Rafiq v Civil Aviation Authority

[2021] NZHC 1273

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-125

[2021] NZHC 1273

BETWEEN

RAY RAZDAN RAFIQ

Appellant

AND

CIVIL AVIATION AUTHORITY

Respondent

Hearing:

Counsel:

31 May 2021

CH Macklin for the Respondent

Appearances:

RR Rafiq, Apellant in person

Judgment:

1 June 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 June 2021 at 3.30pm

Registrar/Deputy Registrar

Date………………………

Solicitors:           Gordon & Pilditch, Rotorua To:       R Rafiq, Auckland

RAFIQ v CAA [2021] NZHC 1273 [1 June 2021]

Introduction

[1]    On 21 May 2008, the applicant, Mr Rafiq, pleaded guilty to and was convicted of two breaches of s 49 of the Civil Aviation Act 1990 (“the Act”). Section 49 prohibits an applicant for an aviation document (in this case a Commercial Pilot’s licence and a Private Pilot’s licence) failing, without reasonable excuse, to provide to the Director of Civil Aviation information relevant to the Director’s decision whether or not to grant the licence.1 In Mr Rafiq’s case, he was charged with failing to disclose earlier traffic infringement offences, and that he was facing a charge of disorderly behaviour. Having pleaded guilty to the offences, Mr Rafiq was fined $500, as well as being ordered to pay Court costs of $130. He now – nearly thirteen years later – applies for leave to appeal out of time against these convictions.

Legal context

[2]    Mr Rafiq’s application for leave to appeal, and appeal (if leave is granted), is governed by the Summary Proceedings Act 1957 (the Act).2 Section 115 of the Act provides that a defendant may lodge a general appeal with the High Court. Section 116  provides that the appellant must file a notice in writing of their appeal within   28 days of sentencing. Mr Rafiq was therefore required to lodge his appeal by 18 June 2008. Section 123 of the Act provides that any Judge of the High Court can, on the application of the intending appellant, extend the time provided.

[3]    It is well established that the test for whether leave to appeal out of time ought to be granted reduces to the reasons for the delay and the merits of the proposed appeal.3 Where the appeal is some years out of time, as here, leave will only be granted in exceptional cases.4 While these general principles have been articulated in the context of the Criminal Procedure Act 2011, I can see no reason why they ought not to apply to applications under the Act. In particular, these principles are consistent

1      Civil Aviation Act 1990, s 49(1)(b).

2      Pursuant to s 397 of the Criminal Procedure Act 2011, which clarifies that the Summary Proceedings Act 1957 continues to apply if a proceeding was commenced before the Criminal Procedure Act 2011 came into effect (as in this case).

3      Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

4      Butcher v R [2015] NZCA 102 at [7]; see too, however, Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1, where leave might be granted if the appeal was certain to succeed, even after a long and inexcusable delay.

with observations in Cleggs Limited v The Department of Internal Affairs, in which Thorp J set out the following principles concerning applications for leave to appeal out of time: 5

(i)That the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;

(ii)That the discretion is given essentially for the purpose of avoiding miscarriages of justice;

(iii)That all the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; but

(iv)That one of the matters which must be established is that there is a real likelihood that an appeal would succeed if leave is granted; some of the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.

Mr Rafiq’s submissions

[4]    Mr Rafiq submits that he was given incorrect advice by the Duty Lawyer at the time, who told him that he could not defend the charges because the evidence was too overwhelming. As a result, he pleaded guilty. Mr Rafiq further submits that the District Court never allocated any hearing dates for him to testify, that the Civil Aviation Authority (as prosecutor) never made any disclosure and that the charging documents referred to him failing to disclose “convictions” when in fact they were only infringement offences. Mr Rafiq also says that the flying school he was attending at the time did not inform him that he needed to notify it if he had any convictions or infringements. Mr Rafiq further submits that the offending took place under a different legal name, and that the District Court Judge was biased and incompetent.

[5]    In terms of why he is only now, nearly 13 years later, wanting to appeal against the convictions, Mr Rafiq reiterates that he was misled by his lawyer at the time, and states that he did not know he could appeal until he obtained a working knowledge of

5      Cleggs Limited v The Department of Internal Affairs (HC Auckland, M1032/84, 5September 1984, Thorp J) at 2.

the legal system from his ongoing proceedings in this and the District Court. He also suggests that he was busy in the intervening twelve and a half years (including working, and filing and progressing other legal claims) and thus did not have time to appeal. He also points to the disruption in more recent times as a result of COVID- 19.

The respondent’s submissions

[6]    The respondent submits that none of the reasons advanced by Mr Rafiq as to why he should be granted leave to appeal some 13 years out of time justify such a course. In particular, the respondent says that generally being “busy” or learning about the court system is not a sufficient reason for such a very lengthy delay.

[7]    Further, and to the extent relevant, the respondent says that the merits of the proposed appeal are very weak. The respondent notes that Mr Rafiq pleaded guilty to the charges, and it is not clear that any advice he received at the time from the Duty Lawyer was wrong. Further, the respondent submits that Mr Rafiq is inappropriately focusing on the charging documents’ reference to non-disclosed “convictions”. The respondent accepts that the earlier traffic matters gave rise to infringement offences rather than convictions, but says that this error in the particulars does not taint or undermine the fact of charging or the convictions. The respondent submits that the traffic infringements were plainly relevant matters that ought to have been disclosed to the Director but they were not.

Should leave to appeal out of time be granted?

[8]    I do not consider that the circumstances overall justify granting leave, particularly where the delay is so extreme in this case, being nearly 13 years.

[9]    First, the finality of court orders and judgments would be significantly undermined by granting leave after such a lengthy delay, at least without clear and persuasive reasons for that delay. There are no such reasons in this case. Being busy with work, study, other court proceedings or learning about the court system more generally cannot be a proper excuse for the delay in this case.

[10]   That does not mean, however, it is impossible for leave to be granted in a case of delay of this magnitude, and indeed, there have been some cases where an overwhelmingly meritorious appeal was permitted to be brought despite a long and inexcusable delay.6 If I was satisfied that allowing leave to appeal was necessary to avoid a miscarriage of justice I would not hesitate to do so. But for the various reasons which follow, I am not persuaded that the merits of Mr Rafiq’s appeal are strong enough to suggest a miscarriage of justice would occur were leave not to be granted.

[11]   Mr Rafiq pleaded guilty to the two charges at the time, and there is no basis to conclude that any advice given by the Duty Lawyer at the time was wrong. Mr Rafiq does not dispute that he had committed the various traffic infringement offences in question. It is not reasonable to suggest that he did not know about them. He could, therefore, have referred to them in his pilot’s licence applications had he chosen to do so. In addition, if it was incorrect at the time that Mr Rafiq was facing a charge of disorderly behaviour, that would also have been a matter known to him, and it would have been quite straightforward for him to have raised this with the Duty Lawyer or the prosecutor had he seen the need to do so.

[12]   Further, I agree with the respondent that Mr Rafiq is unnecessarily focussed on the use of the word (or concept of) “convictions” in the particulars to the two charges, rather than the reference being to infringements or offences. The first charging document states that Mr Rafiq had been “convicted of two traffic offences under the name of Mohammed Razdan Rafiq Khan”. The second charging document states that Mr Rafiq “had been incurred (sic) three traffic convictions under the name of Mohammed Razdan Rafiq Khan…”. It is accepted by the respondent that the use of the word “conviction” or “convicted” is a misstatement in the particulars to the charges. But in the context of the requirement of s 17 of the Act (as to the particulars to a charge), McCarthy J in Police v Wyatt observed that:7

A requirement stated in the general terms of s 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is

6      Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1.

7      Police v Wyatt [1966] NZLR 1118 (CA) at 1133.

the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. …

(Emphasis added)

[13]    Notably, Mr Rafiq does not suggest that when he pleaded guilty, he was not aware of the substance or “pith” of the charges against him. Further, Mr Rafiq suggested in his oral submissions that had the District Court Judge at the time been aware of the mistaken use of the word “conviction”, he or she would have “struck the charges out”. I do not agree. In all likelihood, had the error been raised, the particulars would have been amended to refer to “infringements” or “offences”.8 And had that occurred, there is no suggestion the outcome on the charges would have been any different. Further, incorrect particulars which are not material to the elements of the offence in question are unlikely to result in a charging document or a proceeding being a nullity.9 The section of the Act under which Mr Rafiq was charged relevantly reads as follows:

49Communicating   false   information   or   failing    to    disclose information relevant to granting or holding of aviation document

(1)Every person commits an offence who,—

(a)…

(b)being an applicant for an aviation document, fails, without reasonable excuse, to provide to the Authority or the Director information known to that person which is relevant to the Authority’s or the Director’s exercise of powers under this Act, or under regulations or rules made under this Act; or

(c)…

[14]   The word “conviction” is not used in s 49 of the Act. Rather, the relevant element of the offence is the failure to provide relevant information to the Director, be that information about convictions, infringement offences or any other relevant information. Pursuant to s 9 of the Act, the Director is to consider applications for pilot licences and must be satisfied, among other matters, that the applicant is a fit and proper person to hold such a licence. Pursuant to s 10 of the Act, matters relevant to

8      Pursuant to s 43 of the Summary Proceedings Act 1957.

9      Summary Proceedings Act 1957, s 204; see also Mason v Police HC Christchurch AP155/87, 10 September 1987.

the Director’s assessment of whether an applicant is a fit and proper person is the person’s “compliance history with transport safety regulatory requirements”10 and “any evidence that the person has committed a transport safety offence or failed to comply with any rule made under this Act” (emphasis added).11 There is nothing in the Act to suggest that a “transport safety offence” is limited to offences under the Act itself (or applicable rules or regulations). And for present purposes, one can readily accept the relevance of a person’s traffic history generally to whether they are a fit and proper person to hold a pilot’s licence. To the extent Mr Rafiq suggests that the Director wrongly took into account his traffic infringement offences in considering his applications for a pilot’s licence, his remedy would lie in challenging the Director’s decision, rather than seeking to appeal against his convictions out of time.

[15]   Other matters raised by Mr Rafiq similarly do not give rise to a suggestion that a miscarriage of justice has occurred. For example, the District Court did not allocate a hearing date for the  charges  because  Mr  Rafiq  had  pleaded  guilty  to  them.  Mr Rafiq’s concern that his two convictions are still showing on his Conviction History Report despite the Criminal Records (Clean Slate) Act 2004 is not a reason for granting leave to appeal out of time. And while Mr Rafiq says he now denies any breach of the Civil Aviation Act 1990, that alone is not a proper basis to grant leave to appeal out of time.

[16]   I address these matters not to proffer any formal or final view on the merits of Mr Rafiq’s proposed appeal. As noted, this judgment deals only with Mr Rafiq’s application for leave to appeal out of time. But an assessment of the merits of the proposed appeal (at least in a preliminary way) is relevant to the question of leave, particularly in the context of a very lengthy delay for no valid reason.12 The matters noted at [11] to [15] highlight that the merits of Mr Rafiq’s proposed appeal are not obviously strong.

10     Civil Aviation Act 1990, s 10(1)(a).

11     Civil Aviation Act 1990, s 10(1)(f).

12 See [10] above.

[17]   For all these reasons, I do not consider a miscarriage of justice would result if leave to appeal out of time were not granted.

Result

[18]Mr Rafiq’s application for leave to appeal out of time is declined.

Fitzgerald J