Kohai v Police - [2014] NZHC 2421

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000021 [2014] NZHC 2421

DEREK MARK KOHAI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 30 September 2014

Appearances:

Appellant in Person
Richard Jenson for the Respondent

Judgment:

3 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by on 3 October 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

KOHAI v NEW ZEALAND POLICE [2014] NZHC 2421 [3 October 2014]

Introduction

[1] The appellant, Mr Kohai, was found guilty of two charges; breach of protection order and assault on a child. He was sentenced to 160 hours community service on both charges.1 On the assault charge he was also sentenced to pay $300 emotional harm reparation. Mr Kohai appeals both his conviction and sentence.

Appeal Grounds

[2] Essentially Mr Kohai advances his appeals on two grounds.

(a) First, he submits this Court has no jurisdiction. He bases this argument on his claim he is not a person, but a sovereign de jure, born of the Land of Aotearoa. He submits that the New Zealand courts are only “contracts for persons” and that the charges against him were brought unlawfully as the “fiction stillborn Mark Kohai, has no ongoing arrangement with the State”.

(b)Secondly he submits the Police failed to provide full disclosure of all evidence for the amicus curiae and the appellant.

Appeal against Conviction

Lack of Jurisdiction

[3] Mr Kohai submits the Court has no jurisdiction over him as a sovereign de jure. In his affidavit in support he submits that Maori sovereignty was established in
1835 with the signing of the Declaration of Independence and has not been ceded to the Crown. Mr Kohai refers to a comprehensive range of legal instruments in support of his argument.

[4] It is trite law that the New Zealand Parliament is empowered to make legislation.2 Accordingly, Acts of Parliament are binding on all persons within the
territory of New Zealand. The Courts are subservient to Parliament and must apply

1 Ordered to be served concurrently.
2 Warren v Police HC HAM AP 133/99, 9 February 2000, Penlington J at [39].

an Act of Parliament in the terms in which it has been enacted.3 A claim to a right to be judged in accordance with a separate law is a political and constitutional issue which cannot be resolved by the Courts.4

[5] In R v Toia the Court of Appeal considered a series of arguments as to Maori sovereignty claims which are relevant to the present case.5 The Court held that:6

(a) The crimes with which the appellant was charged are all under the Crimes Act 1961 which, in terms of s 5, applies to all offences for which the offender may be proceeded against and tried in New Zealand and to all acts done or omitted in New Zealand.

(b) The Crimes Act 1961 was enacted by the New Zealand Parliament which has sovereign power…

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.

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Details

Case: [2014] NZHC 2421
Decision Date: 3 October 2014

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against conviction and sentence brought by Mr Kohai against the New Zealand Police. Mr Kohai was found guilty of breach of a protection order and assault on a child, for which he received a sentence of 160 hours community service and $300 emotional harm reparation. The appeal was heard on 30 September 2014, with the appellant appearing in person and the respondent represented by Richard Jenson. The judgment was delivered on 3 October 2014.

Mr Kohai advanced two grounds of appeal: firstly, he argued that the Court lacked jurisdiction over him because he is a sovereign de jure rather than a person, and secondly, he claimed that the Police had failed to provide full disclosure of all evidence. The court found that Mr Kohai’s claim of sovereign immunity could not succeed, as the Crimes Act 1961 applies to all offences committed in New Zealand, and the New Zealand Parliament has sovereign legislative power. Additionally, the court held that any lack of disclosure by the Police did not result in a miscarriage of justice, as Mr Kohai’s own evidence showed that no complaint was made during the relevant time period.

The appeal against conviction was dismissed, and the appeal against sentence was not pursued at the hearing. The court noted that the sentence was lenient, falling within the range available to the judge, and was appropriate considering the circumstances of the assault.

Orders