H v Police HC Rotorua CIV 2009-463-334

[2009] NZHC 2096

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2009-463-334

BETWEEN  H

Plaintiff

ANDPOLICE Defendant

Hearing:         12 November 2009

Appearances: No appearance for plaintiff

A M Powell for defendant

Judgment:      12 November 2009

JUDGMENT OF ALLAN J

Solicitors:

Crown Law, Wellington

A J H  , 2A Jack Farrell Place, Papakura, Auckland

H V POLICE HC ROT CIV 2009-463-334  12 November 2009

[1]      This  proceeding was  set  down  for  hearing at  10  am  today.    Mr  Powell appeared for the first respondent.  There was no appearance by the plaintiff.  I stood the matter down until 11 am in case Mr H   had been delayed.   It was then recalled but there was still no appearance for the plaintiff. I therefore dismissed the proceeding for want of prosecution.

[2]      Because, in adopting that course, I took into account to some degree the fact that the plaintiff’s claim lacked any discernible merit, it is appropriate that I describe very briefly the substance of the claim.

[3]      In the District Court the plaintiff faces a charge of behaving in a public place in a disorderly manner that was likely in the circumstances to cause violence against persons to start and continue.  The offence was said to have been committed on 25

December 2008.

[4]      On 29 January 2009, Mr H   appeared in the Taupo District Court.  At that time a submission was advanced on his behalf to the effect that the District Court ought to permit him to be tried by a Tribunal established by the Tuhoe tribe, at a place to be determined by that Tribunal.  The presiding Judge declined to accede to that application, directed that Mr H  ’s initial plea of not guilty should be maintained, and remanded him to a fixture on 26 February 2009.  The Judge noted that Mr H   was eligible for diversion and suggested that that possibility be considered.

[5]      On 21 May 2009 an application described as “an application for review of a declaratory order” was lodged with this Court.  The application was considered by Keane J on 29 May 2009.   In a minute bearing that date he observed that the documents appeared not to comply with the rules of Court, and that no filing fee had been paid.  Nevertheless, he directed that a copy of the application be sent by the Registrar to the Crown Solicitor, Rotorua, on behalf of the New Zealand Police, and gave directions as to the filing of memoranda by both Mr H   and the Police.

[6]      Mr Powell, Crown counsel, duly filed a memorandum, Mr H   did not. Indeed, he has taken no step at all in the proceeding since it was filed.

[7]      On 30 June 2009 Heath J conducted a telephone conference.   Mr Powell participated in that conference.  There was no involvement on behalf of the plaintiff. Heath J directed that the application be treated as an application for judicial review on which no further formal documentation need be filed, and he made an order by consent joining the Attorney General as the first respondent and the District Court at Taupo as second respondent.   Heath J directed that, in the absence of a formal statement of claim, Mr Powell might set out the Crown’s position on behalf of the Attorney General by memorandum.  A memorandum was duly filed.

[8]      Thereafter, the proceeding was set down for hearing on 12 November 2009. Notice in writing was given to the parties.  In the case of Mr H   it was sent to the addresses earlier provided to the Court.

[9]      The papers filed on behalf of Mr H   at the outset of the proceeding are voluminous.    They  are  not  easy  to  comprehend.    However,  the  thrust  of  the plaintiff’s argument is plain.  He contends that the District Court ought, as a matter of discretion, to have referred the criminal proceedings for trial before a Tribunal established by the Tuhoe tribe at a place to be determined by the Tribunal.  In other words, he asks that the District Court cede jurisdiction to Tuhoe.

[10]     It is inappropriate that I express any concluded view about the merits of Mr H  ’s proceeding, but in determining that it was appropriate to strike the proceeding out  for  want  of  prosecution,  I took  into  account  the  fact  that  there appeared to be no basis upon which it could succeed.  The jurisdiction of a District Court Judge is statutory, although he or she will have such ancillary powers as must necessarily be implied:  Department of Social Welfare v Stewart [1991] NZLR 697.

[11]     The procedure for dealing with summary offences is expressly set out in the Summary Proceedings Act 1957.  There is nothing in the District Courts Act 1947 or in the Summary Proceedings Act which confers upon a District Court Judge a power

to decline jurisdiction in criminal proceedings by referring the matter to a private

Tribunal for determination.

[12]     Mr H  ’s papers also rely on customary law, upon an assertion of Tuhoe sovereignty, and in part upon the provisions of various statutes.   Read as a whole however, they simply amount to a claim that the plaintiff is not, or ought not to be, subject to the criminal jurisdiction of the District Court.   Arguments of that type have been considered and rejected in literally dozens of cases.   It is sufficient   to refer by way of example only to R v Fuimaono CA159/96 24 October 1996;   R v Knowles CA146/98 12 October 1998, and R v Mitchell CA68/04 23 August 2004.

[13]     In the light of those and other similar authorities, it is difficult to see how the plaintiff’s claim could have succeeded.  However, it is inappropriate to say anything more than that, given that the Court has not been called to determine the application on its merits.

[14]     Costs are reserved.

C J Allan J