Brooker v R [2014] NZCA 436 (4 September 2014)

Last Updated: 12 September 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA298/2014 [2014] NZCA 436
BETWEEN	ALLISTAIR PATRICK BROOKER Applicant
AND	THE QUEEN Respondent

Hearing:	2 September 2014
Court:	Miller, MacKenzie and Andrews JJ
Counsel:	Applicant in person J E Mildenhall for Respondent
Judgment:	2 September 2014 at 12.28 pm
Reasons:	4 September 2014 at 2.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.

2. The application for leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by Andrews J)

[1] Mr Brooker was convicted by Judge O’Driscoll on 16 January 2014 in the Greymouth District Court on a charge of operating a motor vehicle on a road, when the vehicle was not displaying evidence of vehicle inspection, an offence under s 34(1)(b) of the Land Transport Act 1988.^[1] He appealed to the High Court and his appeal was dismissed by Dunningham J on 1 May 2014.^[2] He has applied for leave to appeal to this Court. His application was dismissed at the hearing. We set out below our reasons.
[2] Mr Brooker does not challenge the evidence given by the police in support of the charge. His argument before the High Court (and set out in his application for leave to appeal) is that the Land Transport Act is unlawful, as the New Zealand Parliament had no authority to enact it. He contends that this is because the proclamation by Lieutenant-General William Hobson on 30 January 1840, declaring that full sovereignty over New Zealand vests in the British Crown, specifically precludes any sovereign power in New Zealand other than the British Crown. Thus, he contends, the New Zealand Parliament had no power to enact legislation, including the Land Transport Act.
[3] Pursuant to s 237(1) of the Criminal Procedure Act 2011, leave may only be given for an appeal against the determination of an earlier appeal if the appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred, or may occur, unless the appeal is heard. Neither applies in this case.
[4] Mr Brooker’s proposed appeal does not involve any issue of general or public importance, and there is no suggestion that a miscarriage of justice has occurred, or will occur, if the appeal is not heard. The proposed appeal involves the application of well-settled law. The courts have consistently held that challenges to the sovereignty of Parliament, and validity of Acts of Parliament (whether in the context of Māori sovereignty arguments, or any other challenge to the sovereignty of the New Zealand Parliament) cannot succeed.^[3]
[5] Mr Brooker’s application for leave to appeal was filed five days out of time. There being no objection, we grant an extension of time. Mr Brooker’s proposed

appeal is not arguable, and for that reason the application for leave was dismissed at the appeal hearing.


Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] New Zealand Police v Brooker DC Greymouth CRI-2013-018-764, 16 January 2014.

^[2] Brooker v New Zealand Police [2014] NZHC 882.

^[3] See, for example R v Mitchell CA68/04, 23 August 2004; Phillips v R [2013] NZCA 580; and Wallace v R [2011] NZSC 10.