Khan aka Rafiq v Police [2012] NZHC 2884 (1 November 2012)

Last Updated: 10 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000306 [2012] NZHC 2884

BETWEEN RAZDAN KHAN AKA RAFIQ Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 29 October 2012

Appearances: Appellant in person

A R Longdill for Respondent

Judgment: 1 November 2012

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 1 November 2012 at 4:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date.............................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] –

_{Copy to: R Khan, P O Box 13683, Onehunga, Auckland 1643}

KHAN AKA RAFIQ V NZ POLICE HC AK CRI-2012-404-000306 [1 November 2012]

[1] The appellant, Razdan Khan[1] has been in longstanding disputes with the Inland Revenue Department (IRD) over his student loan his aunt’s child support entitlements. In the context of that dispute Mr Khan has sent numerous communications to both the IRD and the Privacy Commissioner. Many contained material that both organisations considered offensive, indecent and giving cause for security concerns.

[2] Following a defended hearing in the Auckland District Court before Judge Harvey on 3 September 2012 Mr Khan was convicted on one charge of criminal harassment under the Harassment Act 1997[2] and two of posting indecent articles under the Postal Services Act 1998[3]. He appeals all three convictions.

Conviction under Harassment Act 1997

[3] This charge related to letters addressed to Robert Russell, the Commissioner of Inland Revenue at the time. Because of their offensive nature this correspondence was monitored by IRD throughout 2011. The letters sent in August 2011 caused particular concern because of their racial overtones and abusive language. Mr Khan was charged with criminal harassment under s 8 of the Harassment Act 1997 which carries a maximum penalty of two years’ imprisonment.

[4] One of the grounds of appeal against the Harassment Act conviction is that Mr Khan was not advised of his right to elect trial by jury. The Crown accepts that this ground must succeed because there is no record of Mr Khan having been advised of the right and the Crown accepts that the failure to do so would have resulted in a miscarriage of justice.

[5] Under s 24(e) of the New Zealand Bill of Rights Act 1990 any person charged with an offence:

Shall have the right, except in the case of an offence under military law, tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than three months.

[6] And under s 66 of the Summary Proceedings Act 1957:

Any person charged under this Part of this Act with an offence which is punishable by imprisonment for a term exceeding three months shall be entitled before the charge is gone into but not afterwards, to elect to be tried by a jury. Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him ...

(2) the Court shall, before the charge is force into in respect of an offence to which this section applies, inform the defendant of the right conferred on him by subsection (1) by causing him to be addressed to the following effect:

This case is one where you have a choice of being tried here in this Court or of being tried by a Judge and jury. Do you wish to be tried by a jury or by this Court?

[7] The right to elect a trial by jury has been described as “fundamental to our criminal justice system”.[4] However, although the right is fundamental, failure to provide the opportunity to make an election is not necessarily fatal; the question is whether there was a miscarriage of justice as a result of not being advised of the right of election. In Abraham v District Court at Auckland the Court of Appeal made the following observations:[5]

[53] ... The obligation under s 66(2) is to advise “before the charge is gone into”. The allows some flexibility in the sense that the required advice can be given at any time before the trial commences or a guilty plea is entered, rather than at some set point in the process.

[54] We consider that these two features of s 66 provide some support for the view that a court’s failure to inform in breach of s 66(2) is not to be regarded as resulting in a nullity but is to be dealt with by means of the miscarriage proviso. We find further support for this view in two other considerations.

[55] First, it is clear from the judgment of the Supreme Court in R v Condon [2007] 1 NZLR 300 at [77] that, even though the right to a fair trial as affirmed by s 25(2) of NZBORA, is an absolute right, an unfair trial is not a nullity. As Deane J said in Jago v District Court of New South Wales (1989) 168 CRL 2 at 57, an acquittal after an unfair trial is ordinarily final and decisive. In terms of s 385(1) of the Crimes Act, then, an appeal against conviction after a trial which is found to be unfair will be allowed on the miscarriage of justice ground in s 385(1)(c), not the nullity ground

s 385(1)(d). This analysis applies equally, in our view, where there is a failure to inform of the right to trial by jury contrary to s 66(2) of the SPA. An acquittal after a summary trial in a case where the s 66(2) obligation was not met is still an effective acquittal. Where a conviction after such a trial is quashed on appeal, that will bring the matter to an end despite the procedural unfairness – see Brodrick v Ministry of Transport 19/6/90 CA41/90 at 2-3. A trial in such circumstances is not, then, a nullity.

[56] Second, English law has undergone what has been described as a “sea change” in this area moving from a rigid position where a procedural failure was likely to be fatal to an approach which focuses on whether the failure has caused prejudice ... The current approach was summarised in R v Ashton [2007] 1 WLR 181 (CA) as follows:

[4] ... [W]henever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (“a procedural failure”), the Court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the Court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the Court must decide whether it is just to allow the proceedings to continue.

[5] On the other hand, if a court acts without jurisdiction – if, for instance, a Magistrates Court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid.

[8] Although the failure to advise of the election in breach of s 66(2) will not necessarily result in a miscarriage of justice, in recent cases it has been accepted as doing so.[6] It is of some concern that there have been a number of such cases in recent years.

[9] Mr Khan represented himself throughout the proceeding, including at trial. He maintains that he was not aware that he was entitled to elect a trial by jury and that he would have wanted to avail himself of this right.

[10] There were a number of aspects required to be proven on the harassment charge. These were identified by the Judge as including the fact that it was Mr Khan who sent the letters and that he knew the harassment was likely to cause the addressee of the letters to reasonably fear for that person’s safety. This latter

_{question involved a determination of Mr Khan’s knowledge. These were}

quintessential jury questions and I am satisfied that there was a miscarriage of justice as a result of Mr Khan not being advised of his right of election.

[11] The appeal is accordingly allowed. The conviction on the harassment charge is quashed and the matter remitted to the District Court for a fresh hearing.

Conviction under the Postal Services Act 1998

[12] Mr Khan faced two representative charges under s 22 of the Postal Services Act 1998, which carries a maximum penalty of $5,000. The charges arose from communications allegedly sent by Mr Khan to the IRD and the Privacy Commissioner.

[13] Section s 22 provides that:

Every person commits an offence against this Act who, with the intention of offending the recipient, posts or causes to be posted any postal article containing any indecent article or representation of any kind.

[14] Mr Khan’s grounds for appeal against the convictions under s22 were that:

(a) The communications that were the subject of the charges did not

satisfy the definition of “letter” in the Act;

(b) Mr Khan did not recall sending the letters.

(c) There was evidence that some of the letters had been hand-delivered rather than posted and could therefore not form the basis of any conviction.

[15] I agree that the communications that were the subject of the charge do not satisfy the definition of “letter”. However, s 22 does not relate to “letters” but, rather, to “postal articles”. The definition of “postal article” includes but is not being limited to letters:

... A letter, parcel, or other article that has been posted and has not been

delivered; and includes –

(a) An article that, although it may have been delivered within the meaning of subsection (3), has not reached the hands of the addressee;

(b) The contents of any such letter, parcel or article.

[16] The communications that were the subject of the charges were produced at the hearing, some together with the envelopes in which they had arrived. The envelopes bore handwritten details of the sender as “R Rafiq 34C Neilson Street, Onehunga, Auckland 1061” and New Zealand Post’s date stamp, evidencing postage.

[17] The Manager of Ministerial Services and Complaint Services for Inland Revenue, Andrew Roger, produced a letter and envelope sent to the Commissioner of Inland Revenue (originally addressed to the Privacy Commissioner) and two letters addressed to the Commissioner of Inland Revenue.

[18] The Assistant Commissioner, Legal & Policy at the office of the Privacy Commissioner, Katrine Evans, produced four communications (two of which took the form of handwriting on a satisfaction survey).

[19] The content of the communications had a theme of racist invective and explicit sexual comments regarding named persons and their families. It was repetitive and disclosed a fairly limited vocabulary but, having read the communications the Judge was plainly justified in finding them to be indecent as offending against the standards of society.

[20] Although the Judge has not made the specific finding that it was Mr Khan who posted the letters, that conclusion is clear from his (amply justified) factual finding that Mr Khan intended to offend in expressing himself as he did. There was also ample evidence on which to conclude that it was Mr Khan who posted or caused these communications to be posted, namely the nature and content of the communications, the details of the sender written in Mr Khan’s handwriting on the envelopes and, significantly, Mr Khan’s confirmation in his police interview that he had written and sent the letters.

[21] Mr Khan maintained in submissions in his appeal that he did not recall sending the letters and asserted that he had only made the admission because the

interviewing officer had told him to do so in order that he could be bailed. This assertion had not, however, been made at the trial. In cross-examination of Detective Stallworthy Mr Khan put to the officer only that he had told him he did not need a lawyer. The Judge asked whether he was going to challenge the admissibility of the interview and he said that he was not. The allegation that the officer told him to make the admission so that he could get bail was not put.

[22] Finally, although there was evidence that some communications had been received by email, the charges brought were representative and it is clear from my earlier outline of the evidence that there was evidence of posted communications that was sufficient to prove the charges.

[23] It was not clear from the Notice of Appeal whether Mr Khan intended to appeal his sentence of $750 on each charge and court costs of $132.89. He did not make any submissions on sentence and the sentence was clearly within the range available to the Judge.

_{[24] The appeal is dismissed.}

P Courtney J

---

[1] Rafiq is the appellant’s alias and the way he was addressed in both this Court and in the District

_Court.

[2] _{Section 8 Harassment Act 1997}

[3] Section 22 Postal Services Act 2000.
[4] _{Stoves v Police HC Christchurch CRI-2003-409-000067, 28 October 2003.}
[5] Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352 at [41].

[6] See e.g. Lose v Police HC Auckland CRI-2010-404-500, 4 July 2011 and Parker v Police HC Auckland CRI2011-404-449, 1 June 2012.