Crockenberg v Police - [2017] NZHC 2704

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 Respondent

Judgment:

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: askyes@annettesykes.com
JJM Bartlett, Barrister, Rotorua: Jordan@annettesykes.com
J W Wall, Crown Solicitors, Whangarei: justinw@mwis.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crockenberg v Police

Details

AGLC: Crockenberg v Police [2017] NZHC 2704
Case: [2017] NZHC 2704
Decision Date: 6 November 2017

CaseChat Overview and Summary

The six appellants were convicted of trespass in the District Court for their occupation of Kaitaia Airport on 8 and 9 September 2015. The appellants, members of the Ngāti Kahu iwi, appealed against their convictions on the basis of the common law defence of honest belief. The appellants argued that they had an honest belief that they had "co-existent occupation rights" with the company operating the airport, Far North Holdings Ltd (FNH). The primary issue for the Court was whether the appellants could establish an honest belief in a state of affairs or fact that would make their act innocent. The Court found that while the evidence established a strong ancestral connection by the appellants to the airport lands, it did not establish an honest belief in a legal right of interim occupation. The evidence from Professor Mutu and Reverend Popata did not suggest that the appellants or any other representatives or members of Ngāti Kahu entertained the honest belief that the Cabinet Paper conferred on them a legal right to co-occupation based on prior ancestral connection. The Court found that the defence of honest belief was not available on the present facts, and dismissed the appeal.

Orders