Habib v Police HC Rot CRI-2006-463-000084
[2006] NZHC 1200
•10 October 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2006-463-000084
H
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 10 October 2006
Appearances: Appellant in Person together with
Mr Rameka (as McKenzie Friend) Ms T R Bayley for the Respondent
Judgment: 10 October 2006 at 3.30 pm
Reasons: 25 October 2006
JUDGMENT OF FRATER J
This judgment was delivered by Justice Frater on 25 October 2006 at 3.30 pm, pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
To: P G H (Appellant), 11A Pihanga Street, Taupo
Solicitors: Gordon Pilditch, P O Box 740, Rotorua for the Respondent
H V POLICE HC ROT CRI-2006-463-000084 10 October 2006
Introduction
[1] On 9 June 2006, after a defended hearing in the District Court at Taupo, His Honour Judge Cooper convicted Mr H of resisting a Constable acting in the execution of his duty, a charge pursuant to s 23(a) of the Summary Offences Act
1981, and sentenced him to pay a fine of $500 and Court costs of $130. The other charge faced by Mr H arising out of the events of 12 February 2006, that of disorderly behaviour, was dismissed.
[2] Mr H appealed to this Court against his conviction. At the conclusion of the hearing I dismissed the appeal. I now give my reasons for doing so.
Issues
[3] Essentially Mr H ’s argument was that he is subject to Maori customary law and that the laws of New Zealand do not apply to him.
[4] In his notice of appeal he specified the following four grounds of appeal:
a) that he had poor representation in Tikanga Maori;
b)that the Judge acted ultra vires in an attempt to put words in his mouth in making a plea on his behalf of not guilty;
c) that the prosecution failed to table full disclosures under the Official
Information Act 1982 that he requested in 25 May 2006; and d) that the Judge was culturally insensitive.
Proceedings in the District Court
[5] The history of the proceedings in the District Court is not in dispute.
[6] The information for the resisting charge records that when Mr H made his first appearance before a Deputy Registrar on 15 February 2006 he entered no plea. He insisted on maintaining that position when he appeared before another Deputy Registrar on 1 March, and reiterated it when he came before Judge Cooper on 13 March. In the face of Mr H ’s continued refusal to enter a plea Judge Cooper recorded a not guilty plea and adjourned the matter for hearing on
23 May. On that day the matter was further adjourned, part heard, to 9 June when the conviction under appeal was entered.
[7] Prior to the substantive hearing Mr H filed various documents in Court. They included:
a) an extract from the Native Circuit Courts Act 1858, No. XLII setting out the preamble and ss 1-4 inclusive;
b) a reference to the judgment of the Privy Council in Tamaki v Baker
(1900) NZPCC 371;
c) a copy of a request under the Official Information Act 1982 made against the Taupo Police for disclosure of the following:
i) A copy of the order revoking the Letters Patent granted within the provisions of the 1858 Native Districts Act (sic) and the 1858 Native Circuit Courts Act;
ii) A copy of the Royal Assent of the 1986 Constitution Act of
New Zealand;
iii) A copy of the receipt of the sale of land, signed by the Tangata Whenua and her Majesty, and a copy of receipt of land (of the land) from Her Majesty to the New Zealand Government;
iv) A copy of the Crown Grant issued by Her Majesty in right of the Crown on the land where the supposed offence allegedly took place;
v) A copy of all the requested above documentation written in the Maori language (Te Reo Maori) as well as in English; and
vi) A copy of the certification of the translator for the requested documents to show his competence in Te Reo Maori.
d)Finally, and somewhat prematurely, Mr H also lodged a notice of appeal stating that he intended:
... to appeal to the High Court of New Zealand and would like to refer the Judge to the preamble of Te Ture Whenua Maori Act 1993 on the grounds as follows:
1. Te Tiriti O Waitangi.
2. The special relationship between Kawanatanga and
Rangatiratanga.
3. The Protection of Kawanatanga.
4. For the protection of Rangatiratanga.
5.I am diplomatically immune and therefore you have a duty to protect me against the prosecution.
6.And therefore I am diplomatically immune to the jurisdiction of the district court.
7. The district court acted “ultra vires” in an attempt to put words in my mouth in making a plea on my behalf.
8.Therefore I accept the judgment of the district court in the last two words of “Not Guilty”.
9. The court must not put words into my mouth.
...
[8] In the course of the hearing before Judge Cooper, Mr H acknowledged that he resisted arrest. He said that he did so because he believed the officer had no jurisdiction over him and that he had made that clear to the officer. He did not take issue with most of the factual evidence presented by the Police.
[9] His primary argument was that as he was a member of a Maori Incorporation pursuant to s 4 of the Te Ture Whenua Maori Act 1993 the Court had no jurisdiction over him. He also asserted, on the basis that the Native Circuit Courts Act 1858 remained extant, that he should have been tried by a Judge sitting with a Maori assessor.
District Court decision
[10] Judge Cooper rejected both these arguments, citing the judgment of Williams
J in Morunga v Police HC AK CRI 2004-404-8 16 March 2004. He said:
[7] The Te Ture Whenua Maori Act is not concerned with the criminal law and it has no application in these proceedings. The fact that a person might be a shareholder in a Maori Incorporation does not give them freedom from liability for criminal or other offences.
[8] Secondly, the Native Circuits Courts Act 1858 was repealed over
100 years ago and is no longer in force. Indeed, my understanding of the situation is that even when the Act was in force, no Native Districts were established in terms of it.
[11] The Judge then went on to examine the evidence adduced in relation to the substantive charge finding that:
[10] Evidence for the prosecution was given by the two Constables who attended at an incident on the 12th of February 2006 when a motor vehicle was sought to be impounded. The evidence of Constable Winter and Constable Barton was that the defendant was obstructive, aggressive and abusive, telling them repeatedly to “fuck off” and to get off his property. The motor vehicle that they were seeking to impound was on the property at the time being driven by the defendant, although it is not suggested that he was driving it when it had been observed earlier being driven by a person who was driving with excess breath alcohol and a disqualified driver.
[11] It is clear that the defendant did not want the Constables on his property. He did not want to co-operate with the impounding of the vehicle. He obstructed and resisted the Constables in their efforts to impound the vehicle, so much so that one of the Constables, in the course of the incident, received a graze to his arm.
[12] Mr H has not given evidence or called other witnesses in his defence. In relation to the charge of resisting a Constable acting in the execution of his duty, I find it proved beyond reasonable doubt that Constable Winter was acting in the execution of his duty in seeking to impound the motor vehicle. I am satisfied beyond reasonable doubt that Mr H knew of the fact that the Constable was so acting and deliberately resisted him in the execution of his duty. That charge is proved beyond reasonable doubt, and on that charge the defendant will be convicted.
Proceedings in this Court
[12] Mr H did not present any new material before this Court. Nor was he interested in reading the various Court judgments in which his Maori sovereignty argument, and variations of it, have been examined. Instead, he politely, but nevertheless doggedly, asserted his reliance upon the provisions of the Native Circuit Courts Act, the New Zealand Constitution Act 1852, and the Te Ture Whenua Maori Act and, in response to my assurance that those Acts had either been repealed or did not provide him with the rights which he asserted, sought visible proof to that effect.
Discussion
[13] The various Maori sovereignty arguments put forward by Mr H have each been considered and rejected by the Court of Appeal.
[14] In R v Knowles CA146/98 12 October 1998, the plaintiff asserted a customary right to be tried by Maori. The Court of Appeal, in dismissing that argument said, at 2:
One of Mrs Knowles’ principal references after 1840 was to the New Zealand Constitution Act 1852, s71 of which provided for the maintenance of the laws, customs and usages of the aboriginal or native inhabitants of New Zealand in all their relations with one another, so far as the laws, customs and usages were not repugnant to the general principles of humanity. But that continued application required the issuing of letters of patent by the Queen and we understand that none were ever issued. Certainly none has been brought to our attention. In any event, the 1852
Act, including s71, was repealed by the Constitution Act 1986. Since 1947, with the adoption of the Statute of Westminster 1931 and the amendments to
the 1852 Act, further elaborated in 1973, the New Zealand Parliament has
had full power to make laws, as s15(1) of the Constitution Act says.
[15] In R v Miru CA65/01 26 July 2001, some of the submissions were based on the Te Ture Whenua Maori Act 1993:
[6] Mr Miru however contends that a Maori incorporation constituted under the Te Ture Whenua Maori Act 1993 could have exercised a separate jurisdiction in respect of the conduct concerning which he faced criminal charges.
[7] The long title to the Te Ture Whenua Maori Act states it to be:
An Act to reform the laws relating to Maori land in accordance with the principles set out in the Preamble to this Act.
The preamble records the desirability of recognising that land is a taonga tuku iho of special significance to Maori people, and of promoting retention of Maori ownership of land. There is nothing in that statement of the Act’s purpose in its long title, nor in the Preamble to the Act, which suggests it is intended to provide a means for the enforcement of the criminal law. The provisions in Part XIII of the Act for Maori incorporations are concerned with providing for incorporation as a mechanism for multiple ownership of land. Sections 253 and 253A of the 1993 Act make provision for capacity, powers and the constitution of incorporations only in that context. Mr Miru’s submission to us that the 1993 Act provides a means for recognition of a separate justice system for Maori people is completely at odds with the important scheme and purpose of that Act and accordingly must fail.
[16] And finally, of relevance for present purposes, is the judgment of
Randerson J (as he then was) in Barrett v Police HC HAM CRI 2003-419-64 14
June 2004, in which His Honour, after noting that s 71 of the New Zealand
Constitution Act 1852 has been repealed and is now of no effect, went on to say:
[18] The background to s 71 of the New Zealand Constitution Act 1852 was also discussed by Durie J in Kaihau v Police (High Court, Palmerston North, AP 5/00, 11 May 2000). His Honour understood the historical position to be that in various parts of New Zealand, it was impossible for the then Governor Grey to enforce the Queen’s write in remote areas of the country. The intention was to establish schemes whereby Maori could take control of law and order in those areas until English law could be gradually introduced.
[19] The Native Districts Regulation Act 1858 was enacted by the General Assembly of New Zealand and enabled the Governor in Council from time to time to appoint districts for the purposes of the Act, being districts over which Native title had not, for the time being, been extinguished. By this enactment, the Governor in Council was also authorised to make regulations relating to a number of specified subjects including the prevention of cattle trespass, the erection and maintenance of boundary fences, and provisions for the prevention of fire, nuisance, and disease. The Act provided that where, by notice in the Gazette, Native title was extinguished over land within any such district, all regulations made under the Act thereupon ceased to be in force: s 9.
[20] In a companion piece of legislation (the Native Circuit Courts Act
1958 [sic]), the Governor in Council was authorised to provide for a
Resident Magistrate in Native districts.
[17] However:
[22] … both the Native Districts Regulation Act and the Native Circuit Courts Act were repealed by the third part of the first schedule of the Repeals Act 1891. They no longer have any force or effect.
Disclosure of legislation
[18] I told Mr H that I would give him copies of the legislation repealing the enactments on which he relied, namely:
a) the third part of the first schedule of the Repeals Act 1891; and b) the Constitution Act 1986.
They are annexed to this judgment. I do so in the hope that, faced with the hard copy, he will finally accept the error of his arguments. However, I emphasise that neither the Court, nor the Police against whom Mr H issued an Official Information Act request, are under any obligation to provide this type of information to a party to proceedings, whether criminal or civil.
[19] I am satisfied that the Police complied scrupulously with their disclosure obligations by providing Mr H with copies of the summary of facts, his conviction history, the job sheet of the officer-in-charge, the two informations, the OC spray report, the Police bail bond, the notice to person in custody form, the minor offence record, and the briefs of evidence of the two Constables involved. They declined to provide copies of the other documents requested on the basis that they were neither on the Police file nor relevant to the case.
[20] The duty on the prosecution is to provide a defendant with copies of “material evidence”: R v Mason [1975] 2 NZLR 289. See also Commissioner of Police v Ombudsman [1988] 1 NZLR 385. What Mr H was seeking went well beyond that. He wanted research material upon which to base his anticipated legal argument.
Entry of not guilty plea
[21] Finally, some comment is called for concerning Mr H ’s allegation that the Judge was culturally insensitive and acted ultra vires in entering a not guilty plea when he did not want to enter any plea at all.
[22] Mr H acknowledged that his criticism of the Judge was based on his alleged failure to listen to what he said. In practice his concern was that the Judge would not accept his arguments. As I have explained, he was right not to do so.
[23] Judge Cooper acted entirely appropriately in entering a not guilty plea in the face of Mr H ’s insistence on entering no plea. He certainly had the power to do so: see McMenamin v A-G [1985] 2 NZLR 274. And he had ample precedent for doing so. The procedure has been adopted in other Maori sovereignty cases where defendants have refused to accept the jurisdiction or processes of the Court: see Hulse v Police HC TIM AP22-01 11 September 2001. In practice, what the Judge did ensured that the proceeding was advanced and that Mr H had the opportunity of airing his jurisdictional concern in the context of a defended hearing, which he did.
Outcome
[24] For the foregoing reasons I was satisfied that the appeal was without merit, and dismissed it.
M A Frater J
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