M v Police HC Auckland CRI 2004-404-428

[2005] NZHC 218

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-428

R M

Appellant

v

THE POLICE

Defendant

Hearing:         10 November 2005

Appearances: Appellant in person

A Longdill for Crown

Judgment:      11 November 2005

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor, Auckland

Appellant

R H M  , 11 Stuart Street, Helensville

M V THE POLICE HC AK CRI 2004-404-428  11 November 2005

[1]      Between 9 August 2002 and 6 April 2004, the appellant was convicted on several occasions of minor traffic offending.  There was one charge of exceeding 50 kph in a gazetted area.   The remaining convictions related to licensing matters, including failing to produce a driver’s licence, using an unlicensed motor vehicle, failing to display a warrant of fitness, and failing to display a licensing label in the prescribed form.

[2]      Fines totalling $1,965 were imposed in respect of the various offences.  The appellant did not pay the fines.

[3]      On  1  October  2004  the  appellant  appeared  before  Judge  Kiernan  in  the Waitakere District Court in respect of the non-payment of the fines.  She challenged the jurisdiction of the Court to impose or recover the fines, and indicated that she would not pay them.

[4]      Judge  Kiernan  imposed  a  sentence  of  80  hours  community  work,  but postponed the date upon which that sentence was to take effect by 14 days to enable the appellant to reconsider her position.  The appellant did not do so and accordingly the sentence of 80 hours community work took effect.

[5]      On 18 October 2004 the appellant filed this appeal.

[6]      The appellant was accompanied at the hearing of the appeal by Mr M Hall as her McKenzie friend.  I was satisfied that the arguments addressed to the Court were truly those of Ms M  , and thereupon permitted Mr Hall to address the Court on her behalf.

[7]      The appellant submitted a six page written argument which is not easy to follow, but in the course of exchanges with Mr Hall, I was able to distil, I believe, the essence of the appellant’s case.  To say the least her argument is radical.

[8]      Reliance was placed upon the provisions of the Imperial Laws Application

Act  1988,  which  replaced  the  English  Laws  Act  1908.    Through  Mr  Hall,  the

appellant  submitted  that  the  Imperial  Laws  Application  Act  provided  that  the common law was to prevail over the statute law of New Zealand.   Mr Hall was unable to point to any specific provision in the Act which supported that proposition. I am not surprised.  It is plainly wrong.  His primary argument founders at that point, but in deference to him and to Ms M  , I briefly recount the basis of the argument, as I understood it.

[9]      Upon the assumption that the common law took precedence over statute law, Mr Hall contended that some statutes could bind a citizen in certain circumstances only if that citizen had “contracted” to abide by the law concerned.   If a statute merely reflected the preceding common law, then the citizen would be bound by that statutory provision because citizens are bound by the common law.  But if the statute purported to enact new laws and in particular to cast upon citizens obligations not to be found in the common law, then Mr Hall argued that they would be binding on citizens only to the  extent  that  they had  been  accepted  as  a  matter  of  contract between the citizen concerned and Parliament.  So those laws would be binding on some but not others.

[10]     This   argument   was   based,   as   I   understood   it,   upon   the   Treaty   of

Independence entered into by the Confederation of Chiefs of the United Tribes in

1835, although Mr Hall was at pains to point out that his argument applied not only to Maori but to any citizen of this country, or indeed to any person subject to the laws of this country.  Mr Hall was unable to explain to me in a coherent fashion, how the events of 1835 conferred upon citizens in 2005 the right to choose whether to be bound by much of the statutory and regulatory law of this country, save that he asserted that from 1835 onwards a “corporate contract” existed between the Crown (and therefore Parliament) and its citizens to that effect.  It followed, so the argument went, that the bulk of the laws enacted by statute or by regulation were binding on citizens only to the extent that an individual citizen was prepared to accept them as a matter of contract.

[11]     The argument continued to the effect that statutory and regulatory provisions imposing obligations on citizens in circumstances where there was no discernible victim were binding upon citizens only to the extent that they were prepared to enter

into  a  contract  with  the  Crown  (or  Parliament)  to  abide  by  those  provisions. Otherwise they were not binding.  On the other hand, where there were victims then the relevant statutory provisions did bind all citizens because the statutes would simply be reflecting the pre-existing common law.

[12]     Mr Hall explained that this was because there was “cause and effect”.  That is, some discernible harm had flowed from the relevant action, such that the common law previously provided a remedy, and there was a proper foundation for a statutory provision that bound all citizens.

[13]     Turning to this case, Mr Hall submitted that none of the offences concerned involved a victim, save possibly for the charge of exceeding 50 kph, but even then there was no evidence that any person was placed in danger thereby.   Further, the Court was informed that Ms M   had not entered into a “contract” with the Crown in respect of the regulatory traffic offences with which she was charged, having at the time at which lifetime drivers’ licences were brought to an end and replaced by fixed term licences, returned her driver’s licence to the authorities.  I was informed that she did that because she believed that the Crown was in breach of its contract with her, pursuant to which she was entitled to assume that her lifetime licence would indeed last for the whole of her life.   She then took the step of replacing her vehicle’s licence plates with plates of her own devising, and of deliberately refraining from obtaining a warrant of fitness or registering her vehicle.

[14]     It was put to me that Ms M   was entitled to take all of these steps because she was no longer bound by “contract” to observe the provisions of the transport laws except to the extent that those laws related directly to the safety of persons on the road.

[15]     In the course of argument, by way of example Mr Hall referred to a notional charge of failing to obey the requirements of a red stop light at an intersection.  He claimed that citizens like the appellant, who had not contracted with the Crown to abide by certain statutes and regulations, were entitled to drive through a red light provided that they did not thereby endanger the safety of any other road user.  So, he

claimed, the appellant would be entitled at 2 am, to drive her car through a red light in the absence of any other traffic, with impunity.

[16]     I permitted Mr Hall to continue in this vein for some time, in order that I might clearly understand his argument.   However, the outline I have given is sufficient to demonstrate the flaws in the appellant’s approach.  The settled rule of law in this country is that the Courts will give effect to legislation passed or authorised by Parliament according to its terms:  Cooper v Attorney General [1996]

3 NZLR 480, 483. The appellant’s argument is not supported by authority and indeed runs counter to those fundamental legal principles and understandings which underpin our society.

[17]     Moreover, the argument did not in truth address the issues before the Court. The decision appealed from was that of Judge Kiernan, who simply imposed  a sentence of community work because the appellant had refused to pay fines earlier imposed upon her.  On this appeal, it was not open for the appellant to argue that she ought not to have been convicted of the traffic offences themselves.  She ought to have appealed against those convictions at the time.   The issue in the appeal was whether Judge Kiernan was right to direct that the appellant undertake 80 hours of community work by reason of her failure to pay her fines.

[18]     Mr Hall advanced a number of subsidiary arguments.  Most however, were based upon the propositions which I have earlier rejected.  But there was a separate argument to the effect that the charges concerned (or some of them, Mr Hall did not distinguish between them) were defective, because the offences charged related only to commercial vehicles.   Mr Hall was unable to point to any provision which supported that argument.  It is plainly wrong.

[19]     There was no substance in any of the arguments addressed to the Court. Neither the appellant nor Mr Hall addressed any submission directed towards the real question arising on the appeal, namely whether the sentence of 80 hours community work was appropriate in the circumstances.

[20]     The appeal is without merit and is accordingly dismissed.

C J Allan J