STANTON v NEW ZEALAND POLICE [2016] NZCA 561

STANTON v NEW ZEALAND POLICE [2016] NZCA 561 [29 November 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA286/2016[2016] NZCA 561BETWEEN LEWIS REGINALD STANTONApplicantAND NEW ZEALAND POLICEFirst RespondentAND DEPARTMENT OF CORRECTIONSSecond RespondentHearing: 16 November 2016Court: Winkelmann, Duffy and Whata JJCounsel: S J Zindel and S M Barclay for ApplicantA J Ewing for RespondentsJudgment: 29 November 2016 at 4 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Stanton was fined numerous times for parking his horse and cart in breach of a Nelson bylaw. He accumulated $80,000 in fines and did not pay any of them. He was convicted by Judge Zohrab for default in payment of the fines and sentencedto 400 hours' community work. Mr Stanton did not comply with the communitywork order. Judge Ruth convicted and sentenced him to 21 days' imprisonment forthis breach.1 Separately, Mr Stanton was charged and convicted for obstructing a police officer by Judge Tompkins.2[2] An appeal to the High Court on the three convictions was rejected by Ellis J.3Mr Stanton now seeks leave to bring a second appeal to this Court. He focuses on the latter two convictions and seeks to argue that:(a) Judge Ruth (and Ellis J) erred by not affording Mr Stanton an opportunity to present a defence to the breach of community work order based on a challenge to the legality of the parking fines; and(b) Judge Tompkins (and Ellis J) did not have a proper basis for finding that Mr Stanton obstructed the police.Jurisdiction[3] The jurisdiction of this Court to grant leave for a second appeal is well settled. The appeal must involve a matter of general or public importance and/or be necessary to avoid a miscarriage of justice.4 Leave will not be granted where the proposed appeal challenges a factual assessment specific to the circumstances of the case or the application of settled law to the facts.5Assessment[4] The leave application relates to two separate convictions — those entered by Judge Ruth and Judge Tompkins. We propose to address Mr Stanton's application byreference to each of those matters.1 Department of Corrections v Stanton [2016] NZDC 1284 at [2].2 Police v Stanton DC Nelson CRI-2015-042-1152, 13 November 2015 at [53].3 Stanton v Police [2016] NZHC 993.4 Criminal Procedure Act 2011, ss 237(2) and 253(3).5 See Struthers v R [2016] NZCA 278 at [10]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].Breach of community work[5] Prosecution for non-payment of parking fines is subject to the Summary Proceedings Act 1957 (SPA). In relevant part the SPA provides as follows:(a) Section 21 stipulates the procedure for serving and challenging, by way of a request for a hearing, any infringement notice. Eventually, if the subject of the notice takes no action, under s 21 an order for payment will be deemed to have been made by a court.(b) Section 78B provides a procedure for an order made, or deemed to have been made, to be challenged or corrected because of irregularities in proceedings.(c) Section 88AE provides a procedure for making of various court orders in respect of infringement offences, including substitution of community work for fines.[6] Mr Stanton's complaint, in short, is that the Nelson City Council's issue ofmultiple parking fines (around 298 tickets) over a short period of time was an abuse of regulatory power in breach of Mr Stanton's right to freedom of movement. Hesays that the object of the fines was not to regulate parking but to force him out of town. He claims, therefore, he had a reasonable excuse for not complying with the community work order and Judge Ruth (and Ellis J) erred by not affording him an opportunity to present a defence on that basis.[7] The SPA allows for challenge to the validity of the parking fines during the infringement notice and or correction procedures pursuant to ss 21 or 78B. If, asoccurred in Mr Stanton's case, no challenge is made to an infringement notice, thenthe infringement offence will have been established, triggering the jurisdiction to impose a penalty pursuant to s 88AE.6 Breach of any s 88AE order is then enforceable in the usual way.7 It is at that point in the procedural history (the enforcement stage) that the hearing before Judge Ruth occurred. Nothing in the6 Unless subject to the correction procedure at s 78B of the Summary Proceedings Act 1957.7 Criminal Procedure Act, s 375.scheme of the SPA contemplates an opportunity at this late stage to re-litigate the validity of the parking fines. Mr Zindel (for Mr Stanton) appeared to accept this basic proposition.[8] Mr Zindel nevertheless maintained, in light of the above analysis, that Judge Ruth should have allowed evidence to show the Council acted unlawfully as this was relevant to Mr Stanton's defence of reasonable excuse. But, given the point the proceedings had reached, the underlying validity of the Council's conduct cannotprovide a reasonable excuse for non-compliance with the community work order in this case.[9] This case is nothing like the cases cited to us by Mr Zindel, namelyBoddington v British Transport Police8 and Creser v R.9 In those cases, the legality of the bylaw in Boddington and the warrant in Creser was relevant to whether or not a conviction should be entered for non-compliance with the bylaw or for assault on a constable acting pursuant to the warrant. Collateral challenge to their validity waspermitted. By contrast, Mr Stanton's charge for non-compliance with a community work order is two procedural steps removed from the infringement offence procedure. Mr Stanton had the opportunity to challenge the validity of the fines in the infringement notice proceedings pursuant to s 21. He did not do that, unlike Messrs Boddington and Cresser.10[10] Given the foregoing, there is no merit in Mr Stanton's defence based onreasonable excuse.8 Boddington v British Transport Police [1999] 2 AC 143 (HL).9 Creser v R [2010] NZCA 208.10 The present case is, in fact, much closer to R v Wicks [1998] AC 92 (HL) cited by their Lordships in Boddington, above n 8. In that case the defendant had been issued with an enforcement notice under the Town and Country Planning Act 1971 (UK) (the Act) for breach of a planning control. The defendant unsuccessfully appealed against the notice pursuant to the statutory procedure. When the defendant failed to comply with the notice, criminal proceedings ensued. As a defence, the defendant argued that the notice had been issued illegally and in bad faith. The House of Lords rejected that defence. Lord Hoffmann (in the leading speech) found that a defendant's ability to challenge the validity of an act done under statutory authority in criminal proceedings depended on the interpretation of the relevant statute (at 117). His Lordship found that the Act contained an elaborate code, which included the ability to appeal against notices, and that on a proper construction of the Act all that was required to be proved in the criminal proceedings was that the notice on its face complies with the legislation (at 122).No evidence of obstruction[11] The appeal against the conviction for obstruction is also a fact-specific matter of no public or general importance. Mr Stanton faces the hurdle that there are concurrent findings of fact against him. Given the thorough examination of the merits by both Judge Tompkins and Ellis J, we also see no prospect of miscarriage if leave is not granted. We consider there was clearly a proper basis on the evidence for the findings that Mr Stanton was guilty of obstruction. Among other things, a DVD recording showed that Mr Stanton was told not to re-enter specified premises and he attempted to do so, contrary to that instruction. It was then necessary for the police then to arrest him.Result[12] The application for leave to bring a second appeal is declined.Solicitors:Zindels, Nelson for ApplicantCrown Law Office, Wellington for Respondents