A Rotorua man convicted for failing to wear a face mask in a shopping mall during a 2021 Covid-19 lockdown is still fighting to have the conviction overturned.

Paul James Khan took his case to the High Court at Rotorua last month, asking for an extension of time to appeal his 2022 conviction on the grounds he had an “evolution of intelligence” and laws had not served to improve Māori lives and therefore lacked authority.

However, High Court Justice Kiri Tahana ruled Khan’s reason for the delay and strength of his appeal did not justify granting his request.

In her August 28 judgment, Justice Tahana said Khan was convicted and discharged for Covid-19-related offences in September 2021.

Then 52, he was charged with failing to comply with a Covid-19 order by refusing to wear a face mask in a shopping mall, obstructing a police officer by refusing to give identifying particulars and failing to appear in court.

Justice Tahana’s judgment said everyone had a right to appeal convictions but any appeal must be filed within 20 working days of the date of sentencing.

The time for filing an appeal could be extended if the person appealing could satisfy the court that it was in the interests of justice, the judgment said.

Khan’s application was 19 months out of time.

What he did

The judgment said Khan’s first two convictions related to an incident on September 8, 2021, when New Zealand was under Covid alert level three restrictions.

He was in Rotorua Central Mall and was seen not wearing a face mask.

Khan was approached by a security guard and asked to put a face mask on or show an exemption document. He was offered a mask but refused it. Police attended and again Khan was asked to wear a face mask. He again declined and refused to provide his details to the officer.

Having been released on bail in November 2021, he failed to attend court on March 2, 2022.

The maximum penalty for not wearing a mask under the Covid-19 Public Health Response Act 2020 was a maximum jail term of six months or a maximum fine of $5000.

But Judge Paul Mabey discharged Khan on all three charges with no penalty given his lack of previous convictions, the fact he had been subject to Covid-19 restrictions and had not reoffended and given the sincerity of his beliefs

Khan told Justice Tahana he had an “evolution of intelligence”, which had resulted in him becoming more aware of important instruments, such as He Whakaputanga – the Declaration of Independence signed by Māori chiefs in 1835.

Khan also submitted it was difficult to see how the law was moral, upright and just in circumstances where Māori and other Indigenous people had been demoralised by the law. His challenge was not to the decision of Judge Mabey but to the law.

“Mr Khan believes that all of humanity and cultures have a place, and we should value diversity and uniqueness,” Justice Tahana said in her judgment.

Rotorua Central Mall. Photo / NZME.

But she said Khan’s sincerity of beliefs was one of the reasons Judge Mabey found it appropriate to convict and discharge him and she didn’t believe it was a reason for the delay.

The grounds for his appeal were to do with the history of colonisation and its impact on Māori and other Indigenous people.

“It is this history that causes Mr Khan to question the morality of laws, especially when, as explained by Mr Khan, the reality on the ground is that people are suffering and living in poor conditions. In effect, Mr Khan argued that the laws have not served to improve the lives of Māori so lack any moral authority.”

Justice Tahana noted there were many marae imposing similar restrictions at the time, which Khan acknowledged but did not necessarily accept was appropriate. She said Khan’s primary argument was the laws did not apply because of the history of Aotearoa New Zealand.

She said the validity of Khan’s arguments as to the morality of the law was not a matter Judge Mabey was required to determine and consider.

In declining his application, she said there were other ways Khan could advance his arguments regarding the morality of laws given the history of colonisation.

-Rotorua Daily Post.