France v Police - [2012] NZHC 3252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000187 [2012] NZHC 3252

MALCOLM DANIEL FRANCE
Applicant
v

NEW ZEALAND POLICE
Respondent

Hearing: On the papers

Appearances: Applicant in Person
A Longdill for Respondent

Judgment: 4 December 2012

JUDGMENT OF WOOLFORD

[as to application for leave to appeal to Court of Appeal]

This judgment was delivered by me on Tuesday, 4 December 2012 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

Crown Solicitor (A Longdill) Auckland. Applicant (Mr M D France), Auckland

FRANCE M V NZ POLICE HC AK CRI-2012-404-000187 [4 December 2012]

[1] The applicant was convicted in the District Court on charges of being found in an enclosed area without reasonable excuse and causing wilful damage. The charges related to events on 18 July 2011 when a group of people broke through a gate on the Auckland Harbour Bridge and climbed to the top of the bridge in order to fly the Tino Rangitiratanga flag from the bridge. The group was concerned about the prospect of deep sea drilling in New Zealand waters. Seven people broke through a gate and proceeded on to the arch of the bridge. They were peacefully escorted down from the bridge before being taken to the North Shore Police Centre, where they were charged with these offences.

[2] The applicant’s role was as the driver of a red van, which was recorded dropping off the members of the group at the top of the bridge. While the group on the bridge were being escorted down, others members of the Police located the applicant outside the Swashbucklers Bar in Westhaven. He was spoken to, arrested and also taken to the North Short Police Centre and charged as a party to the offending.

[3] After a defended hearing in the District Court, the applicant was convicted of the two offences as a party to the offending. The applicant was convicted and ordered to come up for sentence if called upon within 12 months on the intentional damage charge. Reparation of $114 was also imposed. On the charge of being in an enclosed space, the District Court Judge sentenced the applicant to 40 hours community service.

[4] The applicant appealed to the High Court under a general right of appeal provided for in s 115 of the Summary Proceedings Act 1957. At the hearing of the appeal on 23 October 2012, the applicant had a Mr Areta Ransfield with him as a MacKenzie friend. In an oral judgment delivered following the hearing of the appeal, I dismissed the applicant’s appeal.

[5] The applicant now seeks leave of the High Court to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957. That section allows the High Court to grant leave for such an appeal if, in the opinion of the High Court, the question of law involved is one by reason of its general or public importance or for

any other reason ought to…

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: [2012] NZHC 3252
Decision Date: 4 December 2012

CaseChat Overview and Summary

The case of France v Police concerns the applicant, Malcolm Daniel France, who was convicted in the District Court for being found in an enclosed area without a reasonable excuse and for causing wilful damage. These charges stemmed from an incident on 18 July 2011, where France was part of a group that broke through a gate on the Auckland Harbour Bridge to fly the Tino Rangitiratanga flag in protest against deep sea drilling in New Zealand waters. France was the driver of a van that dropped off members of the group at the top of the bridge. He was subsequently arrested and charged as a party to the offences. Following a defended hearing in the District Court, France was convicted on both charges and sentenced to 40 hours of community service and ordered to pay reparation of $114. France appealed to the High Court, which dismissed the appeal. France now seeks leave to appeal to the Court of Appeal under section 144 of the Summary Proceedings Act 1957.

The primary legal issue before the court was whether the question of law involved in the case was of such general or public importance, or for any other reason, that it should be submitted to the Court of Appeal for decision. France’s grounds for appeal primarily revolved around challenging the jurisdiction of the courts, asserting that the courts had no authority to convict him due to the English Laws Act 1858 and other constitutional arguments. The court needed to determine whether these arguments, which had already been considered and rejected in previous cases, warranted further review by the Court of Appeal.

The court found that the jurisdictional point argued by France had been previously considered by both the High Court and the Court of Appeal, and had been determined to be without merit. The court noted that similar points made by France’s MacKenzie friend had been rejected in the cases of Ransfield v Police, where the Court of Appeal declined special leave to appeal the High Court’s decision. Given that the same jurisdictional arguments had already been thoroughly examined and dismissed, the court concluded that there was no question of law that warranted submission to the Court of Appeal. Therefore, the application for leave to appeal was declined.

Orders