McCabe v New Zealand Police HC Whangarei AP 09//01

[2001] NZHC 533

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY AP 09//01

BETWEEN ROBERT McCABE
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 20 June 2001

Counsel: Appellant in Person
N J Robinson for Respondent

Judgment: 20 June 2001

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

Crown Solicitor, Whangarei

Copy also sent to: R McCabe, RD1, Hikurangi

[1] On 13 February 2001 the appellant was convicted by Everitt DCJ in the Whangarei District Court on a charge laid under s 52(1)(c) of the Land Transport Act 1998.

[2] The specifics of the charge were that in late October 2000 the appellant failed or refused to give his name to a law enforcement officer when required so to do.

[3] In Court this morning the appellant and I have had a long and stimulating exchange of ideas. It is apparent to me that the appellant has firm and sincerely held views of a number of issues at the interface of statutory powers conferred by the New Zealand Parliament and the rights and beliefs of individuals.

[4] Historically and constitutionally of course there are inevitably tensions between the scope of legislation enacted by a state and the individual rights of citizens who reside in that state. In less fortunate countries, and indeed across the scope of history, those tensions have sometimes led to civil war. The same tensions have also driven constitutional development and lie at the heart of most western democracies.

[5] The appellant’s beliefs have a strong and deeply held religious core to them. In essence he is of the view that the requirement imposed by statute for New Zealand citizens to hold driver’s licences and many of the obligations imposed by the Land Transport Act are a form of enslavement and are contrary to his perception that God is sovereign.

[6] The appellant has embarked upon a massive amount of research to justify his views. I have read his papers and running through them is a streak of creativity and insight. Unfortunately, however, some of his arguments are misconceived and are not ones which any Court can uphold.

[7] I understand, having read the transcript of the various hearings at which the appellant appeared in the District Court, how it was that he could have antagonised the presiding Judges. I have explained to the appellant the dynamics of a busy Police Court list and the pressures under which District Court Judges labour. I have also suggested to the appellant that there are better ways of advancing his arguments than the way which he has adopted hitherto. Both the appellant and the Court were fortunate that we had an hour set aside this morning during which his argument could be considered in a measured and productive way. I think the appellant now understands that the use of such Court time will not always be available to him.

[8] The appellant was not able to give evidence at the hearing. Indeed there would, as I understand it, have been no evidence which he could have given. Rather his arguments were matters of submission. The evidence received by the learned District Court Judge is totally consistent with what is set out in the information, namely, that at 9.15 pm on 30 October 2000 the appellant was driving a motor vehicle along Kamo Road in Whangarei. At a compulsory breath test site he was asked to give his name and address into a testing machine. Instead of doing so he immediately asked for the officer’s name and entered into a dialogue which resulted in the appellant failing to give his name and address and him being arrested.

[9] The appellant has raised a number of interesting arguments which include the jurisdiction of the New Zealand Parliament to make laws in this field; whether he is indeed a person for the purposes of the statute; and whether the motor vehicle he was driving was a vehicle for the purposes of the statute. He has also, as it is clear from my previous comments, raised in a challenging way the whole issue of the authority of New Zealand’s Parliament to enact laws in this area which he sees as being potentially, if not actually, in conflict with his common law rights, his individual liberties as a citizen, and of course with his divinely given rights as a human being.

[10] In summarising the appellant’s arguments in this way I am conscious of the fact that I am not doing justice to the many hours of research which he has carried out nor indeed to his subjective beliefs which lie at the core of his argument. However, at the end of a long dialogue, I am satisfied I have correctly encapsulated the appellant’s main concerns.

[11] Counsel for the respondent has produced some submissions which in the main focus on the jurisdiction of the District Court and the procedure adopted by the learned District Court Judge at the hearing. Those issues were not really canvassed, lying at the periphery of the appellant’s concerns, rather than at the core.

[12] 1 am satisfied that the Land Transport Act 1998 is a validly enacted Act of Parliament. In terms of New Zealand’s constitutional arrangements and indeed those arrangements which have pertained to Westminster style democracies since 1688, there can be no challenge to the superiority of state legislation over common law and indeed international law rights. The area of conflict between legislation and religious beliefs is one which comes into sharp focus from time to time in human history. However, when one considers the relevant purposes of the Land Transport Act and particularly the safety issues involved and the need to regulate the use of motor vehicles generally in New Zealand, I am satisfied that the relevant provisions of the Land Transport Act are intra vires and do not conflict with the appellant’s common law rights or his rights under the New Zealand Bill of Rights Act.

[13] Having said that I can understand that the tensions and conflicts which the appellant sees will not in his eyes evaporate because I have not accepted the force and validity of his argument. Nonetheless, as a duly appointed High Court Judge bound by my judicial oath to do justice, particularly justice between the state and the citizen, I have no doubt at all that s 52(1)(c) of the Land Transport Act 1998 is valid law; that its purpose is not to be impugned; and that on the facts established to the satisfaction of the learned District Court Judge, the essential ingredients of the offence created by s 52(1)(c) were committed by the appellant on 30 October 2000.

[14] For all those reasons in my judgment the conviction was validly entered. There is no challenge to the sentence imposed. The appeal must fail and is accordingly dismissed.