BAKER v NEW ZEALAND POLICE [2023] NZHC 2627

BAKER v NEW ZEALAND POLICE [2023] NZHC 2627 [20 September 2023]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2023-476-5[2023] NZHC 2627BETWEEN NATHAN ALBERT BAKERAppellantAND NEW ZEALAND POLICERespondentHearing: 18 September 2023 (By way of AVL)Appearances: Appellant in personA-M McRae for RespondentJudgment: 20 September 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 20 September 2023 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 8 November 2022, Mr Baker was found guilty by a community magistrateon infringement notices issued against him for the following offences:(a) operating a vehicle not displaying evidence of inspection (a warrant offitness);(b) operating a vehicle when it was not licenced (lacking appropriateregistration); and(c) operating a vehicle when it displayed an unauthorised plate.[2] Mr Baker did not dispute any of the factual evidence adduced to support thecharges. He owned and was driving the vehicle which had no warrant or registration,nor did it display an authorised number plate. Rather, he denied that in law he couldbe convicted of the offences.[3] On appeal, the District Court held there was no basis for disturbing the findingsof the community magistrate and dismissed the appeal.1The procedure to bring a second appeal[4] Mr Baker wishes to appeal the District Court decision. However, leave isrequired because this is a second appeal. Section 237 of the Criminal Procedure Act2011 (CPA) governs the circumstances in which leave should be granted, stating:(1) A convicted person may, with the leave of the second appeal courtappeal to that Court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that–(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.1 Baker v New Zealand Police [2023] NZDC 3239.[5] Strictly speaking, a notice of application for leave to appeal is required but, asMr Baker is self-represented, I have treated his notice of appeal as an application forleave.[6] As Mrs McRae for the respondent notes, leave is also required because theappeal was filed out of time. The notice of appeal was filed on 22 March 2023, being36 working days following the decision of the District Court and 16 days beyond thestatutory timeframe of 20 workings days from the date of the decision.2[7] This Court can extend the time for filing a notice of application for leave toappeal.3 In deciding whether to grant an extension of time, the Court generallyconsiders first, the reason for the appeal being filed late, and second, the merits of theprospective appeal.4 However, in the end it is the latter issue which is likely to bedeterminative of whether it is in the interests of justice to grant an extension of time.Prior decisions[8] The issue before both the community magistrate and the District Court wasessentially the same. Mr Baker did not contest the factual elements of what wasalleged. Instead, he challenged whether he was a "person" for the purposes of theoffence provisions in the Land Transport Act 1998. He argued the definition of personin s 13 of the Legislation Act 2019 was an exhaustive definition. It defines "person"as "includes a corporation sole, body corporate, and an unincorporated body". Thiswas a case, he said, where the maxim "expressio unius est exclusio alterius" (or theprinciple of construction that the express reference to one thing implies the exclusionof another) applies. As natural persons are not included in the definition they areexcluded from the application of the relevant provisions of the Land Transport Act.[9] Both the community magistrate, and Judge Dravitski, rejected Mr Baker'scontention. They concluded that a reference to a "person" in the Land Transport Act,and the regulations made under it, included a natural person. As Judge Dravitski2 Criminal Procedure Act 2011, s 239(2).3 Section 239(3).4 Mikus v R [2011] NZCA 298 at [26].observed, the definition of "person" was not an "exclusive definition", but was an"inclusive definition", as the definition of a person "must" include any natural person.5Nature of the application[10] The application was filed as a notice of appeal under r 8.4 of the CriminalProcedure Rules 2012. However, as I have already noted, leave to appeal is required,so I am treating this as an application for leave to appeal.[11] A complicating factor is that, in his submissions, Mr Baker also argues that hehas a right to seek judicial review of the decision, which he says was denied byHarland J.6 In asserting this, he relies on s 27(2) of the New Zealand Bill of RightsAct 1990, which provides as follows:Every person whose rights, obligations, or interests protected or recognisedby law have been affected by a determination of any tribunal or other publicauthority has the right to apply, in accordance with law, for judicial review ofthat determination.[12] However, this provision simply reserves the right to appeal to the courts fromother decision-making bodies. Not all decisions of the Courts themselves areamenable to review, particularly when there is a clear appeal process. Thecomprehensive statutory right of appeal contained in the Criminal Procedure Act 2011generally precludes judicial review. As was said by Simon France J in DGN vAuckland District Court:7I agree that the enactment of the [Criminal Procedure Act] is significant inrelation to the present type of application. The existing reluctance of thecourts to allow judicial review to interrupt the conduct of criminalprosecutions should now be reinforced This firm stance is supported by thereality that the scheme reflected in the Criminal Procedure Act affords all theopportunity a defendant needs to make appropriate challenges.[13] In any event, the point which Mr Baker seeks to argue is that the Judge erredin law by holding that the definition of person included a natural person. This is anargument which can readily be addressed on appeal.5 At [11] and [12].6 There is no record of this on the file, but I accept it is likely he was advised this was not a tenablecourse of action and he had to pursue his appeal rights.7 DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137 at [29].Appellant's submissions[14] Mr Baker repeats the submission he made in the District Court that the Judgeerred in applying the legal definition of "person" found in the Legislation Act 2019,again, arguing that the expressio unius legal maxim meant the definition did not covernatural persons. Mr Baker argues that the Judge "granted himself creative licence andapplied his own opinion rather than the letter of the law". He also argues that theJudge's description of the definition as "inclusive" did not have the same meaning asthe word "includes" which is used in the definition of person in the Act.[15] In Baker's written submissions, he made a range of other submissions,including that the community magistrate and the Judges acted in bad faith by failingto fulfil their legal obligations to apply the legal definition correctly. He also arguedthat there was a distinction between a natural person and a legal person, suggestingthat even his driver's licence recognised the separate entities.[16] There was an oblique argument asserting that the New Zealand CourtRegistries are banks and the judges bankers, which did not obviously have any bearingon the error in law which Mr Baker wished to argue.[17] Finally, in oral submissions, Mr Baker raised the argument that he was"people" as opposed to a "person". He did not elaborate on what he meant by this. Ican only assume he was referring to the distinction he draws between a natural personand their supposedly separate identity as a legal person.[18] It seems some of his submissions found their source in the so-called "sovereigncitizen" movement, submitting that the courts can only act with "the legal entity" anduntil he, as a private man, "consents to joinder, the courts are acting extra-judiciallyand without jurisdictional matter".[19] However, such arguments have repeatedly been rejected by the Courts asuntenable and lacking in legal foundation.8 As the Court of Appeal noted in Warahi v8 Simon v Chief Executive of the Department of Corrections [2022] NZCA 222; and James v DistrictCourt Whanganui [2022] NZHC 2309.Chief Executive of the Department of Corrections:9 "No person within New Zealandis able to dissociate themselves from their 'legal persona' so as to remove themselvesfrom the jurisdiction of the courts."Discussion[20] In my view, the question of whether there may have been a miscarriage ofjustice is determinative of both an application for leave to appeal out of time and anapplication for leave to appeal. I accept that if Mr Baker had a meritorious argumentthat the Land Transport Act provisions did not apply to natural persons such as himself,that would be a matter of general or public importance warranting a second appeal.However, for the reasons set out below, I do not consider there is a tenable argumentto this effect.[21] Mr Baker's argument stands or falls on whether the relevant Land TransportAct provisions (and the regulations made pursuant to that Act) can apply to naturalpersons such as himself. The starting point is the language of the statute.[22] Section 34(1) provides that a person commits an offence if:the person(b) operates a vehicle on a road without displaying current evidence ofvehicle inspection[23] The second charge is brought under reg 77(1) of the Land Transport (MotorVehicle Registration and Licensing) Regulations 2011 which provides that:A person commits an offence if the person operates a motor vehicle incontravention of s 242(1) of the Act by driving or using it on a road if themotor vehicle:(a) is not registered and licensed in accordance with Part 17 of the Act9 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [11].[24] The third charge is brought under reg 85(1)(a), which provides as follows:A person commits an offence if the person operates a motor vehicle by drivingor using it on a road if the motor vehicle–(a) displays any registration plate or licence that is not authorised to beaffixed to the motor vehicle under Part 17 of the Act[25] Neither the Land Transport Act nor the relevant regulations define the word"person". In the absence of a definition, it can be assumed the word is used in theordinary sense of meaning a natural person. That conclusion is reinforced by adoptinga purposive approach to interpretation. Only a natural person can use a vehicle on aroad or operate a vehicle on a road.[26] Mr Baker's argument relies on the definition in the Legislation Act 2019. Asalready mentioned, s 13 states that, in legislation, "person includes a corporation sole,a body corporate, and an unincorporated body". It is clear from the context that theword "includes" extends the definition of "person" rather than confines it. Had it beenotherwise, it would have said "means", rather than "includes".[27] Mr Baker's reliance on the principle of expressio unius est excluslio alterius ismisplaced. In any event, caution needs to be exercised when applying such a principleof interpretation to a statute. It cannot prevail if it is inconsistent with the clear intentand purpose of the statute, which, here, is to control driver behaviour. As theLegislation Act 2019 says:10 "The meaning of legislation must be ascertained from itstext and in light of its purpose and its context."[28] Furthermore, contrary to Mr Baker's submission, maxims are not immutablerules. As Wills J said in Colquhoun v Brookes:11I may observe that the method of construction summarised in the maximexpressio unius excluslio alterius is one that certainly requires to be watched.Perhaps few so-called rules of interpretation have been more frequentlymisapplied and stretched beyond their due limits. The failure to make theexpressio complete very often arises from accident, very often from the fact it10 Section 10(1).11 Colquhoun v Brookes (1887) 19 QBD 400 at 406.never struck the draftsman that the thing supposed to be excluded neededspecific mention of any kind[29] Suffice to say in the present case, it is clear that the definition of "person" inthe Legislation Act extends the definition to include more than just a natural person.That the word "person" includes a natural person is consistent with a purposive readingof the Land Transport Act and the regulations made under it.[30] Mr Baker's argument to the contrary is entirely misguided and cannot possiblysucceed. For this reason, and noting there is no dispute over the facts supporting thecharges, there is no risk that a miscarriage of justice may have occurred as a result ofhis conviction on these three offences.[31] Accordingly, I decline leave to extend the time for filing an application forleave to appeal, and I dismiss the application for leave to appeal.Solicitors:Crown Solicitor, TimaruCopy to:Mr Baker, Appellant