Chapman v The Queen

[2012] NZCA 312

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/2012
[2012] NZCA 312

BETWEEN  LOUANA EMILY CHAPMAN
Applicant

AND  THE QUEEN
Respondent

Hearing:         12 July 2012

Court:             Arnold, Potter and MacKenzie JJ

Counsel:         No appearance by Applicant
D J Boldt for Respondent

Judgment:      18 July 2012 at 3 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

1. This is an application for special leave to appeal under s 144(3) of the Summary Proceedings Act 1957 against a decision of Woodhouse J dismissing the applicant’s appeal against her conviction on two counts of injuring with intent to injure and her sentence of five months’ home detention and six months’ post-detention conditions.[1]  She was convicted following a Judge alone trial before Judge Duncan Harvey on 13 October 2010[2] and was sentenced by him on 21 December 2010.[3]

   [1]      Chapman v Police HC Whangarei CRI-2010-488-71, 19 May 2011.

   [2]      Police v Chapman DC Whangarei CRI-2009-088-1659, 13 October 2010.

   [3]      Police v Chapman DC Whangarei CRI-2009-088-1659, 21 December 2010.

2. The application was called on 12 July 2012, but there was no appearance by or for the applicant, although she was notified of the date of hearing.  Accordingly, we will deal with the matter on the papers.

3. In her appeal before Woodhouse J, the applicant did not attempt to challenge her conviction on the merits.  Rather, she argued that the District Court did not have jurisdiction to try her.  She asked the Court to state a case for the Maori Appellate Court under s 61 of Te Ture Whenua Maori Act 1993.  Woodhouse J dismissed the appeal and refused the applicant leave to appeal to this Court – hence the present application.

Approach

1. The Court may grant leave under s 144(3) if it considers that the proposed appeal raises a question of law which, by reason of its general or public importance or for any other reason, it ought to determine.  In Nottingham v T this Court said:[4]

   It is well settled that s 144 is not intended to provide a second-tier of appeal from decisions of the District Court.  The stringent requirements of s 144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted …

Discussion

[4]      Nottingham v T CA216/00, 26 March 2001 at [13] (citations omitted).

1. For present purposes the details of the offending of which the applicant was convicted are irrelevant.  Although the applicant did not file any submissions in support of her application and did not appear at the hearing, she did file an application setting out various grounds that she wished to pursue if granted leave, with some explanation.  From this material, it appears that the applicant wishes to raise the following points:

   (a)Her convictions should be quashed because the District Court lacked jurisdiction to try her.  She relied on Te Ture Whenua Maori Act and art 2 of the Treaty of Waitangi.

   (b)Her trial counsel breached the New Zealand Bill of Rights Act 1990 and abused her power by failing to put crucial evidence before the Court.

   (c)This Court lacks jurisdiction in relation to Maori.

   (d)This Court should transmit the case directly to the Supreme Court for a full and final opinion on the matter.

2. Ground (d) can be dealt with immediately.  This Court does not have the power to refer matters directly to the Supreme Court.  That power is reserved to the Supreme Court itself.[5]

   [5]      Supreme Court Act 2003, s 12(1).

3. Turning to grounds (a) and (c), they are based on the premise that the ordinary courts do not have jurisdiction in relation to Maori.  This Maori sovereignty argument has been addressed previously by this Court and rejected,[6] as it has by the Supreme Court.[7]  There is also an interesting discussion of the issue in Heath J’s recent judgment in R v Mason.[8]  As the authorities make clear, the argument is misconceived.

   [6]See R v Miru CA65/01, 26 July 2001 at [5]–[10] and R v Toia [2007] NZCA 331 at [8]–[10].

   [7]      See Wallace v R [2011] NZSC 10 at [2].

   [8]      R v Mason [2012] NZHC 1361.

4. This leaves ground (b).  This ground was not raised before the High Court and has emerged for the first time in this Court, without explanation.  No particulars are given, in that the applicant has not indicated what the “crucial evidence” referred to was or how it might have affected the outcome of her trial.  Moreover, there is no indication that it raises a question of law of general or public importance.

5. The result is that none of the proposed grounds justifies the granting of leave under s 144(3) of the Summary Proceedings Act.

Decision

1. The application for special leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent