Mothafar v Police
[2015] NZHC 3204
•15 December 2015
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 significance of pleading guilty. Nor did he know what was occurring in the Court. Accordingly, the submission on behalf of Mr Mothafar is:
(a)There was a miscarriage of justice on the basis that Mr Mothafar did not give an informed guilty plea; and
(b)There was a miscarriage of justice on the basis that Mr Mothafar was prevented from putting a defence forward to the Court.
Mr Mothafar’s affidavit
[10]In his affidavit, Mr Mothafar says:
(a)He met with the duty solicitor for about 15 minutes prior to the trial. He tried to explain to her that what happened was a mistake. The interpreter did not explain the difference between the words “mistake” and “guilty” and therefore Mr Mothafar told the duty solicitor that he was guilty based on a language misunderstanding.
(b)He did not know that having a learner licence cancelled the international licence he had.
(c)The duty solicitor told Mr Mothafar that it was his obligation to know the law and that he should say that he was guilty.
(d)He did not understand what was happening in the hearing because the interpretation was difficult to follow and he was emotionally stressed.
(e)He did not realise that he had pleaded guilty to a charge of dangerous driving until after Judge Menzies had finished sentencing him. He would not have pleaded guilty if he had known the effect of the plea. He did not realise that he would lose his licence.
(f)He denies the charge and denies driving dangerously as alleged in the summary of facts. He says that he overtook in a safe manner and then was harassed by the witness who reported him to the Police. In Mr Mothafar’s assertion, it was the witness who was driving dangerously.
The relevant legal principles
[11] Section 232 of the Criminal Procedure Act 2011 provides that a first appeal Court must allow an appeal if a miscarriage of justice occurred. A miscarriage of justice means:2
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
2 Criminal Procedure Act 2011, s 232(3).
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
For the purposes of this definition, the term “trial” includes a proceeding in which the appellant has pleaded guilty.3
[12] It is only in exceptional circumstances that an appeal against conviction will be entertained after a plea of guilty is entered. One such circumstance is where:4
… the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element.
[13] Another circumstance which may result in a successful appeal against conviction following the entry of a guilty plea is where there is a possible defence to the charge of which the appellant was unaware when he pleaded guilty.5 The Court will need to assess the proposed defence in order to determine whether there has been a miscarriage of justice and the appellant must show that the defence has “some substance”.6 But even if the appellant has an arguable defence, if he freely pleads guilty after proper advice about the charges and the quality of the defence, then it will be difficult for the appellant to establish a miscarriage of justice based on a lack of understanding of the possible defences unless the appellant can show that the advice was deficient.7
Was there a miscarriage of justice in the s 232 sense?
[14] There are a number of unsatisfactory aspects to today’s proceeding, even putting to one side the absence of Defence counsel.
[15] The main one is that the only affidavit put forward on this appeal is from the appellant. There should be an affidavit from Ms Grey and probably an affidavit from
3 Section 232(4).
4 R v Le Page CA297/04, 28 April 2005 at [17].
5 See, for example, Watts v R [2011] NZCA 41.
6 Cooper v R [2013] NZCA 551 at [20].
7 Hussein v R [2011] NZCA 58 at [22].
the interpreter. However, despite the Crown asking for waiver of privilege in respect of Ms Grey, this was not provided until late Thursday of last week.
[16] Ms Needham tells me she has spoken to Ms Grey this morning who does have a memory of the case and could provide an affidavit.
[17] There has not been an opportunity to gather any information from the interpreter.
[18] I have decided that rather than go through a lengthy process in this Court which might or might not result in Mr Mothafar succeeding in his appeal, it would be better for me to acknowledge the difficulty of his position and order a rehearing.
[19]The evidence I have before me is that a person recently arrived in this country
– with a very limited grasp of the English language and no understanding at all of our legal system – entered pleas of guilty without understanding what he was doing. On the face of it, that creates a real risk that the outcome of the trial was affected.
[20] Mr Mothafar’s affidavit contains an explanation of the events of the night which might, if accepted as a reasonable possibility, result in an acquittal. However, I agree with Ms Needham that aspects of it might also go to his culpability.
[21] There is also the perception that justice must be seen to be done. In a situation such as this, there is a real risk that the processes of justice will be seen to have failed and distrust and grievance might be fostered.
Decision
[22] In all the circumstances, and without criticism of any of the parties involved in the initial hearing, I grant the appeal. I quash the convictions on both charges and remit them to the District Court for rehearing. I have quashed the conviction on the breach of learner licence charge because I cannot subdivide the sentence and I think that both matters should be heard together.
[23] I make one final point (and I note that Mr Faleauto has just come into Court complaining about traffic) and that is that Mr Mothafar received a lenient sentence. The risk to him of maintaining his position that he was not driving dangerously is that the prosecution proves that he was. If this happens then he should be on notice that the sentencing outcome for him is almost certain to be significantly harsher than the sentence of Judge Menzies on 14 August 2015.
Brewer J
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