Khan v The Queen

[2013] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/2013
[2013] NZCA 552

BETWEEN	RAZDAN KHAN Applicant
AND	THE QUEEN Respondent

Court:

Ellen France, Harrison and French JJ

Counsel:

Applicant in person
Z R Hamill for Respondent

Judgment:

(On the papers)

11 November 2013 at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

1. Mr Khan was convicted by Justices of the Peace of one charge of using words in a public place with intent to offend or assault contrary to s 4(1)(b) of the Summary Offences Act 1981.[1]  Mr Khan appealed his conviction to the High Court.  The appeal was dismissed by Rodney Hansen J, who upheld the conviction.[2]

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

   [2]Khan v New Zealand Police HC Auckland CRI-2012-404-291, 12 February 2013.

2. Dissatisfied with that outcome, Mr Khan now seeks to appeal the High Court decision.  Because the proposed appeal will be a second appeal, leave is required under s 144(3) of the Summary Proceedings Act 1957.  Justice Rodney Hansen declined to grant leave[3] and accordingly Mr Khan has applied to this Court for special leave.

   [3]Khan v New Zealand Police [2013] NZHC 664.

3. By consent, the application for special leave has been determined on the papers.

Factual background

1. The charge arose out of an incident that occurred while Mr Khan was on bail for another matter.  Two police officers visited his bail address to check that he was complying with his bail conditions.  One of the conditions was that he had to reside at that address.  Mr Khan was not present when the officers arrived and his sister told the officers he was not living there.  The officers then made further inquiries to try to locate Mr Khan.  This included phoning Mr Khan and giving him a false reason why they needed to see him.

2. According to the evidence of the two officers, when they returned to the bail address Mr Khan emerged from the house and began to yell crude abuse at one of them.  The tirade included highly derogatory references to the officer’s ethnicity and profanities about the officer’s mother and other family members.  A neighbour observed the commotion.  She stated that Mr Khan was shouting angrily and appeared to be swearing although she did not hear the precise words.

3. Mr Khan also gave evidence.  He denied using any offensive language or getting angry.  He described his mood as one of “slight unhappiness”.  He also claimed the officers had been violent towards him and that the reason he was shouting was because he had been handcuffed tightly.

4. The Justices of the Peace said they preferred the evidence of the two police officers and the neighbour.  They found the charge proved and ordered Mr Khan to pay a fine of $200 together with Court costs of $132.89.

5. On appeal, Mr Khan alleged that the hearing in the District Court was unfair, that the police officers perjured themselves, that the Justices had failed to consider his claims of police violence and that the conviction could not be supported on the evidence.  He also contended that the Justices of the Peace were “racist Europeans” and that the witnesses and court staff were “corrupted”.

6. In dismissing Mr Khan’s appeal, Rodney Hansen J found there was nothing to indicate that Mr Khan had not received a fair trial.  The Judge noted that Mr Khan had not put his claims of perjury and violence to the police officers in cross‑examination.  The Judge also stated that while the fact the officers had lied to Mr Khan could be taken into account in assessing their credibility, it did not prevent the Justices from accepting their evidence about what had happened at the house.  The Judge concluded, applying Brooker v Police, that the facts as found by the Justices did amount to an offence under s 4(1)(b) of the Summary Offences Act and upheld the conviction.[4]

The application for special leave

[4]Brooker v Police [2007] NZSC 30, [2007] 2 NZLR 91.

1. In his notice of application,[5] Mr Khan advances numerous arguments, which can be conveniently summarised as follows:

   ·The High Court failed to consider or pursue all issues raised by Mr Khan, including in particular his allegations of police misconduct.

   ·The proceedings were not determined in a fair and impartial manner and in accordance with the requirements of the Summary Proceedings Act and the New Zealand Bill of Rights Act 1990.

   ·The factual findings of the Justices of the Peace, as upheld by the High Court, are wrong due to the lack of credibility of the police.

   ·The decisions of the courts below were based on racism. Mr Khan also claims that the police have made discriminatory anti-Muslim comments and have subjected him to torture.

Discussion

[5]Mr Khan was given an opportunity to file submissions but declined to do so.

1. This Court may only grant special leave to appeal under s 144(3) of the Summary Proceedings Act if there is a question of law that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision.

2. We are satisfied that the appeal proposed by Mr Khan does not meet those criteria.  As submitted by the Crown, Mr Khan has not identified any question of law and certainly not one of public importance.  Essentially, the proposed appeal is an attempt to re-litigate disputed facts, which is not the purpose of a second appeal.  Bland assertions that there has been an injustice or that the hearings were not conducted fairly are insufficient.  As regards Mr Khan’s allegations of torture and discriminatory comments by the police, these appear to concern an unrelated proceeding and in any event are not questions of law.

3. The application is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent