C v Police HC Rotorua CRI-2005-463-78

[2005] NZHC 258

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2005-463-78

BETWEEN  L   C  (AKA P )

Appellant

ANDNEW ZEALAND POLICE Respondent

CRI-2005-463-79

AND BETWEEN             T    C  

Appellant

ANDNEW ZEALAND POLICE Respondent

CRI-2005-463-80

AND BETWEEN             M  TT

Appellant

ANDNEW ZEALAND POLICE Respondent

CRI-2005-463-77

AND BETWEEN             E  S

Appellant

ANDNEW ZEALAND POLICE Respondent

C  & ORS V POLICE HC ROT CRI-2005-463-78 21 November 2005

Hearing:         18 November 2005

Appearances: D  C            , T  C             and M  TT              (appellants in person)

No appearance by or on behalf of E  S              
Larry Meredith for Respondent

Judgment:      21 November 2005

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

10.15 a.m. on 21 November 2005

SOLICITORS

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

2

[1]      On 15 September 2005, in the District Court at Waihi, Judge Peter Rollo found L    C             (also known as P          ), T    C            , M  TT              and E  S               guilty of the offence of trespass.   He also found Mr S               guilty of the crime of resisting arrest.  His decision followed a defended summary trial which was heard on 14 April, 17 May, 21 June and 9 August 2005. The offences related to the defendants’ occupation of a former school teacher’s residence owned by the Ministry of Education at 13 Princess Street, Waihi.

[2]      On 15 September 2005 Judge Rollo convicted each of the defendants on the charge of trespass, ordered them to appear for sentence if called upon within nine months, and imposed Court costs of 130.  He also convicted and fined Mr S               on the charge of resisting arrest.

[3]      All four defendants filed notices of appeal.   However, Mr S               did not appear  when  the  appeals  were  called  for  hearing  before  me  at  9 a.m.  on 18 November.   I had earlier dismissed his application for an adjournment.   I treat Mr S              ’s absence as an abandonment of his appeal, which I hereby dismiss.

[4]      The relevant circumstances are these.  The Ministry of Education was the registered proprietor of a property at 13 Princess Street, Waihi.  It was acquired by the Crown in 1970 and gazetted for use as a teacher’s residence for Waihi College. The Ministry vacated the property in about 2003, whereupon it became surplus to requirements.

[5]      Sometime  shortly  thereafter  Ms C            ,  Mr P            and  their  family assumed occupation.  Ms C             claims ties to the land through her whanau.  She, Mr P           and others believe they had a right to occupation as tangata whenua within Aotearoa or New Zealand.

[6]      The Ministry disagreed.  It had decided that the property was surplus to its requirements and wished to dispose of it.  The Ministry was under a statutory duty to participate in a disposal process with the Office of Treaty Settlements which allows local iwi or hapu an opportunity to lodge an interest with the Office.   It does not appear that any such interest was expressed.   On 14 December 2004 the Ministry

prepared trespass notices (ss 3, 4 & 5 Trespass Act 1980) warning recipients to leave and stay off the premises.   Notices were served on or brought to the attention of Mr P           and Ms C             on 16 December and on Messrs TT              and S               on 17 December.

[7]      Mr P           and Ms C             formally refused to leave the property.   They invited the police to arrest them in order to test the validity of their underlying claims of a right to the land.   Both were arrested and accompanied the police off the property to a police van which was waiting.

[8]      However, Messrs TT              and S               remained in the house and  refused to comply with the police direction to leave.  Mr TT              was subsequently arrested and taken to the police van.  Mr S               resisted.

[9]      The defendants pleaded not guilty.   They represented themselves.   They acknowledged at the hearing of their appeals that Judge Rollo treated them with great fairness and courtesy.  He went to considerable lengths to explain the trial process and ensure that they were given a full opportunity to present their defences. In due course the defendants raised a challenge to the Court’s jurisdiction based upon an argument which, in summary form, was based upon the Te Ture Whenua Maori Act 1993 and other statutory and common law provisions.   The Judge considered but rejected those jurisdictional challenges.

[10]     For various reasons, the case was adjourned part-heard on three occasions. The defendants elected not to call or give evidence, and declined to make any legal submissions.  The Judge heard from a number of witnesses.  He was satisfied that the Ministry of Education was the lawful occupier of the property and that the elements of the charge of trespass were established against Messrs P          , TT              and S               and Ms C            .

[11]     The appellants filed extensive synopses of written submissions in support of their  appeals.    They  raised  and  repeated  many  of  the  jurisdictional  arguments rejected by Judge Rollo.  At their heart was a challenge to the legislative sovereignty of the New Zealand Parliament.   However, that sovereignty, and the obligation of

New Zealand  Courts  to  accept  the  validity  of  Acts  of  Parliament,  was  recently reaffirmed by the Court of Appeal (R v Mitchell, CA68/04, unreported, 23 August

2004, per Hammond J at paras 12, 13 & 14).

[12]     However, Mr TT             , who spoke for all three appellants, advanced a specific proposition in oral argument on appeal.   It was apparently advanced by Mr S               before Judge Rollo (see paras 16, 17, 18 & 19 of his decision).   The Judge made these findings:

[31]      Mr Sowry produced a copy of a computer freehold register under the

Land Transfer Act 1952 for the subject property, being Certificate of Title

148407, South Auckland Registration District, an estate in fee simple of

1012 square metres more or less, being Section 528A Town of Waihi.  That certificate of title discloses the proprietor as “Her Majesty the Queen” and

the purpose of the land as “for a teachers residence”.

[32]     That copy of the computer freehold register bears the seal of the Registrar General of Land, and has been certified as “a true and examined copy of CT 148407” for the Registrar General of Land.   Accordingly it is admissible in this proceeding – ss 5, 45 and 63 Land Transfer Act 1952; s 43

Evidence Act 1908.

[33]      S75(1) Land Transfer Act 1952 states, in short form, that the person shown on a duly authenticated certificate of title to land, unless the contrary is proved by the production of the land register or a certified copy thereof, is the registered proprietor in possession of that land, and also that the property comprised in the certificate of title, from the date of the certificate, “has been duly brought under this Act”.

[34]      I am satisfied, beyond reasonable doubt, from the evidence of both Mr Sowry, and of Mr Derek Devoy, his superior at the Ministry of Education at Hamilton, that the property at 13 Princess Street, Waihi, being that land referred to  in  Certificate  of Title 148407  and  held  in  the  name  of  Her Majesty the Queen, is a property over which the Ministry of Education, through the Secretary of Education, was the agent of the Crown, and that the Ministry administered and therefore was, to all intents and purposes, the effective owner and occupier of that property in December 2004, being the date relevant to these proceedings.   This circumstance is supported by the notation  on  the  certificate  of  title  of  the  purpose  of  the  property  as  “a teachers residence”.

[13]     S75 Land Transfer Act 1952 states:

Every certificate of title duly authenticated under the hand and seal of the Registrar shall be received in all Courts of law and equity as evidence of the  particulars  therein  set  forth  or  endorsed  thereon,  and  of  their  being entered in the register, and shall, unless the contrary is proved by production of the register or a certified copy thereof, be conclusive evidence that the person named in that certificate of title … is seized or possessed of that

land for the estate or interest therein specified as from the date of the certificate or as from the date from which the same is expressed to take effect, and that the property comprised in the certificate has been duly brought under this Act.

[Emphasis added]

[14]     Judge Rollo was bound to accept the certificate of title produced to him as evidence that Her Majesty the Queen was the registered proprietor or owner.   Its terms were conclusive evidence to that effect.   He could not go behind it and undertake an inquiry into whether or not a later title was in existence or was extinguished.  The Land Transfer Act is a valid statute passed by the Parliament of New Zealand (Berkett v Tauranga District Court [1992] 3 NZLR 206, 212-213, followed by Randerson J in Barrett  v  NZ  Police  (CRI-2003-419-64,  Auckland Registry, unreported, 14 June 2004).

[15]     I am satisfied that the Judge was correct.  And, like him, I must also accept the certificate of title as conclusive evidence of Her Majesty’s ownership.

[16]     Mr TT              also relied on the Te Ture Whenua Maori Land Act (ss 2(1) and (2), (4) and (5)) to support a submission that this property gained statutory status as at 1 July 2003 as native land.

[17]     I must reject this submission.   The Te Ture Whenua Maori Land Act was enacted “to reform the laws relating to Maori land” (emphasis added).  “Maori land” is defined as Maori customary land and Maori freehold land.  The Act does not apply to  land  that  does  not  fall  within  either  of  those  categories.    The  property  at

13 Princess Street is not “Maori land” in terms of the statute.  As I have said, both the District Court and High Court are bound by s 75 Land Transfer Act to recognise that the property was owned by Her Majesty the Queen.

[18]     It follows that I dismiss the three extant appeals against conviction.  I have considered carefully whether I have jurisdiction to allow the appeals against sentence to the extent of discharging each appellant without conviction.   However, on reflection, I am satisfied that I do not have such jurisdiction; I cannot conclude that the consequences, whether direct or indirect, are out of all proportion to the convictions.

[19]     Judge Rollo simply entered convictions and ordered payment of Court costs. He did not impose a monetary penalty.   Those sentences plainly reflected his acknowledgement  of  the  defendants’  good  faith  and  genuine  commitment  to principle in defending the trespass charges.   I am satisfied that his sentences were neither manifestly excessive nor wrong in principle.  Accordingly, I dismiss the appeals against sentence also.

[20]     At  the  conclusion  of  argument  Mr P            raised  a  question  about  the obligation of the police to return his belongings, and those of Ms C            , in the same or similar condition as they were when taken from the property.  He said that the police subsequently returned them in a damaged or destroyed state.  He said that he has raised this issue with the officer-in-charge but has been advised that it will fall for determination on this appeal.

[21]     I record that I have no jurisdiction to deal with the question of whether or not goods  belonging to  Mr P            and  Ms C             were damaged  while  in  police custody.  However, if they were, then in the normal case they would be entitled to compensation for any loss suffered.

[22]     I  wish  to  compliment  Mr TT             ,  Mr P            and  Ms C              on  their intelligent and courteous presentation of their appeals, and to acknowledge the sincerity of their beliefs that the property belonged to tangata whenua even though the law says otherwise.

Rhys Harrison J