Zhang v Auckand Council

[2019] NZCA 114

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA332/2018
 [2019] NZCA 114

BETWEEN	JIANYING ZHANG Applicant
AND	AUCKLAND COUNCIL Respondent

CA333/2018
BETWEEN	WEN ZHI JIA Applicant
AND	AUCKLAND COUNCIL Respondent

Hearing:	8 April 2019
Court:	Miller, Collins and Toogood JJ
Counsel:	B J Meyer for Applicant Zhang (CA332/2018) SPH Elliott for Applicant Jia (CA333/2018) M R Harborow for Respondent
Judgment:	16 April 2019 at 11.30 am

JUDGMENT OF THE COURT

AThe applications for leave to adduce fresh evidence are granted.

BThe applications for leave to appeal are declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. This is an application for leave to bring a second appeal from a District Court decision in which the applicants were found guilty on charges of contravening the Resource Management Act 1991. They were convicted at trial before Judge Kirkpatrick,[1] and their appeal was dismissed by Moore J.[2]

   [1]Auckland Council v Zhang [2017] NZDC 4596.

   [2]Jia v Auckland Council [2018] NZHC 1133.

2. Jianying Zhang and her ex-husband, Wen Zhi Jia, live at 355 Richardson Road, Mt Roskill.  Ms Zhang is the registered proprietor.  We were told that they occupy separate parts of the building.  The property’s zoning provides for one residential unit per 375 square metres gross site area.[3]  Its total area is 905 square metres, so only two residential units are permitted. 

   [3]Auckland Council Auckland Council District Plan (Operative Auckland City − Isthmus Section 1999), Part 7: Residential Activity, r 7.7.2.1.

3. There is one house on the property.  It has been configured so that the whole of the upper floor is a separate residential unit and the lower floor is divided into four separate units.  One of them is set up as an acupuncture clinic, which is permissible.  The others are residential.  All of this was evidenced as a result of a search warrant.  There is no planning approval and no evidence of existing use rights for this density of units.

4. Judge Kirkpatrick found a charge of contravening the density rule proved against both applicants.[4]  He also found proved a charge against Ms Zhang of failing to comply with two council abatement notices.[5]

   [4]Auckland Council v Zhang, above n 1, at [52].

   [5]At [53].

5. The Judge fined the applicants.[6]  He was satisfied they were guilty of deliberate offending undertaken for profit despite efforts by Auckland Council to get them to comply with the District Plan.  The fines imposed on Ms Zhang totalled $20,000, and those imposed on Mr Jia were $15,000.

   [6]Auckland Council v Zhang [2017] NZDC 8208.

6. On appeal before Moore J, the appellants sought to introduce a large amount of new evidence.  Some of that new evidence related to Ms Zhang’s claim that she no longer had a beneficial interest in the property, although she was the registered proprietor at the relevant times, and Mr Jia’s claim that he was merely a head tenant who was subletting the property.  Moore J declined to admit the evidence for several reasons:  it was not in affidavit form as directed, it was not sufficiently fresh, and none of the evidence bore on the primary issues engaged in the appeal.[7]  The evidence was immaterial;  the applicants still cohabit the property and it would not matter if Mr Jia was a head tenant or a landlord because s 9(3) of the Resource Management Act prescribes that no person may use land in a manner that contravenes a district rule. 

   [7]Jia v Auckland Council, above n 2, at [54].

7. With respect to sentence, the only submission advanced on appeal was that fines ought not to have been imposed because the applicants were not guilty.  The Judge nonetheless addressed the sentence appeal afresh.  He concluded that the applicants’ culpability was medium to high.[8]  Their activity was profitable, and sentences should not serve as a licence fee.  He was satisfied that Judge Kirkpatrick did not err.

   [8]Above n 2, at [158].

8. The applicants were each separately represented before us.  Both are now in receipt of legal aid.  It is their contention that the hearings below miscarried because in the District Court and again in the High Court they were self-represented and no one had drawn to their attention the availability of legal aid.  They invoke this Court’s judgment in Fahey v R, in which it was held that a trial Court must explain to a defendant the rights to legal representation and to legal aid, and must satisfy itself that the defendant understands those rights, and must provide an opportunity to exercise those rights.[9]  They emphasise that neither of them is familiar with New Zealand legal process.  Neither is fluent in English.  However, the hearings below proceeded with the aid of a Mandarin interpreter.  They submit that the District Court and the High Court should have considered whether amicus curiae or standby counsel were required.  The case is said to raise important issues about the extent of a court’s duty to a self‑represented defendant.

   [9]Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [50].

9. These arguments cannot succeed.  There is no evidence that the applicants were unaware of their rights to legal aid.  They do not make that claim in affidavits sworn in support of their leave applications.  The record suggests rather that they elected to self-represent.  We have summarised above the bare allegations and what the courts below found about them.  The District Court judgment was preceded by an interlocutory battle over the admissibility of evidence obtained in the exercise of the search warrant.[10]  Throughout these proceedings the applicants were sometimes represented and sometimes not.  In August 2014 they engaged the services of Forest Harrison, solicitors.  That firm filed a case management memorandum in November 2014 and then advised they had been instructed that the applicants would undertake the proceedings themselves.  The applicants did represent themselves during a District Court pre-trial admissibility hearing, but counsel represented them on the High Court appeal against that decision.  Counsel withdrew, advising that the applicants intended to represent themselves, which they continued to do during the District Court trial and High Court appeal.  In the District Court Ms Zhang told the Judge that they had chosen to represent themselves.

   [10]Auckland Council v Zhang [2015] NZDC 20392;  Zhang v Auckland Council [2016] NZHC 962; and Zhang v Auckland Council [2016] NZCA 332.

10. Mr Harborow pointed out that the applicants were told of their right to legal advice when the search warrant was executed on 6 November 2013.  The summons documents and statements of service contained information about legal advice.  They stated that it is available for free at Community Law Centres, through duty lawyers and through legal aid.  After filing their appeals in the High Court the applicants were given a notice of filing on 1 June 2017.  That notice stated it was important that they make arrangements for a lawyer to represent them and it advised that if they could not afford to pay a lawyer they might be eligible for legal aid.  These documents were in English, but we are not prepared to infer that the applicants were either unable to read them or failed to appreciate that they contained information that required interpreting.

11. That being so, the onus is on the applicants to show that the trial was unfair through the absence of legal representation.[11]  We are not persuaded that the issue is capable of serious argument.  The applicants ran what appear to be the available defences.  Ms Zhang was the registered proprietor of the property.  Her defences turned on inadmissibility of evidence and the possibility that some of the units were not separate or were not residential.  She does not now pursue a conviction appeal except insofar as she seeks a discharge without conviction.  Mr Jia was party to several tenancy agreements naming him as the landlord.  Whether he permitted the unlawful use is a question of fact.

    [11]Fahey v R, above n 9, at [48] citing R v Chatha [2008] NZCA 547 at [123].

12. The remaining aspect of the application for leave to appeal concerns sentence.  The applicants say that they ought to have received discharges without conviction having regard to their financial circumstances.  As noted they made no relevant submissions before Moore J.  Some new information has been provided on appeal (for which we have given leave to admit).  But as the respondent submits, it is not compelling.  It appears to exclude the property as an asset.  Their offending was profit‑driven and their culpability substantial.

13. We are not persuaded that a miscarriage of justice may have occurred due to the applicants’ self-representation, or that the case raises important questions about the extent to which courts are obliged to assist lay defendants.  The application for leave to appeal is declined.

Solicitors:
Crown Solicitor, Auckland for Respondent