Rafiq v Auckland Transport
[2019] NZHC 2791
•31 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-140
CRI-2019-404-141 [2019] NZHC 2791
BETWEEN RAZDAN RAFIQ
Appellant
AND
AUCKLAND TRANSPORT
Respondent
Hearing: 14 October 2019 Counsel:
Appearance:
KC England for respondent
R Rafiq, appellant in person
Judgment:
31 October 2019
JUDGMENT OF FITZGERALD J
[As to application for leave to file second appeal]
This judgment was delivered by me on 31 October 2019 at 3 pm.
Registrar/Deputy Registrar
Date……………
To:Auckland Transport, Auckland R Rafiq (R Khan), Auckland
Rafiq v Auckland Transport [2019] NZHC 2791 [31 October 2019]
Introduction
[1] Mr Rafiq seeks leave to appeal against a judgment of Judge Harding in the District Court.1 The Judge’s decision was itself an appeal by Mr Rafiq against a decision of two Justices of the Peace.2
[2] In the underlying proceedings, Mr Rafiq faced eight infringement offences, in that on four separate occasions, he operated a motor vehicle on a road without displaying current evidence of vehicle inspection,3 and operated a motor vehicle on a road without affixing in the manner prescribed a current license issued for it and appropriate for its use.4
[3] After a hearing before two Justices of the Peace, the offences were found to be proved and Mr Rafiq was fined $200, and ordered to pay $30 court costs, on each offence. He then appealed to the District Court.
[4] On 19 February 2019, Judge Harding dismissed Mr Rafiq’s appeal, apart from varying the sentence “so as to permit time for Mr Rafiq to pay”. 5 Judge Harding then ordered $25 per week payments.6
The decisions in the Courts below – more detail
[5] As Mr Rafiq had given notice that he requested a hearing in respect of the offences alleged in each of the infringement notices, a hearing was held before two Justices of the Peace on 7 March 2018.
[6] The prosecutor (Auckland Transport) called four Auckland Transport officers, being the officers who had issued the infringement notices. They confirmed coming across Mr Rafiq’s vehicle parked in a (public) car park, and that the warrant of fitness and registration had both expired. Each of the four officers accordingly issued an
1 Auckland Transport v Khan [2019] NZDC 3899 [District Court Judge’s Decision]. Mr Rafiq was formerly known as Ray Khan.
2 Auckland Transport v Khan DC Manukau CRI-2017-092-13465, 7 March 2008 [Decision of the Justices of the Peace].
3 Land Transport Act 1998, ss 6 and 34(1)(b).
4 Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 77(2)(b)(ii).
5 District Court Judge’s Decision, above n 1, at [27].
6 At [28].
infringement notice in respect of those matters. The four sets of two infringement notices were issued on 31 August 2017, 3 October 2017, 17 October 2017 and
20 November 2017.
[7] Mr Rafiq was present at the hearing before the Justices of the Peace, but did not give evidence or cross-examine any of the officers. In their sentencing notes, the Justices of the Peace stated:7
We have heard evidence from each of the Auckland Transport officers under oath. You had the opportunity to question each of those officers. You declined. You also had the opportunity to give evidence on oath yourself which you also declined.
[8] As noted, the Justices of the Peace ordered that Mr Rafiq pay a $200 fine on each offence, together, in each case, with $30 court costs.
[9] Mr Rafiq appealed to the District Court. He raised issues with a number of aspects of the hearing before the Justices of the Peace. A key complaint was that they unfairly conducted the hearing, as they failed to adjudicate in relation to a number of documents filed by him prior to the hearing; including a request for closed court hearings, challenging evidence, a recusal order application and service complaints.8 Mr Rafiq also says that the hearing ought to have been adjourned given he was feeling unwell, and this had been made known to the Justices of the Peace.9
[10] Mr Rafiq’s appeal was heard by Judge Harding on 19 February 2019, who delivered a comprehensive (oral) judgment that day. The District Court Judge dealt with a range of issues raised by Mr Rafiq, and in particular:
(a)Noted the evidence given before the Justices of the Peace and observed that “in those circumstances, they unsurprisingly found the charges proven”.10
7 Decision of the Justices of the Peace, above n 2.
8 District Court Judge’s Decision, above n 1, at [3]-[9].
9 At [12].
10 At [2].
(b)Dealt with each of the documents Mr Rafiq said he had filed in advance of the hearing before the Justices of the Peace and which he complained had not been dealt with by them. The District Court Judge found that none the documents, whether or not they had been referred to the Justices at the time, could have had any impact on the outcome, such as to cause a miscarriage of justice in terms of s 232(4) of the Criminal Procedure Act 2011 (the Act).11
(c)Addressed Mr Rafiq’s allegations that the Justices of the Peace were biased, and his submission that he was feeling unwell on the day and they wrongly declined an adjournment.12
(d)Dismissed Mr Rafiq’s submission that the failure of the Justices of the Peace to dismiss the charges was inappropriate, given Mr Rafiq’s submission the charges were vexatious, abusive and not made in good faith, and that the charges were simply “not important”.13
(e)Addressed submissions that the Court should not have regard to the strict liability nature of the offences, and a submission that the car was only in the car park because someone had stolen the key, and given that person had been prosecuted, it was the Court’s responsibility to recover the key, rather than Mr Rafiq’s to shift the car.14
[11] In relation to sentence, the Judge addressed Mr Rafiq’s submission that the fines and costs were excessive given his current financial position. Taking that into account, the Judge allowed the appeal against sentence to the extent of varying it so as to permit time for Mr Rafiq to pay.15
11 At [9].
12 At [10]-[12].
13 At [13].
14 At [14]-[18].
15 At [19] and [27]-[28].
Mr Rafiq’s application for leave to appeal to this Court
[12] Mr Rafiq raises a number of grounds as to why he says leave should be granted (being essentially the same grounds upon which he would rely if leave were granted). Those grounds are many and varied, but include that the Judge:
(a)was “bias[ed] in conducting the overall appeal”;
(b)failed to recuse himself from the proceedings;
(c)“failed to conduct closed court hearings”;
(d)failed to consider that the Justices of the Peace did not adjudicate on a number of documents prior to the hearing, thereby prejudicing Mr Rafiq;
(e)was wrong not to adopt the same approach taken in Rafiq v Auckland Transport in relation to earlier infringement notices issued in respect of Mr Rafiq’s car parked in the same car park, in which Brewer J allowed an appeal against sentence in part;16
(f)failed to assess that while the infringement notices the subject of Brewer J’s decision were said to have been issued on different dates and times, they are in fact same charges and Auckland Transport was therefore attempting to relitigate those matters;
(g)“failed to conclude that strict liability is based on the discretion of the Court”;
(h)failed to take into account that the charges were designed to increase taxpayers’ money, so that Members of Parliament and Judicial Officers can eat “first class food and gain exclusive right to brand new BMWs”;
16 Rafiq v Auckland Transport [2018] NZHC 2904 [Brewer J’s Decision].
(i)failed to consider that it was the Court’s fault in not recovering the stolen car key, rather than Mr Rafiq’s that his car remained in the car park;
(j)failed to give weight to Mr Rafiq’s financial hardship and had he done so, he ought to have quashed the fines altogether; and
(k)did not have the authority or jurisdiction to amend the sentence to payments of $25 per week in any event, as that was not the subject of the appeal.
[13]Mr Rafiq indicates that if leave is granted, he will seek orders:
(a)overturning the orders of the District Court;
(b)awarding costs;
(c)awarding compensatory damages in the sum of $6,000;
(d)awarding exemplary damages in the sum of
$900,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000, 000,000,000; or
(e)alternatively, granting “limited leave allowing the appellant to pay court costs only for each fine as previous High Court did”.
Law
[14]Section 237 of the Criminal Procedure Act 2011 (CPA) relevantly provides:
237 Right of appeal against determination of first appeal court
(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person's first appeal under this subpart.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that––
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Is there a matter of general or public importance?
[15] At the hearing before me, Mr Rafiq did not frame his application for leave to appeal on the basis of a matter of general or public importance. Rather, he framed it as there being a miscarriage of justice, which I discuss further below.
[16] As Ms England, counsel for Auckland Transport, notes, however, there are two matters Mr Rafiq raises that could potentially be considered of general or public importance:
(a)First, Mr Rafiq challenges the strict liability nature of the offences. However, the ground upon which he does so (that strict liability is discretionary) is incorrect. The Court of Appeal has confirmed that the infringement offences concerned are offences of strict liability,17 as has this Court.18
(b)Second, Mr Rafiq challenges the District Court’s jurisdiction to direct time payments. However, s 251(2)(b) of the Act permits a first appeal court to vary any part or condition of a sentence. In addition, this variation was only in Mr Rafiq’s favour in any event, as but for it, he was required to pay the sentence imposed by the Justices of the Peace in one lump sum.
[17] I am accordingly satisfied that Mr Rafiq’s proposed appeal does not give rise to any matter of general or public importance.
17 In relation to the offence against s 6 of the Land Transport Act 1998, see R v De Montalk CA157/03, 7 March 2005 (CA) at [17]-[18]. In relation to the offence against reg 77(2)(b)(ii) of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, see s 133A of the Land Transport Act 1998.
18 Watt v Auckland Transport [2012] NZHC 1248 at [2].
A miscarriage of justice?
[18] I am also not persuaded that a miscarriage of justice may have occurred or might occur if the appeal is not heard. The findings made by the Justices of the Peace were clearly available on the evidence before them, and it is not seriously arguable that they erred in their assessment of that evidence.
[19] Further, the District Court Judge engaged with Mr Rafiq on his submissions at the appeal hearing, and appropriately addressed them in his decision on the appeal. There is no proper basis to suggest the Judge was biased or failed to deal with various matters in a manner which gives rise to a miscarriage of justice.
[20] At the hearing before me, I discussed with counsel for Auckland Transport Mr Rafiq’s suggestion that the infringement notices which were the subject of the appeal before Brewer J and those the subject of these proceedings were in fact the same. However, as it is clear from Brewer J’s judgment, the infringement notices in issue on the appeal before him were issued in April 2017.19 They are not the same infringement notices which are the subject of the present proceedings.
[21] Mr Rafiq also took me to s 356 of the Local Government Act 1974, which gives a council the power to remove any vehicle which appears to be abandoned and to store it. Mr Rafiq says that power ought to have been exercised, rather than the infringement notices issued. But the power under s 356 is permissive only, not mandatory, and there is nothing to suggest that, prior to the local authority exercising that power, infringement notices may not lawfully be issued.
[22] As to Mr Rafiq’s suggestion he was unwell and therefore ought to have been granted an adjournment of the hearing before the Justices of the Peace, I note that Mr Rafiq had suggested the same situation arose in relation to the hearing before the Justices of the Peace on the April 2017 infringement notices.20 Notably, the Justices of the Peace in the present case make no reference to Mr Rafiq being so unwell as to be unable to give evidence or cross-examine witnesses. Rather, he is described as
19 Brewer J’s Decision, above n 16, at [6].
20 See the extract from the District Court Judge’s Decision cited at [7] of Brewer J’s Decision.
“declining” both opportunities.21 Nor, given the facts established before the Justices of the Peace, would an adjournment have made any difference to the outcome in any event.22
[23] Finally, and in relation to the suggestion that the District Court Judge erred in not allowing the appeal to the extent of eliminating the fines element and imposing only court costs (as Brewer J did in his judgment dated 9 November 2018), I do not consider this gives rise to a miscarriage of justice. As Brewer J noted in his decision, the Justices of the Peace on that occasion were sympathetic to Mr Rafiq, and accordingly the only order made against him was to pay court costs on each of the four infringement offences. On Mr Rafiq’s appeal to the District Court, the District Court Judge had varied the sentence to also impose fines. Brewer J noted the well- established convention that a defendant ought to be warned in advance that an increased sentence is in contemplation, so that he or she might withdraw their appeal.23 It was not clear that had been done in that earlier case. It was accordingly in that particular context that Brewer J granted leave to bring a second appeal, and granted the appeal in part by quashing the fines and reinstating the Justices of the Peace’s decision that Mr Rafiq pay court costs only.24 The fact that approach was taken in those (particular) circumstances does not mean there has been a miscarriage of justice in the present circumstances.
[24] For these reasons, I am satisfied that leave ought not to be granted. The application for leave to bring a second appeal is dismissed.
[25] Ms England did not make submissions on costs, and I accordingly make no costs orders.
Fitzgerald J
21 Decision of the Justices of the Peace, above n 2, at [3].
22 See the discussion of the meaning of “miscarriage of justice”, in the context of s 237(2)(b), in
McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
23 Brewer J’s Decision, above n 16, at [10], citing Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (CCA) at 295.
24 At [12].
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