Harawira v The Queen

[2005] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/05

THE QUEEN

v

KAHI TARIMOANA HARAWIRA

Court:Glazebrook, Chambers and O'Regan JJ

Counsel:Applicant in Person

A M Powell for Crown

Judgment:1 August 2005 

(On the papers)

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by Chambers J)

Failure to wear a seatbelt

[1]        On 29 July last year, Kahi Harawira, the applicant, was served with an infringement notice, alleging that he had committed an offence on Puckey Avenue, Kaitaia, by occupying a seat in a motor vehicle which was fitted with a seatbelt and by not wearing that seatbelt securely fastened.  That was at the time an offence under regs 30B(2) and 136(g) of the Traffic Regulations 1976. 

[2]        A defended hearing took place in the District Court at Kaitaia on 6 December last year.  The Justices of the Peace found Mr Harawira was guilty of the infringement offence.  He was fined $150, plus court costs of $30. 

[3]        Mr Harawira appealed to the High Court.  He challenged the District Court decision on the ground that “he did not commit an offence because he was driving on private land”: Harawira v NZ Police HC WHA AP05/05 23 February 2005 at [3].  That was because Mr Harawira challenges the current constitutional order: he asserts that the property on which the alleged offence occurred has never been lawfully transferred from Maori.  The argument had nothing to do with the status of Puckey Avenue itself; rather it is part of a broader proposition that Maori have never ceded sovereignty, with the consequence that the land in this country remains “our land” (i.e. Maori land). 

[4] Given the nature of the ground of appeal, it is no wonder that Nicholson J dismissed it. Nicholson J categorised Mr Harawira’s submission as being “in essence, that he is not subject to the law of New Zealand as made by the New Zealand Parliament”: at [4]. His Honour described this as a “very basic challenge”: at [5]. It was clearly a challenge which, on the authorities, could not be sustained.

[5]        Mr Harawira subsequently applied for leave to appeal to this court under s 144 of the Summary Proceedings Act 1957.  Nicholson J declined leave to appeal: Harawira v NZ Police HC WHA AP05/05 4 May 2005. 

Application for special leave

[6]        Mr Harawira now applies for special leave to appeal to this court under s 144(3) of the Summary Proceedings Act.  In order to be granted leave, Mr Harawira must show that there is a “question of law involved in the appeal…which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.

[7]        The application was set down for hearing on 25 July 2005.  Mr Harawira advised the registrar that he was unable to afford to travel to Wellington for the hearing of his application.  He said that he did not want an oral hearing and was content that the application be dealt with on the papers.  So it has been.  Mr Harawira had filed full submissions with his application for special leave.  As well as Mr Harawira's submissions, we have had the benefit of written submissions from the Crown. 

Grounds of application

[8]        The principal ground of appeal remains as it was before Nicholson J.  Mr Harawira stated the question to be “whether Parliament is sovereign”.  Mr Harawira expanded on that argument at some length.  In essence, it is his position that Maori never ceded sovereignty, with the consequence that Parliament’s right to enact laws is “a fiction constructed for convenience”.  Mr Harawira describes the concept of the sovereignty of Parliament as “a fabrication based on pretence”.  This challenge to sovereignty has frequently been raised by Maori in recent cases in the High Court and this court.  This court has repeatedly said that it is not an issue which can be addressed and resolved by the courts: see, by way of example, Knowles v Police CA146/98 12 October 1998 and R v Mitchell CA68/04 23 August 2004.  As was said in both those cases, the issues which Mr Harawira seeks to raise are matters “for public and political processes and not for judicial ones”.

[9]        Mr Harawira’s second question is “whether Maori are entitled (a) to own property; (b) to be free from discrimination; (c) to equal treatment”.  Maori have all those rights, along with other New Zealanders.  This case is not concerned with any of those matters. 

[10]      Mr Harawira’s third point was “whether the accused has the right to be presumed innocent”.  An accused does have such right.  It was because of that right that Mr Harawira had the right, if he wanted it, to a hearing before the District Court.  He took part in that hearing.  A police officer gave evidence that he had seen Mr Harawira in the car not wearing his seatbelt.  Mr Harawira cross-examined him.  It was only after the District Court had heard all the evidence and considered it that it pronounced itself satisfied that the infringement offence had been proved beyond reasonable doubt.

[11]      The test under s 144(3) has not been met.

Conclusion

[12]      We dismiss the application for special leave.

Solicitors:
Crown Law Office, Wellington