MITCHELL v R [2004] NZCA 195 (23 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/04THE QUEEN

v

ALFRED JAMES MITCHELL

Hearing: 16 August 2004

Coram: McGrath J Hammond J Chambers J

Appearances: Applicant in person
A M Powell for Crown

Judgment: 23 August 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] In September 2003 Mr Mitchell, the applicant, was convicted in the District Court at Whangarei on three charges brought pursuant to the Land Transport Act 1998: failing to produce a driver’s licence when required to do so by a police officer; using an unlicensed motor vehicle; and operating a vehicle on a road when it was not displaying current evidence of a vehicle inspection. Subsequently, Mr Mitchell was fined and ordered to pay court costs on each charge.
[2] Mr Mitchell then appealed to the High Court against his conviction, on essentially two grounds: that the convictions had not been satisfactorily proved; and the trial court had no jurisdiction over him with respect to these informations.
[3] The appeal was dismissed by Gendall J, in a considered judgment delivered on 28 November 2003.
[4] Mr Mitchell then sought leave to appeal to this Court, under s 144 of the Summary Proceedings Act 1957. By a judgment delivered on 19 February 2004 Gendall J dismissed that application.
[5] Mr Mitchell now seeks special leave, pursuant to s 144(3) of the Summary Proceedings Act 1957, to appeal to this Court. He seeks to advance precisely the same two heads of appeal as were put to the High Court.

The law relating to second appeals

[6] Under s 144(3) leave may be granted only if this Court considers that the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision. The test has been more fully explained in, among other cases, R v Slater [1997] 1 NZLR 211. There is no possibility of a second appeal on questions of fact. The questions of law must be important and have an arguable chance of success.

The grounds of appeal: factual matters

[7] The defence advanced in the District Court was that Mr Mitchell was not driving the vehicle in question at the relevant time. He went so far as to claim that the police officer who said he had observed Mr Mitchell driving on the occasion in question was lying, and had fabricated his evidence.
[8] Mr Mitchell endeavoured to support the propositions he was advancing on the basis of what he claimed to be superior and more accurate notes which he had made of what had occurred at the time. He also suggested that Sergeant Povey would not have been able, in the particular circumstances, to have observed him closely.
[9] The District Court Judge was satisfied to the criminal standard, after hearing the evidence of both the police officer and Mr Mitchell, that Sergeant Povey had identified Mr Mitchell as the driver of the car on the occasion in question.
[10] The issues on this driving charge were purely evidential. As such, they raise no question of law which can be advanced to this Court. Gendall J was correct to hold in his leave judgment that he could not therefore grant leave on this point.
[11] We note, for completeness, that the defence as run went only to the driving of the vehicle - there was no issue that the car did not have registration or current warrant of fitness. There was therefore no challenge, factually, to the convictions on these two charges.

The sovereignty ground

[12] In the High Court Mr Mitchell argued that he was outside the jurisdiction of the High Court and “Pakeha laws”. He presented extensive submissions (Gendall J recorded that one document ran to 131 pages) on this issue.
[13] In considering the leave application the Judge carefully explained, by reference to relevant authorities including the decision of this Court in Knowles v Police (CA146/98 12 October 1998), that Mr Mitchell’s proposition was untenable. He explained that our Courts are subservient to Parliament and must apply an Act of Parliament in the terms in which it has been enacted. The issues which Mr Mitchell was seeking to raise could not be “resolved by the Courts [they] being a matter for public and political processes and not a judicial one”. Notwithstanding the care the Judge took over this aspect of the case, Mr Mitchell does not accept that explanation.
[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. No useful purpose would be served in retraversing the authorities. Mr Mitchell was perfectly familiar with them, and indeed was physically in possession of some of those authorities before us, including Knowles. He just does not accept them. He is not entitled to put himself outside the law of New Zealand.

Conclusion

[15] This application must therefore be, and is, dismissed.
[16] There remains the issue of costs. The correct legal position was fully explained to Mr Mitchell both on the appeal, and again on the application for leave, by Gendall J. Mr Mitchell has endeavoured to pursue this matter well beyond appropriate bounds. As this Court said recently in Simpson v Kawerau District Council (CA76/04 27 July 2004), “It must be appreciated that where legal rights have been exhausted, endeavours to prosecute [a] particular matter beyond its legitimate and lawful bounds will attract awards of costs.” The persistence of these unjustified attacks on the sovereignty of Parliament and the jurisdiction of the Courts come within this principle. The respondent will therefore have costs against Mr Mitchell on this application of $750, together with its reasonable disbursements, if necessary as fixed by the Registrar.

Solicitors:
Crown Law Office, Wellington