France v R - [2015] NZCA 282

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2015
[2015] NZCA 282

BETWEEN	MALCOLM FRANCE Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Wild, Keane and Kós JJ
Counsel:	No appearance for Appellant J E Mildenhall for Respondent
Judgment:	30 June 2015 at 3.15 pm

ORAL JUDGMENT OF THE COURT

An extension of time for the application for leave to bring a second appeal is refused.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

The courts are vexed by the occasional person who pretends not to be who he — or she — is. Some of these people may have a genuine identity crisis, but more usually they are engaged in a mischievous attempt to avoid or overturn a conviction. These people may think they are funny or clever, but they are not. Courts are busy and serious places, and judges are busy people. This sort of frivolous behaviour is not wanted in courts.
Mr France fell off a moped while turning off a road in Auckland on the night of Saturday 29 June 2013. A police constable saw what happened. After checking that Mr France was not injured he asked him for his name and address. Mr France refused to provide these, despite the constable warning him three times that he would be arrested if he failed to comply. He did and was.
Subsequent inquiries revealed that Mr France did not hold a valid driver’s licence and was a forbidden driver, following his apprehension on 6 May 2013.
Mr France was charged with driving while forbidden and failing to provide information. He was convicted, fined and ordered to pay court costs by Justices of the Peace in the District Court at Manukau on 11 October 2013. [1]
[1]Police v France DC Manukau CRI-2013-092-8026, 11 October 2013 (Notes of Justices of the Peace S Howorth and N Madden on Sentencing).
We interpolate here that Mr France was at Court. He had filed an affidavit, apparently claiming he was Malcolm Freeman, possessing “a right of attorney, someone to represent Mr France”. The Justices indicated they proposed, in the absence of the defendant, to deal with the matter by way of formal proof. Mr France then began interrupting the Court. The Justices adjourned so that the person interrupting could be removed from the courtroom. Mr France was then somewhat hoist on his own petard. Despite protests from “Malcolm Freeman” the security officer told him “if you are not Mr France, you can leave” and saw him out. The Justices returned and found both charges formally proved.
Mr France was declined a rehearing in the District Court, by Judge Andrée‑Wiltens on 20 February 2014.
On 10 March 2014, Mr France filed a notice of appeal in the High Court, purportedly under s 116 of the Summary Proceedings Act 1957, against his conviction and sentence. That appeal was heard by Brown J on 14 July 2014, along with a second appeal Mr France had brought from convictions for resisting and…

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.

Continue reading France v R

Details

AGLC: France v R [2015] NZCA 282
Case: [2015] NZCA 282
Decision Date: 30 June 2015 at 3.15 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Malcolm France, sought an extension of time to bring a second appeal against his conviction for driving while forbidden and failing to provide information. The respondent was the Crown. The case was heard by Wild, Keane and Kós JJ on 30 June 2015. The primary legal issue before the court was whether to extend the time limit for the appellant to bring a second appeal. This was complicated by the fact that the appellant had already filed an earlier appeal in the High Court, which was dismissed on 10 March 2014. The court had to consider whether the appellant's application for a second appeal was within the allowable timeframe, and if the proposed appeal had sufficient merit to warrant consideration.

The Court found that the appellant had not provided a satisfactory explanation for the seven-month delay in filing the application for a second appeal. The Court noted that the appellant had a history of making frivolous claims, such as denying his identity and asserting that he was a fictional entity. The Court held that the proposed second appeal did not meet the threshold for a second appeal as outlined in the Criminal Procedure Act, and was essentially a reiteration of the same arguments that had already been dismissed by the High Court. The Court concluded that fairness to the Crown did not demand that the Court consider the second appeal, particularly given the lack of a sensible explanation for the delay in filing the application.

The Court refused to extend the time for the application for leave to bring a second appeal. The Court emphasised that frivolous behaviour was not welcome in courts, and that the appellant's conduct had wasted the Court's time. The Court noted that the appellant was present in Court and had an opportunity to present his arguments, but chose not to do so. The Court held that the appeal was without merit and dismissed it.

The Court did not make any final orders in this case, as the application for an extension of time for the second appeal was dismissed. However, the Court's decision serves as a warning to litigants who engage in frivolous conduct in court, and highlights the importance of adhering to procedural requirements and timelines.

Orders