Kanapu v Police - [2016] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-39 [2016] NZHC 143

MARSHALL MAIHI KANAPU

v

NEW ZEALAND POLICE

Hearing: 3 February 2016

Appearances:

Mr Kanapu in person
M A Jarman-Taylor and J W Wall for the Respondent

Judgment:

12 February 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 12 February 2016 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Marsden Woods Inskip & Smith, Whangarei.

KANAPU v NEW ZEALAND POLICE [2016] NZHC 143 [12 February 2016]

Introduction

[1] Mr Marshall Kanapu has been convicted and sentenced on one charge of possession of cannabis for the purpose of supply, under s 6(1)(f) of the Misuse of Drugs Act 1975.1 He now appeals his conviction and sentence on the grounds that the Court had no jurisdiction over him as tangata whenua.

Factual background

[2] Mr Kanapu does not challenge the factual basis of his conviction.

[3] The Police arrived at Mr Kanapu’s address, and, when they searched it, they found a quantity of cannabis and some pre-cut tinfoil. The Crown submissions record that what was found consisted of more than 20 cannabis tinnies and over 40 grams of loose cannabis head. Tinfoil, ziplock plastic bags and a tick list were also discovered.

[4] A hearing was conducted before Judge Harvey on 25 March 2015. Mr Kanapu appeared, self-represented, to defend the charge. He explained that he sought to defend the charge on the basis of “a stipulation for rightful jurisdiction”, claiming that the Court had no jurisdiction over him. Judge Harvey explained that he could not accept arguments based on sovereignty. Mr Kanapu did not give or challenge any evidence.

[5] On 7 July 2015, Mr Kanapu appeared before Judge Harvey for sentencing. Judge Harvey imposed a sentence of six months’ home detention, and 250 hours of community work. That sentence was cumulative on a six months’ home detention sentence which had already been imposed on Mr Kanapu for unrelated domestic
violence charges. These were Mr Kanapu’s first incidents of offending since 1988.

1 The maximum sentence for possession of a class C drug for the purpose of supply is 8 years imprisonment.

[6] Mr Kanapu filed his appeal out of time, on 23 October 2015. He explained that the delay was as a result of his home detention sentence which “destructed the pursuit of this information and obtaining as well”.

Appellant’s submissions

[7] No written submissions were received from the appellant. He continued to rely on a “Memorandus for Jurisdiction” dated 21 October 2014 although emphasised in his oral submissions what he considered to be the breach by the Crown of its partnership obligations to Māori.

[8] Mr Kanapu essentially claimed that the Court has never had jurisdiction over tangata whenua of New Zealand. Any statutes purporting to do so are unconstitutional, and void ab initio, meaning Māori are only subject to Māori law, he said.

Respondent’s submissions

[9] The Crown submitted that leave should not be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kanapu v Police

Details

AGLC: Kanapu v Police [2016] NZHC 143
Case: [2016] NZHC 143
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Marshall Maihi Kanapu appealed against his conviction and sentence for possession of cannabis for the purpose of supply. The appeal was heard on 3 February 2016 and the judgment was delivered by Thomas J on 12 February 2016. Kanapu contended that the Court had no jurisdiction over him as a tangata whenua and the appeal was filed out of time. The Crown argued that leave should not be granted as there was no explanation for the delay and the appeal was without merit. The High Court considered the appeal against conviction first, noting that it is well-established that New Zealand Courts have jurisdiction over all people in New Zealand who have committed crimes and that the Courts are bound constitutionally and legally to uphold and follow the laws passed by the New Zealand Parliament. The Court found no basis for Kanapu's claim that the District Court did not have jurisdiction over him. The Court then turned to the appeal against sentence, finding that the sentence imposed was not manifestly excessive and was in fact relatively generous given the quantity of cannabis in Kanapu's possession. The appeal against conviction and sentence was dismissed.

Orders