Baker v Police - [2023] NZHC 2627

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Police

Details

AGLC: Baker v Police [2023] NZHC 2627
Case: [2023] NZHC 2627
Decision Date: 20 September 2023

CaseChat Overview and Summary

Nathan Albert Baker has appealed the decision of the District Court, which dismissed his appeal against a conviction for three road traffic offences. The District Court had earlier upheld the conviction of Mr Baker by a community magistrate. Mr Baker argues that he cannot be convicted of the offences because he is a natural person and the definition of "person" in the Legislation Act 2019 does not include natural persons. The Court must decide whether Mr Baker's argument has any legal merit and whether a miscarriage of justice may have occurred. The Court also had to determine whether leave should be granted for the second appeal, given that it was filed out of time.

The Court found that Mr Baker's argument was not legally tenable. The Court considered the language of the statute and relevant regulations, which refer to "person" in the context of committing an offence. It concluded that the word "person" was used in the ordinary sense of meaning a natural person. The Court noted that the definition of "person" in the Legislation Act 2019 extends the definition rather than confines it, and thus includes natural persons. The Court found that the principle of expressio unius est exclusio alterius, which Mr Baker relied upon, was misplaced and did not apply in this context. The Court also dismissed Mr Baker's other arguments, including that the Court acted in bad faith and that he was not subject to the jurisdiction of the Court. The Court concluded that there was no risk of a miscarriage of justice and denied leave to appeal.

The Court dismissed the application for leave to appeal and declined to extend the time for filing an application for leave to appeal.

Orders