M v Police HC Rotorua CRI 2009-463-94

[2009] NZHC 2207

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-94

CRI 2009-463-95

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 December 2009

Appearances: Appellant in person

Sarah-Louise Wootton for Respondent

Judgment:      8 December 2009

JUDGMENT OF HARRISON J

In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of

4:30 pm on 8 December 2009

SOLICITORS

Gordon Pilditch (Rotorua) for Respondent

(copy to Appellant in person)

M V POLICE HC ROT CRI 2009-463-94  8 December 2009

Introduction

[1]      Mr M   appeals against his convictions in the District Court at Rotorua on two charges of trespass and three of being a parent of two children who failed to attend Murupara primary school without good reason.

Facts

[2]      The material facts are not in dispute.   On 15 July 2008 Mr M   was served with a trespass notice by a police officer.   The police were acting as agent with delegated authority from the lawful occupiers of Kaingaroa forest.  The notice directed Mr M   to stay off all Kaingaroa forest land for a period of two years.

[3]      On  15  January  2009  Mr  M    was  located  at  Railway  Road  in  the Kaingaroa forest in breach of the trespass notice.   When questioned by a police officer, Mr M   claimed that, first, he was not the person named in the notice and, second, he was not trespassing as he was rightfully there.  He claimed Tangata Whenua rights.  On 12 March 2009 Mr M   again entered the forest in breach of the trespass notice.

[4]      The  police  charged  Mr  M    with  the  offence  of  trespassing  and subsequently with being a parent or caregiver of two children who failed to attend Murupara school without good reason for a minimum four hour period or more.

District Court

[5]      Mr M   refused to acknowledge the District Court when he appeared. He maintained his claim to be a sovereign being over whom the Court had no jurisdiction.  Pleas of not guilty were entered on his behalf.

[6]      Mr  M    did  not  dispute  the  factual  elements  of  the  charges  at  the defended hearing.   Instead he gave evidence by reading out a lengthy affidavit or

declaration which had been sworn previously.  It is unnecessary to recite its contents. They occupy 11 uninterrupted pages of the evidential transcript.

[7]      Judge McGuire, relying on authority in this Court, dismissed Mr M  's denial of the District Court's jurisdiction.  The Judge found that he had breached the trespass notice on both occasions: ss 4(4) and 11(2) Trespass Act 1980.

[8]      At a separate hearing that day the Judge also heard unchallenged evidence from officers from the Ministry of Education and CYFS in support of the charges of breaches  of  s 25(1)  Education  Act  1989.     Again  he  dismissed  Mr M  's sovereignty defence.

[9]      Judge McGuire entered convictions on all five charges.

Decision

[10]     Today Mr M   has repeated the same arguments which he advanced before Judge McGuire in support of his appeal against conviction.  The affidavit is comprehensive  and  covers  a  wide  range  of  legal  territory,  both  statutory  and common law.   It is not easy to discern a coherent legal argument but its essence, which Mr M   confirmed in oral argument, is that he is a sovereign being who is subject to higher laws than those administered by this Court.  He does not recognise this Court's jurisdiction.

[11]     Mr M  's submission ranged over arguments with which this and other Courts are well familiar.  At its core is an assertion of sovereignty.  As Ms Wootton points out for the Crown, the law is settled by the Court of Appeal, by which the District Court and this Court are bound.  It is sufficient for these purposes to refer only to R v Brown [2007] NZCA 5 at [7]:

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 it is not an issue which can be addressed and resolved by the courts: see, by way of example, R v Knowles CA146/98 12 October 1998, R v Mitchell CA68/04

23 August 2004, and R v Harawira CA180/05 1 August 2005. As was said in all those cases, the issues which Mr Brown seeks to raise are matters 'for

public and political processes and not for judicial ones'.

[12]     It is well settled, as Ms Wootton submits, that acts of Parliament, which create the criminal law and confer criminal jurisdiction and powers on the Courts, derive  their  authority  from  Parliament's  exercise  of  its  legislative  powers,  as conferred by the Constitution Act 1852 (UK) and its successor, the Constitution Act

1986: see R v Knowles CA146/98 12 October 1998 at p2:

In any event, the 1852 Act, including s 71, was repealed by the Constitution Act 1986.  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.

[13]     However, I must say this.  I have heard the sovereignty argument, or variants of it, on a number of different occasions.  I have not heard anybody present it with more clarity and force than Mr M  .   I also appreciated his respect for the competing argument.

[14]     Mr M   did not address argument against his sentence on the trespass convictions of 100 hours community work and the fines of $250 imposed together with Court costs of $130 on the three Education Act charges.

[15]     Mr M  's appeals against conviction and sentence are dismissed.

Rhys Harrison J