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…

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.

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Details

Case: [2014] NZHC 1657
Decision Date: 15 July 2014

CaseChat Overview and Summary

Malcolm France lodged an appeal against his conviction and sentence in the District Court at Manukau on two charges. The first was driving a motor vehicle during a period in which he had been forbidden to drive, and the second was for refusing to provide his name and address in response to a lawful demand from an enforcement officer. The appeal was heard by Brown J in the High Court of New Zealand Auckland Registry. The court was required to determine whether there was a miscarriage of justice or an error in the assessment of the evidence by the District Court, and whether the sentence was appropriate. The appeal against conviction was brought under s 229 of the Criminal Procedure Act 2011, and the appeal against sentence was brought under s 244 of the Act. The court found that the appellant, who appeared in court as Malcolm-Daniel, was the same individual who fell from the moped and refused to provide his name to the police officer. The court rejected the submission that it had no jurisdiction to hear the appeal and concluded that the decision of the Justices of the Peace was correct. Consequently, the appeal was dismissed.

Brown J reviewed the evidence presented and found no error in the decision of the Justices of the Peace. The court considered the appeals against conviction and sentence, applying the relevant sections of the Criminal Procedure Act 2011. The court found that the appellant bore the onus of satisfying the court that the judgment was wrong and that the appeal should be allowed if the court disagreed with the conclusion reached by the Justices of the Peace. However, the court found no such error and concluded that the decision of the Justices of the Peace was correct. Therefore, the appeal was dismissed, and the convictions and fines imposed by the District Court were upheld. The court did not find any material error in the sentencing process or any exceptional circumstances that would warrant a re-assessment of the sentence.

Orders