Easton v Wellington City Council
[2020] NZHC 3351
•16 December 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-64
[2020] NZHC 3351
BETWEEN BENJAMIN MORLAND EASTON
Appellant
AND
WELLINGTON CITY COUNCIL
Respondent
Hearing: 10 December 2020 Counsel:
Appellant in person
E L Higbee for Respondent
Judgment:
16 December 2020
JUDGMENT OF ELLIS J
[1] Mr Easton seeks to appeal a decision of Judge Large in the District Court at Wellington convicting him of two road transport infringement offences and fining him
$640 (together with an order that he pay court costs of $300).1 The two charges were:
(a)on 7 May 2019, being in charge of a vehicle (CRC991) parked on a road on a flush median or traffic island (Rongotai Road, in Wellington); and
(b)on 19 June 2019, being in charge of a vehicle (JFD8) parked on a road (Hanson Street, in Wellington), that was not displaying a current certificate of fitness.
[2] Because his appeal was filed a little out of time, leave is required. Leave was not opposed by the respondent Council and is granted accordingly.
1 Wellington City Council v Easton [2020] NZDC 12300.
EASTON v WELLINGTON CITY COUNCIL [2020] NZHC 3351 [16 December 2020]
[3] I observe at the outset that there were a number of ancillary and background matters that Mr Easton also wished to canvass at the hearing before me. But his appeal—and this judgment—must be focused squarely on whether there was some error or irregularity in the trial or in the Judge’s decision that either (1) gives rise to a real risk that the outcome was affected or (2) resulted in a trial that was unfair.2
[4] I specifically record that—for the simple reason that they are not the subject of Judge Large’s decision—I am unable to deal on appeal with:
(a)anything arising from or related to Judge Morris’ minute dated 7 August 2018, including Doogue J’s judgment of 7 November 2019 in which she struck out judicial review proceedings relating to that minute, brought by Mr Easton;3 or
(b)anything arising from or related to Mr Easton’s appearance before two Justices of the Peace on 28 February 2020; or
(c)two other infringement notices issued to Mr Timothy Spellacey.4
Transcript of District Court hearing and request for adjournment
[5] The District Court has refused Mr Easton’s request that the hearing before Judge Large be transcribed and a copy of the transcription be provided to him. That refusal does not (and cannot) form part of this appeal.
[6] Mr Easton said that in the absence of a transcript, justice required that the hearing of his appeal be adjourned. I was not persuaded that that was warranted, for the reasons that follow.
[7] As I understand it, what Mr Easton says the transcript will show is that he was “shut down” by the Judge and not permitted to advance the arguments he wished to advance. But there are two answers to this. First, the decision under appeal suggests
2 Criminal Procedure Act 2011, s 232.
3 Easton v Attorney-General [2019] NZHC 2910.
4 Which as I understand it were for hearing in the District Court on 1 December 2020.
that Mr Easton was only “shut down” when he interrupted the Judge while he was attempting to deliver an oral judgment (after a relatively lengthy hearing). Secondly, there is the curative effect of the appeal itself. If there were relevant matters Mr Easton wished to advance that were not dealt with by the District Court, he has now been given the opportunity to do so.
Relevant statutory provisions
Certificate of fitness
[8]Section 34 of the Land Transport Act 1998 (LTA) relevantly provides:
(1) A person commits an offence if the person—
…
(b) operates a vehicle on a road without displaying current evidence of vehicle inspection or a certificate of loading or both (as may be required by the regulations or the rules);
[9]The word “operate” is defined in s 2:
operate, in relation to a vehicle, means to drive or use the vehicle on a road, or to cause or permit the vehicle to be on a road or to be driven on a road, whether or not the person is present with the vehicle; …
Traffic island
[10]Section 40 of the LTA provides:
40 Contravention of ordinary rules
(1)A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167.
[11] Here, the relevant rules are contained in the Land Transport (Road User) Rule 2004 (the LTRUR).
[12]Rule 6.7 provides:
A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on a traffic island or flush median.
[13]Rule 1.6 defines “traffic island” as:
a defined area within a roadway, which may be flush with the roadway or raised, and from which vehicular traffic is intended to be excluded
[14]Certain defences are available under rule 1.8(1), but none are relevant.
The appeal
[15] It is not disputed that the vehicle JFD8 was not displaying a current certificate of fitness at the time it was ticketed. The appeal in relation to that conviction is therefore based only on the general matters discussed shortly.
[16] As regards the other infringement, a question was raised about whether the place where the vehicle CRC991 was parked did in fact constitute a “traffic island”. The car was parked on a large grassed area in the middle of Rongotai Road. It is level with the road and is bounded by broken lines painted on the road itself. It also has trees growing on it.
[17] In my view, the grassed area does fall within the statutory definition, in the sense that it is a defined area that is:
(a)within a roadway;
(b)flush with the roadway; and
(c)from which vehicular traffic is intended to be excluded.
[18] So again, the success or failure of Mr Easton’s appeal in relation to the traffic island conviction also turns solely on his overarching grounds of appeal—namely that:
(a)the Court had no jurisdiction in the matter and/or the LTA and LTRUR have no application, because of the Declaration of Independence of 1835 (He Wakaputanga o te Rangatiratanga o Nu Tireni); and
(b)because the respondent Council itself has, by various acts or omissions, breached the law it cannot now seek to enforce the law against Mr Easton.
[19] As to the first matter, it is (as I understand it) primarily the Declaration of Independence that Mr Easton says he has, thus far, been prevented from speaking about. He says it requires and deserves lengthy and in-depth consideration and analysis.
[20] The most authoritative judicial consideration of the place of the Declaration of Independence in our constitutional framework can, I think, be found in the Court of Appeal’s decision in Ngaronoa v Attorney-General (the prisoners’ voting rights case).5
[21] The Court began by explaining that although there were many pleaded assertions concerning the fact and significance of the Declaration, there was no contention that the 1993 Act must be interpreted in accordance with the principles of the Declaration. Rather, the relief sought in respect of the first cause of action included a declaration that the 2010 Act breached the Declaration and/or was inconsistent with its principles. The Court noted that counsel for some of the appellants had emphasised in the High Court that the case constituted the first occasion that the Court had been presented with the opportunity to elucidate the legal status of the Declaration. That had been interpreted by the High Court Judge as an invitation to give recognition to the Declaration, which he declined to do, saying that the “legitimacy narrative” of New Zealand’s democracy ignores the Declaration and starts with the Treaty of Waitangi signed five years later. The Judge noted that it was irrelevant whether that is a good thing or a bad thing—it is “a constitutional fact”.
[22] The Court recorded that, on appeal, it was argued that the Ngāpuhi iwi proclaimed sovereignty over the northern region of the North Island and did not cede sovereignty to the Queen of England under the Treaty. It was said that the right of the Ngāpuhi iwi to self-determination and political representation is enshrined in the
5 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643. It seems clear that the argument was not advanced in the Supreme Court: Ngaronoa v Attorney-General [2018] NZSC 123, [2019] 1 NZLR 289.
Declaration, and that the right of all members of Ngāpuhi to vote in Te Tai Tokerau electorate must therefore be implied in the Electoral Act 1993.
[23]In rejecting that argument, the Court of Appeal said:
[57] The genesis of the Declaration is described in detail in the 2014 Waitangi Tribunal Report He Whakaputanga me te Tiriti: The Declaration and the Treaty. The Declaration, signed on 28 October 1835 by 34 leading Te Raki rangatira, was a declaration by those rangatira of sovereignty and independence. It was a pragmatic response to a perceived foreign threat to their authority from the Anglo-French adventurer Baron Charles de Thierry, who advised he was coming to New Zealand to establish himself as sovereign chief.
[58] The Declaration did not herald a radical change in political organisation among those hapū whose rangatira signed it. Ultimate authority remained with the hapū. As the Waitangi Tribunal stated:
It is important to be clear that authority remained with hapū after he Whakaputanga as before. On that basis, we do not believe that any collective or confederate northern Māori sovereignty existed in 1835, or before. Nor do we believe that a single state existed in the Bay of Islands and Hokianga area or neighbouring districts prior to 1835, and nor was one created by he Whakaputanga. Indeed, had rangatira intended to make such a significant step as declaring their nationhood on a collective or confederate basis, we think they would have found their own occasion rather than waiting until a letter from Tahiti prompted the British Resident to action.
[59] The Tribunal recognised that there had been a tendency to neglect the Declaration in scholarly debate, observing that published interpretations of the Declaration were generally based on the English-language texts, were mistakenly viewed through a retrospective lens and were largely dismissive. Noteworthy, however, was the striking absence of any explicit mention of the Declaration, at least in European observers’ accounts, at the Waitangi hui on 5 February 1840 before the Treaty was signed.
[60] We acknowledge the perspective that the Declaration may be viewed as the parent document to the Treaty, and that given the repetition in the Treaty of terms in the Declaration such as rangatiratanga and kāwanatanga the Declaration was not superseded by it. However we do not consider, given the context in which the Declaration was signed and the content of the Treaty which followed five years later, that the Declaration should be accorded discrete status as an extrinsic aid to the interpretation of contemporary statutes. In our view, Fogarty J’s conclusion that, rightly or wrongly, the Treaty is the starting point for the legitimacy narrative of New Zealand’s constitutional arrangement was sound. We do not consider that there was any error of the nature alleged.
[24] It may well be that this is not the last word on the matter. In that regard I note that the second part of the Waitangi Tribunal’s Wai 1040 Report (He Whakaputanga me
te Tiriti: The Declaration and the Treaty) has yet to be released; possibly there are constitutional conversations—perhaps of the kind envisioned by Mr Easton—yet to be had. But for now, the courts are not the place for that conversation and the Court of Appeal’s decision is the word that is binding on me. So, in short, the District Court was right to hold that he Whakaputanga does not affect the jurisdiction of the courts of New Zealand and does not alter the applicability of statutes passed by the New Zealand parliament to all who live in New Zealand, including Mr Easton.
[25]The District Court Judge was also right about the second matter referred to at
[18] above. Whether or not Mr Easton has committed the infringement offences that are the subject of this appeal does not in any way depend on whether the Wellington City Council itself has complied with (or failed to enforce) the law in:
(a)opening up Manners Mall to buses;
(b)painting the rainbow crossing on Cuba street;
(c)approving the development of Shelly Bay;
(d)parking its own vehicles on traffic islands;
(e)not ticketing other vehicles that are parked on the traffic island on which Mr Easton’s car was ticketed;
(f)not ticketing other vehicles that are parked unlawfully; or
(g)not registering its own vehicles in a timely way.
[26] While these matters may cause those such as Mr Easton a certain sense of moral outrage, they do not afford Mr Easton with a defence to the land transport charges. For the reasons I have given, the appeal must be dismissed.
Rebecca Ellis J
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