Mothafar v Police - [2015] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI-2015-419-34

[2015] NZHC 3204

BETWEEN
MUHAND H MOTHAFAR MOTHAFAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 December 2015

Counsel:

T Faleauto for Appellant

T A Needham for Respondent

Judgment:

15 December 2015

JUDGMENT OF BREWER J

MOTHAFAR v POLICE [2015] NZHC 3204 [15 December 2015]

Solicitors/Counsel: Ted Faleauto (Auckland) for Appellant
Almao Douch (Hamilton) for Respondent

Background

[1] On 14 August 2015, the appellant, Mr Mothafar, pleaded guilty to, and was convicted of:

(a)one charge of dangerous driving, contrary to s 35(1)(b) of the Land Transport Act 1998; and

(b)one charge of learner driver unaccompanied under cl 16(1)(a) of the Land Transport (Driver Licensing) Rules 1999.

[2] Judge AS Menzies in the District Court at Hamilton sentenced Mr Mothafar to disqualification for eight months and fined him $400 and levied $130 in Court costs.1

[3] Mr Mothafar now appeals the conviction for the charge of dangerous driving on the basis that the plea of guilty was entered in error and therefore a miscarriage of justice occurred. He seeks to have the conviction set aside and the proceeding sent back to the District Court for a rehearing.

[4] Mr Mothafar does not appeal his conviction for the charge of learner driver unaccompanied.

[5] The appeal was, of course, scheduled for today and Mr Faleauto on behalf of Mr Mothafar filed submissions and indeed further submissions. However, neither Mr Faleauto nor Mr Mothafar are present today and, in the case of Mr Faleauto, there has been no contact with the Court to explain the absence. Accordingly, I have proceeded with the assistance of Ms Needham for the Crown and having regard to the written submissions filed by Mr Faleauto.

1 Police v Mothafar [2015] NZDC 18242.

Facts

[6] On 29 April 2015, Mr Mothafar was issued a New Zealand Learner’s Drivers Licence.

[7] The summary of facts to which Mr Mothafar pleaded guilty states that at 9:54 pm on 8 August 2015, Mr Mothafar was travelling south in the northbound lane on Kainui Road, Taupiri. There was nobody in the vehicle with him. This section of the road carries a 100 km per hour speed limit. At the time the road was wet and not well lit.

[8] A member of the public was travelling north on the same road and, upon exiting a corner, had to take evasive action by swerving into a ditch to avoid a head-on collision with Mr Mothafar. The member of the public followed Mr Mothafar and observed his travel for some distance. Mr Mothafar was seen to repeatedly change lanes between the southbound lane and the oncoming northbound lane.

The appeal grounds

[9] Mr Mothafar was represented by Ms Grey, a duty solicitor, during the hearing in which he pleaded guilty. Mr Faleauto’s submissions, supported by an affidavit from Mr Mothafar, tell me that Mr Mothafar came to New Zealand as a refugee, that he speaks very little English and that he did not understand the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mothafar v Police

Details

AGLC: Mothafar v Police [2015] NZHC 3204
Case: [2015] NZHC 3204
Decision Date: 15 December 2015

CaseChat Overview and Summary

In Mothafar v Police, the High Court considered an appeal against conviction and sentence by Mr Mothafar, who had pleaded guilty to charges of dangerous driving and driving unaccompanied as a learner driver. The appellant argued that the guilty plea was entered in error and therefore a miscarriage of justice occurred. The court was required to determine whether there had been a miscarriage of justice under s 232 of the Criminal Procedure Act 2011, which allows for an appeal if there was any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected or resulted in an unfair trial. The court considered the appellant's affidavit, which stated that he did not understand the significance of pleading guilty due to language barriers and did not realise the consequences of his plea. The court also considered the exceptional circumstances in which an appeal against conviction will be entertained after a plea of guilty is entered, such as where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.

The High Court granted the appeal and quashed the convictions on both charges, remitting them to the District Court for rehearing. The court found that there was a real risk that the outcome of the trial was affected due to the appellant's limited understanding of the English language and the legal system. The court also noted the perception that justice must be seen to be done and the risk of fostering distrust and grievance if the processes of justice appeared to have failed in this situation. The court emphasised that the appellant received a lenient sentence and that if the prosecution proved he was driving dangerously, the sentencing outcome for him would likely be significantly harsher.

The final orders of the court were to grant the appeal, quash the convictions on both charges, and remit them to the District Court for rehearing. The court also noted that both matters should be heard together, as it could not subdivide the sentence.

Orders