France v Police

[2014] NZHC 1657

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-214 [2014] NZHC 1657

BETWEEN

MALCOLM FRANCE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 July 2014
Appearances:	Appellant in person W N Fotherby for the Respondent
Judgment:	15 July 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 15 July 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:        Crown Solicitors, Auckland

Copy To:         Appellant

FRANCE v POLICE [2014] NZHC 1657 [15 July 2014]

Introduction

[1]      The appellant lodged an appeal against his conviction and sentence in the

District Court at Manukau on two charges:

(a)      driving  a  motor  vehicle  during  a  period  in  which  he  had  been forbidden to drive contrary to s 52(1)(c) of the Land Transport Act

1998 for which he was fined $850 and court costs $130; and

(b)refusing to provide his name and address in response to a lawful demand from an enforcement officer in contravention of s 52(1)(c) of the Land Transport Act 1998 in respect of which he was fined $850 together with court costs of $130.

Background facts

[2]      At approximately 11 pm on Saturday 29 June 2013 it is alleged that the appellant was driving a moped in a northbound direction on Mangere Road when he attempted to turn westbound onto Walmsley Road.  The moped lost traction, slid and caused the appellant to fall to the ground.

[3]      The incident was observed by Constable Kanai who spoke to the appellant, ascertained that he was uninjured and requested the appellant to provide his name and address.

[4]      The appellant  failed  to  provide his  name and  address.    Constable Kanai warned the appellant three times about the consequences of failing to give his name and address, namely that he may be arrested.  The appellant was then arrested for failing to give his name and address.

[5]      Inquiries revealed that the appellant was a forbidden driver.

District Court hearing and decision

[6]      The matter came for hearing on 11 October 2013 before Justices of the Peace

S Howorth and N Madden.

[7]      There appears to have been uncertainty whether the appellant was in the courtroom.  A person identifying himself as Malcolm Freeman addressed the Court. He did not accept that he was Mr France. Annexed to this judgment is a transcript of the hearing on 11 October 2013.

[8]      The  Court  proceeded  on  the  basis  that  there  was  a  non-appearance  by Mr France, treated the case as one of formal proof, accepted the evidence in the formal signed statements of the two police officers and entered the convictions and fines referred to in [1] above.

Grounds of appeal

[9]      A notice of appeal against conviction and sentence dated 10 March 2014 was filed signed by “Malcolm-Daniel:Freeman”.

[10]     The grounds of appeal were detailed and I set them out in full:

This matter was turned down for rehearing on 15 Nov 2013 before JP’S Haworth & Madden.  These are the same JPs that on 11 October 2013 had forsaken their oath and abandoned their bond.  Both JP’s were not competent to hear the matter.  Both JP’s refused to accept Mr Malcolm France was in the  Courtroom.    Both  JP’s  refused  to  accept  Affiant  and  Mr  Malcolm France’s Attorney in Fact was in the courtroom and ready to deal with the matter.

Both JP’s accepted Affiants affidavit on the record and ignored it.

Both JPs and registrar ordered Affiant and Attorney in Fact for Mr Malcolm France and Mr Malcolm France from the courtroom and the court premises using security to do so.

Both JPs left the courtroom without dealing with the matter.  The matter was heard later without Mr Malcolm France or Attorney in Fact for Mr Malcolm France  or Affiant  being  given  opportunity  to  attend.    Thereby  denying recourse and remedy.

Judge Andree Wiltens declined a 2nd rehearing application.

Affiant Affidavit has never been rebutted by any party of real interest or the

NZ Police.

Approach to appeal

[11]     The  appeals  against  conviction  are brought  under s  229  of the Criminal

Procedure Act 2011.  Under s 232(2)(b) and (c) of the Act the High Court can only

allow an appeal if it is satisfied that the Court erred in its 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.

[12]     “Miscarriage of justice” is defined in s 232(4) as:

Any error, irregularity or occurrence in or in relation to or affecting the trial that:

(a)       Has created a real risk that the outcome of a trial was affected; or

(b)      Has resulted in an unfair trial or a trial that was a nullity.

[13]     The appeal is by way of rehearing and the approach to be taken is set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar1  which means that:

(a)      Mr France bears the onus of satisfying me that the judgment was wrong;

(b)      I am required to come to my own view on the merits of the appeal;

(c)       If I disagree with the conclusion reached by the Justices of the Peace I

should allow the appeal; and

(d)I may not necessarily find the reasoning of the Justices of the Peace persuasive.   Nevertheless I may reach the same conclusion but for different reasons.  It is the correctness of the decision reached by the Justices of the Peace rather than the reasoning followed to reach their decision which is of paramount importance.

[14]     The appeals against sentence are brought under s 244 of the Act.   Under s 250(2) the High Court must allow the appeals if satisfied that:

(a)       for any reason there is an error in the sentence imposed on conviction;

and

1      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

(b)      a different sentence should be imposed.

The High Court must dismiss the appeal in any other case.

[15]     The approach on appeal was recently considered by the Court of Appeal in Tutakangahau v R2 where the Court stated that the Criminal Procedure Act 2011 was not intended to change the approach taken under the previous statutes including the Summary Proceedings Act 1957. The Court said:

[30]      The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer.  Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.3   If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.4

Hammond J used the terminology of an error “vitiating” the sentence but it may be more helpful to consider the issue in terms of whether the error is material.   That was the terminology used in Te Aho v R where this Court said:5

This   Court   does   not   lightly   quash   a   sentence   of imprisonment, and in the absence of a material error in the sentencing process which requires a  re-assessment of the sentence, or a clearly excessive sentence, will not intervene.

[31]      The Court in Te Aho went on to state that “it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances”.6

Presentation of the appeal

[16]     This appeal was heard at the same time as an appeal by the appellant against a decision of Judge A-M J Bouchier which is the subject of my judgment delivered today in France v Police [2014] NZHC 1656.

[17]     Malcolm-Daniel appeared in both the appeals and raised essentially the same issue on the appeals, namely the alleged lack of jurisdiction of the Court to deal with the two matters.  I refer to (but do not repeat in this judgment) the matters recorded

at [11]-[19] of my judgment in [2014] NZHC 1656.

2      Tutakangahau v R [2014] NZCA 279.

3 At [139].

4 At [140].

5      Te Aho v R [2013] NZCA 47 at [30].

6      At [30] (footnote omitted).

Decision

[18]     It was quite apparent that the man who appeared in Court called “Malcolm- Daniel”  was  one  and  the  same  as  the  individual  who  fell  from  the  moped  (or travelling apparatus as Malcolm-Daniel described it) on 29 June 2013, who then refused to provide his name to Constable Kanai and who was subsequently charged, convicted and sentenced.

[19]     I reject  the  submission  made  by Malcolm-Daniel  that  this  Court  has  no jurisdiction to hear the appeal in this matter.

[20]     I have heard nothing which causes me to consider that there was an error in the decision of the Justices of the Peace.  I consider that their decision was correct.

[21]     Consequently the appeal in this matter is dismissed.

Brown J