France v R

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 obstructing police.
Mr France appeared in support of both appeals, but claiming he was “Malcolm-Daniel, the man acting for Mr France”. He contended Mr France was a fictional entity, created by the state. He claimed Mr France was neither driving nor travelling on the moped (he called it the “travelling apparatus”) involved in the incident on 29 June 2013.
Justice Brown held:[2]
[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.

The Judge dismissed the appeal.

[2]France v Police [2014] NZHC 1657.

On 10 September 2014 Brown J dismissed an application by Mr France for leave to appeal to this Court.[3] He was unable to detect, in the nonsensical argument Mr France had put to him on appeal, any question of law of sufficient general or public importance to warrant a second appeal.
[3]France v Police [2014] NZHC 2193.
The present application was filed on 12 May 2015, some seven months out of time (whether time is computed under either the Summary Proceedings Act or the Criminal Procedure Act 2011). Notwithstanding that, and notwithstanding the lack of any sensible explanation for that long delay, the Crown does not oppose an extension of time.
The proceeding against Mr France was commenced under the Criminal Procedure Act. The correct route for his first appeal was thus under s 230(a) which provides:
The first appeal court for an appeal under this subpart is—
(a)a District Court presided over by a District Court Judge, if the appeal is against a conviction entered by a District Court presided over by 1 or more Community Magistrates or 1 or more justices of the Peace; ...
Had that course been followed, any second appeal would have been to the High Court and the High Court’s determination would have been final: ss 238(a) and 242 of the Criminal Procedure Act, respectively.
Nonetheless, Ms Mildenhall for the Crown draws attention to s 401 of the Criminal Procedure Act:
No proceeding is invalid only because it was conducted under the law as it was before the commencement date when it ought, in accordance with any provision of this subpart, to have been conducted in accordance with the law as it is after the commencement date.
Because Mr France has effectively had only one appeal, albeit to the wrong Court, the Crown submits that fairness to Mr France demands that no jurisdictional bar be raised to this Court considering his present application. We will come back to that in a moment.
The procedural irregularity just outlined neither justifies nor explains Mr France’s seven month delay in making the present application. In his application for an extension of time to apply, Mr France offers an explanation for his delay that we cannot understand. It appears to be an elaboration of the distinction he seeks to draw between the applicant, Mr Malcolm France, and the affiant, Malcolm Daniel AR. For example, he states:
… This matter was appealed not by Mr France but by the Affiant, — the living man — in the form of leave of court/writ of error to be taken to a common law court.
On the basis that no sensible or adequate explanation for the lengthy delay in applying has been advanced, on that basis alone, we intend dismissing this application.
Our view might be different if the proposed second appeal had any merit. But it falls far short of the high threshold for a second appeal spelt out in ss 237(2) and 253(3) of the Criminal Procedure Act, and emphasised in this Court’s judgments in McAllister v R and Hohipa v R.[4] It is apparent that Mr France seeks an opportunity to advance to this Court the same silly, nonsensical “I am not Mr France” type arguments he intended to put to the Justices and did put to Brown J.

Result

[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; Hohipa v R [2015] NZCA 73.

We decline to extend time for this application for leave to bring a second appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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.

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