Crockenberg v Police
[2017] NZHC 2704
•6 November 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-1 [2017] NZHC 2704
BETWEEN EVA BRIDGET CROCKENBERG
ANTHONY GREGORY HOUSHAM BARNEY POPATA
JOSEPH NATHAN AKA RETI BOYNTON
ROBIN POPATA
SELWYN JAMES CLARKE Appellants
AND
NEW ZEALAND POLICE Defendant
Hearing: 13 September 2017 Appearances:
ATI Sykes and JJM Bartlett for all Appellants except S J Clarke
No appearance for S J Clarke
J W Wall for RespondentJudgment:
6 November 2017
JUDGMENT OF MUIR J
This judgment was delivered by me on Monday 6 November 2017 at 1.00 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
ATI Sykes, Barrister, Rotorua: [email protected]
JJM Bartlett, Barrister, Rotorua: [email protected]
J W Wall, Crown Solicitors, Whangarei: [email protected]
Copy to:
S J Clarke, P O Box 36, Ahipara, Kaitaia
CROCKENBERG v NEW ZEALAND POLICE [2017] NZHC 2704 [6 November 2017]
Introduction
[1] The six appellants were convicted of trespass in the District Court following their occupation of Kaitaia Airport on 8 and 9 September 2015.1 They belong to the iwi Ngāti Kahu, which asserts a long-standing connection to the land at Kaitaia Airport. Each was held liable to be sentenced if called upon within six months. That period has now expired.
[2] The appellants now appeal against their convictions, relying on the common law defence of honest belief. The appellants accept for the purposes of the appeal that Far North Holdings Ltd (the company operating the airport) (FNH) was a lawful occupier of the land and so entitled to issue a trespass notice. However, they say that
they had an honest belief that they had “co-existent occupation rights”.2
Background
The alleged offending
[3] It is necessary to begin by providing some context to the alleged trespass.
[4] The six appellants are members of Ngāti Kahu, one of five iwi of the Te Hiku o te Ika region in the far north of the North Island. Ngāti Kahu claims that it holds mana whenua, or customary Māori title, over the land on which Kaitaia Airport is situated. It says that tūpuna identifiable as belonging to Ngāti Kahu have long occupied the airport and surrounding lands.
[5] Ngāti Kahu’s ancestral lands are of great significance to them. As Professor Mutu, an expert witness for the appellants, explains in her affidavit, Māori have a physical relationship as well as an ancestral and spiritual relationship with the land. It is a taonga tuku iho, a treasured inheritance.
[6] The Kaitaia Airport land has been leased to the Far North District Council
since 1995, although the Crown reserves the right to give the Council twelve months’
1 Trespass Act 1980, s 3(1). This offence carries a maximum penalty of three months’
imprisonment or a fine not exceeding $1,000; see Trespass Act, s 11(2)(a).
2 This position as articulated in Ms Sykes’ oral argument represented a refinement of that
advanced in written submissions.
notice to terminate the lease in the event the land is required for the settlement of any Māori land claim. The Cabinet Committee had initially resolved to transfer the Kaitaia Airport to the Far North District Council, but rescinded that decision in 1994 following the Waitangi Tribunal’s investigation of the Muriwhenua claims. FNH currently operates Kaitaia Airport pursuant to a memorandum of understanding with the Far North District Council.
[7] Ngāti Kahu participated in direct negotiations with the Crown seeking the return of the land at Kaitaia Airport and other lands, along with the other four iwi of Te Hiku o te Ika. Negotiations between the Crown and Ngāti Kahu ceased in approximately 2011, and the Crown continued negotiations with the other iwi.
[8] The Crown and Ngāi Takoto, one of the other four iwi, completed a deed of settlement in October 2012. The property redress schedule to that deed listed the Kaitaia Airport land as a Joint Deferred Selection Property that was being offered to both Ngāti Kahu and Ngāi Takoto, conditional on the continued use of that land for the operation of the airport.
[9] Professor Mutu said in evidence that the Crown then made a formal offer to Ngāti Kahu in 2013, in which it offered the Kaitaia Airport lands to Ngāti Kahu and Ngāi Takoto equally, conditional on Ngāti Kahu accepting the offer in full and final settlement of their claims. Ngāti Kahu rejected that offer. Professor Mutu said that this was because a large proportion of the hapū within Ngāti Kahu would get very little or no land back as part of the settlement, and many other rights were not covered in the settlement.
[10] The Ngāi Takoto Claims Settlement Bill was intended to give effect to certain provisions of the deed of settlement between the Crown and Ngāi Takoto.3 The Bill referred to the property redress schedule in the deed of settlement,4 where the Kaitaia Airport land was listed as a deferred selection property. Professor Mutu’s understanding of the Bill is that it offered the Kaitaia Airport land to Ngāti Kahu and
Ngāi Takoto equally, conditional on Ngāti Kahu accepting the Crown’s offer in full
3 Section 3(b).
4 See s 134 (definition of “deferred selection property”).
and final settlement of their claims. If Ngāti Kahu did not accept the offer, the land would be offered to Ngāi Takoto. She says that understanding was shared by members of Ngāti Kahu. The Bill had its final reading on 8 September 2015.
[11] At around midday that day, the six appellants entered the terminal at Kaitaia Airport together with other members of Ngāti Kahu. They carried flags and taiaha and several journalists accompanied them. The airport supervisor, Mr Atkinson, asked them to leave. The group declined to do so. They handed out a pamphlet explaining their grievance with the Crown over the airport land, and gave a speech to media. They stated their intention was to prevent any commercial flights from landing or taking off from the airport, and they were successful in this objective. The airport was forced to close for the duration of their occupation.
[12] In the afternoon of the following day, 9 September, a large party of police arrived at the airport with the intention of removing the protesters. Many of the protesters left when asked to do so, but the six appellants did not. Police officers individually approached each of them and informed them that they were trespassing, and required them to leave. After giving them some time to consider their position the police arrested the six appellants for trespass. They did not resist and were taken to the police station. The appellants occupied the airport for a little over 24 hours.
District Court decision
[13] The prosecution was heard over four days in October and November 2016. The defendants elected not to give evidence.
[14] In a reserved decision dated 5 December 2016, Judge Gibson found each of the appellants guilty of trespass.5 He set out the three elements of the offence, namely:
(a) the person charged was trespassing on the relevant place;
(b) the person charged was warned to leave that place by the occupier;
and
5 Police v Crockenberg [2016] NZDC 24132.
(c) he or she neglected or refused to do so.
[15] His Honour concluded that FNH was the lawful occupier of the land in question for the purposes of the law of trespass. Because the police had not been able to produce certificates of title relating to the land, his Honour considered it necessary to embark on a comprehensive review of the land’s history to establish that position. He began from the premise that Māori owned New Zealand land until it was acquired by the Crown by purchase or the title was otherwise lawfully extinguished under statutory authority. He concluded that the Crown purchased the land in question from Māori in 1859, and did not accept that the purchase (which was referred to in the evidence of the defendants’ expert witnesses) could be considered so fundamentally flawed as to be effectively a nullity. He also relied on a Gazette notice of December 1970 in which the Crown proclaimed that the land was set apart as an aerodrome, noting that Gazette notices of that nature could only be published in relation to Crown land or public reserves. The Judge was satisfied that the land at Kaitaia Airport was Crown land at the relevant time (9 September 2015), and that Far North Holdings Ltd was the lawful occupier as a result of an agreement entered into on 18 March 2013 with the Far North District Council.
[16] The Judge was also satisfied that the defendants had been validly warned to leave and declined to do so. He considered they were present at the airport to stage a protest and to hinder airport operations, and they did not have any actual or implied license to be there for that purpose. He dismissed defence counsel’s arguments as to the inadequacy of the warnings given.
[17] The Judge also acknowledged the need for the prosecution to prove mens rea, and in that context the potential application of the common law defence of honest belief. He held that it was for the defendants to raise an evidential foundation as to the existence of “an honest belief in a state of affairs or as to the existence of a fact which if true would [make] the act innocent”.6 He noted that the defence is not available where the only relevant belief is an erroneous belief as to the position in
law.
6 At [12].
[18] The Judge considered that on the facts of the case, the defence of honest belief could not be sustained in the absence of any direct evidence from the defendants themselves, and furthermore that:7
Even if the defendants were on the land because they believed it was Māori land in general and the land of Ngāti Kahu in particular, so that they, on their view of law, needed no authority to enter the land, such a view amounts to no more than an error of law given that I found that at the relevant time the land was Crown land.
[19] The Judge also rejected the claim of right defence, noting that it is only available as a defence where the phrase “without claim of right” is included as a specific element of the offence. It was not part of the statutory wording of the offence of trespass.
Arguments on appeal
Appellants
[20] The appellants’ written submissions foreshadowed a wide-ranging attack on the District Court judgment, but the focus narrowed substantially in argument. The appellants no longer argue that FNH was not the lawful occupier for the purposes of the Trespass Act 1980. Instead, they say that the Judge was wrong to reject the honest belief defence.
[21] Ms Sykes points out that, following the Waitangi Tribunal’s investigation of the Muriwhenua claims, Cabinet’s decision of 8 July 1991 to transfer the aerodrome to the Council was rescinded in favour of a lease pending resolution of those claims. Ms Sykes in turn argues that from the date of rescission (18 July 1994) and confirmed by the subsequent lease (28 April 1995), “Ngāti Kahu’s honest belief in a relationship with the land crystallised”. She says that this is confirmed by Item B(2) of the 18 July 1994 Cabinet Paper where it is:
Noted that any land not required by the Northern Airports Corporation Limited will be disposed of in accordance with the Public Works Act 1981 and specific Muriwhenua protection mechanism agreed by Cabinet.
7 At [36].
[22] She says that from that point onwards, ancestral connections and the lease arrangements in favour of Far North District Council “co-existed” pending final settlement and that Ngāti Kahu thereafter had an honest belief in an entitlement to occupy in co-existence with the airport company, albeit on a basis at all times limited by the Treaty obligations of Māori and the public good. She says that this happy co- existence continued until 2015 when those arrangements were threatened by the government’s decision that the airport lands would be committed to settling Treaty claims with other iwi or hapū.
[23] Ms Sykes says that this necessitated a re-assertion of the ancestral right “which Ngāti Kahu believed on the basis of the Cabinet Papers subsisted in the model of co-existence, which is what the Treaty is about”. She says that these rights are not individual rights but collective rights – hapū rights – and that the honest belief cannot be decontextualised from the hapū foundation of the collective ownership of the right asserted and protected by Ngāti Kahu.
[24] That then informs her argument that it was unnecessary for any of the defendants to themselves give evidence in order to establish a factual foundation for the assertion of an honest belief in a right to occupy. She says that the special body of relevant knowledge is held by the collective, relying on the evidence of Reverend Popata. She says that in New Zealand collective rights can be asserted by a kuia or kaumātua (an elder) for individuals in special circumstances. She defines those circumstances as being:
(a) where the person representing the group is an elder and clearly representative;
(b) they have intimate knowledge of the subject matter; and
(c) where they have intimate knowledge of the individual they are purporting to speak on behalf of.
[25] She says that Professor Mutu and Reverend Popata satisfy those criteria. She accepts that the defence must establish an honest belief in a state of affairs or the
existence of a fact which if true would make the act innocent, but says it is for the prosecution to discount that once some evidential foundation has been laid. She says there was sufficient foundation in the evidence of Professor Mutu and Reverend Popata to establish an honest belief that the defendants could assert a right of occupation coincident with that of the lessee. Both witnesses outlined the whakapapa (genealogy) and marital links of each of the appellants and their connections to the Kaitaia Airport lands.
Respondent
[26] For the police Mr Wall’s primary submission is that it is very difficult for the appellants to frame their honest belief on any basis other than a misapprehension of their legal position. He says there was no legal entitlement to co-occupation and an honest assertion of such a right is an assertion of a position contrary to law.
[27] If that proposition is not accepted, he says that there is in the circumstances of this case no adequate foundation for an honest belief in the absence of evidence from the defendants. He does not go so far as to suggest that in the absence of such evidence the defence can never succeed, but points out that in every case where the defence has been successful such evidence has been given. An assertion of honest belief without such evidence will he suggests always be “incredibly fragile”. Moreover, Mr Wall rejects the idea that the essentially subjective component of honest belief could ever be derived from a statement of collective sentiment not asserted by an individual. He said honest belief requires looking into the mind of the individual defendant and the Court must also be alert to fair trial considerations from the police’s perspective. There was, for example, a limit to what could be achieved in cross-examining Professor Mutu. She could not be cross-examined on what was in the minds of individuals in terms of what they knew of the 1994 Cabinet paper or the basis for what she said was their asserted belief. He said the argument that the views of a collective could determine those of an individual may have some validity in tikanga but it cannot be a principle that applies to the criminal law. He postulated the case of a “malignant collective”, such as a cult, and asked rhetorically whether the courts could accept the views of a cult leader as defining what was the honest belief of defendants who themselves never gave evidence.
[28] Mr Wall also says that any evidence from Professor Mutu or Reverend Popata about why the appellants were on the land on that day has little relevance to the third stage of the Trespass Act inquiry, where the issue of mens rea arises. It may say something about why they went on to the land in the first place but it says very little about why they refused to leave when given an explicit warning by the lawful occupier of the land. He submits that the failure to leave when warned was not an assertion of a right of occupation, but rather a political statement designed to obtain the government’s attention.
Approach on appeal
[29] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. This is a first appeal from a Judge alone trial in terms of s 230 of the Act.
[30] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. As s 232 makes clear, not every
“error or irregularity” causes a miscarriage of justice.8 The error or irregularity must
lead to either of the consequences listed in s 232(4)(a) or (b), namely a real risk that the outcome of the trial was affected, or an unfair trial or a trial that was a nullity.
Discussion
[31] Section 3(1) of the Trespass Act provides:
3 Trespass after warning to leave
(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
8 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].
[32] The Trespass Act protects rights of occupation, not ownership.9 An “occupier” is defined in s 2(1) as a person “in lawful occupation of that place or land”, and includes their employees and persons acting under their authority.
[33] Judge Gibson correctly set out the elements of the offence of trespass, namely that the person charged was trespassing on the relevant place; that the person charged was warned to leave that place by an occupier; and that he or she neglected or refused to do so.10 Ms Sykes for the appellants properly conceded that FNH was a lawful occupier of the property for the purposes of the law of trespass. She also accepted that the appellants were warned to leave and neglected or refused to do so. As is apparent from the summary of counsel’s submissions above, the focus of the appeal is on the “honest belief” defence and its application to the facts of this case.
Defence of honest belief
[34] The mens rea element of the offence of trespass requires the prosecution to prove beyond reasonable doubt that the defendant intentionally trespassed, that is that the defendant knowingly and wilfully refused or neglected to leave the property when requested to do so.11 The common law defence of honest belief is directed to that mens rea element. It requires evidence that the defendant had an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent.12 If the defendant can provide an evidential foundation for such a belief, it is then for the prosecution to prove beyond reasonable doubt that the defendant had no such belief.13
[35] The defendant’s belief need not be reasonable; it simply must be honestly
held.14 However, it must be a genuine belief in facts or circumstances which would make their presence lawful, despite being asked to leave. In a commentary to the
9 Roha v Police HC Whangarei CRI-2007-488-31, 16 October 2007 at [24]. The Court of Appeal refused special leave to appeal in Police v Roha [2008] NZCA 541.
10 Wilcox v Police [1994] 1 NZLR 243 (HC) at 246.
11 Hanna v Police [2012] NZHC 218, [2012] NZAR 129 at [18].
12 R v Thomas [1991] 3 NZLR 141 (CA) at 143.
13 R v Thomas, above n 12, at 143.
14 Hanna v Police, above n 11, at [20]; R v Thomas, above n 12, at 143; Heke v Police HC Christchurch CRI-2008-409-152, 4 December 2008 at [25].
former Trespass Act 1968, IB Cowie notes in respect of the “honest belief”
defence:15
Thus if the trespasser believes in good faith that he is on land which he has a legal right to be on whether by permit, licence or verbal permission, then he cannot be termed a wilful trespasser within section 3.
[36] The fact that the defendant’s continuing presence on the land is a protest of some type does not of itself exclude the defence, provided the defendant has a genuine belief in facts or circumstances which would make their presence lawful.16
However, in some cases the fact that the defendant occupied the property in protest may be a factor contributing to the conclusion that the defendant did not have an honest belief in his or her right to remain on the property. For example, it may tend to show that the defendant is remaining on the property because of their dissatisfaction with a state of affairs, not because they honestly believe they have a right to remain there. That was the case in Heke v Police, where the appellant went
to a police kiosk (a miniature police station) and made a complaint.17 The police
officer who listened to his complaint determined there was no substance in it and asked him to leave. The appellant refused to leave and was convicted of trespass. On appeal, it was argued that the appellant honestly believed he was entitled to stay at the kiosk until such time as his complaint was accepted. French J held that the appellant stayed not because he believed in a state of affairs which if correct would have meant he was entitled to stay, but because he was dissatisfied with the way the officer had dealt with his complaint. It was a protest. There was an insufficient foundation for the defence of honest belief and the appellant was convicted.
[37] The defendant’s honest belief in an entitlement to remain may be a mistaken belief. However, the mistake must be one of fact, not law.18 An example of an honest belief that is mistaken as to fact is found in Police v Cunard.19 While at a bar, the appellant became somewhat intoxicated and fractious. He was asked to leave but refused to do so, denying that he was intoxicated. On appeal against conviction,
Speight J held that the appellant had an implied license to be on the property, as a
15 IB Cowie “The Trespass Act 1968: Legislation Note” (1968-1970) 5 VUWLR 378 at 380.
16 Hanna v Police, above n 11, at [25].
17 Heke v Police, above n 14.
18 Hanna v Police, above n 11, at [26].
19 Police v Cunard [1975] 1 NZLR 511 (SC).
patron of the bar, and the obligation to leave only arose when his license was properly revoked. The appellant honestly believed that he was not so intoxicated as to justify his implied license being revoked. That was an issue of fact on which the appellant was genuinely mistaken. The conviction was quashed.
[38] On the other hand, Police v Shadbolt provides an example of a mistaken belief as to the law.20 Mr Shadbolt was charged with trespass at the premises of St John Ambulance in Auckland. He had asked a member of the staff to supply him with the name of the nurse on an ambulance that had attended an accident in which his wife was injured. The member of staff explained to him that St John did not disclose such information. When Mr Shadbolt continued to insist, the superintendent
in charge decided he was making a nuisance of himself and requested that he leave the premises. Mr Shadbolt refused to do so, arguing that he was entitled to stay until the information was supplied. On appeal, Wilson J held that Mr Shadbolt was mistaken as to his legal rights in that situation; he was under no genuine mistake about the facts. The common law defence of honest belief therefore did not apply, and he was properly convicted of trespass.
[39] A further issue arises in the present case in terms of what evidence will suffice to establish an honest belief, and who can give such evidence. In particular, the question is whether evidence of a collectively held subjective belief within a particular group, given by an elder representative of that group, can establish an honest belief on the part of an individual defendant. Ms Sykes relies on tikanga Māori, saying that the special body of relevant knowledge is held by the iwi as a collective and that elders within the iwi are able and entitled to speak for members of the iwi whom they know well.
[40] I am sympathetic to that submission in light of the several observations of the higher courts that tikanga Māori informs and influences the common law of New Zealand.21 Mr Wall suggests that such a principle would be problematic when applied to a “malignant collective”, but that ignores the fact that Ms Sykes’ argument
is closely circumscribed: it would only apply in the context of tikanga Māori, not to
20 Police v Shadbolt [1976] 2 NZLR 409 (SC).
21 See for example Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164].
any and every collective where the leaders claim to speak on behalf of others. It is further circumscribed by the considerations referred to in [24] above.
[41] However, in my view it is unnecessary to take the point as far as Ms Sykes seeks to do. First, a defendant need not give evidence him or herself in order to establish an honest belief.22 Further, as noted above, the defendant does not bear the onus of proving his or her honest belief beyond reasonable doubt. He or she must simply provide an evidentiary foundation for the defence, which it is then for the prosecution to rebut beyond reasonable doubt. It is therefore open to a defendant to call evidence from witnesses which tends to show that he or she held a certain belief, without conclusively proving that he or she did in fact hold that belief. There may as
Mr Wall says be a certain “fragility” in approaching the defence on that basis but it is
an available defence option.
[42] Such fragility is demonstrated in this case. Neither Professor Mutu nor the Reverend Popata purport to speak to the mind of the individual appellants. What Reverend Popata does is give evidence of the individual genealogy of each appellant connecting them to historical occupants of the land. For her part Professor Mutu addresses the importance of the land for Maori in general, through explanation of the concepts (among others) of mana whenua and kaitiakitanga. As she says in her affidavit:
For Māori, all their hapū lands are whenua tūpuna, ancestral lands. This is regardless of and not based on legal title. As such they are taonga tuku iho, a treasured inheritance to be cherished, treated with respect and handed on intact to the following generations.
[43] The combined evidence therefore establishes a strong ancestral connection by the appellants to the airport lands. That may have given rise to an honest belief in Ngāti Kahu’s right to have the lands ultimately returned to them but it does not
establish an honest belief in a legal right of interim occupation.
22 See Albert v Police HC Whangarei AP04/03, 25 March 2003, where Nicholson J allowed Mr Albert’s appeal against a conviction for trespass because the District Court Judge had not considered the defence of honest belief. Mr Albert had not given evidence himself, but he called evidence from several others. Nicholson J ordered a new trial on the basis that there was there was an evidential foundation for the defence of honest belief, although slim.
[44] What has occurred in this case is in my view a disjunction between the evidence called in support of the alleged honest belief and the nature of the belief asserted on appeal. Professor Mutu argues essentially on a “nemo dat” basis – the Crown never acquired title therefore FNH was not a lawful occupier for the purposes of the Trespass Act. Her thesis was, as Judge Gibson noted, predicated on the views of Mr Peter Mc Burney that what had occurred in 1859 was an ostensible purchase only with such significant flaws as not to have extinguished the underlying customary title.
[45] Such an argument was not persued on appeal recognising as Andrews J did in
Roha v Police that:23
It is no defence to the charges of trespass that the appellants claim to have customary rights over Stoney Creek Station, or that they are its rightful owners. Whether or not the land ought to be returned to them is a separate issue, which is not before this Court for determination.
[46] The argument on appeal was therefore necessarily more nuanced. Ms Sykes accepts that FNH was a lawful occupier of the land, therefore necessarily accepting that the Crown has obtained title to the land, but says the appellants held an honest belief in a right of co-occupation from the time of the 18 July 1994 Cabinet Paper rescinding the earlier decision to transfer the land to Council and substituting a lease pending final settlement of the Muriwhenua claims.
[47] But nowhere in the evidence of Professor Mutu or the Reverend Popata do they say that from this date either the appellants (individually or collectively) or any other representatives or members of Ngāti Kahu entertained the honest belief that the Cabinet paper conferred on them (or as Ms Sykes says “crystallised in their favour”) a legal right to co-occupation based on prior ancestral connection. Such a proposition would in any event be untenable in circumstances where the Cabinet Paper recognised the potential availability of the land to answer Muriwhenua claims generally, that is claims involving up to five potential iwi (a potential realised in the Crown’s 2013 offer of the lands to both Ngāti Kahu and Ngāi Takoto). And there is
nothing in their evidence even suggestive of the fact that such a belief in legal rights
23 Roha v Police, above n 9, at [24].
of co-occupation was entertained by the individual appellants. Neither the Professor nor the Reverend even depose to discussion of the issue with them.
[48] Although I do not therefore agree with Judge Gibson’s observation that “in the absence of direct evidence from the defendants themselves as to why they entered onto the land and the basis of their belief such a defence [honest belief] cannot be sustained”,24 at least if this was intended as a statement of general principle rather than a reflection on the state of the evidence before him, nevertheless, the absence of direct evidence from the defendants in this case left a
lacuna in terms of the argument now advanced. In my view there was insufficient evidential foundation laid for the proposition of a right of co-occupation ever to animate the “defence”. And to the extent that I may be incorrect in that conclusion, it was a foundation of such fragility that it was always vulnerable to a prosecution submission that the occupation was no more nor less than a political action and that the mens rea component of the offence was therefore proven beyond reasonable doubt.
[49] In addition, I accept Mr Wall’s submission that if some foundation for an honest belief in rights of co-occupation had been laid, such belief must necessarily represent a mistaken belief as to the law because it is dependent upon attributing legal consequences to the Cabinet Paper which are, as a matter of law, untenable irrespective of the quality of ancestral rights asserted.
Result
[50] While my reasoning differs in places from that of Judge Gibson (as a result primarily of the different argument advanced on appeal), I have reached the same conclusion as his Honour, namely that the defence of honest belief is not available on
the present facts.
24 At [36].
[51] I accordingly dismiss the appeal.
Muir J
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