Rafiq v Auckland Transport

[2018] NZHC 2904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-145

[2018] NZHC 2904

BETWEEN

RAZDAN RAFIQ

Applicant

AND

AUCKLAND TRANSPORT

Respondent

Hearing:

5 November 2018

Appearances:

Applicant in person

K England for Respondent

Judgment:

9 November 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 9 November 2018 at 12:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Auckland Transport (Auckland) for Respondent

RAFIQ v AUCKLAND TRANSPORT [2018] NZHC 2904 [9 November 2018]

Introduction

[1]                 Mr Rafiq seeks leave to bring a second appeal against a decision of Justices of the Peace finding four traffic charges proved and directing him to pay court costs.1 Within the latter part of the proposed appeal is a challenge to the additional imposition of fines by Judge Recordon as a result of Mr Rafiq’s first appeal.

[2]This Court can give Mr Rafiq leave to appeal only if it is satisfied:2

(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.

[3]                 Mr Rafiq represents himself. His “second amended notice of application for leave to appeal” does not address these criteria directly. Instead, Mr Rafiq takes issue with matters of process (including his dissatisfaction with the “energy saver light bulbs” fitted in the courtrooms) which lead, in Mr Rafiq’s submission, to an entitlement to exemplary damages in a sum which would require the use of more than one line of type to contain all the zeros after the initial “$9”.

[4]                 Notwithstanding Mr Rafiq’s couching of the defects in process, I have looked at the decisions in question and made my own assessment of them.

[5]                 I conclude the introduction by recording that Lang J, in his Minute of 30 May 2018, noted Mr Rafiq had sought an order that all Judges of the High Court be recused from hearing his appeal. Justice Lang considered that request to have no merit and did not grant it. At the outset of the hearing, Mr Rafiq asked me to recuse myself on the basis that I had ruled against him in a civil action sometime in the past. I declined the application, pointing out to Mr Rafiq that it is common for Judges to hear more than one case involving a particular party.

1      Auckland Transport v Rafiq DC Manukau CRI-2017-092-5971, 27 September 2017.

2      Criminal Procedure Act 2011, s 237(2).

Background

[6]                 Mr Rafiq’s motor vehicle was left in a public carpark. In terms of the definition in the Land Transport Act 1998, the public carpark qualifies as a road.3 On two occasions in April 2017, Mr Rafiq’s vehicle was found while in the public carpark to have an expired warrant of fitness and an expired licence label. They had expired in February 2017. Infringement notices were issued. Mr Rafiq defended the infringement notices and Justices of the Peace found all four offences proven. They are strict liability offences and Mr Rafiq’s case that he could not drive the vehicle because its key had been stolen did not absolve him from liability given the length of time the vehicle had been at the public carpark. The Justices of the Peace were, however, sympathetic and the only order made against Mr Rafiq was to pay Court costs of $120.

[7]                 Mr Rafiq appealed the decisions of the Justices of the Peace, both as to “conviction” and “sentence”. On 30 April 2018, Judge Recordon dismissed the appeals and said:4

[9]        I think the time has come, though, having regard to the amended notice of appeal and the lack of action from Mr [Rafiq], that if the appeal is not to be upheld then the penalty should, in my view, be placed at a more reasonable level. There are no grounds, in my view, made out. The papers that the Justices had are all the papers that were available. They knew exactly what the argument was from Mr [Rafiq]. The carpark is a public road, so obviously defined as such under the law, and they had no choice but to find that that was the case. The papers that were given to the Justices in terms of what they recorded as the evidence, everything was in with then. There was no suggestion, certainly in the recorded evidence, of any distress, illness which would cause Mr [Rafiq] not to have a fair trial. They found that the charge was proven and I do not see any reason to upset that so the appeal fails.

[10]      As far as the penalty is concerned, there should be a fine in respect of each charge. There was a considerable gap between the two April dates when the car could have been removed. In my view there should be a fine in respect of each charge and that is $200. It is a total, then of $800 plus the Court costs of $120 …

3      Section 2.

4      Auckland Transport v Rafiq [2018] NZDC 12866.

Discussion

[8]                 Subject to one point, this is not a case where leave to bring a second appeal can be given:

(a)There is no matter of general or public importance. Mr Rafiq allowed his vehicle to remain in a public carpark after its warrant of fitness and licence expired. Action was taken to establish infringement offences.

(b)The offences are strict liability offences. The decision of the Justices of the Peace was reviewed in detail by Judge Recordon. I do not see any error such that a miscarriage of justice may have occurred.

[9]                 I am, however, concerned that Judge Recordon imposed fines where the Justices of the Peace had not.

[10]              An appellate Court has the power to allow an appeal by a defendant (because there is an error in the sentence imposed on conviction) but increase rather than reduce the sentence.5 However, there is a well-established convention that a defendant should be warned that an increased sentence is in contemplation so that he might withdraw his appeal. Justice Kirby, sitting on the New South Wales Criminal Court of Appeal, put it this way:6

There is an established practice or convention … that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. The basis of the practice is to be found in a species of the double-jeopardy rule. … The practice is followed in England. It is upheld by the courts as a recent decision of the Queen’s Bench Divisional Court shows: see R v Maidstone Crown Court; ex parte Litchfield (Times Law Reports, 30 June 1992). Where an accused person has exercised an entitlement provided by law to have a re- adjudication of a criminal conviction and sentence, it must be contemplated that Parliament provided that facility to the intent that normally it would result in the appellant’s being in no worse a position than had he or she accepted a conviction and sentence of the Local Court. Although, necessarily, such a risk is run by a procedure which amounts to a complete re-hearing, with fresh (and possibly different) evidence and a new decision-maker, the purpose of the appeal is one to afford the accused person a second opportunity for the

5      Criminal Procedure Act 2011, ss 250 and 251.

6      Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (CCA) at 295.

consideration of his case by a judicial officer more senior in the court’s hierarchy. If the second judicial officer knows of the penalty imposed by the first and contemplates a higher penalty, it is proper to indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal…

[11]              Ms England, for the respondent, recalls that Judge Recordon did say something to Mr Rafiq about a possible increase in sentence. Her memory does not extend to what was said, and it is a submission from the Bar. In any event, Judge Recordon does not say he gave a warning.

[12]              In my view, where a person who is not a lawyer represents himself and challenges a sentence which, at law, was manifestly too lenient, there is a particular need for the appellate Judge to warn the defendant of his jeopardy. Judge Recordon may have done that, and Mr Rafiq’s patent inability to recognise a point of view not his own may have led him to ignore the warning. But I do not know, and so I do not think that the interests of justice should allow the fines to remain because justice may have miscarried.

Decision

[13]              Leave to bring a second appeal against the decision of the Justices of the Peace finding the charges proved is declined.

[14]              Leave to bring a second appeal against the decision of the Justices of the Peace that Mr Rafiq pay only Court costs is allowed to the limited extent relating to the fines imposed at the first appeal. The imposition of fines by Judge Recordon is quashed and the decision of the Justices of the Peace that Mr Rafiq pay Court costs only is reinstated.

Brewer J