Mahmoodi v Police HC Auckland CRI-2010-404-114 [2011] NZHC 102 (21 February 2011)

Last Updated: 24 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-114}

SHAHROOZ MAHMOODI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 21 February 2011

Appearances: ??? for the appellant

K Wendt for the respondent

Judgment: 21 February 2011

_{ORAL JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr S Mahmoodi, Auckland

Ms K Wendt, Meredith Connell, Office of the Crown Solicitor, Auckland

MAHMOODI V NEW ZEALAND POLICE HC AK CRI-2010-404-114 21 February 2011

[1] Mr Mahmoodi was issued with a notice for an infringement offence under s 40 of the Land Transport Act 1988, Regulation 4 of the Offences and Penalties Regulations 1999 and 3.3(12) of the Land Transport Rule : Operator Licensing. It was alleged that he stopped a “small passenger service vehicle on a road longer than was reasonably necessary”. The passenger service vehicle in question was Mr Mahmoodi’s taxi.

[2] There was a defended hearing before two Justices of the Peace who found the offence established.

[3] Evidence was given by a police officer who was on patrol in Karangahape

Road at the time. She said:1

I noted that at 0526 hours there was a row of six taxi drivers blocking the west bound lane on Karangahape Road. That the fourth vehicle in the queue was a Mercedes Benz registration CAT569 which comes back to Sharooz Mahmoodi.

There was no issue about the fact that the driver of the taxi was Mr Mahmoodi. The police constable said that Mr Mahmoodi was there for two to three minutes and in the period she observed his taxi he did not pick up or put down a passenger.

[4] Karangahape Road at this point is four lanes; that is to say, two west bound and two east bound lanes. The constable said that other cars travelling along Karangahape Road from behind the taxis that were double parked were able to pull out into the right hand lane to pass by.

[5] Mr Mahmoodi appeared in the District Court on his own behalf. He did not in any material way challenge the police officer’s evidence that I have summarised above. Mr Mahmoodi did put other questions to the police officer, but with respect to him they did not bear on the central issue as to whether there was need for him to be parked in the way he was and, more particularly, whether the length of time he

_{was there was reasonable.}

1 Notes of evidence p 2 ll 7-10.

[6] Mr Mahmoodi’s questions to the constable were directed to matters which I consider in the end are not relevant to the central question as to whether Mr Mahmoodi was stopped for a period longer than was reasonably necessary. His questions were concerned with the fact that the original infringement notice went to the wrong address (and I accept that it did go to the wrong address), whether the infringement notice had been issued to other taxi drivers and questions related to matters of that sort, and whether the constable had taken photographs of the taxis. Points of this nature and some others, were again raised by Mr Mahmoodi in his submissions to me this morning. He also referred to other matters not in evidence. I do recognise the importance to Mr Mahmoodi of these particular matters. Because of this I explained to him the importance of the processes for Court cases and, in particular, the need for the Court to rely only on the evidence that is put properly before the Court and the need to focus on matters of relevance to the important issue.

[7] Mr Mahmoodi gave evidence in the District Court. The essence of it was that he was trapped; that it was not safe for him to pull out and go around the taxi in front of him, having regard to other traffic and, in particular, having regard to the presence of a traffic island in Karangahape Road at about that point. Apart from the fact that these contentions were not put to the police constable, and accepting what Mr Mahmoodi did say about the traffic island, I am nevertheless not persuaded that it was sufficient to raise a reasonable doubt in relation to the conclusion from the police constable’s evidence that Mr Mahmoodi (and indeed the other taxi drivers) had remained stopped where they were for a period longer than was reasonable.

[8] There are two related points for my conclusion. One comes from the police constable’s uncontradicted evidence that other vehicles were able to move out from the left hand land and carry on down Karangahape Road and do so safely. The second is the inference that I consider the Justices of the Peace were fully entitled to draw from the point I have just made, and the evidence from the police constable of what she first observed. This is that Mr Mahmoodi, together with other taxi drivers, was simply waiting to get into the taxi rank around the corner. It is hypothetically possible that Mr Mahmoodi could have become trapped had he come along Karangahape Road, and for some reason stopped behind the taxi driver that was immediately in front of him, rather than pulling out to go round it, and with the fifth

taxi then coming up immediately behind him so that he would become trapped to an extent. However, the Justices of the Peace indicated by their decision that, at least inferentially, they did not consider that to be a realistic possibility. It goes beyond what was indicated by the evidence, including Mr Mahmoodi’s own evidence.

[9] In all the circumstances, and having weighed Mr Mahmoodi’s submissions with care, I am not persuaded that he has met the onus that is on him to persuade me that the decision of the Justices of the Peace, based on all of the evidence that they heard, was wrong.

[10] In consequence, the appeal is dismissed.

[11] Ms Wendt, for the respondent, had in her written submissions, responsibly raised the question of the reasonableness of the infringement fee of $200 that was imposed. Had this been the maximum, with the Court having a discretion as to the actual penalty to be imposed, I would have considered the penalty of $200 to be too high. However, Ms Wendt advised that this in fact is a penalty fixed by law for this particular offence so there is no discretion for this Court to reduce the level of the

_penalty.

Peter Woodhouse J