McLachlan v Police [2015] NZHC 1608 (9 July 2015)

Last Updated: 15 July 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000130
CRI-2014-409-000132

CRI-2014-409-000133 [2015] NZHC 1608

BETWEEN	DENIS LLOYD MCLACHLAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 June 2015
Appearances:	Appellant in person D L Elsmore for Crown
Judgment:	9 July 2015

_{JUDGMENT OF DUNNINGHAM J}

[1] These are appeals against the decision of the District Court convicting the appellant on five charges of failing to comply with a prohibition order issued by an enforcement officer and one charge of failing to give details requested by an enforcement officer.

[2] Four of the charges of failing to comply with a prohibition order were in fact a rehearing of those charges as a consequence of an appeal heard by Fogarty J in late

2013 where he set aside those convictions and consequential fines and remitted them back to the District Court for rehearing.

The District Court hearing

[3] When the District Court hearing proceeded on 13 August 2014, the charges it had to deal with were:

MCLACHLAN v NEW ZEALAND POLICE [2015] NZHC 1608 [9 July 2015]

(a) the rehearing of four charges of failing to comply with a prohibition given under s 52(1)(e) of the Land Transport Act 1988 by driving a motor vehicle when he was forbidden to drive, on specified dates between 22 December 2011 and 30 March 2013;¹

(b) one further charge under s 52(1)(c) of driving whilst forbidden, committed on 17 February 2014; and

(c) one charge of failing to give his full name and full address on

17 February 2014 in contravention of s 113(2)(e) of the Land

Transport Act 1998.²

The request for an adjournment

[4] The rehearing on the charges which were remitted back to the District Court was scheduled for 14 March 2014. It appears it was then adjourned through to

9 May 2014 and, then, through to 13 August 2014 to allow the 17 February 2014 charges to proceed at the same time.

[5] Mr McLachlan accepts in his submissions that he left New Zealand in June 2014 and was aware of the August hearing date. However, “due to unforeseen delays” he was not able to communicate with the Court directly and instead his wife Heather contacted the District Court by telephone on 7 August, and followed up with a request for an adjournment in writing on Friday, 8 August. Registry staff sought proof of his travel in order to consider the application, which his wife could not supply.

[6] On Monday 11 August, Mr McLachlan’s wife was advised that the application for an adjournment had been declined and that the matter may proceed in his absence. On the morning of 13 August, Mrs McLachlan again contacted Registry staff to say she still could not get in touch with her husband and asked for the matter

_{to be referred to a Judge.}

¹ One charge (a driving while forbidden charge which allegedly occurred on 18 December 2012), was dismissed on the basis there was no evidence offered due to the police constable being unwell.

² Which is also an offence under s 52(1)(c), Land Transport Act 1998.

[7] The Judge who was scheduled to hear the matter issued a minute on the same date noting that it was clear Mr McLachlan knew, at least by June, of the 13 August hearing date, and that there was some doubt as to whether Mr McLachlan was overseas because he did not have a valid passport. In any event, the Judge determined that the charges on which there is a rehearing were validly set down for hearing and, if the prosecution wished him to proceed to deal with it by way of formal proof, he would do so. Similarly, in relation to the two new charges, the

Judge concluded that Mr McLachlan was:³

... aware clearly of the fixture because it was adjourned on 9 May and he has not turned up and I can deal with those as well in his absence if the prosecution wishes me to, which it does.

[8] The Judge went on to hear the charges by way of formal proof and issued a decision convicting Mr McLachlan on all charges.

[9] In his decision the Judge recorded that evidence was given that Mr McLachlan’s New Zealand driver licence had expired, as well as evidence of the various occasions on which he was said to have been found driving on a road after a notice forbidding him to drive had been issued to him on 15 March 2008.

[10] The Judge recorded that Mr McLachlan produced a Vanuatu driver licence on these occasions and claimed that it was valid and that he had recently returned back from overseas. He recognised that Mr McLachlan asserted on each occasion that he had a deemed licence in terms of r 88(1)(a) of the Land Transport (Driver Licensing) Rule 1999. That rule provides:

88 Recognition of overseas driver licence or permit

(1) A person, on arrival in New Zealand, is deemed to hold a New Zealand driver licence of a class that entitles the person to drive the motor vehicles that the person is entitled to drive under—

(a) a valid and current driver licence or permit issued overseas to the person, after the person has produced proof of the person's driving competence, by an overseas authority, or an agent of that authority, authorised to issue a driver licence or permit; or

_...

³ Police v McLachlan DC Christchurch CRI-2014-009-001380, 13 August 2014 [Minute].

[11] The Judge then summarised evidence given by Mr O’Connor from the New Zealand Customs Service who produced the official record of all travel that Mr McLachlan had undertaken on his New Zealand passport. It showed no overseas travel between the dates of late 2004 to 7 February 2014, and that Mr McLachlan did not hold an “international travel document” during that period.⁴

[12] The Judge concluded that, without a valid passport or a certificate of identity issued by the recipient country, Mr McLachlan was unable to have travelled overseas during that period. As a consequence, he was satisfied that Mr McLachlan did not fall into the category of having a deemed licence pursuant to r 88(1)(a), and all five charges of driving contrary to the prohibition were proved beyond reasonable doubt.

[13] He also outlined the evidence from Constable Lomax that on

17 February 2014, he asked Mr McLachlan for his name and address and Mr McLachlan refused on the basis that the New Zealand Land Transport Act 1998 did not apply to him. While Mr McLachlan handed the constable a piece of paper that had his name on it, he then refused to confirm whether his name was as per the name on the piece of paper, so that charge was also proved to the Judge’s satisfaction.

[14] However, as the Court was advised that Mr McLachlan has now obtained a New Zealand driver licence so the purpose of charging him with these offences whilst forbidden had been achieved, the Judge convicted and discharged Mr McLachlan on all offences.

Grounds of appeal

[15] Mr McLachlan has issued two appeals, one relating to the two charges alleging offending on 17 February 2014, and the other relating to the charges which were being reheard as a consequence of the December 2013 decision of Fogarty J.⁵

[16] He advances two grounds of appeal in relation to all the charges:

(a) he was not able to defend them because he was out of the country and his request for an adjournment was not granted; and

(b) the evidence presented by the police was unreliable.

The appeal hearing

[17] The appeal was called before Mander J on 1 April 2015 where, after hearing from Mr McLachlan, Mander J advised him that the appeal could be divided into two parts, which essentially reflect the grounds of appeal I have identified above.⁶

[18] The first related to the decision of the District Court to continue with the hearing of the charges in his absence. The second concerned the proof of the charges accepted by the District Court and, in particular, the evidence of his absences from New Zealand. This evidence was potentially relevant, both to the status of overseas drivers’ licences presented to police in relation to the offences of driving while forbidden and also his failure to attend the District Court last year when the charges were set down for hearing.

[19] Mander J noted that while Mr McLachlan had provided copied material relating to these issues which he had attached to his submissions “he had filed no evidence in support of the contentions contained in his submissions regarding his travel overseas”.⁷ Mander J recorded in a file note that:

[9] The merit of the argument available to Mr McLachlan essential (sic) turns on proof of his absences from New Zealand, as that information may potentially impact on the validity of his reliance on overseas driver licences. In turn, an assessment of the merits of the argument available to him in respect of that issue may inform whether the interests of justice require the decision to proceed in his absence be reviewed.

[10] The material provided by Mr McLachlan to date is unsatisfactory and does not constitute evidence which the Court can have proper regard. It is necessary for Mr McLachlan to file and serve an affidavit, either from himself alone or together with supporting affidavits from other persons who can attest to his movements. He would then need to make himself and any other deponents available for cross-examination.

[20] Accordingly, the appeal was adjourned in order to provide Mr McLachlan the opportunity to file and serve such evidence and to provide the Crown with an opportunity upon receipt of that evidence to make such enquiries as it thought fit and file evidence in reply.

[21] Mr McLachlan has since filed an affidavit. In it he gives evidence that on

13 August 2014 he was travelling between islands in the Vanuatu group, arriving in Port Vila on 14 August 2014. He also attaches the official record held by Immigration New Zealand as to his movements on his passport which show him returning by air travel from Port Vila in October 2014. However, he asserts this record is incorrect in certain respects as it shows him embarking on a flight to Los Angeles on 18 May 2001 and also embarking on a flight from Los Angeles to Auckland on 10 June 2002 when he says that he has not travelled to the United States in those years.

[22] On the critical issue as to whether he was overseas in each of the 12 month periods before the various driving while forbidden offences were alleged to have been committed, the only evidence given in his affidavit is his assertion, that:

At the time I kept a number of journals which have been checked and to the best of my recollection I have travelled periodically as a pastor for the fellowship throughout the South Pacific during that time. I will not provide to the Court any evidence of this travel as it is not my requirement to do so because I am in fear, as it has been commented in the High Court, that the prosecution will be willing to go to whatever means to produce some form of sanction against me for overseas travel and I am not protected against any confidentiality. I therefore challenge the prosecution to prove that I was not overseas.

[23] At the hearing, Mr McLachlan sought to supplement that evidence in the course of submissions by saying that any records he had of his earlier travel were burnt in a fire and he could not produce them. It is on this scanty evidential basis that I have to decide the appeals.

The law

[24] Four of the driving charges⁸ were laid before the relevant commencement of the Criminal Procedure Act 2011 (the CPA), so the Summary Proceedings Act 1957 (the SPA) applies to those. For the remaining driving while forbidden charge and the charge of failing to give information, the CPA applies.

[25] Under the SPA, the appellant has a general right of appeal to the High Court against conviction.⁹ The High Court can confirm the conviction, set it aside, amend it or otherwise deal with the offender as the District Court could have.¹⁰

[26] Under the SPA, if a defendant has had summons served on him or her and does not show up for the hearing, the Court may proceed with the hearing or adjourn to such time and on such conditions as the Court thinks fit.¹¹ Evidence which would

be admissible by oral evidence is in that case also admissible by affidavit.¹² The

Registrar has the power to adjourn the hearing if an application is made before the commencement of the hearing and notice of the adjournment is given to both parties in writing.¹³

[27] The appellant has a right of appeal against conviction under s 229 of the CPA. As the first appeal Court, this Court must be satisfied that a miscarriage of justice has occurred, otherwise, the Court must dismiss the appeal.¹⁴ A miscarriage of justice in this context means any error, irregularity, or occurrence that has created real risk that the outcome of the trial was affected, or has resulted in an unfair trial that was a nullity.¹⁵

[28] Under the CPA, the Court may proceed with a hearing if the defendant does not appear, and the proceeding is conducted as if the defendant pleaded not guilty.¹⁶

8. CRNs 12061000365, 12061000366, 12061000367, 12061000356, all laid before 1 July 2013, the commencement date for the relevant provisions of the CPA.

⁹ _{Summary Proceedings Act 1957, s 115.}

¹⁰ _{Section 121.}

¹¹ _{Section 61.}

¹² _{Section 61(c).}

¹³ _{Sections 45A and 61A.}

¹⁴ _{Section 232.}

¹⁵ _{Section 232(4).}

¹⁶ Section 119.

Again, affidavit evidence is admissible.¹⁷ The proceeding in this case can include sentencing.¹⁸ A notice may be served on the defendant advising him or her of the outcome, and notifying of a period for application of rehearing of sentence.¹⁹

The decision of the District Court to continue in Mr McLachlan’s absence

[29] Mr McLachlan concedes that he was aware of the trial at the time he allegedly left New Zealand. It was not until seven days before the hearing that Mr McLachlan, through his wife Heather McLachlan, informed the Court that he was not in the country. She was unable to provide any evidence of this when the Court requested it and, in the absence of such evidence, the Court decided to proceed in Mr McLachlan’s absence. I have to determine whether that was a circumstance constituting a miscarriage of justice.

[30] The Court of Appeal in Dowey v MAF considered a case where the appellants were alleged to have committed various fisheries offences.²⁰ After a series of adjournments were given, it was made clear that the latest adjournment would be the final one. However, one day before trial another adjournment was sought because a witness for the appellant was out of town. The adjournment was declined and the acting solicitor withdrew. The appellants did not attend and the matter proceeded in

their absence. The appellants appealed to the Court of Appeal on the basis that the hearing and conviction was in breach of ss 25(a), (e) and (f) and 27(1) of the New Zealand Bill of Rights Act 1990.

[31] On the issue of whether there was a denial of rights on the part of the Judge, the Court held:²¹

It is however the applicants' failure to appear, in the face of the Judge's direction the previous day, that meant that the case proceeded in their absence. They were not entitled to assume that the Judge would accede to the further adjournment application either as a result of the solicitor's representations or by thinking his hand was forced by their non-appearance. Mr Levett submitted that the Judge should have stood the case down until later in the day, directing that the applicants were to be notified that it was

¹⁷ _{Section 124(2)(c).}

¹⁸ _{Section 123.}

¹⁹ _{Section 124(4).}

²⁰ _{Dowey v MAF [1992] NZCA 54; (1992) 1 HRNZ 593.}

²¹ At 599.

then to proceed. We do not accept that submission. The applicants were not present when they ought to have been, and the Judge was entitled to hear the case. We should add that there is nothing to suggest that the applicants themselves were unaware of the way in which the case was handled.

The rights affirmed in the Bill of Rights Act are not absolutes, for they are to be balanced against the rights of others and the rights of society in the due administration of justice. And they will be lost to one who does not exercise reasonable diligence on his own behalf. Thus an accused who absconds has been held to have waived his right to be present at his trial: R v Czuczman (1986) 26 CCC (3^rd) 43; (1986) 27 DLR (4th) 694, R v Tzimopoulos (1987) 54 CR 1; 29 CCC (3^rd) 304. That of course is a more extreme circumstance than in the present case, but there are other Canadian cases in which it has been held that an accused who without good excuse fails to attend and to avail himself of the right to be present at his trial cannot be heard to say he has been deprived of that right if the trial proceeds in his absence: R v Tarrant (1984) 13 CCC (3^rd) 210; 10 DLR (4th) 751, R v Rogers [1984] 6 WWR 89. Both good sense and the due administration of justice require the same principle to be applied in this country, and to this case.

[32] In the current case, the matter had been adjourned from 9 May 2014 to a hearing date of 13 August 2014. Mr McLachlan was aware of this date when he left New Zealand, and was aware of the risk that he may not make it back, as he had instructed his wife to make contact with the Court if he was not back to seek an adjournment of the hearing.

[33] I accept the evidence now before the Court that Mr McLachlan was, in fact, overseas on 13 August 2014, but these travel arrangements were the consequence of his personal choice, and was travel he embarked upon knowing that the hearing was scheduled for that date and knowing he was at risk of not getting back before that date. The District Court Judge was entitled to exercise his discretion to proceed in the appellant’s absence,²² and it was in the interests of the administration of justice to do so, particularly when the majority of the charges were the subject of a re-hearing which had already been deferred.

[34] In terms of whether this has led to a miscarriage of justice, Mr McLachlan asserted that he wished to cross-examine Mr O’Connor, the officer who produced the Immigration Department’s record of Mr McLachlan’s travel, on the affidavit evidence he provided. However, the inability to cross-examine witnesses is a natural

_{consequence of the hearing proceeding in a defendant’s absence. As was stated in}

²² Summary Proceedings Act 1957, s 61; Criminal Procedure Act 2011, s 119.

Dowey, it is Mr McLachlan’s failure to appear which is the true cause of his inability to test the informant’s evidence. In any event, he was afforded that opportunity in the appeal hearing and no new or relevant information was gleaned from that exercise. All it did was confirm what was already known to the Court, that the record produced by Mr O’Connor was simply the official record held by Immigration Services. It did not cover travel which had been undertaken without complying with the requirement to hold a passport and to pass through a designated Customs port, nor did it cover what travel had been undertaken between departing and re-entering New Zealand.

[35] I also observe that Mr McLachlan could, instead of appealing, have sought a rehearing under ss 125 and 126 of the CPA and s 75 of the SPA. However, he chose not to do that, but instead to exercise his right to appeal and I must consider his complaints in that context.

[36] I am satisfied that the powers contained in both the SPA and the CPA to proceed in the absence of a defendant, were able to be exercised in circumstances such as this. Mr McLachlan had reasonable notice of the hearing, but he failed to appear and chose to put himself in a position where he could not himself provide verification of the reasons he sought the adjournment. The Judge was entitled to hear the case in Mr McLachlan’s absence and his decision to do this does not justify setting aside the decisions on appeal.

The proof of the charges accepted by the District Court and, in particular, the

evidence of Mr McLachlan’s absences from New Zealand

[37] As already outlined, Mr McLachlan’s defence to the driving while prohibited charges is that he comes within the scope of r 88 of the Land Transport (Driver Licensing) Rule 1999 and holds a deemed New Zealand licence, because he holds a Vanuatu and a Cook Islands driver licence, and his evidence that he was travelling regularly outside New Zealand. As a consequence, the prosecution could not prove that he did not have a deemed licence under that rule.

[38] At this juncture it is worth saying something about the burden of proof. It is beyond question that the prosecutor has the burden of proving the charges beyond

reasonable doubt. The real issue is whether any part of the matters which have to be proved fall to the defendant to be proved on the balance of probabilities, because they come within the scope of an exception that only the defendant could realistically discharge the onus of proof.²³

[39] To elaborate, for a charge under s 52(1)(c) of the Land Transport Act 1998, the prosecution needs to prove that:

(a) a prohibition is in force; (b) the defendant drove;

(c) the driving was on a road.

[40] A prohibition is issued under s 113(2)(e) by an enforcement officer and its effect is to “forbid an unlicensed driver to drive a motor vehicle”. As was identified in the Police v Meafou, a prohibition of this nature “automatically comes to an end upon the person duly obtaining the appropriate licence”.²⁴

[41] It follows that if the driver has, or had, obtained an appropriate driver licence the prohibition no longer applies to him. In the present case, Mr McLachlan relies on either his Vanuatu or Cook Islands licence being deemed to be a valid New Zealand licence under r 88 and therefore making the prohibition notice of no effect.

[42] Four of the offences of failing to comply with a prohibition order are for offences which occurred between 22 December 2011 and 30 March 2013. As a consequence, s 67(8) of the Summary Proceedings Act applies. This provides that:

(8) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived,

no proof in relation to the matter shall be required on the part of the informant.

[43] This requires the defendant to prove on the balance of probabilities that he is within any form of exception. The test to be applied in deciding whether a particular element of an offence is a form of exception is a question of construction, to be looked at by looking at both the form and the intrinsic character of the provision, and its real effect.²⁵ One of the factors the Court should have regard to in determining on whom the burden should lie, is the ease or difficulty that the respective parties would encounter in discharging the burden. The burden can be held to lie on the defendant in cases where the burden can be easily discharged by the defendant.²⁶

[44] In the present case the prosecution provides that there is no challenge that the police had issued a prohibition notice, Mr McLachlan was found driving on a road and at the time he did not hold a New Zealand driver licence. In those circumstances, if Mr McLachlan wishes to assert he held a deemed driver licence then I consider Mr McLachlan is relying on an exception which it is proper to place, not just an evidential burden on him (of raising the possibility of the exception which the prosecution must then negate beyond reasonable doubt), but a persuasive burden on him to prove the exception on the balance of probabilities. This is particularly so when Mr McLachlan relies on unlawful travel overseas which, by its very nature, will not be able to be disproved by the prosecutor. He should not be in a better position as a consequence of having travelled unlawfully than someone who has travelled lawfully.

[45] The two issues which I consider fall to Mr McLachlan to prove are that: (a) he had a valid overseas licence at the time of each offence; and

(b) the offence occurred within 12 months of him returning from overseas.

Did Mr McLachlan have a valid overseas licence?

[46] In respect of the validity of his overseas licences, Mr McLachlan provided three licences in evidence:

(a) a Vanuatu driver licence issued on 28 May 2001 without an expiry date;

(b) a Vanuatu driver licence issued on 18 August 2014 with an expiry date of 17 August 2017; and

(c) a Cook Islands driver licence issued on 6 June 2002 with an expiry date of 14 March 2012.

[47] The existence of the second Vanuatu licence confirms that the first Vanuatu driver licence is no longer valid. Ms Elsmore provided the Court with an extract of the Laws of the Republic of Vanuatu consolidated to 2006 which, at pt 6, contained a number of provisions relating to driving licences. It appears from s 46 that driving licences are issued for a period of one year unless renewed by payment of a renewal fee.

[48] However, emails from Vanuatu government staff explained that currently licences have a validity of three years. This accords with the second driver licence which was issued to Mr McLachlan for a period of three years. Given the divergence between the printed legislation and the informal email advice from the Vanuatu government, I simply cannot make a finding on when the 2001 licence expired. However, the onus is on Mr McLachlan to prove he has a valid overseas licence and, in the circumstances, this onus is not met in respect of the first Vanuatu licence. The second licence does not, of course, cover the period when the offences occurred.

[49] Mr McLachlan also holds a Cook Islands driver licence which was issued on June 2002 with an expiry date of 14 March 2012. That appears to cover the first forbidden to drive offence but not the subsequent ones on 15 and 22 March 2012 and

30 March 2013. I am unable on the evidence provided to satisfy myself on the

balance of probabilities that Mr McLachlan had a valid overseas driver licence on the three charges which occurred between 15 March 2012 and 30 March 2013.

Did the offences occur within 12 months of Mr McLachlan entering the country?

[50] On the second element of r 88, Mr McLachlan was given the opportunity by Mander J to provide affidavit evidence as to his travel at the relevant times. The evidence provided only establishes that Mr McLachlan was overseas on

13 August 2014, returning on 22 October 2014. In respect of earlier travel he simply says:

I have travelled periodically as a pastor for the fellowship throughout the South Pacific during that time. I will not provide to the Court any evidence of this travel as it is not my requirement to do so because I am in fear, as it has been commented in the High Court, that the prosecution will be willing to go to whatever means to produce some form of sanction against me for overseas travel and I am not protected against any confidentiality. I therefore challenge the prosecution to prove that I was not overseas.

[51] Mr McLachlan’s affidavit evidence proves that he has in 2014, but very likely on earlier occasions, travelled overseas without, as required by law, passing through a customs controlled area and reporting to a customs officer or immigration officer. However, I have no evidence as to when these periods of travel might have been. As a consequence, even if Mr McLachlan had a valid overseas licence (which is doubtful in relation to three of these offences), I am not satisfied on the balance of probabilities that he has a deemed New Zealand licence, because on each occasion he was caught driving on a road he was within 12 months of returning from overseas travel.

[52] The position is different for the driving while prohibited charge which relates to 17 February 2014. That charge is dealt with under the CPA which came into force on 1 July 2013. It repeals s 67(8) of the SPA and does not carry forward a similar provision. Accordingly, for that charge, Mr McLachlan only needs to satisfy an evidential burden that he may fall within r 88, and it falls to the prosecution to disprove that beyond reasonable doubt. However, on this charge I have no evidence before me that Mr McLachlan had a valid overseas driver licence on

17 February 2014. His Cook Islands driver licence expired before that and the only

Vanuatu driver licence which has been provided, which postdates the repeal of

lifetime licences and was issued after finite licences were introduced, is a licence that was issued on 18 August 2014. For that reason, I need not go further and consider whether the prosecution has proved beyond reasonable doubt that Mr McLachlan was overseas within 12 months prior to 17 February 2017, as there is no evidence to suggest he had a valid overseas licence at that time.

[53] For all these reasons, I am not satisfied there has been any error in convicting Mr McLachlan of the five charges of driving while prohibited and his appeal on those convictions fails.

Appeal of conviction for failing to give details

[54] The other conviction being appealed is a failure to comply with a request for information made under s 113(2)(c) of the Land Transport Act 1998. The charge is that Mr McLachlan failed when requested by an enforcement officer to give his full name and full address, in contravention of s 52(1)(c).

[55] Mr McLachlan’s submission in response relies on what he says is a transcript of the recorded conversation. He says that the transcript demonstrates that the only failure to comply was that he did not provide his date of birth and he did not do so because he was unable to, saying:

I cannot give you my date of birth. I was not a witness to that incident, as I said there has been an argument. I do not know my date of birth. I cannot be a witness to my date of birth. Do you understand.

[56] Mr McLachlan submits that his inability to provide his date of birth did not

“breach the intent of s 113” which provides:

...

(2) Without limiting any other powers conferred on an enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsequent (1), may at any time –

(a) direct a person on a road (whether or not in charge of a vehicle) to give the person’s full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify, and give any other particulars required as to the person’s identity ...

...

[57] Section 52(1)(c) provides that a person commits an offence if the person “fails or refuses to comply with any lawful requirement, direction, notice, request, or prohibition given to or imposed on him or her under this Act by an enforcement officer”.

[58] The conviction was based on Constable Lomax’s evidence that, when Mr McLachlan was stopped on Monday 17 February 2014 on Oxford Road, he asked Mr McLachlan for his name and address. He refused and said that the New Zealand Land Transport Act did not apply to him. Mr McLachlan then handed Constable Lomax “a piece of paper that had his name on it”, which Mr McLachlan explains was a document described as an “affidavit of identity”. This document states, among other things:

(2) That my Christian name is “Denis-Lloyd” with the initial letters capitalised as required by the Rules of English Grammar for the writing of names of sovereign soul flesh and blood people. My patronymic or family name of “McLachlan” with the initial letters capitalised.

(3) That the name “DENIS LLOYD MCLACHLAN” or any other derivation of that name is a dead, fictitious, cest que trust, or quasi corporation, legal entity not with sovereign soul flesh and blood living man that I am.

[59] Constable Lomax’s evidence goes on to say that, when he asked Mr McLachlan if the name Denis McLachlan that was on the piece of paper he gave him was his name, he replied that it should not be and he does not accept it as his name. He says he warned Mr McLachlan twice that if he refused to provide his details as required he would be arrested. He says that Mr McLachlan “still insisted that this did not apply to him as he is not a “real” (in legal terms) person, that his date of birth is not the day he was born and various other opinions on legal definitions”. Mr McLachlan still refused to provide his details so he arrested Mr McLachlan for failing to give his name and address.

[60] Mr McLachlan’s submissions focused only on his refusal to give a date of birth, which apparently also arose in the conversation. However, that is not the refusal to provide a detail in relation to which he was charged and so is irrelevant.

[61] It is clear that, even if I accept the transcript of Mr McLachlan’s conversation with Constable Lomax as accurate, it only provides the latter part of the conversation between the two, as Mr McLachlan acknowledges that it was after he had been stopped and questioning had started that he located the tape recorder and started recording. By then it is clear he had already provided Constable Lomax with the document described as his “affidavit of identity” and the recorded discussion is about his refusal to give his date of birth.

[62] The basis on which Mr McLachlan was convicted was that, while he provided the document which had a name on it (although even in that regard it was equivocal), it did not have his address, and the constable’s evidence was that Mr McLachlan refused to confirm that the name on the document was his name or what his address was.

[63] That was a factual finding which was clearly open on the evidence available to the Court and nothing raised on appeal, included the transcript presented by Mr McLachlan, provided a basis for challenging that factual finding.

[64] Accordingly, I see no reason to allow the appeal and it is dismissed.

Other matters

[65] Mr McLachlan raised a number of other concerns, some of a historical or more general nature and, for completeness, I record that they were simply not relevant to the appeals which I had to consider on the six convictions entered in the District Court. These include his concerns that he is the subject of “ongoing police attention”, that the matters for which he was convicted involve no direct risks to the safety of other road users, and whether he has suffered any hardship because of other police actions, including through seizing of the vehicles he was driving.

[66] He also made a number of references to the decision of Fogarty J where he successfully appealed his earlier convictions. The reasons Fogarty J gave for

_{allowing the appeal were:}²⁷

²⁷ McLachlan v Police, above n 6.

[25] I am satisfied that there are two errors in the oral judgment of the Justices of Peace which require these convictions to be set aside. The first is the assumption that the Vanuatu licence cannot be considered when applying r 88, because Vanuatu’s name does not appear in Annex 10 of the United Nations Convention, as referred in r 88(4). The second is that the Court accepted the hearsay notice of the Immigration Service records, showing that the last time Mr McLachlan arrived in the country was 2004, in the face of efforts to challenge the accuracy of that document, which were constantly objected to by the prosecution, rejections which were ultimately upheld by the Justices of the Peace.

[67] I am satisfied the District Court decision had regard to both these matters. The Judge did not rely on r 88(4), but considered the correct sub-section of that provision. Secondly, the immigration record was not admitted as hearsay evidence, but Mr O’Connor was required to produce it in person. The errors identified by Fogarty J have therefore been addressed.

[68] I also record that Mr McLachlan provided a subsequent note to the Court after the appeal hearing querying the process by which the Crown called Mr O’Connor to give evidence as to the Immigration Department record of Mr McLachlan’s movements overseas, and the fact that he was present in Court prior to giving evidence.

[69] By way of explanation, Mr O’Connor was made available because Mr McLachlan said he had been disadvantaged by being unable to cross-examine Mr O’Connor on his evidence. However, it appears Mr McLachlan misunderstood the scope of Mr O’Connor’s evidence. It was simply to produce the record of legitimate travel of Mr McLachlan over the relevant period. It did not, nor could it, purport to be a record of travel taken in breach of the legal requirements to pass through a designated Customs port.

[70] In terms of Mr McLachlan’s concerns that a witness should normally wait outside until called, that applies where there is factual evidence being given, and where there is a risk that the evidence of a later witness might be tainted or distorted by hearing the account of an earlier witness. That was not a risk in the present case, where no other witnesses were called and Mr O’Connor was simply called to confirm the evidence he had already given in the District Court and to give

Mr McLachlan the opportunity to question him. There was no prejudice at all in

allowing Mr O’Connor to be present prior to that occurring.

Conclusion

[71] While Mr McLachlan’s submissions were wide ranging, and he was allowed considerable latitude to introduce documents which were treated as evidence without always being formally qualified as such, nothing he has raised satisfies me that the convictions were in error and should be set aside.

[72] Accordingly, the appeals are dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch