Brooker v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA298/2014
[2014] NZCA 436

BETWEEN	ALLISTAIR PATRICK BROOKER Applicant
AND	THE QUEEN Respondent

Hearing:	2 September 2014
Court:	Miller, MacKenzie and Andrews JJ
Counsel:	Applicant in person J E Mildenhall for Respondent
Judgment:	2 September 2014 at 12.28 pm
Reasons:	4 September 2014 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Mr Brooker was convicted by Judge O’Driscoll on 16 January 2014 in the Greymouth District Court on a charge of operating a motor vehicle on a road, when the vehicle was not displaying evidence of vehicle inspection, an offence under s 34(1)(b) of the Land Transport Act 1988.[1] He appealed to the High Court and his appeal was dismissed by Dunningham J on 1 May 2014.[2] He has applied for leave to appeal to this Court. His application was dismissed at the hearing. We set out below our reasons.
[1]New Zealand Police v Brooker DC Greymouth CRI-2013-018-764, 16 January 2014.
[2]Brooker v New Zealand Police [2014] NZHC 882.
Mr Brooker does not challenge the evidence given by the police in support of the charge. His argument before the High Court (and set out in his application for leave to appeal) is that the Land Transport Act is unlawful, as the New Zealand Parliament had no authority to enact it. He contends that this is because the proclamation by Lieutenant-General William Hobson on 30 January 1840, declaring that full sovereignty over New Zealand vests in the British Crown, specifically precludes any sovereign power in New Zealand other than the British Crown. Thus, he contends, the New Zealand Parliament had no power to enact legislation, including the Land Transport Act.
Pursuant to s 237(1) of the Criminal Procedure Act 2011, leave may only be given for an appeal against the determination of an earlier appeal if the appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred, or may occur, unless the appeal is heard. Neither applies in this case.
Mr Brooker’s proposed appeal does not involve any issue of general or public importance, and there is no suggestion that a miscarriage of justice has occurred, or will occur, if the appeal is not heard. The proposed appeal involves the application of well-settled law. The courts have consistently held that challenges to the sovereignty of Parliament, and validity of Acts of Parliament (whether in the context of Māori sovereignty arguments, or any other challenge to the sovereignty of the New Zealand Parliament) cannot succeed.[3]
[3]See, for example R v Mitchell CA68/04, 23 August 2004; Phillips v R [2013] NZCA 580; and Wallace v R [2011] NZSC 10.
Mr Brooker’s application for leave to appeal was filed five days out of time. There being no objection, we grant an extension of time. Mr Brooker’s proposed

appeal is not arguable, and for that reason the application for leave was dismissed at the appeal hearing.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Allistar Patrick Brooker sought leave to appeal against his conviction for operating a motor vehicle on a road without displaying evidence of vehicle inspection, as charged under section 34(1)(b) of the Land Transport Act 1988. This conviction was confirmed by the High Court on 1 May 2014. Brooker’s application for leave to appeal to the Court of Appeal was dismissed, and the application for an extension of time to file the application was granted. The respondents in the case were the New Zealand Police and the Crown, represented by J E Mildenhall. The hearing took place on 2 September 2014, and the reasons for the judgment were provided on 4 September 2014.

The legal issues in the case centred on the constitutionality of the Land Transport Act 1988. Brooker argued that the New Zealand Parliament had no authority to enact the Act, as it contravened the proclamation by Lieutenant-General William Hobson on 30 January 1840, which established that full sovereignty over New Zealand vested in the British Crown. The Court of Appeal considered whether the appeal involved a matter of general or public importance or whether a miscarriage of justice had occurred. Section 237(1) of the Criminal Procedure Act 2011 stipulates that leave for an appeal against an earlier appeal determination can only be granted if the appeal involves such a matter or if a miscarriage of justice may occur unless the appeal is heard. The Court found that neither condition was met in this case.

The Court of Appeal rejected Brooker’s argument, stating that challenges to the sovereignty of Parliament and the validity of Acts of Parliament could not succeed. The Court referred to several precedents, including R v Mitchell, Phillips v R, and Wallace v R, which have consistently held that such challenges are not viable. Additionally, the Court noted that Brooker’s application for leave to appeal was filed five days out of the permitted time, but granted an extension of time as there was no objection. Ultimately, the Court dismissed the application for leave to appeal because the proposed appeal was not arguable.

The Court granted an extension of time for the filing of the application for leave to appeal, but dismissed the application for leave to appeal itself. The Court did not find any grounds for the appeal to proceed, as it did not involve a matter of general or public importance, nor did it suggest a miscarriage of justice. The application was deemed not arguable, leading to its dismissal at the appeal hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established