Ake v Police

[2016] NZHC 1785

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-025-000712 [2016] NZHC 1785

EDWARD ERUWERA AKE

v

NEW ZEALAND POLICE

Hearing:	On the papers
Counsel:	Appellant self-represented
Judgment:	3 August 2016

JUDGMENT OF NATION J

[1]      Mr Ake has applied to the High Court for leave to appeal a decision of Judge Callaghan in the District Court of 17 June 2016.1    Judge Callaghan dismissed Mr Ake’s appeal against conviction and sentence for driving a motor vehicle at a speed exceeding 50 kilometres per hour.  That conviction was entered on 18 May 2016 in the District Court at Invercargill.  The hearing proceeded by way of formal proof. Mr Ake was found guilty by two Justices of the Peace.

[2]      Pursuant to s 237(1) of the Criminal Procedure Act 2011 (CPA), Mr Ake may appeal Judge Callaghan’s decision only with the leave of the High Court.  Pursuant to s 237(2):

The  High  Court  …  must not  give  leave  for a  second  appeal  …  unless

satisfied that –

(a)   the appeal involves a matter of general or public importance; or

1      Ake v Police [2016] NZDC 10908.

AKE v POLICE [2016] NZHC 1785 [3 August 2016]

(b)   a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[3]      Mr Ake has filed an application for leave to appeal and with it a notice of appeal.   The notice of appeal includes some 12 pages setting out the grounds of appeal.   It also attaches the judgment of Judge Callaghan.   On his application for leave Mr Ake says he does not require a hearing.  He asks that the matter be dealt with on the papers.

Background

[4]      On 25 October 2015, Mr Ake received an infringement notice alleging that on that day in Invercargill he committed an offence against s 40 of the Land Transport Act 1998, regs 3 and 4 of the Land Transport (Offences and Penalties) Regulations

1999 and 5.1(1) of the Land Transport (Road User) Rule 2004, in that he drove a vehicle on a road at a speed exceeding 50 kilometres per hour.

[5]      On 1 December 2015, Mr Ake filed a notice dated 27 November 2015.  On it he stated he was innocent.   With it he filed what he subsequently said was an affidavit.   It was a statement in which he declared he was a live person, he was innocent, he had not accepted that he was a party to any contract relating to the matter and there was no contract for the Court to adjudicate on.

[6]      The Court proceeded on the basis this was a plea of not guilty.

[7]      There was eventually a hearing on 18 May 2016.  Mr Ake was sent notice of the hearing.  He was advised that, if he did not attend, the case would be dealt with in his absence.  He did not attend and the matter proceeded by way of formal proof. The evidence proved the allegations.  The Justices entered a conviction and imposed a fine of $80 plus costs of $30.

[8]      Section 244 of the CPA provides that, if a sentence is fixed by law, the person convicted is unable to appeal it.  The offence of driving in excess of the posted speed limit is an infringement  offence as per r 4(1) and (2)(a) of the Land Transport (Offences and Penalties) Regulations 1999.   As a result, the infringement fee is

mandated by sch 1B, pt 2 of the Regulations.  There could be no appeal against the fine.

[9]      Mr Ake appealed to a District Court Judge.   He was entitled to do this in respect of his conviction under s 229 of the Act.   Under s 232 of the CPA, the District Court could allow the appeal only if a miscarriage of justice had occurred. Under s 232(4):

… miscarriage of justice means any error, irregularity, or occurrence in or in

relation to or affecting the trial that—

(a)   has created a real risk that the outcome of the trial was affected; or

(b)   has resulted in an unfair trial or a trial that was a nullity.

[10]     Judge Callaghan dealt with the appeal on the papers.  He found the evidence had clearly proved an offence had been committed, as alleged in the infringement notice.2     He said Mr Ake’s submissions referred only to his arguments based on contract.  Judge Callaghan said those submissions were of no relevance because Mr Ake was not being charged with breaching a contract.3    He was charged with breaching the criminal law, specifically the Land Transport Act.

[11]     In  the  documents  setting  out  the  grounds  of  appeal  accompanying  his application for leave, Mr Ake argues:

1.    in  his  document  responding  to  the  charge,  he  indicated  he  was  not accepting the Court had jurisdiction in the matter;

2.    he had asserted that he was not a willing party to any contract where he accepted liability for the offence;

3.    he asserted his defence in an affidavit.   That affidavit had not been rebutted so had to be accepted as true;

4.    the hearing should not have proceeded on a formal proof basis because

the Court had his “Affidavit of Special Appearance” in advance of the

hearing;

2 At [22].

3 At [24].

5.    his appeal was based on his assertion that there was no contract.  Judge Callaghan had not dealt with that defence and so there was a miscarriage in terms of s 232 CPA; and

6.    the appeal should have been allowed because there was no evidence provided to the District Court of any commercial agreement by which he accepted liability for this offence.

[12]     Mr  Ake  repeats  these  assertions  in  a  number  of  different  ways  in  the document setting out his grounds of appeal.   Basically, he says that, through his “Affidavit of Special Appearance”, he had put his defence before the Court.  This defence was that he could be guilty of this offence only if the prosecution proved he had entered into a contract by which he would be liable for a speeding offence.  He says the prosecution did not prove this so there was a miscarriage of justice when the Justices of the Peace dealt with the charge.  He argues that there was a miscarriage of justice when Judge Callaghan dealt with the matter without taking his defence into account.

Conclusion

[13]     I am not satisfied Mr Ake’s appeal involves a matter of general or public

importance or that a miscarriage of justice may have occurred.

[14]     Mr Ake was subject to all the requirements, prohibitions, limitations and penalties set out in the Land Transport Act 1998 and the regulations made under that Act because he was the driver of a motor vehicle.  He became subject to the offence provisions of that legislation and the penalties pursuant to that legislation.   The prosecution  did  not  have to  prove that  he had  accepted obligations  as  a driver through any contract.  He had obligations simply because he was driving a vehicle on a road within New Zealand.

[15]     The assertions made by Mr Ake in his “Affidavit of Special Appearance” did not provide him with any defence.  Even if he had attended the eventual hearing and advanced those arguments in person, they would have made no difference.   He would still not have had a defence to the charge that he faced.

[16]     Judge  Callaghan  was  correct  in  saying  that  Mr  Ake’s  arguments  were

irrelevant to what the prosecution had to prove.

[17]     I am accordingly satisfied that Mr Ake never had any defence to the charge which he faced.   In terms of s 237(2), I must not give leave for a second appeal because I am not satisfied that the particular grounds for leave have been made out.

[18]     Mr Ake’s application for leave to appeal is declined.

Solicitors:

Preston Russell Law, Invercargill

Copy to Appellant.