Brady v Police
[2019] NZHC 1040
•13 May 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-025-493
[2019] NZHC 1040
BETWEEN KEVIN FRANCIS BRADY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 May 2019 Appearances:
Appellant in Person
S McKenzie for Respondent
Judgment:
13 May 2019
JUDGMENT OF MANDER J
[1] The appellant, Kevin Brady, was found guilty by Judge Cathcart of charges of escaping from police custody, failing to give/verify particulars, and failing to remain stopped for an enforcement officer.1 Mr Brady appeals those convictions and the sentences imposed for that offending.
[2] Mr Brady was also held in contempt of Court by Judge Cathcart. He seeks to appeal that finding and the penalty imposed.
The District Court hearing of the criminal charges
[3] Evidence was provided to the Court by two police officers, Constables Wilson and Gerkin. Mr Brady’s vehicle was clocked at 123 kph. He was driving in excess of
1 Escaping from police custody is an offence against s 120 of the Crimes Act 1961, with a maximum penalty of five years’ imprisonment. Failing to give/verify particulars is an offence against s 52A(1)(c) of the Land Transport Act 1998 and carries a maximum penalty of a fine of $10,000. Failing to remain for an enforcement officer is an offence against s 52A(1)(b) of the Land Transport Act 1998 and carries the same maximum fine of $10,000.
BRADY v NEW ZEALAND POLICE [2019] NZHC 1040 [13 May 2019]
the speed limit. The officers activated their patrol car’s lights and siren, and Mr Brady pulled his vehicle over and stopped. Constable Wilson approached and asked Mr Brady whether he had a licence. Mr Brady’s response was that he did not. However, a check of police records showed that he did have a driver’s licence.
[4] Mr Brady’s explanation to the officers was to the effect that as a “living, breathing person” he did not have a licence. When challenged about records held on the police database in Mr Brady’s name, he responded by saying that person was “a straw man” and someone who Mr Brady no longer recognised as “being equivalent to him”. Mr Brady’s stance at the roadside is consistent with the approach he sought to take before the District Court and, indeed, before me on the hearing of his appeal.
[5] Under cross-examination, Mr Brady confirmed that he was asked by the police officer for his name. He also acknowledged that he was told that he risked arrest if he failed to provide his details. As found by the District Court Judge, it is implicit from Mr Brady’s confirmation of the officer’s advice that he received a warning that he would be arrested if he refused to provide his particulars. Mr Brady also acknowledged that after refusing to confirm his details he was told he was under arrest.
[6] Consistent with the police officers’ evidence, Mr Brady also accepted that he then drove off. He did so abruptly, causing his vehicle’s wheels to spin. He drove some 16 km before the police managed to make him stop. As observed by Judge Cathcart, on his own evidence Mr Brady deliberately drove off from the initial stop scene, having been properly arrested for failing or refusing to give or verify his particulars.
[7] Based upon that largely undisputed narrative, all the required elements of the charges were found to have been established. As the Judge remarked, the account Mr Brady gave in the course of his evidence, in large measure, amounted to a confession to the charges. For completeness, I note the Judge found a further charge of causing a vehicle to undergo sustained loss of traction not to have been proved. The Judge was not satisfied that Mr Brady had deliberately caused his vehicle to lose traction when he drove off. That charge was dismissed.
Sentencing
[8] In sentencing Mr Brady, the Judge noted that he had no previous convictions of any relevance, there being some very old common assault convictions which did not bear on the matter before the Court. The Judge took the escaping charge as the lead offence. He noted the antagonistic attitude displayed by Mr Brady towards the police, and in particular to the officers who were at the time going about their lawful duties. The Judge also observed what he described as Mr Brady’s unusual views regarding the scope of the officers’ authority over him. Mr Brady saw himself as being “jurisdictionally disconnected”. This extended to the Court’s authority, which Mr Brady sought to ignore by using “his creation of a fictional person”.
[9] When assessing the seriousness of the offending, it was noted that Mr Brady’s conduct had required at least five officers to attend the scene to deal with him and extended to the need to break a window of the vehicle in order to apprehend him and prevent him from driving. Only after another officer had positioned his vehicle ahead of Mr Brady in a way that prevented him from passing, was Mr Brady forced to stop. After noting those serious circumstances, and that the other charges were precursors to the commission of the more serious offence, Mr Brady was fined $1,500 and Court costs of $130 on each of the charges of failing to give/verify particulars and failing to remain stopped for an enforcement officer. On the charge of escaping, he was sentenced to 120 hours’ community work and disqualified from holding or obtaining a driver’s licence for 18 months.
The appeal
[10] In the notice of appeal filed by Mr Brady against his convictions, he specifies as a ground of appeal that there has been a “gross miscarriage of justice” due to him being “denied the opportunity to present evidence in Court”. He also states that he was “falsely arrested and falsely imprisoned” at the direction of Judge Cathcart. That second complaint relates to Mr Brady having been found in contempt, which is a matter I will address later in this judgment.
[11] Insofar as Mr Brady contends that he was not provided with the opportunity of giving evidence in defence of the charges he faced, that is demonstrably incorrect.
Both Judge Cathcart’s decision and the notes of evidence from the judge-alone trial record the evidence which Mr Brady gave at that time. Indeed, as the trial Judge observed, Mr Brady’s evidence largely corroborated the police constables’ evidence. That ground cannot succeed.
[12] At the hearing of the appeal, Mr Brady sought to rely on two documents which he had drafted and filed. The first is an affidavit of 13 June 2018, which is described as an “Affidavit of Special Appearance”, and a further document headed “Default Notice of No Response”. A reading of those documents reveals Mr Brady’s essential stance in response to the charges. He effectively does not recognise the jurisdiction of the Court nor does he consider himself subject to the statutory powers of the constables, as provided by Parliament.
[13] It may be that Mr Brady’s reference to being denied the opportunity to present evidence is a reference to the so-called “Affidavit of Special Appearance”. This is referred to in his notice of appeal where, in answer to the question in the printed form enquiring as to whether the appellant challenges a factual finding in the decision to be appealed and, if so, to provide details of that evidence, Mr Brady stated:
Under special appearance an affidavit was entered into the court on the 13th June, 2018, being unrebutted, stands as truth in court but was never given its due respect which should have stopped any further action on the jurisdiction of the court making all charges null and void ab in [sic].
[14] In response to the next question in the standard form, as to whether the appeal challenges the exercise of a judicial discretion, Mr Brady stated:
As the above unrebutted affidavit stands as truth it quashes any jurisdiction the court thought it had on the matter therefore makes all court [sic] null and void ab initio.
[15] The document entitled “Affidavit of Special Appearance” records Mr Brady’s declaration of the following propositions:
1. THAT. I am a living, breathing, flesh-and-blood man, in full-life; and
2. THAT. I am not a dead-in-law, legal or corporate entity; and
3. THAT. I have not knowingly, willingly or voluntarily agreed to plead guilty or not guilty, because I am innocent; and
4. THAT I have not knowingly, willingly or intentionally agreed to be a person; a party; or, an individual, whenever such is defined as a corporate entity; and
5. THAT I am not a knowing, willing or intentional party to any unrevealed contract(s) or commercial agreement(s); assumed, implied, express, adhesion or otherwise; and
6. THAT I have not knowingly, willingly or intentionally accepted any liabilities that derive from the compelled benefit(s) of any unrevealed contract(s) or commercial agreement(s); and
7. THAT the court has no valid contract or commercial agreement to adjudicate; and, accordingly any claims of subject matter jurisdiction are null and void (no case to answer).
[16] The document entitled “Default Notice of No Response” is dated 24 December 2018 and appears to have been prepared and filed for the purpose of challenging his convictions. Attached to that document is a further document, headed “Notice of Understanding, Intent and Claim of Right”, in which Mr Brady sets out 119 separate propositions and claims which appear to represent his views of his rights, the basis of his view that the law does not apply to him, and that he is not subject to the Court’s jurisdiction. The statements range from those that are uncontroversial and benign to others that are contemptuous and derogatory of the Court. Essentially, the combined effect of the documents is Mr Brady declaring himself to be subject neither to the law nor the jurisdiction of the courts.
Decision on conviction and sentence appeal
[17] Mr Brady’s “claim of right” argument fails. It appears he relies upon the various propositions set out in the document “Notice of Understanding, Intent and Claim of Right”, being, as he states in that document, “unrebutted by New Zealand Ministry of Justice”. This, he claims, results in him succeeding on the appeal by what he describes as “automatic default judgment securing forevermore all rights herein claimed...”. Mr Brady, who appeared in person and identified himself to me as the appellant, maintained that his convictions and sentences were “null and void”.
[18] This type of jurisdictional challenge which extends not only to the authority of the Court’s jurisdiction to deal with him as a defendant, but by extension to the validity of the laws enacted by the New Zealand Parliament, cannot succeed. Mr Brady is
subject to the law of New Zealand as enacted by Parliament. Those laws are binding on all persons within the geographical territory of New Zealand. The Courts are bound to uphold enactments passed by Parliament, including the Crimes Act 1961 and the Land Transport Act 1998. The Courts have jurisdiction to deal with actions that may amount to criminal offences in this country, and all persons are subject to the same criminal court system. It is well settled that arguments challenging the general law- making authority of Parliament or the jurisdiction of the New Zealand courts cannot succeed. A litigant is not entitled to put himself or herself outside of the law of New Zealand.2 Such contentions have sometimes been made in the context of Māori sovereignty claims, but the same principles apply.3
[19] It follows that Mr Brady’s appeal against his convictions for escaping from police custody, failing to give/verify particulars and failing to remain stopped must be dismissed. Mr Brady’s appeal against the sentences imposed in respect of that offending did not particularise any grounds. Ms McKenzie on behalf of the Crown submitted that the community work and fines are unremarkable and could not be considered manifestly excessive having regard to the maximum prescribed penalties and Mr Brady’s conduct at the time of his offending.
[20] The Crown in its written submissions queried the jurisdiction to impose a disqualification in respect of the charge of escaping lawful custody and surmised that the disqualification must have been intended to be ordered in respect of the Land Transport Act charges. I do not consider that was the case. Section 124 of the Sentencing Act 2002 provides:
124 Power of court to disqualify offenders from driving motor vehicles
(1)This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Land Transport Act 1998.
(2)A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—
2 Ferri v Police [2018] NZCA 181 at [8].
3 R v Mitchell CA68/04, 23 August 2004.
(a)the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or
(b)a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.
(3)The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.
(4)The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.
(5)Nothing in this section limits or affects any power of the court under any other enactment to make an order disqualifying any person from holding or obtaining a driver licence.
[21] I have no doubt the disqualification which attaches to his escaping conviction, in respect of which a vehicle was used, was imposed pursuant to s 124. I am reinforced in that view having read the transcript of the exchange between the police prosecutor and the Judge, during which specific reference was made to that provision. While stern, I do not consider there was any error in the imposition of the disqualification.
[22] However, I consider there has been some duplication in the sentence imposed for failing to remain stopped and escaping lawful custody. While different offences, the failure to remain at the side of the road essentially involved the same act as escaping from police custody. The latter more serious charge largely supersedes the failure to remain stopped. I would quash the $1,500 fine imposed in respect of that charge. The Court costs remain undisturbed, as does the conviction.
The contempt issue
[23] Mr Brady’s notice of appeal refers to having been “falsely arrested and falsely imprisoned, without lawful excuse or reason, on presenting in the court public gallery by orders of Cathcart J (sic)”. Apart from the allegation of being falsely arrested and imprisoned, Mr Brady did not elaborate on those grounds. Insofar as he relies on his argument that statutes passed by Parliament do not apply to him or that he is not subject
to the jurisdiction of the Court, for the reasons already traversed, that contention must be rejected.
The finding of contempt
[24] There were a number of matters for hearing before the Court on the day of Mr Brady’s judge-alone trial. When his name was called at the beginning of the Court’s sitting there was no initial response. The Court enquired whether the police sought a warrant for Mr Brady’s arrest in the absence of anyone having identified themselves to the Court. It was then established that Mr Brady was present. He was invited by Judge Cathcart to come forward, to enter the body of the Court, and go into the dock. Mr Brady argued that he was already in Court, and when it was pointed out to him that he was in the public gallery, he stated that he preferred to stay there. The Judge directed him to enter the body of the Court and stand in the dock. Mr Brady declined to do so.
[25] In light of Mr Brady’s failure to comply with the Court’s direction, constables in attendance were directed by the Judge, under s 212 of the District Court Act 2016, to take Mr Brady into custody and detain him until the rising of the Court on a charge of contempt. Section 212 provides:
212 Contempt of court
(1)This section applies if any person—
(a)wilfully insults a judicial officer, Registrar, officer of the court, juror, or witness during his or her sitting or attendance in court or in going to or returning from the court; or
(b)wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or
(c)wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.
(2)If this section applies,—
(a)any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer, take the person into custody and detain him or her until the rising of the court; and
(b)a judicial officer may, if he or she thinks fit, sentence the person to—
(i)imprisonment for a period not exceeding 3 months; or
(ii)a fine not exceeding $1,000 for each offence.
(3)Nothing in this section limits or affects any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.
[26] Mr Brady appears to have been taken into custody shortly after 10.00 am. His matter was recalled at 12.39 pm. At that time, he was addressed by the Judge in the following terms:
Kevin Francis Brady, you are charged under s 212 of the District Court Act 2016 that on the 15th of August 2018, you wilfully and without lawful excuse disobeyed a direction of the Court in the course of the hearing on the proceedings by refusing to enter the body of the Court and the dock, having been repeatedly asked to do so. You are subjected to a term of imprisonment not exceeding three months or a fine not exceeding $1,000. They are the particulars of the charge. You are remanded in the cells and you will consult with the duty solicitor. We will then resume your hearing when the duty solicitor indicates that her dealings with you have been completed. Stand down.
[27] The Court resumed at 2.15 pm, at which time Mr Brady was brought back to Court and the Judge heard from the duty solicitor. The duty solicitor advised that she had spoken with the defendant regarding the matter of contempt and the possible consequences arising from that. The Court was informed that at this stage Mr Brady did not wish to be represented, and it had been communicated to the duty solicitor that he did not accept the jurisdiction of the Court. At that point, the contempt issue was held in abeyance and the hearing in respect of the police charges proceeded with.
[28] At 4.22 pm, after having heard the evidence, including that of Mr Brady, Judge Cathcart delivered an oral decision. He found him guilty on three of the four charges. The Judge then enquired from Mr Brady whether he wished to say anything before passing sentence. After hearing from Mr Brady, the Judge informed him that this was an opportunity for him to indicate whether he wished to apologise for his contempt of Court. The Judge acknowledged that Mr Brady’s position was that he did not recognise the jurisdiction of the Court, but he told Mr Brady that he was providing him with the opportunity to apologise. Mr Brady was advised that this would be taken
into account when imposing a penalty for the contempt. Mr Brady uttered an apology, but it is apparent from the transcript of the exchange between the Judge and the appellant that the Court did not consider the apology was genuine.
[29] At that point, Judge Cathcart obtained confirmation from the duty solicitor that she had discussed the particulars of the charge with Mr Brady, including the nature of the contempt being one of not following the lawful direction of the Court and that the likely consequences could include imprisonment.
[30] In sentencing Mr Brady pursuant to s 212(2)(b) of the District Courts Act 2016, Judge Cathcart reviewed the circumstances that had led him to find that Mr Brady had wilfully disobeyed his direction to enter the body of the Court and the dock, the steps taken to provide him with the opportunity to obtain legal advice, and to apologise for his contempt. The Judge had advised Mr Brady that any apology would be taken into account and be reflected in the penalty. The Judge took a dim view of Mr Brady’s response to that invitation:
[6] He stood and then apologised for “whatever might have upset” me. It was an arrogant response. And reflects his general contempt for the Court’s jurisdiction. And the apology was patently inconsistent with the fact the duty solicitor confirmed she advised him precisely of the particulars. In other words, he knew perfectly well what he was being asked to apologise about.
[31] Judge Cathcart considered Mr Brady’s conduct constituted wilful disobedience of his direction and that there was no excuse for it. He noted the decision of this Court in Tamihere v Police, which confirmed that refusing a direction to enter the dock constituted a contempt.4 Having found Mr Brady to be in contempt of Court, the Judge sentenced him to 10 days’ imprisonment.
[32] On the appeal, Mr Brady, despite being provided with the opportunity to make further submissions in addition to the written material which he had provided, and to which I have previously referred, did not wish to be heard further. In particular, he did not dispute the Judge’s finding of having wilfully disobeyed the Judge’s direction. That is not altogether surprising having regard to Mr Brady’s overarching position that he is not subject to the jurisdiction of the courts despite having sought by his appeal
4 Tamihere v Police [2016] NZHC 539.
to have this Court exercise its judgment in his favour. Mr Brady did not address that inconsistency in his approach to the matter.
[33] Judge Cathcart was advised by the duty solicitor, in Mr Brady’s presence, that the appellant did not accept the jurisdiction of the Court. When provided with the opportunity to mitigate or possibly purge the contempt by apologising to the Court, Mr Brady managed to make matters worse. I do not consider Judge Cathcart erred in the process he adopted in dealing with the matter. Mr Brady was provided with the opportunity to respond to the allegation when it was formally put to him, and he was provided with the opportunity to take legal advice and communicate his position to the Court. The approach he chose to persevere with was to not recognise the Court’s jurisdiction. Those steps having been taken and Mr Brady having been found to be unrepentant, the Court was entitled to proceed as it did.
[34] Mr Brady made no submission, either written or oral, to challenge the term of 10 days’ imprisonment. The Judge settled on that penalty after having referred to the approaches taken by this Court in Tamihere, Mair v Wanganui District Court, and Greer v Police.5 As already noted, part of the appellant’s contempt in Tamihere included a refusal to enter the dock. Whata J, on appeal, upheld a sentence of 14 days’ imprisonment as not being manifestly excessive or obviously wrong. In Mair, a sentence of 21 days’ imprisonment was imposed when a direction not to conduct a karakia was not complied with. In Greer, the defendant called the Judge a derogatory name which resulted in the imposition of a 20 day sentence of imprisonment. Gendall J affirmed that penalty on appeal. Based upon those decisions, to which the Judge had regard, and in the absence of any submissions suggesting the Court’s approach was manifestly excessive or obviously wrong, the appeal must be dismissed.
Result
[35] For the reasons canvassed, Mr Brady’s appeals against conviction and sentence in relation to the charges of escaping from police custody and failing to give/verify particulars are dismissed. The appeal against his conviction on the charge of failing
5 Tamihere v Police, above n 4; Mair v Wanganui District Court [1996] 1 NZLR 556; Greer v Police
HC Palmerston North AP53/97, 17 October 1997.
to remain stopped for a law enforcement officer is also dismissed. However, the
$1,500 fine in relation to that charge is quashed. The Court costs of $130 must be paid.
[36] The appeal from the District Court Judge’s finding that Mr Brady wilfully and without lawful excuse disobeyed a direction of the Court is also dismissed, as is his challenge to the penalty imposed as a consequence.
Appeal out of time
[37] It belatedly came to my attention that Mr Brady did not file his appeal until 11 March 2019. He was convicted and sentenced on 15 August 2018. His appeal was filed out of time. Mr Brady did file a document intituled as being an application for “a retrial and a stay of sentencing on all charges till [sic] the matter had been retried”. He purported to rely on the District Court Rules. Judge Cathcart responded to that application in a minute of 10 September 2018, in which he noted there were jurisdictional problems with the application. Under s 177 of the Criminal Procedure Act 2011 the Judge is empowered to order a retrial where justified, but only in cases where a defendant is convicted of a Category 3 offence punishable by a term of imprisonment not exceeding three years. One of the charges proved against Mr Brady was that of escaping lawful custody, which carries a maximum term of imprisonment of five years.
[38] As the Judge explained in his minute, there is no statutory power to order a rehearing in relation to that offence. Furthermore, it was noted that Mr Brady’s reliance on the District Court Rules was misplaced because they apply to civil proceedings and do not cover criminal procedure. The Judge remarked that Mr Brady’s recourse was to appeal to the High Court. The Judge, who is resident in Gisborne, noted that Mr Brady’s application could more conveniently be dealt with in Invercargill, and directed the registrar to set it down before a Judge in a suitable Invercargill list.
[39] Mr Brady was informed of the outcome of the referral of his application to the Judge in a letter from the registry of 24 September. He was advised that he had the right to appeal to the High Court, and a general notice of appeal form was enclosed.
It is not clear to me why Mr Brady waited until early March 2019 to file his appeal. He provided no explanation for the five month period between being advised that this was his appropriate course and the filing of his appeal.
[40] Neither the merits of his appeal nor the circumstances pertaining to his failure to file it within the stipulated statutory timeframe would ordinarily support Mr Brady being granted leave to file his appeal out of time. He has made no application to that effect. Had he done so, and the issue brought to my attention and aired, it likely would have been declined. Notwithstanding this non-compliance, I have proceeded to deal with his appeal on its merits. There is the possibility of there having been some procedural confusion and, in the unusual circumstances of this case, I consider the best course is to grant leave.
Solicitors:
Preston Russell Law, Invercargill
Copy to:
Mr Brady
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