Haddock v Thames-Coromandel District Council
[2017] NZHC 1926
•14 August 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2017-419-000008 [2017] NZHC 1926
IN THE MATTER of the Building Act 2004 AND
IN THE MATTER
of a prosecution pursuant to s 168 of the
ActBETWEEN
ANTHONY JOHN HADDOCK Appellant
AND
THAMES-COROMANDEL DISTRICT COUNCIL
Respondent
Hearing: 23 June 2017 Appearances:
Appellant in Person
P Moodley for the RespondentJudgment:
14 August 2017
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on 14 August 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors/Counsel:
Brookfields, Lawyers, Auckland
Copy to:
The Appellant
HADDOCK v THAMES-COROMANDEL DISTRICT COUNCIL [2017] NZHC 1926 [14 August 2017]
Introduction
[1] On 13 February 2017, following a defended hearing in the Thames District Court, Anthony John Haddock was convicted on one charge of failing to comply with a notice to fix issued by the Thames-Coromandel District Council (Council) and fined $15,000 with costs of $1,000.1 He now appeals against both conviction and sentence.
Factual background
[2] Mr Haddock lives at 133 Paul Road, Tairua (the property). He is registered as proprietor of the land under the Land Transfer Act 1952.
[3] On 21 January 2016, a Council enforcement officer, Andrew Fletcher, visited the property to ascertain whether there had been a breach of the Building Act 2004 (the Act) in response to a complaint received by the Council.
[4] Mr Fletcher observed that a house had been relocated to the property. It was on new foundations. Decks and a basement had been constructed, and sheds erected. The following services had been installed:
(a) A grey water system for grey waste matter; (b) A composting toilet for black wastewater; (c) A tank supply for potable water;
(d) A low pressure hot water cylinder; (e) Solar panels; and
(f) Two smoke detectors.
1 Thames Coromandel District Council v Haddock [2017] NZDC 2782; Thames Coromandel
District Council v Haddock [2017] NZDC 2916.
The house was, however, not connected to a power supply provided by a network provider.
[5] On 5 February 2016, Mr Fletcher returned to the property to serve Mr Haddock with a notice to fix under ss 164 and 165 of the Act. The notice to fix required Mr Haddock to apply for a certificate of acceptance pursuant to s 96 of the Act. It noted this process might require him to apply for and obtain a building consent for any items of non-compliance with the building code. In the alternative, the notice to fix required he remove all unconsented building work, including all services, and apply for a building consent to reinstate the work pursuant to s 40 of the Act.
[6] Mr Haddock refused to physically accept the notice to fix, but it was clearly brought to his notice. While Mr Fletcher was at the property, Mr Haddock wrote and handed him a letter which stated that he did not accept the notice to fix until the Council could prove its claim of ownership and jurisdiction. He also stated that the Council and all its agents and contractors were acting unlawfully and illegally and all involved would be dealt with in their private and commercial capacity accordingly. Finally, he stated that all individual Council staff were trespassing, were unwelcome and were a threat to the lives of those who occupied the property and would be dealt with accordingly.
[7] On 14 February 2016, the Council Manager Building Unit, Corrine Hamlin, posted a copy of the notice to fix to Mr Haddock at the property by way of further service.
[8] On 15 March 2016 the Council received a document from Mr Haddock entitled “Affidavit of Truth”, which disputed the Council’s jurisdiction in relation to the notice to fix. On 11 April 2016 the Council received a further document from Mr Haddock entitled “Affidavit Notice of Default and Opportunity to Cure”, which also related to the Council’s jurisdiction.
[9] Mr Haddock did not apply to the Council for a certificate of acceptance, nor apply for a building consent. The time to comply with the notice to fix expired on
4 April 2016. On 1 June 2016 Ms Hamlin entered the property with a Council compliance officer and a constable from the Tairua Police to ascertain whether the house had been removed. Mr Haddock was not present at the time. The house had not been removed from the property.
Grounds of Appeal
[10] Mr Haddock specified the grounds of his appeal in the notice of appeal filed in the High Court on 21 February 2017 as follows:
(a) Abuse of process pursuant to ss 12, 13, 14 Criminal Disclosure Act
2008;
(b)The Judge failed to produce facts of law such that the appellant’s case was detrimentally prejudiced by not being provided specific additional disclosure including evidence of claim;
(c) The Judge failed to address preliminary matters in a memorandum and affidavit dated 27 January 2017; and
(d) The Judge allowed hearsay to be permissible as evidence in the Court.
Appellant’s submissions
[11] The appellant’s written submissions were filed in the High Court on 1 June
2017. They focus on somewhat different issues and are divided into four separate topics – jurisdiction, process, native title and constitutional lines of authority.
Jurisdiction
[12] The appellant’s submissions on jurisdiction refer to three documents – the notice to fix, the charging document and the summons to defendant.
[13] The notice to fix issued on 4 February 2016 was signed by “Andy Fletcher Senior Building Compliance Officer on behalf of Thames-Coromandel District Council”. Mr Haddock submits that there was no evidence presented to the District
Court that the Council was a building consent authority, which he submits is the only entity that can issue a notice to fix. Furthermore, although disclosure had been provided which showed that “Andrew Fletcher” had delegated authority under the Building Act 2004, the notice to fix was signed by “Andy Fletcher” who is a different persona and who does not have any delegated authority.
[14] In the charging document filed in the Thames District Court on 10 August
2016, the prosecutor is named as “Robert Williams Chief Executive of the Council”. Mr Haddock submits that there was no evidence presented to the District Court that Mr Williams had delegated authority from the Council to sign the charging document. Section 377 of the Building Act 2004 provides that the charging document can only be filed by the territorial authority.
[15] The summons to defendant is dated 24 August 2016 and is signed by Deborah Riley of Brookfields Lawyers, the Council’s solicitor. Section 28 of the Criminal Procedure Act 2011 requires a person issuing and serving a summons to have good cause to suspect that the defendant has committed an offence, and to have filed or intend to file a charging document in respect of that offence. Mr Haddock submits that, given the charging document was earlier filed on 10 August 2016 by Mr Williams and not by Ms Riley, she cannot have had good cause to suspect that Mr Haddock had committed an offence. He submits that, in practical terms, both the charging document and the summons need to be completed by the same person. As a result the proceedings did not comply with s 28, were incorrectly brought and the Registrar should not have accepted them for filing.
Process
[16] Mr Haddock submits that full and proper disclosure under s 12 of the
Criminal Disclosure Act 2008 was not made. A formal written request dated
11 October 2016 seeking disclosure of documents relating to the extinguishment of native title to the land was served on the prosecutor, but a reply wrongly declined to provide the additional information requested.
[17] Mr Haddock also submits that the District Court Judge wrongly did not permit any preliminary arguments as to jurisdiction and refused to allow his witness,
Anthony Williams, to give evidence. Mr Williams’ evidence was to relate to title to
the land in question.
Native title
[18] The crux of Mr Haddock’s submission is that native title to the land was not validly extinguished. He is able to trace title to the land back to Graham and Willis’ Grants Number 333D and part of 324D, identified in a certificate of title under the Land Transfer Act dated 23 May 1905. Mr Haddock notes that Graham and Willis’ Grants were apparently issued, but Crown grant documents have not been discovered in archives at the time of filing. Mr Haddock submits that the prosecution, despite being put on notice and having the onus shifted to it, has failed to produce any evidence that native title to the land in question has been validly extinguished.
[19] Mr Haddock accepts that this court cannot make a determination with respect to native title without there being a proper enquiry and submits that this court will therefore have to request the Maori Land Court to undertake the enquiry. Nonetheless, Mr Haddock submits that having raised the issue of validity of the original grants relating to the land in question, the onus of proof is transferred to the prosecutor, who has provided no evidence to support a claim that the land was validly transferred.
Constitutional lines of authority
[20] Finally, Mr Haddock submits that native title to the land cannot have been extinguished constitutionally. Mr Haddock submits that there are two distinct lines of authority as to the creation of title in New Zealand. The first of these is based upon legislation enacted in the United Kingdom and New Zealand in relation to the constitutional structure and the second on “what is loosely called the Maori or Native Land Acts”.
[21] Mr Haddock submits that the result of the two lines of authority is either:
1. There has never been any valid sale of what is called native title in
New Zealand for any land; or
2.If there has been a sale to the Crown, then the correct procedures were not followed in the Hauraki District for the cessation of the rights under native title for the land and on-sale to the Crown as required.
Further, in either case the Council cannot have jurisdiction over the land that remains with the hapu or incorporation, who then make their own rulings, which they have done in the present case.
[22] In his written response to the respondent’s submissions, Mr Haddock argues that this submission is not about sovereignty per se. Rather, it is about whether common law rights to native title have been validly cancelled. Mr Haddock submits that native title could not have been validly extinguished because of a lack of constitutional authority at relevant times. In the end, however, this rests on the submission that the Government was not able to validly extinguish native title.
[23] Mr Haddock also submits that the Government cannot make or enforce laws which purport to apply to native people, and all domestic legislation is void. The only authorities that he recognises are Imperial Acts and tikanga kawa (rules or protocols) so long as they are not repugnant to common law. Mr Haddock says it all goes back to God’s law and the Ten Commandments. Further, in his written submissions Mr Haddock adds that under the Imperial Laws Applications Act 1988 all legislation must be subservient to the constitutionally enshrined common law which protects native title. This is fundamentally a challenge to Parliament’s sovereignty.
Discussion
[24] Mr Haddock has advanced genuine and considerably researched submissions on appeal. I do not doubt his sincerity. Nonetheless, he is defending the charge on the basis that the Building Act 2004 should not apply to his property. One of the purposes of the Act is, however, to ensure the health and safety of people who use buildings. When I pointed this out to him, Mr Haddock said he was quite capable of looking after the health and safety of his family. He may well be, but the Act does not allow an exception for capable and competent homeowners. To meet its
objective of saving lives, the Act cannot have an exception for persons such as
Mr Haddock, even though he may consider the Council’s intervention intrusive.
[25] Given Mr Haddock’s sincerity and diligence in advancing a number of different grounds of appeal, I will deal with them in the order set out in his written submissions.
Jurisdiction
[26] First, Mr Haddock submits that the provisions of the Building Act 2004 require a notice to fix to be issued by a building consent authority. This is incorrect. Section 164 of the Act provides that a “responsible authority” may issue a notice to fix. The definition of “responsible authority” is set out in s 163 and means a building consent authority, a territorial authority or a regional authority. The Council is a territorial authority as defined in s 5 of the Local Government Act 2002 and named in Part 2 of Schedule 2 of the Act. As such it was entitled to issue the notice to fix.
[27] As to signature of the notice to fix by “Andy Fletcher”, I take judicial notice that Andy is a common abbreviation of Andrew. Mr Haddock accepts that Andrew Fletcher had delegated authority. The use of his abbreviated first name on the notice to fix does not invalidate it. In any event, this was not an issue raised in the District
Court and technically cannot be the subject of an appeal.2
[28] Secondly, I am of the view that Mr Williams, the Chief Executive of the Council, did not require delegated authority from the Council to sign the charging document. Section 249 of the Local Government Act 2002 provides that the chief executive of the local authority may represent that authority in all proceedings in the District Court. Representation must include taking steps to commence the proceeding, including signing a charging document in the case of criminal
proceedings. No further delegation is required.
2 Clarke v Ministry of Social Development [2014] NZHC 1830.
[29] Third, a summons is issued pursuant to s 28 of the Criminal Procedure Act
2011. It allows either a constable or “any other person” to issue and serve a
summons if the constable or other person:
(a) has good cause to suspect that the intended defendant has committed an offence; and
(b)has filed, or intends to file, a charging document in respect of that offence.
[30] The assessment of the belief required for good cause to suspect involves an objective determination by the court.3 As an employee of the Council’s lawyers engaged to attend to the prosecution on the Council’s behalf, I am of the view that Ms Riley would clearly have had sufficient information to provide good cause to suspect that Mr Haddock had committed an offence. She would have had access to the Council file, including reports and witness statements. Much as a police officer may rely on information from other police officers to establish good cause to suspect a person has committed an offence, Ms Riley was entitled to rely on such information as a basis for her suspicion.4
[31] There is no requirement in s 28 of the Criminal Procedure Act for Ms Riley to have signed the charging document. It was clearly signed by Mr Williams, the Chief Executive of the Council.
[32] There is, however, no evidence from the Court file as to who filed the charging document. It may have been Ms Riley. Again, this was not an issue raised in the District Court and, accordingly, cannot technically be raised on appeal.5 If it was an issue in the District Court then the Council could have led evidence, if necessary. It did not have that opportunity and cannot be prejudiced on appeal.
[33] Regardless, s 379 of the Criminal Procedure Act protects proceedings from being dismissed for want of form so long as the deficiency does not give rise to a
3 Police v Anderson [1972] NZLR 233 (CA) at 242–243.
4 R v Briggs [2009] NZCA 244.
5 Clarke v Ministry of Social Development, above n 2.
miscarriage of justice. There is no risk of a miscarriage of justice here even if there were a procedural defect under s 28. Accordingly, in line with the Supreme Court’s interpretation of that section as protecting proceedings unless the defect has caused significant prejudice to the person affected, in my view any defect under s 28 would not impact the outcome of this proceeding.6 This provision runs contrary to Mr Haddock’s submission that if the Council did not comply with the sections referred to then the prosecution would be a nullity.
Process
[34] Mr Haddock made a formal written request, dated 11 October 2016, for additional full and specific disclosure under the Criminal Disclosure Act 2008. It is difficult to summarise the 12 page document, but it makes reference to the
1835 Declaration of Independence, the 1840 Treaty of Waitangi, a wide variety of New Zealand legislation, the Bible, the Universal Declaration of Human Rights and case law. It contains a variety of submissions, including the following:
(w) Thames Coromandel District Council, and Robert Williams Prosecutor, have not establish authority of supremacy of the Maori Native customary specific jurisdiction and of unextinguished native customary title and unextinguished native customary values and practices Tikanga of Tama Te Po Hapu, and Nga Uri Whakatupuranga o Maukoro Hapu Maori Incorporation. Until the land status being Maori customary native title of the Hauraki native district is lawfully extinguished. I rebut all points in the pretend notice to fix no: 0112 dated 4th February 2016 issued by Andy Fletcher Senior Building compliance on behalf of pretend Thames Coromandel District Council. And for your reference Andrew Fletcher holds the pretend warrant. Rebut charging document CRN: 16075500131 on the
10th August 2016, and summons to defendant s28-29 Criminal Procedure Act
2011 to name Anthony John Haddock. I rebut summary of facts dated 24th
August 2016, and I rebut the claim of Robert Williams, TCDC authority in bundle documents that has no index from Deborah Riley doing business as Brookfields Lawyers dated 29th September 2016 on the unextinguished native customary title Prima facie evidence: Due process is not being followed referring to the documents dated 29th September 2016 in which Deborah Riley’s response is not a sworn affidavit and is not rebutting point- by-point with evidence the contents of the Urgent Notice for Full and Specific Disclosure dated 19th September 2016 and the prima facie evidence provided, in BLACK’S LAW Dictionary 9th Edition at page 639 definition of rebuttal evidence: (1859) Evidence offered to disprove or contradict the evidence presented by an opposing party. Rebuttal evidence is introduced in the rebutting party’s answering case; it is not adduced, e.g., through cross- examination during the case-in-chief of the party to be rebutted. Also termed
6 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [129].
rebutting evidence. [Cases: Criminal Law (˃ 683; Federal Civil Procedure
C=~) 2015; Trial (˃ 62.)
[35] The document then purports to give notice of various matters, such as:
4.This Notice stands upon the requirement for notarised specific proof of any conclusive evidence that any general powers of authority or warrant for specific native customary jurisdiction, and specific written constitutional arrangements over Maori, and their Whangai and their customary native values and practices under tikanga kawa on the unextinguished native customary title that have been enacted by letters patent, and specifically, and expressly consented by Her Majesty Queen Elizabeth II of England, United Kingdom or by persons appointed by Her Grace, upon the New Zealand Company Parliament, specific proof of any conclusive documented evidence of a New Zealand Gazette notice by way of the Governor General’s order in Council for New Zealand Parliament, Attorney General, responsible Chief Executive Ministers, Judges, Police, Police Crown Prosecutions or any others in relation to presumed stipulation of native customary jurisdiction asserted against Rangatira Anthony John Haddock of Tama Te Po Hapu on the whenua/land unextinguished of its Native customary title;
[36] The document then refers to what is said to be prima facie evidence, such as:
6.Prima facie evidence: Lord Philamore did say in the case “Hineiti Rirerire Arani vs Public Trustee in 1919 … that Maori Laws, Customs and Usages enjoyed legal status in European Colonial Courts, in the absence of any statute enacted by the people Maori, to say otherwise …” therefore hereto being the precedent behind the quote …there is no law in New Zealand unless Maori so say;
[37] Finally, the document lists further material sought by Mr Haddock.
[38] The Council’s lawyers responded by letter dated 18 October 2016 as follows:
1.We are in receipt of your correspondence dated 11 October 2016 headed “Urgent Notice for Additional Full and Specific Disclosure” and its accompanying affidavit dated 14 October 2016.
2.We provided you with the relevant documents on the Council’s file by letter dated 29 September 2016 in accordance with the requirements of the Criminal Disclosure Act 2008.
3.The additional information that you request is not relevant nor is it required to be provided under that Act. Accordingly, we will not be providing any of the additional information requested.
4.Please direct all further correspondence to the Council regarding this matter to us.
[39] Sections 12, 13 and 14 of the Criminal Disclosure Act are the principal sections setting out the disclosure obligations of a prosecutor. Section 12 deals with initial disclosure, requiring the prosecutor to disclose specified information to the defendant at the commencement of criminal proceedings, or as soon as practicable after that time. Section 13 provides for full disclosure of information specified in s
13(3), which is to be provided as soon as reasonably practicable after a defendant has pleaded not guilty.
[40] Finally, s 14 allows a defendant to make a request for additional disclosure of particular information identified by the defendant after the duty under s 13 has arisen. The prosecution must provide this information unless it is not relevant, withheld under s 15, 16, 17 or 18, or the request appears frivolous or vexatious. The prosecutor must provide a reason for declining any request.
[41] Mr Haddock does not complain that he did not receive the standard disclosure specified in s 12 or the full disclosure specified in s 13. The formal written request for additional disclosure served on the Council by Mr Haddock can be characterised as being made under s 14(1). There are two reasons why the prosecution was not in breach of this section.
[42] First, the Council’s response relied on s 14(2)(a), which allows a prosecutor to refuse a request where the information is not relevant. With all due respect to Mr Haddock, I am of the view that the Council’s response was an appropriate response to the “Urgent Notice for Additional, Full and Specific Disclosure” served on it by Mr Haddock. The information sought as to details of the original native title to the land in question was not relevant to the prosecution, as will become clear when I address the issue of native title.
[43] Secondly, some of the documents sought did not exist or were not in the Council’s possession. The purpose of the Criminal Disclosure Act “is to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal
proceedings”.7 It seeks to ensure that the defendant is aware of the nature and extent of the allegation against them, and in a position to prepare their defence properly.
[44] Heath J summarised the regime as one that “requires the prosecution to disclose information in its possession or under its control”.8 It protects the defendant’s rights to a fair trial. It does not, however, oblige the prosecutor to rely on particular pieces of evidence in developing their case. This is, in effect, what Mr Haddock is seeking. He is of the view that the prosecution needed to adduce certain evidence to demonstrate that native title has been extinguished in order to
prove their case. He sought to require the prosecution to produce such evidence, notwithstanding that they did not seek to rely on it. But this is not a matter relevant to the disclosure regime. Whether sufficient evidence has been produced to prove the prosecution’s case is a matter for trial.
[45] As to the proposed evidence to be given by Mr Williams, at the conclusion of the prosecution case in the District Court, when asked whether he wanted to give or call evidence, Mr Haddock stated:
I only have a legal argument as this land is, has been established to be stolen
land and everybody that’s in a party of this matter is guilty of theft I believe.
[46] Mr Haddock then told the District Court Judge that he had a witness who was able to give evidence about the title to the land in question and how it was unextinguished native title. The District Court Judge told Mr Haddock that was not evidence, but a legal matter, but made it clear to Mr Haddock that he could advance legal argument about the status of the land without calling Mr Williams to give evidence, which he did. I see no error in the Judge’s response that he could call a witness to give factual evidence but not legal argument.
Native Title
[47] Mr Haddock’s arguments relating to the failure of the prosecutor to prove that
native title had been extinguished face two major problems. Mr Haddock did refer me to early decisions of the Privy Council, which had been favourable in certain
7 Criminal Disclosure Act, s 3(1).
8 R v Sullivan (No 7) [2014] NZHC 925 at [4].
respects to the recognition of Tikanga Māori and native title to land.9 However, those cases have no effect on the application of the Land Transfer Act 1952 and the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act
2002.
[48] Section 34 of the Land Transfer (Computer Registers and Electronic
Lodgement) Amendment Act (the Amendment Act) provides:
34 Evidentiary effect of certificates of title and computer registers
(1) This section applies to a document or instrument that—
(a) either—
(i) appears to record the contents of a computer register under this Act; or
(ii) if the land is not electronic transactions land, appears to be in the form prescribed for a certificate of title; and
(b) does not appear to have been altered in any way. (2) The document or instrument—
(a) must be received in all courts as evidence of—
(i) the information it contains; and
(ii) the recording of that information in the register; and
(b) is conclusive evidence that, at the time it was issued, the information shown on it identified all of the interests and other matters in the computer register concerned; and
(c) unless the contrary is proved by the production of a statement by the Registrar under subsection (3), is conclusive evidence that—
(i) the person named in the certificate or computer register (or in any information forming part of it) as holding an estate or interest in land to which it relates holds that estate or interest as from the date of the certificate or as from the date from which it is expressed to take effect; and
(ii) the land to which it relates is subject to the principal
Act and this Act.
9 Tamaki v Baker[1901] AC 561, (1901) NZPCC 371.
(3) In the absence of proof to the contrary, a statement certified by or on behalf of the Registrar as to any matters recorded under this Act is conclusive evidence of those matters.
(4) In the absence of proof to the contrary, the fact that a statement relating to any matter referred to in subsection (3) purports to be certified by or on behalf of the Registrar is conclusive evidence that it is certified by or on behalf of the Registrar.
[49] This section establishes that a certificate of title or a copy of the electronic record of the computer register showing a person as being the registered proprietor of land must be treated by a court as conclusive evidence of proprietorship. This replaced s 75 of the Land Transfer Act 1952, now obsolete, preserving the effect of that section for all land.10 The effect of this section is to reverse the usual onus of proof and require anyone challenging ownership of a registered proprietor to prove that the details on the electronic record or certificate of title are incorrect.
[50] Mr Haddock is registered as proprietor of the land in question and I am therefore required to treat him as the owner of the fee simple estate as provided on the register. Mr Haddock’s submission that the onus of proof is on the prosecutor to show that native title has been extinguished wrongly reverses the onus of proof. It is for Mr Haddock to establish that native title to the land in question has not been extinguished, that the land has been wrongly registered under the Land Transfer Act and that he himself has been wrongly registered as the proprietor on the certificate of title. The failure to recognise or to acknowledge that he carries the burden of proof has meant that there is no evidence before the Court to prove what Mr Haddock asserts, namely that native title to the land in question has not been extinguished.
[51] The second major problem for Mr Haddock is that even if native title to the land in question has not been extinguished, the Building Act 2004 would still apply to it. The land is clearly property as defined in the Act.11 One of the cases relied upon by Mr Haddock was Attorney-General v Ngati Apa in which the Court of Appeal held that the radical title acquired by the Crown on cession of sovereignty
was not inconsistent with common law recognition of native property rights, which
10 See discussion by Duffy J in Craig v Hannah HC Whangarei CIV-2009-488-000501, 21 August
2009 at [12].
11 Building Act 2004, s 7.
continued until lawfully extinguished.12 The Court of Appeal made it plain, however, that the exercise of any interests in Maori customary property was subject to the management of the coastal marine area under the Resource Management Act
1991, but that Act did not extinguish any such property.
[52] In a like manner, whatever native property rights exist over the land in question, the Building Act still applies to it.
Constitutional lines of authority
[53] In the end, Mr Haddock’s defence rests on the submission that native title cannot have been validly extinguished by the Government, including by the Land Transfer Act. This is a challenge to Parliament’s sovereignty, and reflects Mr Haddock’s other submissions that Parliament cannot make legislation that applies to native people or native land.
[54] The New Zealand Courts have, however, long treated Crown sovereignty over New Zealand as authoritatively established. The Court of Appeal in New Zealand Maori Council v Attorney-General observed:13
It now seems widely accepted as a matter of colonial law and international law that those proclamations [by Captain Hobson on 21 May 1840] approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand.
[55] As a result, this court has no jurisdiction to question the authority of Parliament to pass legislation, including to extinguish native title. This includes where legislation alters the previous common law position. In Creeks v R the full court of the High Court affirmed that the question was not justiciable:14
[7] The Court of Appeal has made it clear that the courts are not the forum for a fundamental challenge to the entire constitutional structure of the country or for political campaigns of the sort the appellants are waging. Maori sovereignty can be the subject of debate in Parliament. The Waitangi Tribunal may be prepared to consider it. It can be debated in public meetings
12 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA). Native property rights are, however, to be distinguished from title to the land in question, which is clearly vested in Mr Haddock.
13 New Zealand Maori Council v Attorney-General (the SOEs case) [1987] 1 NZLR 641 at 671.
14 Creeks v R HC Auckland A138/00, 6 November 2000 at [7].
or the media. It may be the subject of lawful protest. But an assertion of Maori sovereignty does not raise a justiciable question. It cannot succeed in the general courts of New Zealand.
[56] In R v Knowles, the Court of Appeal had stated:15
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 s 15(1) of the Constitution Act says.
[57] It was by exercise of those powers that the New Zealand Parliament enacted both the Land Transfer Act and the Building Act under which Mr Haddock has been convicted. Faced with that orthodox exercise of the law making power of Parliament, this court, like all other courts, is obliged to give effect to the terms of the two Acts. The court cannot read down those full powers of Parliament to make laws by reference to the historical documents to which Mr Haddock referred.
[58] None of the points raised by Mr Haddock can be substantiated. The appeal against conviction is therefore dismissed.
Sentence
[59] As to sentence, Mr Haddock submits that the fine should be no more than
$1,000 by reference to a letter that the Council wrote at the time, dated 4 February
2016 and addressed to him by Andy Fletcher. That letter stated:
Please be aware that if this notice to fix is not complied with or discussion entered into by the date given on the notice you will be liable for an infringement of $1,000 pursuant to s 168 of the Building Act 2004 for failing to comply with the notice to fix.
[60] Section 168 of the Building Act in fact provides that a person who commits an offence by failing to comply with a notice to fix is liable on conviction to a fine not exceeding $200,000 (not $1,000) and in the case of continuing offence to a further fine not exceeding $20,000 for every day during which the offence continues.
[61] However, the offence of failing to comply with a notice to fix is also an infringement offence under the Building (Infringement Offences Fees and Forms)
15 R v Knowles CA 146/98, 12 October 1998 at 2.
Regulations 2007. As a result, the Council had the choice to proceed against Mr Haddock as a person alleged to have committed the infringement offence in one of two ways: either by filing a charging document under s 14 of the Criminal Procedure Act, in which case the maximum fine is $200,000, or by an serving him with an infringement notice, in which case the fee payable is only $1,000.16 The choice between the two proceedings was entirely a matter of discretion for the Council.
[62] In setting the level of the fine at $15,000, the District Court Judge had reference to the case of Wilson v Fowler as the leading guidance in terms of a starting point as to the appropriate fine.17 The Council’s lawyer submitted that following Wilson v Fowler the guideline starting point for offences involving the failure to comply with a notice to fix is a fine of $10,000. The Council’s lawyer submitted that there were a number of aggravating factors present. The Council’s
lawyer submitted that an uplift of 50 per cent should be made for those aggravating features which would result in a fine $15,000, 7.5 per cent of the maximum. The District Court Judge adopted this approach.
[63] The penalty imposed in Wilson v Fowler was, however, an overall monetary penalty of $5,000 spread over eight informations upon which the appellant was convicted. The appellant in that case had been defiant over a number of months, had ignored a number of notices and had created the potential for collapse of a public road as a consequence of the dimension of excavation work undertaken without
consent. Giles J noted that:18
That could have exposed citizens lawfully upon the road to danger. Collapse of the roadway itself would have had dire consequences, financial and disruptive, to the Council and its citizens. The potential for collapse of the land could have impacted upon the respondent.
By contrast, there is no suggestion in the present case that the relocated house posed any danger. The District Court Judge noted that there was no evidence to indicate
the house was not safe or sanitary.
16 Building Act 2004, s 371.
17 Wilson v Fowler HC Auckland AP203/98, 16 March 1999.
18 At 12.
[64] Also relevant, as noted in Wilson v Fowler,19 is s 40 of the Sentencing Act
2002, which provides that in determining the amount of a fine, the court must take into account the financial capacity of the offender. It is well established that where the only penalty available is a fine the court should not impose a financial penalty beyond the means of the defendant, which might inevitably lead to imprisonment through the back door route of non-payment. Section 40 does not, however, limit a sentencing court to a fine which a defendant could afford to pay. In assessing the financial capacity of an offender, the court is entitled to take a broad approach and to address both income and assets.
[65] In her sentencing remarks, the District Court Judge noted that Mr Haddock was not employed. He had no income and he told the Judge that he received no benefit. On the other hand, the certificate of title records that Mr Haddock owns the land comprising of 13.4233 hectares unencumbered by any mortgage. He did advise the Court, however, that he had gifted the land back to his marae and that the land was utilised by all of his hapū.
[66] I am of the view that the letter advising Mr Haddock that he was liable to a fee of $1,000 if he did not comply with the notice to fix is also of relevance in assessing the penalty to be imposed. Mr Haddock’s approach to the issue may have differed somewhat if he knew he was liable to a maximum fine of $200,000 rather than a $1,000 infringement fee.
[67] In the circumstances I am of the view that the fine of $15,000 is manifestly excessive. First, because no account was taken by the District Court Judge of Mr Haddock’s ability to pay such a fine and, second, because the Council advised Mr Haddock that he was liable to an infringement fee of only $1,000.
[68] In those circumstances, the appropriate fine is $5,000. Although Mr Haddock has no declared income, he has a substantial unencumbered property. Moreover, it appears to me that Mr Haddock does have the ability to work, having
previously had his own contracting business. Costs of $1,000 are to remain. The
19 In respect of a preceding version of that section, Criminal Justice Act 1985, s 27.
total of the penalty and costs imposed on Mr Haddock is, therefore, $6,000 rather than $16,000.
[69] The appeal against sentence is allowed to that extent.
Woolford J
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