Easton v Wellington City Council [2024] NZCA 171 (22 May 2024)

Last Updated: 27 May 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA16/2024 [2024] NZCA 171

	BETWEEN	BENJAMIN MORLAND EASTON Applicant
	AND	WELLINGTON CITY COUNCIL Respondent

Court:	French, Palmer and Cooke JJ
Counsel:	Applicant in person K A Lee for Respondent
Judgment: (On the papers)	22 May 2024 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT

(Given by Cooke J)

• [1] Mr Benjamin Morland Easton seeks leave to bring a second appeal against his conviction and sentence in respect of two infringement notices laid by the Wellington City Council (WCC) under the Land Transport Act 1998, namely:

(a) driving a vehicle without displaying current evidence of a vehicle inspection;^[1] and

(b) driving a vehicle without a registration and licence in accordance with pt 17 of the Land Transport Act.^[2]

• [2] On 25 August 2023, Judge N Wills issued a decision finding that the infringement notices were proved beyond reasonable doubt.^[3] On 6 December 2023, Gwyn J dismissed Mr Easton’s appeal.^[4] Mr Easton then filed an application for leave to bring a second appeal on 12 January 2024.

The offending and Court findings

• [3] On 16 September 2022, a WCC parking warden issued the infringement notices to a Toyota vehicle with the licence plate CJB644. The registered owner of the vehicle is Mr Spellacey. On 25 October 2022, Mr Easton and Mr Spellacey jointly contacted WCC to direct the infringement notices to Mr Easton as the user of the vehicle. Mr Easton then disputed the infringement notices.
• [4] Judge N Wills gave an oral judgment, following a hearing on 25 August 2023, that the charges were proven beyond reasonable doubt. The Judge noted that Mr Easton did not challenge the evidence of the parking warden called by WCC to establish the elements of the infringement offences, and instead raised a defence on matters of law which the Judge found lacked merit.^[5]
• [5] On appeal to the High Court Mr Easton alleged:^[6]

(a) judicial bias and collusion between the WCC and the District Court;

(b) that this Court incorrectly approached strict liability offences in R v de Montalk and strict liability involves an element of mens rea;^[7] and

(c) this Court in Ngaronoa v Attorney-General incorrectly held that the Declaration of Independence (He Whakaputanga) does not affect the courts’ jurisdiction and does not alter the applicability of statutes passed by Parliament.^[8]

• [6] Gwyn J assessed each argument and found them to be without merit. She found that: the infringement offences were ones of strict liability;^[9] that the sovereignty arguments had been correctly dealt with by the District Court and High Court in a separate appeal brought by Mr Easton;^[10] that the District Court properly disallowed Mr Spellacey’s affidavit which related to different infringement offences;^[11] and finally, that the bias allegations were unfounded.^[12] Gwyn J noted that Mr Easton did not challenge the factual findings of the District Court establishing the elements of the infringement offences.^[13] No error or irregularity in or relating to the District Court proceeding arose, nor was there any discernible risk of a miscarriage of justice.^[14]

The application for leave to appeal

• [7] The application for leave to bring a second appeal is brought under ss 237 and 253 of the Criminal Procedure Act 2011. Section 237 provides “[a] convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal ...”.^[15] Pursuant to s 237(2) the Court of Appeal must not give leave for a second appeal 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 unless the appeal is heard.

• [8] An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of general principle or of general importance in the administration of the criminal law, including one that has broad application beyond the circumstances of a particular case. Not every error will amount to a miscarriage of justice, with the threshold being a high one.^[16]

Assessment

• [9] It would be rare for a case involving road transport infringement notices to warrant leave to pursue a second appeal. In Mr Easton’s notice of appeal he seeks leave to address the issue of whether the lower courts were correct to apply R v de Montalk to the infringement offences under ss 133 and 133A of the Land Transport Act. Section 133A provides for enforcement action to be taken against a person who is alleged to have committed the offence, rather than only against the registered owner of the vehicle. But as Ms Lee for WCC rightly points out, no issue arose in the District Court or the High Court as to the application of s 133A in this case as a matter of fact.
• [10] Both lower courts applied R v de Montalk, a decision of this Court which held that an offence against s 34(1)(b) of the Land Transport Act is a strict liability offence by virtue of being a stationary vehicle offence within the intended meaning and overall scheme of the legislation.^[17] Subsequent amendments to the legislation have clarified that an offence against s 34(1)(b) is a stationary vehicle offence, and therefore one of strict liability.^[18]
• [11] The matters advanced by Mr Easton in support of his application for leave do not outline a coherent argument that could establish the grant of leave. There is also no reason to revisit the issue determined by this Court in R v de Montalk in the context of Mr Easton’s case. Mr Easton has not identified any other matter of general or public importance, and there are no apparent issues arising from the reasoning of the lower courts in this matter such that a miscarriage of justice may result unless the appeal is heard.

Conclusion

• [12] The application for leave to bring a second appeal is declined.

Wellington City Council, Wellington for Respondent

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^[1] Land Transport Act 1998, s 34(1)(b); the maximum penalty is a fine not exceeding $2,000.

^[2] Section 242(1); and Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 77(2)(a).

^[3] Wellington City Council v Easton [2023] NZDC 18574, at [18] [liability judgment].

^[4] Easton v Wellington City Council [2023] NZHC 3545 [first appeal judgment].

^[5] Liability judgment, above n 3, at [4].

^[6] First appeal judgment, above n 4, at [11]–[16].

^[7] R v de Montalk CA157/03, 7 March 2005.

^[8] Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643.

^[9] First appeal judgment, above n 4, at [33], the High Court considered itself bound by this Court’s decision in R v de Montalk, above n 7.

^[10] First appeal judgment, above n 4, at [34]; and Easton v Wellington City Council [2020] NZHC 3351.

^[11] First appeal judgment, above n 4, at [35].

^[12] At [36].

^[13] At [25].

^[14] At [39].

^[15] As noted by Gwyn J in the first appeal judgment, above n 4, at [27], Mr Easton was not convicted of an infringement offence, but rather found liable for only the parking infringement offences with which he was charged. However, the effect of s 375(2) of the Criminal Procedure Act 2011, is to import the usual pathways for appeals against conviction and sentence in respect of infringement offences notwithstanding they do not result in a “conviction”.

^[16] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36] and [38].

^[17] Liability judgment, above n 3, at [9]–[12]; first appeal judgment, above n 4, at [33]; and R v de Montalk, above n 7.

^[18] Land Transport (Offences and Penalties) Regulations 1999, sch 7; and Land Transport (Motor Vehicle Registration and Licensing) Regulations, reg 77(2).