France v Police
[2015] NZHC 2011
•24 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-117 [2015] NZHC 2011
BETWEEN MALCOLM DANIEL FRANCE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 August 2015 Appearances:
Appellant in person
E Rutherford for RespondentJudgment:
24 August 2015
JUDGMENT OF DUFFY J
Solicitors:
Crown Solicitor, Auckland
Appellant in Person
FRANCE v NEW ZEALAND POLICE [2015] NZHC 2011 [24 August 2015]
[1] This is an appeal against convictions for failing to ensure a tail-light was working, driving without a drivers’ licence and wearing a damaged helmet while operating a moped.
[2] The appellant was convicted by two Justices on the Peace (JPs) on 3 October
2013 in the Waitekere District Court. The appellant applied for a rehearing on 31
October 2013. This does not appear to have been heard until 12 February 2015, when the application was declined by Judge Tremewan. The appellant then filed a notice of general appeal in the High Court on 19 March 2015.
[3] In this Court the appellant argued that the police did not have jurisdiction to lay the charges, and in determining the charges the JPs acted outside of their jurisdiction, “stepped out of their bond and ignored their oath” and are criminally liable. The appellant, who refuses to answer to the name Malcolm France, and in the District Court stated that he was Malcolm Freeman, the Attorney in Fact of Malcolm France, was ordered to be removed from the Court by the JPs.
[4] The respondent submitted that this court lacks jurisdiction to hear the appeal, as the appeal should have been made to the District Court.
[5] For the reasons given below, I agreed with the respondent that this Court lacked jurisdiction to hear and determine the appeal. I raised this matter with the appellant and referred him to a decision of the Court of Appeal France v R,1 where a similar appeal to this Court was found to lack jurisdiction. He had no answer to this query. I dismissed the appeal. My reasons for doing so now follow.
District Court Hearing
[6] In the District Court hearing before two JPs, the Court thanked Mr France for coming. He replied “I am not Mr France. I am Malcolm Freeman.” This lead to a protracted discussion while the JPs tried to figure out who was at Court. When he stated that he was the Attorney in Fact for Mr France, the JPs said that if he did not
have proof of this, they would have to deal with the matter by way of formal proof.
1 France v R [2015] NZCA 282.
They then asked the appellant to leave the courtroom, dealing with the matter by way of formal proof and making orders that the appellant paid fines totalling $600 and court costs of $30.
[7] On 12 February 2015 Judge Tremewan refused the application for a rehearing noting that there were “no grounds upon which court sees a rehearing is warranted. Decisions stand and are enforceable.” There is no information on the file as to why the application for a rehearing was not decided until this date.
Submissions
Appellant’s Submissions
[1] The appellant appears to claim that the courts, New Zealand Government and Crown have no jurisdiction over him because he is “a living sovereign sentient man who is only subject to the creator”. Similarly, the appellant claims that Malcolm Daniel France, the person charged, is “an ens legis, artificial, a legal juristic person, a fictional entity, a corporation- not a living man”.
[2] The grounds of appeal are:
(a) In the original decision both JPs stepped off their bond and ignored their oath. Both JPs acted outside their jurisdiction and are criminally liable without immunity.
(b) Because Mr France Attorney in Fact and Mr France were thrown out of the court, neither received justice or remedy.
(c) Police jurisdiction has never been obtained, settled or proved in the matter, thereby JPs making a major error in law by continuing to hear the matter and deciding against Mr France.
(d) JPs ignored Affiants sworn Affidavit (the only one on the record), the only facts in this matter.
(e) Judge Tremewan also ignored affidavit and likewise stepped off his bond and his oath in erring in law and not dismissing original decision or granting rehearing and is also no longer immune from charge.
[3] The appellant also states that the police claimed that he was driving and then charged a separate legal entity. In evicting him from the courtroom the JPs denied him justice.
Respondent’s Submissions
[4] The respondent submits that this Court does not have jurisdiction to hear this appeal by virtue of the relevant provisions of the Criminal Procedure Act 2011 (CPA). Accordingly, the respondent submits that the case should be remitted back to the District Court for the appeal.
[5] Section 230(a) of the CPA provides that a first appeal court for an appeal against a conviction entered by a District Court presided over by one or more Justice of the Peace is a District Court presided over by a District Court Judge.
[6] Sections 125 and 126 of the CPA respectively provide for retrials where the defendant is found guilty and rehearings where the defendant is sentenced in his or her absence. Section 126 states:
126 Rehearing if defendant sentenced for category 1 offence in his or her absence
(1) A defendant who is sentenced for a category 1 offence, following a sentencing hearing at which the defendant was required by section
118 to be present but that proceeded in his or her absence, may apply
to a court for a rehearing in relation to the sentence or order imposed on the defendant.
(2) The application—
(a) must be filed in the court in which the sentence or order was imposed; and
(b) must be filed no later than 15 working days after the date on which a notice is served on the defendant under section
124(4); and
(c) must be determined by the judicial officer who imposed the sentence or order or, if that is impracticable, any Judge.
(3) The Registrar of the court must cause a copy of the application to be served on the prosecutor.
(4) The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.
(5) The court may consider the application on the papers or at an oral hearing.
(6) The court may order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that—
(a) the defendant was notified of the hearing and had a reasonable excuse for non-attendance at the hearing, but that reasonable excuse was not known to the court at the time; and
(b) it is in the interests of justice.
(7) Despite subsection (6), the court must order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that the defendant was not notified of the hearing.
[7] Section 128 provides for the effect of an application for a retrial on a right of appeal:
128 Effect of application for retrial or rehearing on rights of appeal
(1) A defendant who applies for a retrial of a charge under section 125 must not appeal his or her conviction unless that application for a retrial is denied.
(2) A defendant who applies for a rehearing under section 126 must not appeal his or her sentence unless that application for a rehearing is denied.
(3) If an application for a retrial or rehearing is made under section 125 or 126, the time period for filing an appeal under Part 6 is suspended until the application is determined.
(4) Subsections (1) and (2) do not limit any right of appeal in relation to a further conviction, sentence, or order entered, imposed, or made at the defendant’s retrial or rehearing.
[8] Under s 231(2) of the CPA, a notice of appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.
Analysis
[9] A preliminary issue is when these proceedings were commenced.2 The file contains a Notice of Hearing in Respect of Infringement Offence which was issued under s 21(6)(7) and (8) of the Summary Proceedings Act 1957 (SPA). This notes that an infringement notice was issued on 06 May 2013 and a reminder notice on 17
June 2013. It states that the defendant requested a hearing in respect of the alleged offence. The notice states that the hearing will be held on 22 August 2013. The Notice of Hearing does not appear to be dated.
[10] Section 397 of the CPA states that a proceeding has been commenced before the commencement date of the CPA when a Notice of Hearing has been filed under s
21(8) of the Summary Proceedings Act 1957. The relevant sections of the CPA came into force on 1 July 2013. Accordingly, the date of the Notice of Hearing will determine whether the CPA or SPA applies.
[11] The file also contains a handwritten letter dated 28 June 2013 from the defendant which states that:
A letter was sent on 7 May 2013 stating “refused for cause” thereby not accepting the content of the attached infringement notice. I have received no reply to this letter.
I repeat that E0682668 is “refused for cause” and not accepted.
If you do not cancel this, then we wish to defend it in court.
[12] This letter is stamped with a Police stamp saying “received 5 July 2013.” I infer from this that this is the request for the hearing referred to in the Notice of Hearing and the Notice of Hearing was issued after 5 July 2013. Accordingly, the CPA provisions apply.
[13] As the respondent submitted, under s 230(a) of the CPA, the first appeal court for an appeal against a decision of a JP is a District Court presided over by a District
Court Judge. This applies despite the application for a rehearing.
2 This is of importance in this proceeding because the Summary Proceedings Act 1957 does not appear to have the same provision for a decision made by a JP to be appealed to the District Court rather than the High Court. Section 114A of the Act states that an appeal from a decision of a Community Magistrate is to be an appeal to a District Court Judge.
[14] This has recently been confirmed as the correct process by the Court of Appeal in another judgment concerning Mr France, where he had purported to bring a second appeal out of time to the Court of Appeal. The appeal involved very similar circumstances to the current appeal. Mr France was found guilty of driving while forbidden and failing to provide information by two JPs in the District Court. An application for a rehearing was declined by Judge Andrée Wiltens. An appeal against this decision was dismissed by Brown J.
[15] The Court of Appeal stated that the correct procedure under s 230 of the CPA would have been for the appeal to go to the District Court. It refused to grant an extension of time to bring the appeal. The Court also noted that it might have reached a different view and excused the procedural irregularities in the proposed appeal had it reached a different view on the merit of the proposed appeal. However, the Court considered that it was apparent Mr France sought “an opportunity to advance to this Court the same silly, nonsensical ‘I am not Mr France’ type
arguments he intended to put to the Justices and did put to Brown J.”3
[16] Accordingly, I was satisfied that I do not have jurisdiction to hear this appeal.
[17] Additionally, I note that the combined effect of ss 126 and 138 mean that the appeal is also out of time. Section 128(3) states that “If an application for a retrial or rehearing is made under section 125 or 126, the time period for filing an appeal under Part 6 is suspended until the application is determined.”
[18] The application for a rehearing was filed on 31 October 2015, 20 working
days after the JP’s decision (the last date on which an appeal could be filed under r
231(2)). This may have been out of time for an application for a rehearing as s
126(2) provides that an application for a rehearing must be filed within 15 working days after the defendant receives a notice of the decision under s 124(4) of the Act. There is no information as to when this notice was received. In any event, a rehearing simply suspends the period of time for filing the appeal until the
application is determined. Accordingly, the time period was suspended until the
3 France v R, above n 1, at [18].
application was determined on 2 February 2015, which would have become the last day for filing the appeal.
Result
[19] The appeal is dismissed.
Duffy J