Hapi aka Morunga v Police

[2016] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000015 [2016] NZHC 1360

BETWEEN

LEE HAPI aka LEE MORUNGA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 June 2016
Appearances:	Appellant in person M Dillon for the Respondent
Judgment:	22 June 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 22 June 2016 at 12:30 p.m. pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Almao Douch (Crown Solicitor), Hamilton

Copy to:            Appellant

HAPI aka MORUNGA v POLICE [2016] NZHC 1360 [22 June 2016]

[1]      Following   a   defended   hearing   in   the   Hamilton   District   Court   on

26 November 2015 before Judge MLSF Burnett, Mr Hapi was, on 27 November

2015, found guilty by the Judge of one charge of driving a motor vehicle on State Highway 1 while disqualified from holding or obtaining a driver’s licence, having been convicted at least twice previously of a similar offence, and one charge of threatening to injure named police constables with intent to intimidate them and knowing that his conduct was likely to reasonably intimidate them.

[2]      On 29 January 2016 Mr Hapi was sentenced to 16 months imprisonment, which he has now served, having been released on 2 May 2016.   He nonetheless appeals against conviction and sentence.

Discussion

[3]      The grounds of appeal were not specified in the notice of appeal.  Mr Hapi had written as the grounds of his appeal “Evidence shows in the decision by Judge Tompkins”.  At the outset of the hearing, I therefore asked Mr Hapi to advise me of his specific grounds of appeal.  He said that his rights as a native inhabitant had been violated or totally disregarded by Judge Burnett in that he had the right to travel freely on land which was unextinguished native title land.  He also said that Judge Burnett failed to appreciate the significance of sovereign traveller’s permits that have been registered in the Legislative Council as occupiers of the native title land.

[4]      When I asked him for a copy of a sovereign traveller’s permit, he said that he did not have a copy of such a permit on him, but said that he had given a copy to the authorities.  In any event, he had one on his car, which he could take off and bring in as evidence.

[5]      Mr Hapi also referred me to two documents – an oral judgment of Judge J C Down, dated 26 November 2015, and a minute of Judge C M Ryan, dated 21 March

2016, in respect of a defendant named as Peter Alfred Hynes.   Mr Hapi drew my attention to the comments in those documents about traveller’s permits.

[6]      He also said that he is not relying on any contracts issued by this government or  by  government  departments.    By  that  he  meant  documents  such  as  driver’s

licences.   Finally, he also said that there is no evidence of native title being extinguished in respect of the land on which he was travelling and, in any event, native title was unextinguishable.  He was not a resident or a visitor, but an owner of the land.

[7]      This argument was specifically addressed by Judge J C Down in the case of Police v Hynes1.  I can do nothing more than repeat the words of Judge Down with whom I completely agree:

[5]       The nub of the argument put forward by Mr Hynes is that all land in New Zealand is Maori customary land, that there is no evidence produced by the  prosecution or  by the Court that  that  has changed  in  any way,  and therefore he is entitled to travel over land which he regards as Maori customary land.

[6]       I have also been shown a travel permit that is issued to Peter Hynes. It is dated 22 April 2008 and purports to allow Mr Hynes to travel freely by motor cycle, car, light or heavy trade vehicle or passenger vehicle over Maori customary land.   Given that the primary submission made by Mr Hynes is that all land in New Zealand is Maori customary land and that has never  been  ceded  to  the  government,  he  is  therefore  and  was  therefore entitled on the day in question to travel in whatever way he deemed appropriate.

[7]       The charge that is brought today is under the Land Transport Act

1998 under sections 32(1) and (3).  It is law to which all residents or visitors to  New  Zealand  are  subject.    This  claim  of  sovereignty  is  brought  to

undermine the very foundation of the criminal justice system here in New

Zealand.  The reality is that I must obey Parliament and all of the Courts that are superior to me.  Only Parliament is able to make laws empowered by the proclamation  of  the  21st    of  May  1840,  by  Captain  Hobson  and  the acquisition of New Zealand by the Crown gazetted in the London Gazette on

2  October  1840  which  authoritively established  Crown  sovereignty over New Zealand.  That has been re-asserted by the Courts in New Zealand on numberous occasions, refer New Zealand Maori Council v Attorney- General.2

[8]       The Courts of New Zealand must uphold all acts of Parliament as enacted, regardless of any attack on the assumptions or procedures which might have led to their enactment.

[9]       The Land Transport Act is one such act of Parliament.  The Court has power to deal with all actions that may amount to criminal or traffic offences in this country, and all New Zealanders are, in my judgment, thus subject to one national criminal Court system.

[10]      The Courts are not the forum for a fundamental challenge to the entire constitutional structure of New Zealand or for political campaigns. 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 or the media.   It may be the subject of lawful protest but an assertion of law as to Maori sovereignty does not raise a justiciable question in this Court.  It cannot succeed in the general Courts of New Zealand, and I rely upon Creeks v R.3

[11]      For these reasons your challenge to the jurisdiction of this Court, Peter Hynes, is rejected and your challenge fails.

[8]      Mr Hapi seeks to distinguish this decision on  the basis that he is not a resident or visitor to New Zealand, but rather an owner.  I am of the view that even if he may be an owner of some description, he is still a resident of New Zealand and subject to its laws.

[9]      Mr Hapi has raised this issue in a slightly different form previously.  In Lee Hapi v New Zealand Police, Asher J rejected a similar challenge stating that a rejection of the sovereignty of this Court does not raise a justiciable issue and that these are political and constitutional arguments which are to be debated in a political forum, but not in the Courts.4

[10]     No other grounds of appeal having been raised, the appeal is dismissed.

……………………………….

Woolford J