Mitchell v Auckland Transport

[2012] NZHC 494

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-392 [2012] NZHC 494

BETWEEN  ALFRED JAMES MITCHELL Appellant

ANDAUCKLAND TRANSPORT Respondent

Hearing:         19 March 2012

Counsel:         A J Mitchell (In person) Appellant

N Miller for Respondent

Judgment:      21 March 2012

JUDGMENT OF MILLER J

[1]      Mr Mitchell appeals against a District Court finding that on 11 April 2011, at Grafton Bridge, he drove a car BFJ535 in a bus lane, contrary to s 40 Land Transport Act 1998 and r 4 Offences and Penalties Regulations 1999 and 2.3(1)(f) Road User Rule 2004.

[2]      An infringement notice having been issued, Mr Mitchell indicated that he did not accept responsibility.   It appears from a handwritten document dated 13 June

2011 that he appeared before Justices of the Peace, claiming that he was not the person charged.   The legal person charged, he explained, was his “client” Alfred James Mitchell.  He maintained that he never received an information instrument, an appearance notice or summons from the Court and therefore refused to enter into a contract.  It is apparent from the correspondence, however, that he had received an infringement notice.

[3]      The matter was set down for hearing on 10 October.   Mr Mitchell did not appear, but he did submit a lengthy letter claiming, among other things, that since the

ALFRED JAMES MITCHELL V AUCKLAND TRANSPORT HC AK CRI-2011-404-392 [21 March 2012]

Court had entered a not guilty plea on his behalf the hearing involved double jeopardy.    To describe the document as confused would be a substantial understatement.

[4]      Evidence was led from an enforcement officer who observed the car in the bus lane.  The evidence established that Mr Mitchell owns the car.  The bus lane was clearly   signed.      The   Justices   accordingly   found   the   infringement   proved. Mr Mitchell was ordered to pay a fine of $150 plus Court costs $132.89.   The decision actually records the fine as $550 but it has already been corrected by order of Brewer J made on 10 February 2012.

[5]      Eleven grounds are raised on appeal.   They include by way of illustration double jeopardy, the decision was against the weight of evidence, the order was made against the Body Corporate Alfred James Mitchell and not against the living being, the informant has no standing in law, no subject matter jurisdiction and no cause of action, and the Court did not disclose its jurisdiction over Mr Mitchell. There is a remarkably substantial body of material before me, including a very lengthy affidavit of Mt Mitchell and a shorter affidavit of the prosecutor at the time, Ms Boyes, who attaches a transcript of the hearing on 13 June 2011.

[6]      In  none of this  material  is  there any complaint  of substance.    The only question is whether the infringement was proved.   Section 40(1) of the Land Transport Act 1998 provides that a person commits an offence if that person contravenes a provision of an ordinary rule the contravention of which is for the time being prescribed as an offence by regulations made under s 167 of that Act. Regulation 4(1) of the Land Transport (Offences and Penalties) Regulations 1999, made under s 167, provides that a breach of a provision specified in the first column of Schedule 1 of the Regulations for which an  infringement fee is specified in Schedule 1 is an infringement against the Act.  One such provision is r 2.3(1)(f) of the Land Transport (Road User) Rule 2004, which provides that a driver, when driving, must not use a special vehicle lane reserved for a specific class or classes of vehicle.  Such lanes include bus lanes.  A bus lane is a lane reserved by a marking or sign installed at the start of the lane and at each point at which the lane resumes after an intersection for the use of buses.  Finally, the Grafton Bridge was specified as a

bus lane between 7 am to 7 pm Monday to Friday by resolution of the Auckland City

Council dated 5 October 2009.

[7]      Under s 133(1)(b) of the Act, proceedings for a moving vehicle offence may be taken against any person who, at the time, was registered as the owner of the vehicle.  It is conclusively presumed, except in circumstances that do not apply here, that the owner was the driver or person in charge of the vehicle at the time of the infringement.

[8]      As  a  matter  of  procedure,  there  is  no  doubt  that  the  substance  of  the infringement was made plain to Mr Mitchell before he appeared and when he appeared.  His refusal to plead on jurisdictional grounds was correctly interpreted as a plea of not guilty.  The Court correctly went on to hear the matter under s 67 of the Summary Proceedings Act 1957.

[9]      The only further point that need be made is that Mr Mitchell has previously challenged without success the authority of the New Zealand Courts to apply legislation to persons of Māori descent.  It has repeatedly been made clear that such arguments cannot succeed, most authoritatively in the 2004 judgment of the Court of Appeal in R v Mitchell CA68/04 22 August 2004. In the same case, the Court made it clear that costs may be awarded against an appellant who persists in such claims. Such award is made under the Costs in Criminal Cases Act 1967, on the ground that the appeal was frivolous and vexatious.

[10]     The appeal is dismissed.

[11]     In oral argument, Mr Mitchell was very brief indeed.   When I asked him about costs, he indicated that he now had a better understanding of matters and had been taking advice of some sort.  Nonetheless, this is a proper case for costs because the appeal was in all respects frivolous.  There was no challenge at all on the merits. The proper sum under the Costs in Criminal Cases Regulations 1987 is $226.  The

respondent will have costs accordingly.

Miller J

Solicitors:

Simpson Grierson, Auckland for Respondent