France v Police
[2015] NZHC 171
•13 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-290 [2015] NZHC 171
MALCOLM DANIEL FRANCE
v
NEW ZEALAND POLICE
Hearing: 10 February 2015 Appearances:
Appellant in person
L M Mills for the RespondentJudgment:
13 February 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 13 February 2015 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Meredith Connell, Auckland.
FRANCE v NEW ZEALAND POLICE [2015] NZHC 171 [13 February 2015]
Summary
[1] The appellant, Malcolm Daniel France, appeals against conviction and sentence for one charge of common assault under s 9 of the Summary Offences Act
1981.
[2] The grounds for appeal are not clear. The essence of the appellant’s arguments appears to be that the court has no jurisdiction over the appellant, that the Judge was biased and that the appellant’s evidence was ignored.
Facts
[3] On 28 July 2014, the appellant was convicted of common assault in the
District Court.1
[4] The Judge found that the appellant had spun around and struck the victim while being peacefully led out of a courtroom by Mr MacKenzie and another court security officer. The appellant was convicted on the basis of CCTV footage and testimony from both security officers and a police constable identifying the appellant. The Judge held that the charge was proved beyond reasonable doubt.
[5] The Judge sentenced Mr France to 80 hours community work. The appellant’s history of resisting, obstructing, hindering and assaulting police was noted, as were a range of other convictions and fines. The sentence was imposed to hold Mr France accountable for his behaviour and to send a message about proper conduct in courtrooms.
Appellant’s Submissions
[6] The appellant has not filed submissions because he claims that the court has no jurisdiction over him.
1 New Zealand Police v France DC Auckland CRI-2013-004-013365, 28 July 2014.
[7] The grounds of appeal are: (using the grammar and punctuation from the appeal notice)
(a) the Judge has forsaken his oath and stepped off his bench [It is possible that the final word is ‘bias’ rather than ‘bench’. However, the respondent submits that the word is ‘bench’];
(b)the Judge abducted Attorney in Fact, outside the scope of his authority;
(c) the Judge ignored Affiants affidavit and failed to acknowledge Affiants jurisdiction and therefore failed in his interpretation of the law;
(d) the Judge disallowed evidence in court;
(e) the Judge thereby prematurely bringing matter to a guilty plea; and
(f) both Mr France and Mr France’s Attorney in Fact/Affiant were denied
their fair justice and remedy.
[8] The appellant filed several affidavits during the course of both the District Court and these proceedings. These affidavits are difficult to comprehend. The appellant appears to be claiming that the courts, New Zealand Government and Crown have no jurisdiction over him because he is a “private, sentient, breathing living man…subject only to the Supreme Creator and His Laws”. Similarly, the appellant claims that Mr Malcolm Daniel France, the person charged, “is an artificial entity and a legal fiction, and exists only in statutory jurisdiction.”
[9] This approach persisted at the hearing of the appeal. The person who appeared to speak for the appellant called himself “Malcolm Daniel” and produced a copy of the birth certificate of Malcolm Daniel France. The decision in the District Court is helpful in this regard; the Judge saying, “the person who appears in Court today denies that he is that person [Malcolm Daniel France] and calls himself Malcolm Daniel.”
[10] In any event, the matter is put to rest by the Judge’s findings as follows:
[5] Regardless of what name he may go under, he is clearly identified by two security officer who know him well, having seen him at Court on many occasions – I think one security officer said at least 20 times – and also identified clearly by the police officer concerned.
[6] The CCTV footage makes it quite clear that the defendant was being led away in a peaceful manner and he swung around and struck Security Officer MacKenzie and therefore I am satisfied that the charge has been proved beyond a reasonable doubt and a finding of guilt is entered accordingly.
Respondent’s Submissions
[11] Mr Mills for the respondent submits that the evidence derived from witness identification and CCTV footage shows that the conviction was entered appropriately and the appeal should be dismissed.
[12] In Mr Mills’ submission, there is no legal basis for the appellant’s complaint concerning whether he was appropriately prosecuted as Malcolm Daniel France or as some other legal entity.
[13] Mr Mills had difficulty interpreting the appellant’s grounds of appeal. In response to claims that “Judge has forsaken his oath and stepped of his bench” and that “Judge disallowed evidence in Court” his position is that, in the absence of further submissions regarding the precise nature of the appellant’s allegation, the Judge conducted himself appropriately.
[14] Mr Mills was unable to interpret two grounds of appeal:
(a) Judge abducted Attorney in fact, outside the scope of his authority;
and
(b) both Mr France and Mr France’s Attorney in Fact/Affiant were denied
their fair justice and remedy.
[15] In response to the grounds of appeal that the Judge ignored affiant’s affidavit and failed to acknowledge affiant’s jurisdiction and therefore failed in his interpretation of the law, Mr Mills submits that the affidavits and issues raised were
acknowledged and considered by the District Court. He submits that the Judge did not prematurely bring the matter to a guilty plea because the appellant’s affidavit was considered and the Judge was able to cross-examine witnesses. Finally, the guilty verdict was based on the evidence provided.
[16] The respondent submits that the sentence of 80 hours community work was appropriate for the offending.
Analysis
[17] There appears to be three main elements to the appellant’s arguments. First, that the Court has no jurisdiction over him because he is a sovereign individual. Secondly, that the Judge was biased. Thirdly, that the Judge failed to acknowledge the arguments he raised at trial. It seems that the appellant may be claiming that there was a miscarriage of justice. There does not appear to be any ground of appeal against the sentence.
Jurisdiction
[18] Courts have consistently held that New Zealand Courts have jurisdiction over people in New Zealand. In R v Mitchell, the Court of Appeal observed:2
[14] This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our courts are bound to accept the validity of Acts of Parliament… [a litigant] is not entitled to put himself outside the law of New Zealand.
[19] As Andrews J said in Brooker v R: 3
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.
[20] It is also established at International Law that a state has jurisdiction over the people within its borders. 4
2 R v Mitchell CA68/04, 23 August 2004.
3 Brooker v R [2014] NZCA 436 at [4] (footnote omitted).
[21] I therefore dismiss the appeal so far as it challenges the jurisdiction of the
Court over the appellant.
Bias
[22] The appellant appeals on the basis that “Judge has forsaken his oath and stepped off his [bench/bias]” and that the “Judge abducted Attorney in Fact, outside the scope of his authority”. These hint at a possible argument that the Judge was biased.
[23] The test for bias was set out in Saxmere Co Ltd v New Zealand Wool Board Disestablishment Co Ltd.5 The Supreme Court held that the relevant question is whether a reasonable lay person would consider that there is a real possibility that the Judge will not be able to decide an issue impartially.6 This question is to be approached in two stages. First, any facts that may give rise to a suspicion of bias must be identified. Secondly, the Court must test whether there is a rational basis for such a suspicion.
[24] There are no facts in the present case that give rise to a suspicion of bias, yet alone whether such a suspicion would have a rational basis. There is nothing to suggest that the Judge acted improperly.
Miscarriage of Justice
[25] Under s 232(2)(b) and (c) of the Criminal Procedure Act 2011, the High Court can only allow an appeal against conviction where it is satisfied that the District Court “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”
[26] Under s 232(4), “miscarriage of justice” is defined as: “any error, irregularity,
or occurrence in or in relation to or affecting the trial that:
4 SS Lotus (France v Turkey) (Merits) (1927) PCIJ (series A) No 10.
5 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
6 At [3].
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[27] There is nothing to suggest that the Judge erred in assessing the evidence for conviction. Indeed, the evidence that the assault took place is clear.
[28] The appellant’s position is that there was no assault and that the victim
acknowledged this. He referred to the following exchange:
Q. And did you say anything to him once he was restrained?
A. Yes I said several times, “I don’t believe you hit me,” I was still quite taken aback by that and I think I said several times to him, “I just don’t believe you hit me,” and then of course the police arrived and that was that.
[29] Once the transcript is read and the comment placed in context, it is clear that the victim was expressing surprise and incredulity at having been assaulted by the appellant. The short point is that the assault was captured by close circuit television.
[30] Similarly, there is no reason to believe that there was any miscarriage of justice which affected the outcome of the trial or led to an unfair trial. On the contrary, it appears that the appellant’s arguments were patiently heard by the Judge throughout the trial.7
[31] For the reasons given, the appeal against conviction is dismissed.
Appeal against sentence
[32] No separate ground for an appeal against sentence was put forward by the appellant.
[33] Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court. Section 250(2) states that the Court must
allow the appeal if satisfied that:
7 France, above n 1, at [4].
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed
[34] In any other case, the Court must dismiss the appeal.8
[35] In Tutakangahau v R, the Court of Appeal confirmed that s 250(2) was not intended to alter the previous approach taken by the courts under the Summary Proceedings Act 1957.9 Further, although s 250 makes no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.10
[36] There is nothing to suggest that the sentence of 80 hours’ community work was manifestly excessive. This is especially given the appellant’s previous convictions for assault.
Result
[37] For the reasons given, the appeal against conviction and sentence is dismissed.
Thomas J
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279 at [26]-[27].
10 At [33] and [35].
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