Brady v Police - [2019] NZHC 1040

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…

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 Brady v Police

Details

AGLC: Brady v Police [2019] NZHC 1040
Case: [2019] NZHC 1040
Decision Date: 13 May 2019

CaseChat Overview and Summary

In this case, the appellant, Kevin Brady, challenges his convictions for escaping from police custody, failing to give or verify particulars, and failing to remain stopped for an enforcement officer, as well as the sentences imposed for these offences. Additionally, Mr. Brady contests his conviction for contempt of court and the penalty imposed for that offence. The District Court found Mr. Brady guilty of the charges and sentenced him accordingly. The High Court was tasked with determining the validity of Mr. Brady's appeal against his convictions and sentences, as well as the contempt finding and penalty.

The central legal issues revolved around Mr. Brady's jurisdictional challenges, arguing that he was not subject to the law of New Zealand or the jurisdiction of the courts. He also contended that he was denied the opportunity to present evidence in court. Furthermore, Mr. Brady argued that the sentences imposed were manifestly excessive.

The Court dismissed Mr. Brady's appeal against his convictions and sentences, affirming that he was subject to the law of New Zealand and the jurisdiction of the courts. The Court held that arguments challenging the general law-making authority of Parliament or the jurisdiction of the New Zealand courts cannot succeed. The Court also found that the sentences imposed were not manifestly excessive. However, the Court did quash the $1,500 fine imposed for failing to remain stopped for a law enforcement officer, considering it a duplication of the escaping lawful custody conviction.

Regarding the contempt issue, the Court dismissed Mr. Brady's appeal against his conviction and sentence for contempt. The Court found that Mr. Brady wilfully and without lawful excuse disobeyed a direction of the Court by refusing to enter the body of the Court and the dock. The Court held that the penalty imposed for the contempt was not manifestly excessive or obviously wrong.

The final orders of the Court were as follows:

1. Mr. Brady's appeals against conviction and sentence in relation to the charges of escaping from police custody, failing to give or verify particulars, and failing to remain stopped for a law enforcement officer are dismissed.
2. The $1,500 fine in relation to the charge of failing to remain stopped for a law enforcement officer is quashed, but the Court costs of $130 must be paid.
3. 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.

Orders