France v Police - [2013] NZCA 635

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/2013
[2013] NZCA 635

BETWEEN	MALCOLM DANIEL FRANCE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Wild, White and Miller JJ

Counsel:

Applicant in Person
R A Hearn for Respondent

Judgment:

(On the papers)

11 December 2013 at 10 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

By application filed on 22 February Mr France applies pursuant to s 144(3) of the Summary Proceedings Act 1957, for special leave to appeal to this Court.
Under s 144(3) this Court may grant special leave if it considers:
… the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
Mr France was convicted in the District Court at Auckland on charges of being found in an enclosed area without a reasonable excuse and causing wilful damage. The convictions arose from his part in a protest in July 2011, when a group of people broke through a gate on the Auckland Harbour Bridge and climbed to the top of an arch of the bridge in order to fly the Tino Rangatiratanga flag. This was in protest at the prospect of deep sea drilling in New Zealand waters. The police peacefully escorted the protestors down from the bridge. Mr France was convicted as a party to the offending. He was the driver of a van which dropped the group off on the bridge.
Having convicted Mr France, Judge de Jong ordered him to come up if called upon within 12 months on the intentional damage charge, and also ordered him to pay reparation of $114. On the charge of being in an enclosed space the Judge sentenced Mr France to 40 hours community service.[1]
[1]New Zealand Police v France DC Auckland CRI-2011-044-5096, 14 May 2012.
Mr France appealed unsuccessfully to the High Court against both his conviction and his sentence.[2] In his judgment dismissing that appeal Woolford J commented:
[6] The appellant’s submissions are not easy to understand. As best as I can determine Mr France appears to challenge the jurisdiction of the District Court in the defended hearing and the jurisdiction of this court on appeal.
[2]France v New Zealand Police [2012] NZHC 2780.
The Judge then summarised Mr France’s submissions as best he could. The points appeared to the Judge to be these:
(a)The lack of jurisdiction results from an “injunction” or “WRIT-WARRANT”, seemingly against the Judges of all New Zealand Courts, which Mr France appeared to submit had been granted by default.
(b)Although Her Majesty the Queen was the respondent to Mr France’s appeal, the police had appeared to oppose it. As the police lacked authority to do that, Mr France should have received judgment by default from the High Court.
(c)Mr France did not appear to be directly challenging his…

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.

Keep reading for free

Create a free CaseChat account to read France v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZCA 635
Decision Date: 11 December 2013 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Malcolm Daniel France applied for special leave to appeal his conviction and sentence imposed by the District Court. The convictions arose from France's participation in a protest where he drove a group of protestors to the Auckland Harbour Bridge, from which they climbed and flew a Tino Rangatiratanga flag in opposition to deep-sea drilling. France was convicted of being present in an enclosed area without a reasonable excuse and causing wilful damage. The Court of Appeal considered the application under section 144(3) of the Summary Proceedings Act 1957, determining whether the appeal involved a question of law that warranted consideration by the Court of Appeal. The Court found that France's arguments challenging the jurisdiction of the Court and asserting that the police lacked authority to oppose his appeal were without merit. These arguments mirrored those rejected in previous cases, such as Ransfield v Police, and had been thoroughly examined and dismissed by both the High Court and the Court of Appeal.

The Court of Appeal held that the jurisdictional challenge based on an alleged injunction against the judges was baseless, as no such injunction had been granted. The assertion that the police lacked authority to oppose France's appeal was also rejected, as they were the appropriate respondents as the prosecutorial agency. Additionally, the Court found no substance in France's contention that the Queen should have been the respondent instead of the police. The challenge to the Queen's sovereignty on Māori sovereignty grounds was deemed untenable. Given that the legal issues raised had already been considered and rejected in prior judgments, the Court of Appeal found no basis to grant special leave to appeal. Therefore, France's application for special leave to appeal was dismissed.

Orders