BETWEEN MALCOLM FRANCE Appellant AND NEW ZEALAND POLICE Respondent
[2024] NZHC 2827
•1 October 2024
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CRI-2024-404-305
[2024] NZHC 2827
BETWEEN MALCOLM FRANCE Appellant AND NEW ZEALAND POLICE Respondent
| Hearing: | 16 September 2024 |
| Appearances: | Appellant in person |
| G Young for Respondent | |
| Introduction |
Mr France, who prefers to be known as Malcolm-Daniel, applies for an
extension of time to file an application for leave to appeal out of time against a decision
of Judge Collins upholding a fine for an infringement offence on a charge of operating
a vehicle on a road without displaying current evidence of vehicle inspection (warrant
of fitness offence).[1]
[1] New Zealand Police v France [2021] NZDC 331.
The appellant requires leave to bring the appeal as it is a second appeal.
The Crown submits that an extension of time to file the leave application
should be refused. In the event leave is granted, the Crown says the appeal does not
raise any matter of general or public importance and there is no risk of a miscarriage
of justice, so leave to bring a second appeal should be refused and the application
dismissed.
As to the merits of the appeal itself, the respondent submits that there has been
no miscarriage of justice because it was established on the evidence at trial that the
appellant was driving the car which did not have a current warrant of fitness.
The appellant does not deny that he was the man driving the car. Nor does he
deny that the car was unwarranted. Rather the appellant challenges the jurisdiction of
the Court to identify him as Mr France. He says that Mr France is a legal fiction.
Background
On the afternoon of 24 July 2018, a police officer observed a motor vehicle
registration ZM5033 driving southbound on the Southern Motorway in Auckland. A
vehicle check established that the car’s warrant of fitness had expired on 7 April 2018.
The car was stopped, and the police officer confirmed that it was not displaying a
current warrant of fitness and required the driver to provide his full name, address, and
date of birth. The driver provided his first and second name, Malcolm Daniel, and
initially said his surname was “Freeman” but then acknowledged that was not his
actual surname. He refused to give his date of birth and address.
The appellant was issued infringement notices for:
(a) operating a private vehicle not displaying current evidence of vehicle inspection (warrant of fitness charge); fined $200;[2]
[2] Land Transport Act 1998, ss 6 and 34. Maximum penalty: $2,000 fine.
(b) providing misleading information to an enforcement officer; fined $300;[3] and
[3] Sections 14 and 44. Maximum penalty: $10,000 fine.
[4] Sections 5 and 31. Maximum penalty: $1,000 fine.
(c) driving while unlicensed; fined $300.[4]
The appellant requested a hearing in respect of the infringement notices
pursuant to s 21 of the Summary Proceedings Act 1957. A hearing was subsequently
held at the Auckland District Court on 12 March 2019 before two Justices of the Peace.
The Justices of the Peace found the infringement offences proven.
The appellant appealed to the District Court and the matter was set down for
hearing before a Judge on 5 March 2020. The appellant failed to attend the hearing.
Judge Henwood dismissed the appeal for want of prosecution.
The appellant then applied for leave to bring a second appeal to this Court. On
6 October 2020, Campbell J granted leave to appeal and allowed the appeal with the
consent of the Crown.[5] The proceedings were remitted to the District Court to permit
Mr France one further opportunity to advance his appeal.[6]
[5] France v New Zealand Police [2020] NZHC 2625.
[6] The appeal proceeds as an appeal against conviction although no conviction is entered in respect
The further appeal was set down to be heard on 13 January 2021 in the
Auckland District Court. Mr France did not appear. Judge Collins proceeded to
consider the issues raised in the documents filed by the parties and gave an oral
judgment. He allowed the appeal in relation to the second and third infringement notices. He dismissed the appeal on the warrant of fitness offence and upheld the fine
on that matter.
The appellant now seeks to pursue a second appeal against the infringement
notice on the warrant of fitness charge long out of time.
I heard argument and received additional submissions from the appellant dated
25 September 2024. Although I had not granted leave for further submissions to be
filed, I received the submissions, read them and have taken them into account.
Extension of time
The appellant submits that he did not receive notice of the 13 January 2021
hearing date for the appeal. He says that he was subsequently advised by the registry
that Judge Collins had allowed the appeal in full and that the infringement notices and
fines had been dismissed. Although the appellant subsequently received a copy of
Judge Collins’ decision, he says that he misread it having been told that the appeal had
been allowed.
The appeal is more than three years out of time. The appellant says that he
became aware that the appeal in respect of the warrant of fitness offence had not been
allowed in the course of preparing civil proceedings against the New Zealand Police.
There was a preliminary issue in this Court as to the appellant’s standing to
appear and argue the matter because he told the Court he was not Mr France. I
explained to the appellant that Mr France has standing to represent himself but cannot
be represented by anyone else except a lawyer entitled to appear in the High Court. If
he were not Mr France, he could not represent Mr France.
After a discussion it transpired that what the appellant really objected to was
being referred to as Mr France. He did not dispute that he was the man driving the
vehicle stopped by police who gave the police officer the name Malcolm Daniel
Freeman. The appellant drew a distinction between reference to “a person” and “a
man”. He says that the word “person” refers to a legal entity and not a human being.
While there is no basis in law for such a submission, it is not an unfamiliar one. There appears to be a group of people who hold this misconception about the law and who
regularly appear before courts making the same submission.
As I indicated to the appellant, I regard the submission as nonsensical. I was
prepared to find that the appellant has standing because he did not dispute that he was
the subject of the proceeding despite the completely unfounded contention that he and
Malcolm Daniel France are different entities. It is the man that is prosecuted and not
the name. The name is simply a convenient label to identify the man. As a matter of
law, the word person includes a natural person.
I have considered the application for extension of time. The appellant says that
he was unaware that the infringement notice for the warrant of fitness offence had
been upheld. The appellant was provided a copy of the decision and accepts that he
received it. It is unclear why it took him three years to realise that the warrant of
fitness offence remained. It seems that no enforcement action was taken in that time.
I accept that the lack of enforcement action could have mislead the appellant.
I grant an extension of time for the filing of the leave application.
Leave to bring a second appeal
Although the appeal was described as an appeal against conviction, that is not
quite correct. No conviction can be entered in respect of an infringement offence and
infringement offences are not recorded as convictions.[7] Procedurally such an appeal
proceeds as an appeal against conviction but no conviction results from the appeal
being dismissed.[8] The outcome of an unsuccessful appeal is that the infringement
offence remains proven and the fine remains payable.
[7] Criminal Procedure Act 2011, s 375.
[8] Summary Proceedings Act 1957, s 21.
A second appeal against an infringement offence finding may only be brought
with the leave of this Court. The Criminal Procedure Act 2011 provisions relating to
second appeals apply. The Court must not give leave unless satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice has
occurred.[9]
[9] Criminal Procedure Act 2011, s 237(2).
This appeal involves the District Court upholding an infringement offence for
failure to display a valid warrant of fitness. The appellant accepts that he committed
the offence. It cannot be said that it involves a matter of general or public importance.
The appellant attempted to categorise the matter as an abuse of police
power — however that submission appears to be entirely without merit. The appellant
is required to display a warrant of fitness, as is any other person who drives a motor
vehicle. If he fails to do so, he can expect to be fined like everyone else.
As to miscarriage of justice, I agree with the Crown that the District Court has
been careful to avoid unfairness or disadvantage which could result from the fact the
appellant is a self-represented litigant. His first appeal was allowed in respect of two
out of three convictions which indicates that careful consideration was given to the
matter despite the fact that the appellant was not present at or represented at the
hearing. The Court has been patient with submissions which quite frankly have no
legal basis whatsoever and has made every attempt to do justice to the appellant.
I agree with the Crown that there is no procedural error which would raise the
possibility of a miscarriage of justice. Although the appellant did not appear at the
appeal, notice was sent to him of the hearing. The Crown cites the case of Wells v R
where the Court of Appeal refused leave for a second appeal by an appellant who had
not been represented at the first appeal.[10] In that case, the appellant had been convicted
of assault after a judge-alone trial in the District Court and her appeal to the High Court
was dismissed. When the appeal was called in the High Court, the appellant did not
appear. Instead of striking out the appeal, Brewer J dealt with the matter on the papers
and addressed the points on appeal, carefully considering the proceedings in the
District Court including the evidence presented and the Judge’s findings. The
Court of Appeal was not persuaded that the proposed appeal had merit and was satisfied that the matter had been properly considered in the courts below. The
application for leave to bring a second appeal was declined.
[10] Wells v R [2015] NZCA 528.
The appellant says he did not receive notice of the appeal and therefore had no
opportunity to be heard. In such a situation the application still falls to be considered
under the test for a second appeal, namely whether the appeal raises a matter of public
importance or whether there was a miscarriage of justice.
So far as the application for leave to appeal is concerned, there was no
miscarriage of justice and there is no matter of general or public importance to be
decided. The appellant does not dispute that he was the driver of the vehicle, and he
does not dispute that the vehicle did not have a warrant of fitness. He simply disputes
the ability of the Court to identify him as Malcolm Daniel France. Essentially, he
disputes the jurisdiction of the Court. That is not a valid ground of appeal.
Result
The application for leave to bring a second appeal in respect of the
infringement notice issued for the offence of operating a motor vehicle without
displaying current evidence of vehicle inspection is declined.
____________________
Wilkinson-Smith J
| Judgment: | 1 October 2024 |
| JUDGMENT OF WILKINSON-SMITH J |
This judgment was delivered by me on 01/10/2024 at 2 pm
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Meredith Connell, Auckland
Copy to Appellant
FRANCE v NEW ZEALAND POLICE [2024] NZHC 2827 [1 October 2024]
of infringement offences. The Criminal Procedure Act 2011 applies with all necessary
modifications to a hearing in respect of an infringement offence as specified by s 21 of the
Summary Proceedings Act 1957.
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