Brooker v Police

[2018] NZCA 125

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA702/2017
 [2018] NZCA 125

BETWEEN	ALLISTAIR PATRICK BROOKER Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 May 2018
Court:	Kós P, Brewer and Gendall JJ
Counsel:	Applicant in person (via AVL) E J Hoskin for Respondent
Judgment:	10 May 2018 at 2 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply is granted.

BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

1. Mr Brooker was convicted by Judge Saunders on 5 May 2017 in the Greymouth District Court on a charge of defacing a building, namely the Greymouth Police Station, by writing on it without lawful authority and without consent of the occupier.[1]  He appealed to the High Court and his appeal was dismissed by Mander J on 30 October 2017.[2]  He now applies for leave to appeal to this Court.

   [1]R v Brooker [2017] NZDC 10200.

   [2]Brooker v Police [2017] NZHC 2658.

2. Mr Brooker has previously sought leave to appeal to this Court on similar grounds in another case.[3]  However, Mr Brooker submits that in the previous case he sought to rely on the proclamation by Lieutenant Governor William Hobson on 30 January 1840,[4] whereas now he considers the proclamation “garbage”.  That is because, he submits, Māori did not cede sovereignty and hence the Lieutenant Governor had no basis to proclaim it.  In consequence all Acts of Parliament, including the Summary Offences Act 1981 under which he was prosecuted, are unlawful.

   [3]Brooker v R [2014] NZCA 436.

   [4]The proclamation declared that full sovereignty over New Zealand vests in the British Crown.

3. Despite his change of argument, the position for Mr Brooker is the same as set out by this Court in 2014.  We quote the relevant passages and adopt them as applicable to the current application:[5]

   [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.

   [5]Brooker v R, above n 3 (footnote omitted).

4. The paradox underlying Mr Brooker’s intended appeal — his invocation of the wholly statutory jurisdiction of this Court to have it declare another Act of Parliament unlawful — went unresolved.

Result

1. Mr Brooker’s application for leave to appeal was filed two weeks out of time.  There being no objection, we grant an extension of time.

2. Mr Brooker’s proposed appeal is not arguable and his application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent