BETWEEN CHRISTOPHER WALKER Appellant AND THE KING Respondent
[2024] NZCA 440
•12 September 2024 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA710/2023 [2024] NZCA 440 |
| BETWEEN | CHRISTOPHER WALKER |
| AND | THE KING |
| Hearing: | 1 August 2024 |
Court: | Courtney, Mander and Walker JJ |
Counsel: | Appellant in Person |
Judgment: | 12 September 2024 at 2.30 pm |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In October 2021 the police executed a search warrant at Christopher Walker’s address and found 42 cannabis plants, three hydroponic tents and implements associated with growing cannabis. He was charged with cultivating cannabis and elected trial by jury.[1] Shortly before the trial Mr Walker challenged the District Court’s jurisdiction over him. He asserted that he was entitled to diplomatic immunity and that he was a “Freeman-on-the-Land” who did not consent to being subject to the law of New Zealand.
[1]Misuse of Drugs Act 1975, s 9(2).
Judge Earwaker rejected Mr Walker’s immunity arguments in a pre-trial ruling.[2] Subsequently, Mr Walker pleaded guilty to the charge and was sentenced to 150 hours’ community work and 12 months’ intensive supervision.[3] He appeals his conviction on the basis that the Judge’s decision regarding jurisdiction was wrong.[4] He appeals his sentence on the ground that it was manifestly excessive.[5]
Appeal against conviction
District Court pre-trial ruling
[2]R v Walker [2023] NZDC 7619 [pre-trial ruling].
[3]R v Walker [2023] NZDC 27612 [sentencing notes] at [21] and [22].
[4]Criminal Procedure Act 2011, ss 229(1), 230(1)(c) and 232(2)(c). This Court is the first appeal court because Mr Walker initially elected trial by jury before he pleaded guilty: see Wirihana v R [2019] NZCA 368, [2019] 3 NZLR 549 at [15]–[25]. Mr Walker filed his appeal out of time but because the delay was reasonably short and was explicable, an extension of time was granted to bring the appeal by Katz J in a minute dated 14 February 2024.
[5]Criminal Procedure Act, ss 244(1), 247(1)(c), 250(2), 320(1)(b) and 321.
Section 9 of the Diplomatic Privileges and Immunities Act 1968 (DPI Act) applies to any organisation declared by the Governor-General by Order in Council to be an organisation of which two or more states or the Governments thereof are members.[6] Section 9(2)(a) provides that the Governor-General may from time to time by Order in Council provide that any organisation to which the section applies will have the privileges and immunities specified in sch 2. Schedule 2 confers immunity from suit or legal process.
[6]Diplomatic Privileges and Immunities Act 1968, s 9(1).
Mr Walker argued that he had diplomatic immunity pursuant to s 9(2)(a) on the basis of a document in the form of a card that described his position as a “Kaitiaki Diplomat”. The Judge described the document as follows:
[4] The back of the card says that the secured party of this card is acting under Tikanga and in accordance with the 1835 He Whakaputanga o te Rangatiratanga O Nu Tireni, which [is] known in English as the Declaration of Independence of the United Tribes of New Zealand.
The Judge described Mr Walker’s argument as a variation on the sovereignty argument that has been considered frequently by the courts and rejected.[7] The Judge noted that the organisation Mr Walker claimed to be affiliated with is not recognised as required by s 9 and therefore could not provide a basis for a claim to diplomatic immunity.[8]
Appeal
[7]Pre-trial ruling, above n 2, at [5]–[10], citing Phillips v R [2013] NZCA 580 at [3] and Mitchell v R [2004] NZCA 195 at [14].
[8]Pre-trial ruling, above n 2, at [6].
Because Mr Walker pleaded guilty, he can only succeed on appeal if he can show that a miscarriage of justice would result if the conviction is not overturned.[9] Relevant to this question is the desirability for finality and the recognition that a person who is informed of their rights may choose to plead guilty.[10]
[9]R v Le Page [2005] 2 NZLR 845 (CA) at [16]; and Re Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151, [2023] 1 NZLR 457 at [46].
[10]R v Le Page, above n 9, at [16]; and Re Solicitor-General’s Reference (No 1 of 2023), above n 9, at [45].
Mr Walker submitted that the Judge was wrong as a matter of law to reject his claim to diplomatic immunity and his assertion that he is not subject to the Court’s jurisdiction. Mr Walker also framed his submissions in terms that suggested that it was for the Judge to satisfy Mr Walker that his “Embassy” was not legitimate or that he was not subject to New Zealand law. This is, of course, incorrect. The Judge was simply required to determine Mr Walker’s challenge to jurisdiction.
In Mr Walker’s notice of appeal, he refers to “Te Moana Nui A Kiwa embassy” as the entity from which he derives diplomatic immunity. However, this entity is not one that is recognised under the DPI Act as one entitled to diplomatic immunity. The Judge was correct to find that Mr Walker could not bring himself within the Act. His challenge to jurisdiction on this ground could not succeed.
Mr Walker’s second ground of appeal relates to his argument that he is not subject to New Zealand law by virtue of being a “Freeman-on-the-Land”. This argument, and variations of it, are commonly advanced by followers of the so-called “sovereign citizen” movement. The underlying philosophy of the movement is that a person is only subject to law if they consent and may withdraw that consent at any time. The argument has, as the Judge noted, been frequently raised in New Zealand courts and invariably rejected.[11] This Court summarised the reasons in Warahi v Department of Corrections:[12]
[11] Acts of Parliament, including criminal enactments, are binding on all persons within the geographical territory of New Zealand. The Courts of New Zealand must uphold all Acts of Parliament as enacted. The Crimes Act 1961 is one such Act of Parliament. The courts have the power to deal with all actions that may amount to criminal offences in this country. No person within New Zealand is able to dissociate themselves from their “legal persona” so as to remove themselves from the jurisdiction of the courts.
[11]Pre-trial ruling, above n 2, at [7]–[10].
[12]Warahi v Department of Corrections [2022] NZCA 105.
The Judge was correct to reject Mr Walker’s argument on this issue too.
We are satisfied that no miscarriage of justice could result from Mr Walker being held to his guilty plea.
Appeal against sentence
At sentencing, Mr Walker sought to assert that he had a permit to grow cannabis (issued by the same organisation from which he claimed immunity under the DPI Act). It appeared at the outset that the Crown contended for a custodial sentence.[13] However, Mr Walker had no previous convictions.[14] The Judge accepted that, notwithstanding the large number of plants and reasonably sophisticated growing method, that there was no actual evidence of commerciality. Further, even if commerciality could be inferred the Judge was satisfied it would be at the lower end of the scale, straddling categories one and two of R v Terewi.[15]
[13]Sentencing notes, above n 3, at [12]–[14], citing R v Terewi [1999] 3 NZLR 62 (CA), R v Edmonds CA23/02, 28 May 2002, Devereux v Police [2017] NZHC 167, and Mowberry v R [2012] NZHC 969.
[14]Sentencing notes, above n 3, at [20].
[15]At [19], citing R v Terewi, above n 13.
The Judge imposed a sentence of 150 hours’ community work on the basis that Mr Walker: had pleaded guilty and, in doing so, submitted to the jurisdiction of the Court; was a first-time offender; and had assured the Judge that he would cooperate with a sentence of community work and/or supervision.[16] In addition, he imposed a sentence of intensive supervision for 12 months on the basis that he considered Mr Walker to be in need of some education around drug use, notwithstanding Mr Walker’s personal views.[17]
[16]Sentencing notes, above n 3, at [20] and [21].
[17]At [22].
Mr Walker’s appeal against sentence seemed to rest on his assertion that the Judge had initially indicated a custodial sentence. This is not correct. The Judge did — as he was bound to do — recognise that the maximum penalty for cultivating cannabis is seven years’ imprisonment by referencing the guideline judgment.[18] However, he carefully reviewed the relevant cases and took into account Mr Walker’s personal circumstances and reached the view that a non-custodial sentence was appropriate, for the reasons he gave. The sentence ultimately imposed can hardly be described as manifestly excessive and seems to us well within the available range.
Result
[18]At [19], citing R v Terewi, above n 13.
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
4
0