Brooker v Police - [2014] NZHC 882

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2014-418-000005 [2014] NZHC 882

ALLISTAIR PATRICK BROOKER

v

NEW ZEALAND POLICE

Hearing: 30 April 2014

Appearances:

Appellant in person
C J Lange for Respondent

Judgment:

1 May 2014

JUDGMENT OF DUNNINGHAM J

[1] Mr Brooker appeals against a District Court decision dated 16 January 2014, finding a charge proved of operating a private vehicle on a road that was not displaying current evidence of vehicle inspection contrary to s 34(1)(b) of the Land Transport Act 1998.

The District Court decision

[2] The only evidence presented in the District Court was a brief of evidence from Constable Nigel Orpwood which was unchallenged by Mr Brooker. That statement made it clear that Constable Orpwood stopped the defendant who was driving a motor vehicle which did not have a current warrant. The warrant had expired and the defendant was issued with an infringement notice.

[3] Mr Brooker did not elect to give evidence himself but made submissions asking that the charge against him be dismissed. The defence raised by Mr Brooker,
and which was argued again in this hearing, boiled down to an assertion that the

BROOKER v NEW ZEALAND POLICE [2014] NZHC 882 [1 May 2014]

Land Transport Act 1998 was not lawful, because the New Zealand Parliament had no right to make laws, and therefore he could not be charged under it.

[4] Unsurprisingly, the District Court Judge explained that his function was to apply the law and not make the law, and he was bound by the doctrine of precedent. He then made reference to a recent Court of Appeal decision, Phillips v R,1 which said:

The legal foundation for his argument has been considered and rejected by this Court and also, significantly, by the Supreme Court as plainly unarguable. The leading decisions affirm that Parliament is sovereign and its legislation applies to all New Zealanders irrespective of race. Thus New Zealand Courts are bound to accept the validity of all statutory enactments including the Land Transport Act. (citations omitted)

[5] Given that the prosecution had made out the elements of the charge, and that the Judge did not have power or jurisdiction to dismiss the charge on any of the arguments Mr Brooker advanced, the Judge found the charge proved.

Grounds of appeal

[6] Mr Brooker provided fulsome submissions setting out his grounds of appeal. As in the District Court, no issue was taken by him over whether the Constable’s evidence was sufficient to establish the charge, which was operating a motor vehicle without a current warrant of fitness being displayed. Again, the essence of the appeal was that the Judge erred in law by “upholding the demonstrably unlawful Land Transport Act”.

[7] Like the learned District Court Judge, I will endeavour to summarise the arguments and submissions filed by Mr Brooker, but recognise that I do not do full justice to them. However, in short, Mr Brooker submitted that:

(a) the proclamation by Lieutenant-Governor William Hobson on

30…

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.

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Details

Case: [2014] NZHC 882
Decision Date: 1 May 2014

CaseChat Overview and Summary

The case of Brooker v Police involved the appellant, Mr. Alistair Patrick Brooker, appealing against a District Court decision that found him guilty of operating a private vehicle on a road that was not displaying current evidence of vehicle inspection, in contravention of s 34(1)(b) of the Land Transport Act 1998. The District Court had accepted the unchallenged evidence of Constable Nigel Orpwood that Brooker was driving a motor vehicle which did not have a current warrant, and subsequently issued him an infringement notice. Brooker's defence in both the District Court and the High Court was that the Land Transport Act 1998 was unlawful because the New Zealand Parliament had no right to make laws.

The legal issues before the court were whether the Land Transport Act 1998 was a valid enactment of the New Zealand Parliament, and if so, whether the District Court had the power to dismiss the charge on the grounds that the Act was unlawful. The court found that it was bound by precedent to accept the validity of all statutory enactments, including the Land Transport Act, and that New Zealand Courts are bound to apply Acts of Parliament to all persons within the territory of New Zealand. The court also held that there was ample case law confirming the sovereignty of Parliament and that the New Zealand Courts must apply Acts of Parliament in the terms in which they have been enacted.

In conclusion, the appeal was dismissed as the court found that the New Zealand Parliament is sovereign and its legislation is valid and applicable in New Zealand. The argument that there was no power to establish a Parliament in New Zealand and that all legislation enacted by the New Zealand Parliament is unlawful was deemed untenable. The court emphasised that it was bound by precedent to accept the validity of all statutory enactments and apply them to all persons within the territory of New Zealand.

Orders