissions on the appeal. Again there was no attempt to put evidence about it before me.  The exchange between Mr Khan and the Judge was recorded in the notes of evidence.  They do not, of course, indicate a particular tone of voice.   They do suggest that the Judge was brisk in his handling of the issue, though not aggressive:

Mr Khan:        No, actually he said to me that I don’t need a lawyer, he said

“I’m  doing  what  I’m  supposed  to  do”  like  (inaudible

2:25:11).

The Court:      Are you challenging the admissibility of the interview Mr

Khan?

Mr Khan:        I’m saying – because –

The Court:      Well are you or aren’t you?

Mr Khan:        I am slightly but what –

The Court:      What do you mean slightly, either you are or you aren’t?

Mr Khan:        Okay I’m not.

The Court:      You’re not challenging the admissibility, thank you.

[13]     The real issue on this aspect, however, is that there was ample evidence on which   to   conclude  that   it   was   Mr  Khan   who  had   posted   or  caused  the communications to be posted.  The admission in the interview was only one piece of evidence.    I  am  satisfied  that,  even  if  Mr  Khan  had  successfully  resisted  the interview being put in evidence (which, in itself, is unlikely), the Judge’s finding on this point would have been the same. This ground of appeal therefore fails.

Failing to consider relevant matters

[14]     Mr Khan argued that I failed to consider his allegation of assault and other misconduct by the police, beyond what I have discussed above.  These matters were not in evidence either in the District Court or before me at the appeal hearing.   It appears that they arise in the appeal brought under CRI-2012-404-291, the offensive language charge entered in the Manukau District Court.  They were not in issue and are not relevant to the PSA charges. There is no basis for suggesting that I should (or could) have taken these matters into account.

Result

[15]     The application for leave to appeal is dismissed.

P Courtney J