Remedy

For me, this issue began with the New Zealand government dishonouring the old lifetime driver licences. We currenly have the absurd situation in this country where the courts recognize the right to use a public road, but law enforcement agencies maintain that driving is a privilege and a licence must be obtained in order to acquire this same right. The legislation defines a motor vehicle to be a contrivance, but this term is ambiguous in that it can refer to either a physical machine or to an intangible legal concept. Exactly how ambiguous language should be interpreted by the courts is the subject of this document, and I will elaborate on this further on.

In September 2011 Judge Richard Russell admitted to committing fraud during a preliminary hearing regarding charges relating to alleged unlicenced use of a motor vehicle. He subsequently asked me an extensive technical legal question which, in my opinion, was an attempt to draw attention away from his previous unlawful act. When pressed on the issue of the fraud, he responded with "it's the rules". As a result of this fraud I was wrongfully imprisoned for a little over a month. The defended hearing did not take place until April 30th 2012, and time served was not taken into account during sentencing.

During the defended hearing I presented a variety of arguments to Judge Broadmore, and also made him aware of the fraud of the preliminary hearings. He asked me to describe the nature of the fraud, and he did not contest my explanation. In my opinion the most effective argument against the charges was based on Baron Parke's rule, since he did not respond to that particular argument in court, although he did address the issue in his written judgment. The relevant excerpt follows:

[48] Mr Wylie submitted that the statute should be construed in accordance with the so-called "golden rule" of statutory interpretation. This was the rule formulated by Parke B in Grey v Pearson (1856) 6 HL Cas 106 that the plain meaning of an enactment must be followed "unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument".
[49] Over the last 150 years or so, the Golden Rule has been often criticised; and it is no longer accepted, if it ever was, as a universally applicable approach to statutory interpretation. To the extent that it is in conflict with s 5(1) of the Interpretation Act, it is not part of the law of New Zealand. But in any event, having regard to the conclusions that I have already reached, I am unable to see that, in this case, there would be any absurdity, repugnance or inconsistency in applying the plain meaning of s 114 of the Land Transport Act to what happened in this case.

The following is a critique of Judge Broardmore's argument, and is in three parts: (a) straw man, (b) honourable purpose, and (c) impossibility.

a) Judge Broadmore's argument begins with a straw man in that the criteria of being accepted as a universally applicable approach is artificially high; a more appropriate test would whether or not the rule is consistent with the law of New Zealand.

b) For consideration of any conflict between the rule and the Interpretation Act, section 5(1) of the Act reads as follows:

5. Ascertaining meaning of legislation--- (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

For there to be a conflict with section 5(1), the purpose of the legislation must be absurd or repugnant, or the enactment somehow inconsistent. If the members of parliament are honourable and they are the source of the legislation, then it follows that the purpose of the legislation is also honourable. Therefore there is no conflict between the Golden Rule and the legislation unless absurdity, repugnance, or inconsistency are somehow honourable. This argument then reduces to the proposition that conflict with the rule is a function of the dishonour of parliament. In other words, if the purpose of the legislation is honourable then there should be no conflict between section 5(1) of the Interpretation Act and the Golden Rule, and there is no basis for rejection of the rule according to this part of his argument.

c) One reason that Judge Broadmore was unable to see any absurdity, repugnance, or inconsistency was that he had already reached his conclusion and proceeded with sentencing before he addressed the argument of the Golden Rule. This is similar to the response of the minister of justice when she said that she could not comment on the legal issues arising from judicial fraud.

The current situation is that the courts' observance of the rules referred to by Judge Russell will result in unlawful treatment of anyone who asserts their rights in a manner similar to my case. As such unlawful conduct will typically result in an injury such as wrongful imprisonment, the law requires that a remedy be provided, ideally to prevent the fraud from occurring again.

Consideration of the nature of the fraud is essential in finding a remedy. Although I have no definite knowledge of the rules that Judge Russell spoke of, I would expect that they prescribe that a plea must be entered when there is no contractual or delictual obligation on the part of the defendant. Since district court actions are in personam, if an obligation does not exist then one must be induced, typically by obtaining a plea from the defendant (this could be described as obtaining jurisdiction by consent). In order to avoid ambiguity, by "defendant" I mean the party who is likely to bear any penalty arising from the action, not the person charged with the offence(s). Another possible interpretation is that Judge Russell was referring to the Summary Proceedings Act, which makes no provision for parties which fall outside of the authority of parliament. Following this line of reasoning, I would have been deemed to be a natural person (who is obliged to plead), and since I didn't, a plea was entered in order to maintain consistency with the legal fiction.

The ambiguity of the term "person" is a significant aspect of this issue. In common language, if it walks like a person and it talks like a person, then it is a person. The legal meaning is more subtle, and does not necessarily include a man, as follows:

personal action:

In the civil law. An action in personam. A personal action seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss. Gaius, bk 4, sect 2(1).

Black's 2nd (1910)


Black's 2nd (1910)

person:

A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and or being charged with duties, while a "thing" is the object over which rights may be exercised.

Black's 2nd (1910)


Black's 2nd (1910)

person:

In general usage, a human being (i.e. natural person), though by statute term may include a firm, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. National Labor Relations Act, sect 2 (1).

Black's 5th (1979)


Black's 5th (1979)

person:

1. A human being. - Also termed natural person. 2. The living body of a human being <contraband found on the smuggler's person>.3. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being. In this sense, the term includes partnerships and other associations, whether incorporated or unincorporated."So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition." John Salmond, Jurisprudence 318 (Glanville L. Williams ed., 10th ed. 1947).

Black's 8th (2004)


Black's 8th (2004)

According to the 1910 definiton, if a man has no rank within society then he is not a person. For the 1910 definition to be consistent with the 2004 defintion, the rights and duties of the 2004 definition are civil rights, being a function of society, rather that the intrinsic rights of life, liberty, etc that are generally recognised as pre-existent by western societies.

An appropriate remedy for this type of fraud may be inferred from English common law, although this introduces a secondary conflict which has even wider implications than a judge acting unlawfully in court. The relevant law is from the laws of King Alfred the Great, who arguably established common law in England. King Alfred's laws begin with a close approximation of parts of the Judaic legal code, with the relevant law being "Say thou not false witness", i.e. the prohibition against bearing false witness against one's neighbour from Exodus 20:16. Defamation is form of fraud where the falsehood pertains to the status of the injured party, here being reduction of legal status from sui juris to the status of a natural person.

The remedy from the Judaic legal code is found in Deuteronomy 19:16-18, and describes how, after a proper determination of intent is made, justice is done by applying the same injury to the author of the deception as they had intended to inflict. In this case Judge Russell was acting as agent, and the principal would be the party responsible for the rules which he followed when he comitted the fraud. If we accept that by "the rules", Judge Russell was referring to the Summary Proceedings Act, then the author of deception is Parliament, having both introduced the ambiguous language and having made no provision in the legislation for people who are not under its authority.

If it is properly determined that Parliament intended that people should be subject to their will without consent (i.e. the consent of the governed), then the Judaic remedy implies that Parliament should be subject to the will of those they defamed. My will in this matter is that Parliament issues an injunction to the judiciary that Baron Parke's rule is to be applied in the interpretation of terms (eg "person" and "vehicle") such that no injustice or absurdity occurs through the application of the legislation. This is consistent with the common law maxim that a statute will not be used as a cloak for fraud. In practice I expect that this would mean that the prosecution would have to prove that a contractual or delictual obligation existed before any pleading was made by the defendant.