Smith v The the King
[2022] NZCA 541
•14 November 2022 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA32/2022 [2022] NZCA 541 |
| BETWEEN | DENNIS ARTHUR SMITH |
| AND | THE KING |
| Court: | Courtney, Venning and Mander JJ |
Counsel: | Appellant in Person |
Judgment | 14 November 2022 at 10 am |
JUDGMENT OF THE COURT
The application for leave to appeal the dismissal of the charge is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Dennis Smith seeks to challenge his acquittal. Mr Smith faced a charge of obtaining by deception. When the charge was before the District Court at Hamilton on 9 December 2021, Judge Marshall dismissed the charge under s 147 of the Criminal Procedure Act 2011 (CPA).[1] Dismissal has the effect that Mr Smith is deemed to be acquitted on the charge.[2]
[1]R v Smith DC Hamilton CRI-2021-068-157, 9 December 2021.
[2]Criminal Procedure Act 2011, s 147(6).
Despite that, Mr Smith filed a document with this Court seeking leave to appeal. If granted leave, he seeks to have the s 147 dismissal reversed in order for him to assess his position after “full disclosure”. To that end he also seeks orders requiring various people and authorities to answer questions he has previously asked of them and orders that they cooperate with him to establish all the relevant facts and law. He then seeks an order directing a new conference in the District Court before a different judge.
While Mr Smith acknowledged that on the surface the ruling (being acquitted) appears beneficial to him, he argues that it being issued in the contentious circumstances that it was caused a fundamental breach of justice to occur.
Background
In the summary of facts, the Crown alleged that the complainant was contracted to remove and clear a commercial structure from a site in Taumarunui. Mr Smith lives at a neighbouring property. The complainant had, from time to time, given Mr Smith unwanted scrap timber and metal from the structure being dismantled. Mr Smith repeatedly asked the complainant if he could have the steel portal frames that were the main support frames of the structure being dismantled. The complainant declined Mr Smith’s request as he wanted to keep them. On several occasions over the next approximately 13 months Mr Smith rang the complainant asking for the steel beams. On every occasion the complainant denied Mr Smith’s request for the beams. He asked Mr Smith to stop ringing him and told him that if he no longer required the beams, he would let Mr Smith know. Around 1 March 2021, the property where the beams were stored was leased to a person operating a firewood business. Approximately two to three weeks later this person was approached by Mr Smith who asked him if he could have the steel beams. Not knowing the beams were owned and wanted by the complainant, the person allowed Mr Smith to take them. When the complainant discovered the beams were no longer where he left them, he contacted Mr Smith who refused to give the beams back. The beams were subsequently returned.
The charge was laid on 30 July 2021. Mr Smith elected trial by jury.
On 3 December 2021, the Crown solicitor wrote to Mr Smith. She advised that, although there was sufficient evidence to support a charge, as the goods had been returned to their rightful owner, and given the substantial delay before a jury trial could be heard, she did not consider it would be in the interests of justice for the prosecution to proceed. She enclosed a copy of an application to have the charge withdrawn under s 146 of the CPA and invited Mr Smith to confirm his consent so the matter could be dealt with by a Registrar on the papers.
Mr Smith did not consent. Instead, he posed 15 questions which he wanted the answers to. He said once he had the answers, he would consider the facts and decide his response.
When the matter came before the Judge on 9 December 2021 the Crown sought to have the charge withdrawn. Mr Smith objected to that. During his discussion with the Judge, Mr Smith asked for his name to be corrected to Smith (capital S) and submitted that the Court did not have jurisdiction to hear his case as he had never agreed to be personally subject to any law issued by Parliament.
Mr Smith also made the point that he had been charged with a serious category 3 offence and wanted his name cleared. He considered that he needed the answers to his questions before the matter could be dealt with.
The Judge rejected the submission that the Court had no jurisdiction and, after hearing from the Crown, rather than granting leave for the Crown to withdraw the charge, dismissed it under s 147 of the CPA.
Application for leave
There is jurisdiction for an appeal to this Court from a decision under s 147.[3] The right of appeal is, however, subject to leave and only applies to a question of law arising in the dismissal of the charge.
[3]Criminal Procedure Act, s 296(3)(b).
In Brown v R, this Court confirmed that the question of law must raise one or more of the following errors:[4]
(a)a misdirection of law apparent in the decision; or
(b)failure to consider a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or a failure to draw the only available inference.
[4]Brown v R [2015] NZCA 325 at [16].
Mr Smith identified the following two questions of law in his application for leave:
i)Jurisdiction. I have told both Taumarunui & Hamilton District Judges that I do not consent to their authority and have asked for their authority to have jurisdiction over me. The DCJ in Taumarunui did not address my question and simply referred the matter to Hamilton. The DCJ in Hamilton explained that he had jurisdiction “because I lived in NZ” and “[other] courts had already ruled that they had jurisdiction to rule”.
ii)Justice. It is my submission that under the natural law, any accused should know what he is being charged with prior to trial. The Crown actively failed to address these matters. It is my submission also that when a matter is before the civil courts that it is bad faith conduct to charge for a criminal offence on the same matter before the civil matter is heard. The Crown did this. It is my submission that any decision made by those within the justice system to withdraw charges should be communicated to a charged person with reasonable urgency. The Crown conspired to keep this knowledge from me and it appears that this bad faith conduct has continued with efforts to coverup indiscretions.
In support of the appeal Mr Smith says:
(a)New Zealand courts only have jurisdiction because Parliament issues them authority through the powers vested in it through the Crown which assumes the authority under the threat of force. In the event that Mr Smith does not accept that authority (he does not) then there is no legitimate authority. Any actions taken against him by that authority are therefore taken by force (or by threat of force), causing him to act under duress.
(b)The principles of natural justice require that the multiple issues asked of (but not addressed by) the Police prosecution, Crown solicitor and trial Judge be addressed constructively.
(c)A fundamental miscarriage of justice has occurred through multiple failures of both the Justice and Police Departments’ actions, their inaction and the ruling he seeks leave to appeal.
(d)Mr Smith also says:
One of the core reasons I explained to the presiding judge that this charge was problematic for me (it was vexatious, IMHO) was that I was a licensed private investigator and withdrawing the charge under s 146 could still cause me difficulties especially in the context of a specific damning letter from the Crown Solicitor.
Acquitting me of the charge under s 147 (against both the wishes of the Crown Solicitor and against my requests for further information) does not resolve the core problems I could face in the future, although it clearly removed the matter from his immediate care.
(e)Mr Smith also argues that until he knew what evidence was actually missing, he could not determine its value or importance.
Jurisdiction
There are only two possible questions of law arising in this case. The first is jurisdiction. The second is whether Mr Smith’s rights under the New Zealand Bill of Rights Act 1990 were complied with.
Mr Smith is not the first to raise a challenge to the authority of Parliament and the courts on the basis they have not consented to that authority, or that because of their particular circumstances the laws of New Zealand do not apply to them. Arguments that the court has no jurisdiction to hear a case against a person, if that person has not consented to the authority of the Crown, Parliament or the courts, have properly been rejected whenever raised.[5] The proposed argument has no merit. It is plainly unsound legally.
Justice
[5]Smith v R [2017] NZCA 288; France v Police [2015] NZHC 171; Wallace v R [2011] NZSC 10, [2011] BCL 265; and R v Toia [2007] NZCA 331.
As a person facing a criminal charge Mr Smith was entitled to be informed promptly and in detail of the notice and cause of the charge.[6]
[6]New Zealand Bill of Rights Act 1990, s 24(a).
In Mr Smith’s case, his rights were observed. He received notice of the charge he faced and the detail of his alleged offending in the charging notice and the accompanying summary of facts.
Apparently, Mr Smith is taking separate civil proceedings against the Attorney‑General in relation to the Crown prosecution. That is a quite separate matter and did not provide a basis to stay the criminal proceeding against him. It was open to the Judge to deal with the matter in the way that he did when it was before him. Indeed, in the circumstances, it was an appropriate exercise of his discretion under s 147(2) of the CPA.
Summary
In short, Mr Smith’s proposed appeal does not disclose any arguable question of law. His application for leave to appeal the dismissal of the charge is plainly without merit.
Result
Mr Smith’s application for leave to appeal the dismissal of the charge against him is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
0
0