Prescott v Police

[2012] NZHC 834

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-400 [2012] NZHC 834

BETWEEN  PETER RICHARD PRESCOTT Appellant

ANDTHE POLICE Respondent

Hearing:         26 March 2012

Appearances: Appellant in person

K C Francis for respondent

Judgment:      30 April 2012

JUDGMENT OF ALLAN J

Solicitors/party:

P R Prescott, Auckland  [email protected]

Crown Solicitor Auckland  [email protected]

PRESCOTT V POLICE HC AK CRI 2012-404-400 [30 April 2012]

[1]      On 12 October 2011, the appellant was convicted by two Justices of the

Peace on charges of:

(a)      Displaying a registration plate that was not authorised to be affixed to the motor vehicle (pursuant to reg 85(1)(a) of the Land Transport Motor Vehicle Registration and Licensing Regulations 2011) (the regulations);

(b)      Operating an unlicensed motor vehicle (reg 77(1)(a)); and

(c)       Displaying no evidence of vehicle inspection (s 34(1)(b) of the Land

Transport Act 1998 (the Act)).

[2]      He was ordered to pay a fine of $200 in respect of each charge and directed to pay Court costs of $132.89.  He now appeals against conviction and sentence.

[3]      The appellant’s notice of appeal, filed on 3 November 2011, is a voluminous document containing more than 20 grounds of appeal.  However, during the course of the appeal hearing, he indicated that he relied only on the following arguments:

(a)      The statutory and regulatory provisions relied on by the respondent are  invalid  and  of  no  effect  because,  since  1920,  Parliament  has lacked the power to make laws binding on the people of New Zealand and Judges appointed since then have no authority;

(b)He is not a “person” for the purposes of the legislative provisions under which he was charged and in consequence cannot be liable thereunder;

(c)      He had a “lawful excuse” for the acts and omissions for which he was charged, and accordingly, is not criminally liable by virtue of s 107(1) of the Crimes Act 1961;

(d)The plate, or “public notice” to use the appellant’s words, was not reasonably likely to be mistaken for an authorised plate for the purposes of reg 85(1)(a).

Parliamentary sovereignty

[4]      Mr Prescott mounted a detailed argument in support of the proposition that this country has had no lawful government since January 1920.  As I understand it, his argument runs as follows:

(a)      On 10 January 1920, New Zealand became a foundation member of the League of Nations;

(b)Membership  was  restricted  only  to  fully  self-governing  states, dominions or colonies;

(c)      Accordingly “ …the Constitution Act in New Zealand passed prior to independence became legally void under international law” to use the appellant’s language;

(d)Upon subscribing to the Covenant of the League of Nations, the government of New Zealand, being hitherto a colonial government subject to the Parliament of Great Britain, ceased to have any power, save perhaps in a caretaker capacity;

(e)      The   government   was   required   in   that   capacity   to   conduct   a referendum in 1920, in order that the people of New Zealand might determine what method of government was to apply henceforth. Because it failed to hold a referendum, the government of the day brought about a situation in which there was a power vacuum, with the result that all laws purportedly passed by the Parliament of New Zealand since 1920 are devoid of any lawful effect.

[5]      Mr Prescott relies upon a speech given by the then British Prime Minister, Lloyd George, at the Imperial Conference of 1921, for what he calls “ … conclusive, unrebuttal (sic) evidence of the break in continuity …” amounting to a change in sovereignty requiring overt steps to be taken to replace an existing governing legislature by another.   In his speech, Lloyd George spoke of signatories to the League of Nations having “ … achieved full national status …”.

[6]      Mr Prescott does not explain precisely why the government in power in New Zealand in January 1920 could not continue in office, nor does he explain the basis for his contention that it could nevertheless have operated as a caretaker government for the purpose of conducting a referendum as to the type of government the people of New Zealand desired for the future.  Nor does he provide any authority for the suggestion  that  only a  referendum  was  capable  of filling what  he  regards as  a sovereignty vacuum.  Nor does he address the obvious argument that the will of the New Zealand people may conclusively be gauged from their continued participation in the Parliamentary system since 1920.

[7]      He says he is supported by an unidentified 1992 decision of the Australian High Court, in which the Court said that, in constitutional terms, sovereign power resides in the people and is exercised on their behalf by their representatives.  There can be no quarrel with that basic proposition.  But Mr Prescott endeavours to use it to support his argument that in 1920 sovereignty was given to the people of New Zealand, and not to the New Zealand colonial government which, until that time had acted on their behalf but was subject to direction from Great Britain.

[8]      There is little point in addressing Mr Prescott’s argument in detail because, as I explained to him during the hearing of the appeal, the Court is unable to entertain challenges to the sovereignty of Parliament.   This Court’s duty is to construe and

apply enactments of the New Zealand Parliament.[1]

[1] Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and New Zealand

Maori Council v Attorney-General [1987] 1 NZLR 641 at 690 (CA).

[9]      In Berkett v Tauranga District Court, Fisher J conducted a review of certain of  the  decisions  in  which  the  sovereignty  of  the  New  Zealand  Parliament  is discussed.  He concluded that: [2]

… it is neither necessary nor permissible for a Court to delve back into history to establish the pedigree of the New Zealand Parliament, or the territorial scope of its authority, for the purpose of assessing the validity of a current statute.  Once Parliament passes or adopts a statute, the Courts must apply it.

[2] Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC) at 213.

[10]     More recently, the Court of Appeal has made it clear that the courts in this country are obliged to apply laws made by the Parliament of New Zealand, on the basis that it has the sovereign law making authority in this country.  For example, in R v Mitchell, the Court of Appeal said:[3]

[14]     This Court has made it plain on a number of occasions now that arguments  that are  based upon  an assertion  that the  Parliament  of  New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it.   Our courts are bound to accept the validity of Acts of Parliament, including the Land Transport Act

1998.    Although  this  issue  does  involve  a  point  of  law,  Mr  Mitchell’s

proposition has been squarely rejected on many occasions in the High Court and Court of Appeal.…

[3] R v Mitchell CA68/04 23 August 2004 at [14].

[11]     Mr Prescott’s somewhat novel argument appears to face formidable obstacles. I  am  simply unable  to  entertain  it.    I am  bound  to  assume  the  sovereignty of Parliament and the lawfulness of its enactments.   The first ground of appeal must accordingly fail.

Is Mr Prescott a “person”?

[12]     As initially advanced, I understood Mr Prescott’s argument to be that there was some form of distinction between his natural and legal manifestations.   An argument to that effect was considered and rightly rejected by this Court in Manukau v Police.[4]   But as the argument developed, it appears that Mr Prescott was mounting

[4] Manukau v Police HC Auckland CRI-2005-404-368, 9 March 2006 at [24]-[27].

a more conventional argument based on his understanding of the definition of the

term “person” in s 29 of the Interpretation Act 1999, and in s 29 of the New Zealand

Bill of Rights Act 1990 (NZBORA):

[13]     The former section defines the expression “person” as meaning:

Person includes a corporation sole, a body corporate, and an unincorporated body:

[14]     There is a similar provision in s 29 of the NZBORA:

29       Application to legal persons

Except where the provisions of this Bill of Rights otherwise provide, the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.

[15]     Mr Prescott argues that the express reference in s 29 of each statute to legal persons does not catch natural persons or human beings because there is no express reference to them.   However, as he was inclined to accept during the course of argument, he has misread the definition sections, which are non-exhaustive.  In other words, their purpose is to extend the term “person” beyond its ordinary meaning of natural persons, to legal entities which are deemed to constitute persons for the purposes of the relevant legislation.   Neither statute operates to exclude natural persons at all.

[16]     Moreover, it is plain from the regulations that they are intended to catch both natural persons and others who are deemed to be persons for the purposes of the legislation.  For example, reg 92 sets out separate fines payable by individuals and bodies corporate for breach of the regulations.

[17]     Mr Prescott makes a related submission that the Act and the regulations have no application to vehicles operated for private use only, but there is simply nothing in the legislation or elsewhere  to support such a restrictive interpretation.   The dictionary  definitions  to  which  Mr Prescott  referred  in  his  synopsis  are  of  no assistance.

[18]     This ground of appeal must also fail.

The registration plate

[19]     The appellant had been the driver of a motor vehicle parked on Brigham Street, in central Auckland on 30 May 2011.  The vehicle was in fact a campervan which is his home.  A constable assigned to the Auckland City Traffic Unit passed the vehicle and had noticed the missing front registration plate, and a plate affixed to the left hand rear of the vehicle.  This was a blue/purple (possibly grape) vinyl plate that  bore  the  word  “LIBERTY”  in  white  font.     The  constable  checked  this registration through his police radio and ascertained that it was not registered in the official registration records.

[20]     The appellant was convicted under reg 85(1)(a) of displaying other than an authorised registration plate.  Regulation 85(1) relevantly provides:

85       Registration plates or licence not displayed as required

(1)      A person commits an offence if the person operates a motor vehicle by driving or using it on a road if the motor vehicle—

(a)      displays   any   registration   plate   or   licence   that   is   not authorised to be affixed to the motor vehicle under Part 17 of the Act; or

(b)      displays an object or a design that is reasonably likely to be mistaken for a plate or licence authorised to be affixed to the motor vehicle under Part 17 of the Act. …

[21]     Although the decision of the Justices sets out reg 85(1), it appears that they may not have been directed to the question of what constitutes a “registration plate” for the purposes of reg 85.   The term is not defined in the regulations, but it is defined in s 233 of the Act as follows:

registration plate—

(a)       means a plate issued under—

(i)       this Part; or

(ii)      the Transport Act 1962; or

(iii)     the   Transport   (Vehicle   and   Driver   Registration   and

Licensing) Act 1986; and

(b)       includes ordinary plates, supplementary plates, personalised plates, and trade plates.

[22]     It follows that “registration plate” in reg 85(1)(a) must mean a valid and legal registration plate.  As Mr Francis submits, the nub of the reg 85(1)(a) offence is the affixing of valid plates to an incorrect vehicle.   By contrast, reg 85(1)(b) applies more broadly to “an object or a design that is reasonably likely to be mistaken for a plate or licence”.

[23]     Regulations  85(1)(a)  and  (b)  are  derived  from  s  17(e)  of  the  Transport (Vehicle  and  Driver  Registration  and  Licensing)  Act  1986,  now  repealed  and replaced by the regulations from 1 May 2011.  Section 17(e) provided:

Every person commits an offence and is liable on summary conviction to a fine not exceeding $500 who –

…

(e)       uses any motor vehicle which has affixed to it any registration plate or licence which is not authorised by or under this Act to be affixed to that vehicle or any other item which in either case is likely to be mistaken for any authorised registration plate or licence;  or ….

[24]     Section  17(e)  distinguished  rather  more  clearly  than  the  current  reg  85 between authorised and unauthorised registration plates.

[25]    It was common ground in the District Court and in this Court that the “LIBERTY” plate was not a legitimate registration plate.  Accordingly, Mr Francis responsibly concedes that the “LIBERTY” plate was not in fact a “registration plate” for the purposes of constituting an offence under reg 85(1)(a).

[26]     Mr Francis submits that the more appropriate charge would have been under reg 85(1)(b).  He says that there was ample evidence upon which the Justices could conclude that the “LIBERTY” plate was reasonably likely to be mistaken for an authorised plate.

[27]     Pursuant to s 132(1) of the Summary Proceedings Act 1957, he asks the

Court to  substitute a conviction  under  reg 85(1)(b)  on  the basis  that there was

sufficient  material  to  support  a  conviction  under  that  regulation,  and  that  no prejudice has been caused to the defence.

[28]     I agree that there is no suggestion of prejudice here.  From a perusal of the record in the District Court, it appears that the charge was defended on the basis that there  was  no  reasonable  likelihood  of  a  mistake.     In  other  words,  both  the prosecution and the defence proceeded as if the charge in question had been laid under reg 85(1)(b).

[29]     Mr Prescott did not contend that he would be prejudiced by a substituted charge.   However, he argued that the prosecution had failed to make out its case under reg 85(1)(b) and that I should accordingly not substitute a conviction under that Regulation.

[30]     As in the District Court, at issue is the question of whether the “LIBERTY”

plate was reasonably likely to be mistaken for an authorised plate.

[31]     Mr Francis referred to the following passages in the evidence of the police constable in the District Court in support of his argument that there was a reasonable likelihood of a mistake:

A.        …As I drove past [the vehicle] I looked at the back and saw that it had a registration plate attached to the rear of the vehicle.

Q.        Whereabouts  was  this  registration  plate  attached?  …A.  It  was attached to the left hand side of the rear and it was surrounded by a normal registration type frame with a light above it, ah, that registration  plate  displayed  the  word,  ‘LIBERTY’  being  in capital letters.   I conducted a check using my radio through our control room and there was no trace of that registration plate on the system.

So what was this registration that you refer to it as a registration plate, what form did it take? …A. It was exactly the same as any other registration  plate  you  would  see  on  a  vehicle, approximately the same size, that was later taken by me and seized as  an  exhibit.    …This,  this  was  the  registration  plate  that  was attached to the rear of the vehicle.  It was in the location that any other registration plate would have been and that we’d expect to see a registration plate so for all intents and purposes it is a registration plate.  It’s got the normal surround, it’s a thick piece of aluminium and it is attached in the way that any other registration plate would be attached.

(Emphasis added)

[32]     However, under cross-examination the constable said:

Q.        The frame that you said was around the plate, can you describe the

corners?… The frame?

You said there was a frame around the registration plate. ….  It was a normal registration plate holder, um that the plate was attached to that had a number plate light on the top.

I see, misunderstanding, thank you.  Can you tell me what the white, the form of white outline around the outside of that plate was? …. Sorry I don’t understand.

Okay, did it have square corners or round corners? … Ah, it’s a piece of oblong aluminium plate, just, it looks like it’s been cut with a band saw or something, um, it’s just a piece of aluminium.

Actually around the actual white frame around the actual purple background and a white frame around the outer edge? … Without looking at the plate again, um, I’d be guessing and I’m not prepared to guess at the plates here.

It’s a square.  After your answers can you give me any reason why you feel that that registration plate is anywhere similar to a normal New Zealand issue registration plate? …What do I think it’s similar?

Well, there’d have to be something because you’re saying I put an unauthorised plate on the vehicle, so what are the similarities that makes you think it’s a plate? … My understanding of a plate that’s organised, is as I prescribed, white background, raised black edge, raised black font with markings on the back for Land Transport of NZTA.  This plate in no way is similar to that, um, there’s several different reasons Your Worships.

So we’ve established then it’s not a plate. …No, um I’m not saying that, I’m saying it’s an unauthorised plate that’s been attached to the vehicle.

You just told me that it didn’t resemble a plate whatsoever so how, why do you say it is an authorised plate? … It’s an unauthorised plate Your Worships because it has not been issued by NZTA, it does not  fit  any  of  the  criteria,  um,  that  says  how  a  plate  must  be displayed and how a plate must look.

[33]     Mr Francis submits that the Court ought to adopt a purposive approach to the interpretation of reg 85(1)(b).  In his synopsis, he submits that:

The requirement for registration plates to be affixed to vehicles is intended to permit the convenient and reliable monitoring of vehicle registration requirements.  Objects or designs that appear to be registration plates strike

at the heart of that requirement.   Registration plates are affixed to motor vehicles  that  may  often  be  observed  by  police  or  the  public  only  at  a distance, or while driving at speed.  The mischief to which reg 85(1)(b) is directed are objects or designs that could reasonably be mistaken for valid registration plates by a reasonable person who may not be able to undertake a close or detailed examine of fake registration plates.  There is no basis in the wording of the Regulations, or in the scheme or purpose of the Regulations, to require an object or design to closely resemble a plate only under close or detailed analysis;   a realistic and purposive approach is warranted.

[34]     I accept the thrust of that submission.  I note with particular interest however, Mr Francis’s use of the phrase “fake registration plates”. That phrase captures, in my view, the intent of the regulation which is to criminalise the use of false registration plates that are intended and likely to be mistaken for authorised plates.   It is not intended to criminalise plates that are not likely to be mistaken for authorised plates.

[35]     I accept also that there may sometimes be no opportunity to undertake a close or detailed examination of registration plates.  So the assessment of likelihood is not to be made by a meticulous examination of the plate in comparison with authorised plates.

[36]     Against  that  background,  I  turn  to  consider  whether  in  this  case  it  is reasonably likely that the “LIBERTY” plate would be mistaken for an authorised plate.  I do not think it would.  Although the constable says he initially checked the “LIBERTY” plate by police radio, he had by then conducted a partial examination of the vehicle and would have been aware that (in more than one respect) Mr Prescott’s vehicle appeared to be in breach of certain licensing requirements.  So it is proper to infer that he checked the plate just as he checked everything else on the vehicle that was relevant to licensing issues.  In cross-examination, the constable distinguished the “LIBERTY” plate from a conventional authorised plate in several respects.

[37]     The plate itself was produced in evidence and was available at the hearing of the appeal.  I have inspected it carefully.  In my view, I am in just as good a position to make the necessary assessment as was the constable, who himself distinguished the plate from an authorised plate.  I consider that, even on a limited inspection, it is not reasonably likely that the “LIBERTY” plate would be mistaken for an authorised plate.  In the first place, it is a great deal longer than an authorised plate, and would

not fit the recessed bay often provided at the rear of motor vehicles for a registration plate.  Second, its principal background colour is a blue/purple or grape, which is not the authorised background colour.   Older authorised plates were black with white lettering.  More recent plates are reflective with black lettering.  Third, the lettering on the “LIBERTY” plate is not embossed, or raised, as is the case on authorised plates.   Fourth, the dimensions of the letters on the “LIBERTY” plate are much greater than on an authorised plate.  The lettering takes up virtually the whole of the plate.  The lettering on authorised plates occupies a much smaller proportion of the total plate area.  Fifth, the font used for the expressed “LIBERTY” is quite different from that used for authorised plates.  Finally, the “LIBERTY” plate has seven letters. The maximum number of letters for an authorised plate is six.   Some of these differences were identified by Constable Pamplin during his evidence.

[38]     In my view, the differences are sufficient to distinguish the “LIBERTY” plate from an authorised plate, to the point at which it is not reasonably likely that the “LIBERTY” plate would be mistaken for an authorised plate.

[39]     Accordingly, I decline Mr Francis’s application  to substitute a conviction under reg 85(1)(b) for that imposed by the Justices under reg 85(1)(a).

Lawful excuse

[40]     Mr Prescott submits that he had a lawful excuse for the acts and omissions constituting the offences charged.   In support of that submission, he relies upon s 107(1) of the Crimes Act 1961 which provides:

107     Contravention of statute

(1)       Every one is liable to imprisonment for a term not exceeding one year who, without lawful excuse, contravenes any enactment by wilfully doing any act which it forbids, or by wilfully omitting to do any act which it requires to be done, unless—

(a)       Some penalty or punishment is expressly provided by law in respect of such contravention as aforesaid; or

(b)       In the case of any such contravention in respect of which no penalty or punishment is so provided, the act forbidden or required  to  be  done  is  solely  of  an  administrative  or  a

ministerial   or   procedural   nature,   or   it   is   otherwise inconsistent with the intent and object of the enactment, or with its context, that the contravention should be regarded as an offence.

[41]     He says that he has a lawful excuse because he had for some time been conducting a fruitless correspondence with the New Zealand Transport Authority as to  the  ambit  of  certain  licensing  regulations,  and  in  particular,  the  question  of whether the term “person” in certain offence provisions included a natural person. He told the Court from the bar that the correspondence had dried up, and he assumed that  the  questions  he  had  asked  were  too  hard,  because  he  had  received  no satisfactory explanation.  For that reason, he had formed the view he was right in his arguments,  and  that  he  was  indeed  entitled  to  assume  that  the  Act  and  the Regulations did not apply to natural persons.

[42]     I put  aside  for  one  moment  the inherent  unlikelihood  of any reasonable person holding such a belief.   In a more general sense, the submission is fundamentally misconceived.

[43]     Section 107(1) creates an offence of breach of statutory duty where such a duty is imposed, but there is no corresponding offence provision.   But s 77 and reg

85 are each offence provisions.  Section 107(1) provides that it will be a defence to a charge under the section if the person concerned had a lawful excuse for the relevant act  or  omission.    Yet,  s  77  and  reg 87  each  explicitly identifies  certain  lawful excuses.  The Court has no power to extend the ambit of lawful excuse provisions

beyond their plain meaning in their respective contexts.[5]     There is no qualifying

[5] Prescott v Police HC Auckland CRI-2005-404-082, 4 July 2005.

lawful excuse in this case.  Section 107(1) does not apply at all.

[44]      Section  107(1)  of  the  Crimes Act  accordingly  affords  the  appellant  no defence to these charges.

Other matters

[45]     During the course of the hearing, Mr Prescott explicitly abandoned a range of other grounds of appeal.  In particular, he abandoned an application to strike out the respondent’s opposition to the appeal.   That strike out application was grounded upon an affidavit filed by him in this Court, which purported to put the respondent on notice that a failure to respond within a stipulated time would be treated by the appellant as a concession that the appeal must succeed.  I pointed out to Mr Prescott that there was no room in the appellate process for unilateral demands of that sort.

[46]     I should also say something about the appeal against sentence.  Mr Prescott appears to have been somewhat aggrieved that the fines imposed by the Justices were double the infringement fees that would have applied had he simply paid them. That is the routine approach in the District Court.  Upon being appraised of that, the appellant did not pursue his appeal against sentence.

Result

[47]     For the foregoing reasons, the appeal is allowed in part.   The appellant’s conviction on the charge of displaying other than authorised registration plates pursuant to reg 85(1)(a) is quashed.  However, the appeal against conviction on the remaining charges is dismissed, as is the appeal against sentence.

C J Allan J