ZHANG & JIA v AUCKLAND COUNCIL [2019] NZCA 114

ZHANG & JIA v AUCKLAND COUNCIL [2019] NZCA 114 [16 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA332/2018[2019] NZCA 114BETWEEN JIANYING ZHANGApplicantAND AUCKLAND COUNCILRespondentCA333/2018BETWEEN WEN ZHI JIAApplicantAND AUCKLAND COUNCILRespondentHearing: 8 April 2019Court: Miller, Collins and Toogood JJCounsel: B J Meyer for Applicant Zhang (CA332/2018)SPH Elliott for Applicant Jia (CA333/2018)M R Harborow for RespondentJudgment: 16 April 2019 at 11.30 amJUDGMENT OF THE COURTA The applications for leave to adduce fresh evidence are granted.B The 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 Courtdecision in which the applicants were found guilty on charges of contravening theResource Management Act 1991. They were convicted at trial beforeJudge Kirkpatrick,1 and their appeal was dismissed by Moore J.2[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 occupyseparate parts of the building. The property's zoning provides for one residential unitper 375 square metres gross site area.3 Its total area is 905 square metres, so only tworesidential units are permitted.[3] There is one house on the property. It has been configured so that the wholeof the upper floor is a separate residential unit and the lower floor is divided into fourseparate 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 densityof units.[4] Judge Kirkpatrick found a charge of contravening the density rule provedagainst both applicants.4 He also found proved a charge against Ms Zhang of failingto comply with two council abatement notices.5[5] The Judge fined the applicants.6 He was satisfied they were guilty of deliberateoffending undertaken for profit despite efforts by Auckland Council to get them tocomply with the District Plan. The fines imposed on Ms Zhang totalled $20,000, andthose imposed on Mr Jia were $15,000.[6] On appeal before Moore J, the appellants sought to introduce a large amountof new evidence. Some of that new evidence related to Ms Zhang's claim that she no1 Auckland Council v Zhang [2017] NZDC 4596.2 Jia v Auckland Council [2018] NZHC 1133.3 Auckland Council Auckland Council District Plan (Operative Auckland City − Isthmus Section1999), Part 7: Residential Activity, r 7.7.2.1.4 Auckland Council v Zhang, above n 1, at [52].5 At [53].6 Auckland Council v Zhang [2017] NZDC 8208.longer had a beneficial interest in the property, although she was the registeredproprietor at the relevant times, and Mr Jia's claim that he was merely a head tenantwho was subletting the property. Moore J declined to admit the evidence for severalreasons: it was not in affidavit form as directed, it was not sufficiently fresh, and noneof the evidence bore on the primary issues engaged in the appeal.7 The evidence wasimmaterial; the applicants still cohabit the property and it would not matter if Mr Jiawas a head tenant or a landlord because s 9(3) of the Resource Management Actprescribes that no person may use land in a manner that contravenes a district rule.[7] With respect to sentence, the only submission advanced on appeal was thatfines ought not to have been imposed because the applicants were not guilty.The Judge nonetheless addressed the sentence appeal afresh. He concluded that theapplicants' culpability was medium to high.8 Their activity was profitable, andsentences should not serve as a licence fee. He was satisfied that Judge Kirkpatrickdid not err.[8] The applicants were each separately represented before us. Both are now inreceipt of legal aid. It is their contention that the hearings below miscarried becausein the District Court and again in the High Court they were self-represented and noone had drawn to their attention the availability of legal aid. They invoke this Court'sjudgment in Fahey v R, in which it was held that a trial Court must explain toa defendant the rights to legal representation and to legal aid, and must satisfy itselfthat the defendant understands those rights, and must provide an opportunity toexercise those rights.9 They emphasise that neither of them is familiar with NewZealand legal process. Neither is fluent in English. However, the hearings belowproceeded with the aid of a Mandarin interpreter. They submit that the District Courtand the High Court should have considered whether amicus curiae or standby counselwere required. The case is said to raise important issues about the extent of a court'sduty to a self-represented defendant.7 Jia v Auckland Council, above n 2, at [54].8 Above n 2, at [158].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 wereunaware of their rights to legal aid. They do not make that claim in affidavits swornin support of their leave applications. The record suggests rather that they elected toself-represent. We have summarised above the bare allegations and what the courtsbelow found about them. The District Court judgment was preceded by aninterlocutory battle over the admissibility of evidence obtained in the exercise of thesearch warrant.10 Throughout these proceedings the applicants were sometimesrepresented and sometimes not. In August 2014 they engaged the services ofForest Harrison, solicitors. That firm filed a case management memorandum inNovember 2014 and then advised they had been instructed that the applicants wouldundertake the proceedings themselves. The applicants did represent themselvesduring a District Court pre-trial admissibility hearing, but counsel represented themon the High Court appeal against that decision. Counsel withdrew, advising that theapplicants intended to represent themselves, which they continued to do during theDistrict Court trial and High Court appeal. In the District Court Ms Zhang told theJudge that they had chosen to represent themselves.[10] Mr Harborow pointed out that the applicants were told of their right to legaladvice when the search warrant was executed on 6 November 2013. The summonsdocuments and statements of service contained information about legal advice.They stated that it is available for free at Community Law Centres, throughduty lawyers and through legal aid. After filing their appeals in the High Court theapplicants were given a notice of filing on 1 June 2017. That notice stated it wasimportant that they make arrangements for a lawyer to represent them and it advisedthat 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 applicantswere either unable to read them or failed to appreciate that they contained informationthat required interpreting.[11] That being so, the onus is on the applicants to show that the trial was unfairthrough the absence of legal representation.11 We are not persuaded that the issue is10 Auckland Council v Zhang [2015] NZDC 20392; Zhang v Auckland Council [2016] NZHC 962;and Zhang v Auckland Council [2016] NZCA 332.11 Fahey v R, above n 9, at [48] citing R v Chatha [2008] NZCA 547 at [123].capable of serious argument. The applicants ran what appear to be the availabledefences. Ms Zhang was the registered proprietor of the property. Her defences turnedon inadmissibility of evidence and the possibility that some of the units were notseparate or were not residential. She does not now pursue a conviction appeal exceptinsofar as she seeks a discharge without conviction. Mr Jia was party to severaltenancy agreements naming him as the landlord. Whether he permitted the unlawfuluse is a question of fact.[12] The remaining aspect of the application for leave to appeal concerns sentence.The applicants say that they ought to have received discharges without convictionhaving regard to their financial circumstances. As noted they made no relevantsubmissions before Moore J. Some new information has been provided on appeal (forwhich we have given leave to admit). But as the respondent submits, it is notcompelling. It appears to exclude the property as an asset. Their offending wasprofit-driven and their culpability substantial.[13] We are not persuaded that a miscarriage of justice may have occurred due tothe applicants' self-representation, or that the case raises important questions about theextent to which courts are obliged to assist lay defendants. The application for leaveto appeal is declined.Solicitors:Crown Solicitor, Auckland for Respondent