Baker v Police
[2023] NZHC 2627
•20 September 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-5
[2023] NZHC 2627
BETWEEN NATHAN ALBERT BAKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 September 2023 (By way of AVL) Appearances:
Appellant in person
A-M McRae for Respondent
Judgment:
20 September 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 20 September 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BAKER v NEW ZEALAND POLICE [2023] NZHC 2627 [20 September 2023]
Introduction
[1] On 8 November 2022, Mr Baker was found guilty by a community magistrate on infringement notices issued against him for the following offences:
(a)operating a vehicle not displaying evidence of inspection (a warrant of fitness);
(b)operating a vehicle when it was not licenced (lacking appropriate registration); and
(c)operating a vehicle when it displayed an unauthorised plate.
[2] Mr Baker did not dispute any of the factual evidence adduced to support the charges. He owned and was driving the vehicle which had no warrant or registration, nor did it display an authorised number plate. Rather, he denied that in law he could be convicted of the offences.
[3] On appeal, the District Court held there was no basis for disturbing the findings of the community magistrate and dismissed the appeal.1
The procedure to bring a second appeal
[4] Mr Baker wishes to appeal the District Court decision. However, leave is required because this is a second appeal. Section 237 of the Criminal Procedure Act 2011 (CPA) governs the circumstances in which leave should be granted, stating:
(1)A convicted person may, with the leave of the second appeal court appeal to that Court against the determination of the person’s first appeal under this subpart.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that–
(a) the appeal involves a matter of general or public importance; or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
1 Baker v New Zealand Police [2023] NZDC 3239.
[5] Strictly speaking, a notice of application for leave to appeal is required but, as Mr Baker is self-represented, I have treated his notice of appeal as an application for leave.
[6] As Mrs McRae for the respondent notes, leave is also required because the appeal was filed out of time. The notice of appeal was filed on 22 March 2023, being 36 working days following the decision of the District Court and 16 days beyond the statutory timeframe of 20 workings days from the date of the decision.2
[7] This Court can extend the time for filing a notice of application for leave to appeal.3 In deciding whether to grant an extension of time, the Court generally considers first, the reason for the appeal being filed late, and second, the merits of the prospective appeal.4 However, in the end it is the latter issue which is likely to be determinative of whether it is in the interests of justice to grant an extension of time.
Prior decisions
[8] The issue before both the community magistrate and the District Court was essentially the same. Mr Baker did not contest the factual elements of what was alleged. Instead, he challenged whether he was a “person” for the purposes of the offence provisions in the Land Transport Act 1998. He argued the definition of person in s 13 of the Legislation Act 2019 was an exhaustive definition. It defines “person” as “includes a corporation sole, body corporate, and an unincorporated body”. This was a case, he said, where the maxim “expressio unius est exclusio alterius” (or the principle of construction that the express reference to one thing implies the exclusion of another) applies. As natural persons are not included in the definition they are excluded from the application of the relevant provisions of the Land Transport Act.
[9] Both the community magistrate, and Judge Dravitski, rejected Mr Baker’s contention. They concluded that a reference to a “person” in the Land Transport Act, and the regulations made under it, included a natural person. As Judge Dravitski
2 Criminal Procedure Act 2011, s 239(2).
3 Section 239(3).
4 Mikus v R [2011] NZCA 298 at [26].
observed, the definition of “person” was not an “exclusive definition”, but was an “inclusive definition”, as the definition of a person “must” include any natural person.5
Nature of the application
[10] The application was filed as a notice of appeal under r 8.4 of the Criminal Procedure Rules 2012. However, as I have already noted, leave to appeal is required, so I am treating this as an application for leave to appeal.
[11] A complicating factor is that, in his submissions, Mr Baker also argues that he has a right to seek judicial review of the decision, which he says was denied by Harland J.6 In asserting this, he relies on s 27(2) of the New Zealand Bill of Rights Act 1990, which provides as follows:
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[12] However, this provision simply reserves the right to appeal to the courts from other decision-making bodies. Not all decisions of the Courts themselves are amenable to review, particularly when there is a clear appeal process. The comprehensive statutory right of appeal contained in the Criminal Procedure Act 2011 generally precludes judicial review. As was said by Simon France J in DGN v Auckland District Court:7
I agree that the enactment of the [Criminal Procedure Act] is significant in relation to the present type of application. The existing reluctance of the courts to allow judicial review to interrupt the conduct of criminal prosecutions should now be reinforced… This firm stance is supported by the reality that the scheme reflected in the Criminal Procedure Act affords all the opportunity a defendant needs to make appropriate challenges.
[13] In any event, the point which Mr Baker seeks to argue is that the Judge erred in law by holding that the definition of person included a natural person. This is an argument which can readily be addressed on appeal.
5 At [11] and [12].
6 There is no record of this on the file, but I accept it is likely he was advised this was not a tenable course of action and he had to pursue his appeal rights.
7 DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137 at [29].
Appellant’s submissions
[14] Mr Baker repeats the submission he made in the District Court that the Judge erred in applying the legal definition of “person” found in the Legislation Act 2019, again, arguing that the expressio unius legal maxim meant the definition did not cover natural persons. Mr Baker argues that the Judge “granted himself creative licence and applied his own opinion rather than the letter of the law”. He also argues that the Judge’s description of the definition as “inclusive” did not have the same meaning as the word “includes” which is used in the definition of person in the Act.
[15] In Baker’s written submissions, he made a range of other submissions, including that the community magistrate and the Judges acted in bad faith by failing to fulfil their legal obligations to apply the legal definition correctly. He also argued that there was a distinction between a natural person and a legal person, suggesting that even his driver’s licence recognised the separate entities.
[16] There was an oblique argument asserting that the New Zealand Court Registries are banks and the judges bankers, which did not obviously have any bearing on the error in law which Mr Baker wished to argue.
[17] Finally, in oral submissions, Mr Baker raised the argument that he was “people” as opposed to a “person”. He did not elaborate on what he meant by this. I can only assume he was referring to the distinction he draws between a natural person and their supposedly separate identity as a legal person.
[18] It seems some of his submissions found their source in the so-called “sovereign citizen” movement, submitting that the courts can only act with “the legal entity” and until he, as a private man, “consents to joinder, the courts are acting extra-judicially and without jurisdictional matter”.
[19] However, such arguments have repeatedly been rejected by the Courts as untenable and lacking in legal foundation.8 As the Court of Appeal noted in Warahi v
8 Simon v Chief Executive of the Department of Corrections [2022] NZCA 222; and James v District Court Whanganui [2022] NZHC 2309.
Chief Executive of the Department of Corrections:9 “No person within New Zealand is able to dissociate themselves from their ‘legal persona’ so as to remove themselves from the jurisdiction of the courts.”
Discussion
[20] In my view, the question of whether there may have been a miscarriage of justice is determinative of both an application for leave to appeal out of time and an application for leave to appeal. I accept that if Mr Baker had a meritorious argument that the Land Transport Act provisions did not apply to natural persons such as himself, that would be a matter of general or public importance warranting a second appeal. However, for the reasons set out below, I do not consider there is a tenable argument to this effect.
[21] Mr Baker’s argument stands or falls on whether the relevant Land Transport Act provisions (and the regulations made pursuant to that Act) can apply to natural persons such as himself. The starting point is the language of the statute.
[22]Section 34(1) provides that a person commits an offence if:
the person
…
(b)operates a vehicle on a road without displaying current evidence of vehicle inspection
…
[23] The second charge is brought under reg 77(1) of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 which provides that:
A person commits an offence if the person operates a motor vehicle in contravention of s 242(1) of the Act by driving or using it on a road if the motor vehicle:
(a)is not registered and licensed in accordance with Part 17 of the Act
…
9 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [11].
[24]The third charge is brought under reg 85(1)(a), which provides as follows:
A person commits an offence if the person operates a motor vehicle by driving or using it on a road if the motor vehicle–
(a)displays any registration plate or licence that is not authorised to be affixed to the motor vehicle under Part 17 of the Act
…
[25] Neither the Land Transport Act nor the relevant regulations define the word “person”. In the absence of a definition, it can be assumed the word is used in the ordinary sense of meaning a natural person. That conclusion is reinforced by adopting a purposive approach to interpretation. Only a natural person can use a vehicle on a road or operate a vehicle on a road.
[26] Mr Baker’s argument relies on the definition in the Legislation Act 2019. As already mentioned, s 13 states that, in legislation, “person includes a corporation sole, a body corporate, and an unincorporated body”. It is clear from the context that the word “includes” extends the definition of “person” rather than confines it. Had it been otherwise, it would have said “means”, rather than “includes”.
[27] Mr Baker’s reliance on the principle of expressio unius est excluslio alterius is misplaced. In any event, caution needs to be exercised when applying such a principle of interpretation to a statute. It cannot prevail if it is inconsistent with the clear intent and purpose of the statute, which, here, is to control driver behaviour. As the Legislation Act 2019 says:10 “The meaning of legislation must be ascertained from its text and in light of its purpose and its context.”
[28] Furthermore, contrary to Mr Baker’s submission, maxims are not immutable rules. As Wills J said in Colquhoun v Brookes:11
I may observe that the method of construction summarised in the maxim expressio unius excluslio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact it
10 Section 10(1).
11 Colquhoun v Brookes (1887) 19 QBD 400 at 406.
never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind…
[29] Suffice to say in the present case, it is clear that the definition of “person” in the Legislation Act extends the definition to include more than just a natural person. That the word “person” includes a natural person is consistent with a purposive reading of the Land Transport Act and the regulations made under it.
[30] Mr Baker’s argument to the contrary is entirely misguided and cannot possibly succeed. For this reason, and noting there is no dispute over the facts supporting the charges, there is no risk that a miscarriage of justice may have occurred as a result of his conviction on these three offences.
[31] Accordingly, I decline leave to extend the time for filing an application for leave to appeal, and I dismiss the application for leave to appeal.
Solicitors:
Crown Solicitor, Timaru
Copy to:
Mr Baker, Appellant
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