Mahia v Police
[2022] NZHC 2413
•21 September 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-000094
[2022] NZHC 2413
BETWEEN CHARLES HURIHIA MAHIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 September 2022 Appearances:
Appellant in Person with McKenzie friend Georgina o te whanau Turanga (by VMR)
A Maino for Respondent (by VMR)
Judgment:
21 September 2022
JUDGMENT OF VENNING J
Conviction and Sentence Appeal
This judgment was delivered by me on 21 September 2022 at 3.30 pm,
Registrar/Deputy Registrar
Date……………
Solicitors: Gordon Pilditch, Rotorua Copy to: Appellant
MAHIA v NEW ZEALAND POLICE [2022] NZHC 2413 [21 September 2022]
Introduction
[1] Following a Judge-alone trial in the District Court at Tokoroa Judge D A Blair found Charles Mahia guilty of the following charges:1
(a)on 8 August 2021 driving a motor vehicle while his driver’s licence was suspended;2
(b)being a driver of a vehicle that was stopped failed to remain stopped as required (on 8 August 2021);3
(c)being a driver of a vehicle that was stopped failed to remain stopped as required (on 20 September 2021);4 and
(d)on 20 September 2021 failed to comply with the lawful requirement to stop for a police vehicle displaying blue and red lights or sounding a siren.5
[2] On the charge of driving while suspended the Judge sentenced Mr Mahia to the mandatory disqualification of six months from driving, and fined him $500. On the other three charges which the Judge found proved he convicted and discharged Mr Mahia.
Appeal
[3] Mr Mahia now appeals to this Court against the conviction and sentence. In his notice of appeal Mr Mahia set out the following points:
(a)miscarriage of justice;
(b)common law of England;
1 NZ Police v Mahia [2022] NZDC 13635. Two further charges arising from 8 August 2021 and one from 4 October 2021 were dismissed.
2 Land Transport Act 1998 (LTA), ss 32(1)(c) and 32(3).
3 LTA, ss 52A(1)(b) and 114.
4 LTA, ss 52A(1)(b) and 114.
5 LTA, s 114(2).
(c)Te Tiriti o Waitangi 6 February 1840;
(d)Maori customs and usages;
(e)failing to not recognise Tikanga; and
(f)oral evidence by way of a recording dismissed by the prosecution and Court.
[4] Mr Mahia also attached to the notice of appeal, a document noted as Exhibit A, Writ of Mandamus dated 25 January 2022.
[5] Mr Mahia represented himself at his appeal hearing and was assisted by a McKenzie friend. During the course of the hearing Mr Mahia expanded on aspects of the appeal points noted above. He made a number of points, some of which were raised before Judge Blair, notably his reliance on mana Motuhake, sovereignty was a French word which he did not recognise, and he told the Court there was a difference between Te Tiriti o Waitangi, which was signed by over 500 Rangatira over a period of nine months as opposed to the Treaty which was signed at Waitangi by 39 Waikato chiefs. Mr Mahia emphasised his right to travel and submitted that right pre-existed Te Tiriti and was protected by tikanga. Although he did not expressly articulate it this way, he apparently does not consider the Land Transport Act 1998 (LTA) applies to him.
Principles
[6]This Court must allow Mr Mahia’s appeal against conviction if satisfied that:
(a)the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)in any case a miscarriage of justice has occurred for any reason.
Otherwise this Court must dismiss the appeal.6
6 Criminal Procedure Act 2011 (CPA), s 232(2).
[7] A miscarriage of justice means an error, irregularity or occurrence in or in relation to or affecting the trial that created a real risk the outcome of the trial was affected or that resulted in an unfair trial or a trial that was a nullity.7
[8] As to the sentence appeal this Court must allow the appeal if satisfied that if for any reason there is an error in the sentence imposed and a different sentence should be imposed.
[9] As the Court of Appeal has confirmed in Tutakangahau v R8 the concept of whether a sentence is manifestly excessive is of long standing and should continue to be utilised. The focus remains on whether the sentence imposed was within range. The Court does not start afresh nor simply substitute its own opinion for that of the original sentencer. It is for the appellant to show there was an error in the sentence.9
Facts
[10] A review of the notes of evidence confirms the Judge was correct to find the following facts established.
[11] On 9 June 2021 Constable Anderson was working a late shift. He pulled over a red Holden vehicle on State Highway 32 which was travelling towards Tokoroa. Constable Anderson spoke to the person identified as Chaz Keepa, being the name that Charles Mahia was using. Constable Anderson was aware there was an alert for service of a demerit points suspension upon the appellant. Constable Anderson served the appellant with a disqualification notice for excess demerit points at 21:02 hours on 9 June 2021. A photocopy of Mr Mahia’s licence referred to the appellant as Chaz Hurihia Mahia Keepa. The notice advised the appellant that his driver’s licence was suspended for a period of three months starting from the time the notice was given to him and that he would be unlicensed when the period of suspension ended. Constable Anderson filled out, and provided in evidence, a statement of service of that notice upon Mr Mahia. While Mr Mahia did not willingly accept the notice, Constable Anderson considered that Mr Mahia understood it. The specific information in
7 CPA, s 232(4).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 48.
9 CPA, s 250.
relation to the demerits and the effect of the suspension is set out in the notice itself. Despite the service of the notice, the Constable allowed Mr Mahia to drive his car directly home to Tokoroa. Constable Anderson took Mr Mahia’s licence and sent it to the relevant authority.
[12] On 8 August 2021 Constable Leiataua was working a night shift and stopped a Holden Commodore registration number BST 918 on Bridge Street just after midnight. He approached the driver and asked for his driver’s licence which was refused. Constable Leiataua noticed a smell of alcohol. The driver then drove off. Constable Leiataua identified Mr Mahia as the driver of the car. Mr Maino’s cross-examination of Constable Leiataua did not challenge that he was the driver. The Constable described the person who he said was Mr Mahia as a male Maori with a bushy beard and dreadlocks. The same car was later seen by the Police at Arthur Street, Tokoroa. Constable Leiataua and a colleague (or colleagues) attended the address where they were approached by Mr Mahia. Mr Mahia refused to talk to Police and the group he was with were aggressive. Constable Leiataua returned to the Tokoroa station where he confirmed from Police records that the person he had been dealing with was the appellant, Charles Mahia. On the basis of that evidence the Judge found the ingredients of driving while suspended proved beyond reasonable doubt.
[13] The Judge also found that Constable Leiataua had commenced the process of establishing who Mr Mahia was when he initially stopped the car. He had asked for Mr Mahia’s driver’s licence, which Mr Mahia refused to provide. There was no evidence that the discussion turned to a demand under s 114(3)(b) of the LTA for information about Mr Mahia’s personal details or ownership of the vehicle, but the Judge accepted Constable Leiataua’s evidence that the discussion quickly turned to his request for breath testing and the advice of arrest, and at that stage Mr Mahia drove away.
[14] The Judge was satisfied that within that sequence the Police were deprived of the opportunity to further seek or obtain Mr Mahia’s personal details before he locked himself in his car and drove away. The Judge found that Mr Mahia failed to remain stopped for as long as was reasonably necessary for his particulars to be obtained. Mr Mahia had driven away before the Police had finished dealing with him. The Judge
found that Mr Mahia knew he was required to remain stopped. His actions in locking himself in the car, putting up the window and driving off demonstrated he knew he should have remained stopped.
[15] The second charge of failing to stop arose on 20 September 2021. At about 1700 hours Senior Constable Stevens-Toka stopped a grey Commodore that was travelling north on State Highway 1 at Kinleith doing about 115 kph. The male driver demanded to know under what authority he was being stopped. Senior Constable Stevens-Toka advised him of the speed and asked for his driver’s licence. When the driver again demanded to know under what Act he had been stopped he was told that failure to provide the information could result in arrest. The Senior Constable asked the driver, who was Mr Mahia, for his identity pursuant to the LTA. Mr Mahia then said he did not recognise the authority and the police officer had no authority to stop him and he was leaving. Senior Constable Stevens-Toka advised Mr Mahia that if he failed to remain he would be arrested. Despite that Mr Mahia drove off.
[16] The Senior Constable then pursued Mr Mahia with lights and siren, following him north into Tokoroa. Senior Constable Stevens-Toka and another unit tried to slow Mr Mahia down. Mr Mahia then swerved aggressively into a side street. The units tried a second time to get Mr Mahia to stop in the approach to a T junction, with one unit trying to cut him off. Mr Mahia swerved around the police unit, almost causing a collision. Mr Mahia was ultimately followed to Arthur Street, Tokoroa, and once there Mr Mahia was arrested. The Judge accepted the evidence of Senior Constable Stevens-Toka. It proved beyond reasonable doubt that Mr Mahia was the driver of the vehicle ultimately stopped. He also found that Mr Mahia had failed to stop for the blue and red flashing lights and earlier, had failed to keep his car stopped in order to comply with the request for his identification details.
Analysis
[17] Although Mr Mahia did not accept he was challenging the jurisdiction of the Court or the application of the LTA to him, that challenge to jurisdiction appears to be the essence of the first five grounds of his appeal, focused as they are on the common law, Te Tiriti, Maori custom and usage and tikanga.
[18] In Phillips v R the Court of Appeal dismissed an application for special leave to appeal based on an argument that the LTA and related legislation enacted by Parliament did not apply to people of Maori heritage.10 In rejecting the argument the Court noted:11
[2] Mr Phillips now applies for special leave to appeal to this Court. His application raises a number of related propositions. Compositely, they reduce to the point that the Land Transport Act and related legislation enacted by Parliament do not apply to people of Maori heritage. His argument is to the effect that he is subject only to Tikanga Maori or customary law and thus the District Court had no jurisdiction to determine the charge.
[3] Mr Phillips’ application does not raise an arguable question of law, let alone one which by reason of its general or public importance or otherwise ought to be submitted to this Court for determination. The legal foundation for his argument has been considered and rejected by this Court and also, significantly, by the Supreme Court as plainly unarguable. The leading decisions affirm that Parliament is sovereign and its legislation applies to all New Zealanders irrespective of race. Thus New Zealand Courts are bound to accept the validity of all statutory enactments including the Land Transport Act, which as Ms Wong submits applies without limitation based on ownership, title or status of land and to all “roads” as defined by s 2. It is unarguable that the District Court had jurisdiction to hear and determine the charge against Mr Phillips.
[19] The same reasoning applies to Mr Mahia. Despite Mr Mahia’s arguments that tikanga entitles him to travel freely and that the concept of sovereignty (a French word in his submission) is not applicable, the Court of Appeal authority is clear.
[20] Further, in Wallace v R the Supreme Court rejected Mr Wallace’s application to challenge this Court’s rejection of his protest to jurisdiction, which had been “advanced essentially on Maori sovereignty grounds” on the basis the arguments were “plainly unsound legally”.12
[21] Mr Mahia also made the submission that the Supreme Court has ruled that native title is not extinguished. That is entirely irrelevant to the issue of the application of the laws passed by the Parliament of New Zealand to New Zealanders and people within New Zealand, including Maori.
10 Phillips v R [2013] NZCA 580. See also R v McKinnon (2004) 20 CRNZ 709 (HC).
11 Phillips v R, above n 10, (footnotes omitted).
12 Wallace v R [2011] NZSC 10.
[22] The short point is that Mr Mahia, like all other people in New Zealand, is subject to the provisions of the LTA and other legislation passed by the New Zealand Parliament.
[23] Mr Mahia also referred to and relied on the Mandamus document. It is a confusing document. It purports to make the argument (which has been rejected on a number of occasions by the Court) that the person before the Court is not the person named in the documentation:
i: tangatawhenua: Chaz; is not the 'person' CHARLES HURIHIA MAHIA: CROWN PROPERTY DEFENDANT and cannot be presumed, deemed, purported to play a role of the 'dual persona' by deceit, ignorance, or deemed 'NZ CITIZENSHIP'; without consent. No consent is implied or given. …
[24] Such arguments are gibberish and a legal nonsense. They have been rejected by the Court before.13
[25] The last and perhaps only possible substantive ground of appeal was Mr Mahia’s complaint that the Judge had declined to accept into evidence recordings from two cell phones that Mr Mahia had apparently brought to the Court.
[26] From the notes of evidence it appears there were two pieces of cell phone video footage that Mr Mahia wanted to show the Court. The first was footage Mr Mahia apparently took on his cell phone and the second footage taken by his daughter on her cell phone.
[27] The Prosecution did not agree to the evidence being admitted and without Mr Mahia giving evidence, the evidence of the first cell phone was excluded. Mr Mahia’s daughter was not at Court so the recording from her cell phone could not be admitted.
[28] It appears from the discussion between the Judge and Mr Mahia regarding the video footage that it was restricted to his interaction with the officers. The video
13 Bracken v R [2022] NZCA 237; R v McKinnon, above n 10; R v Knowles CA146/98, 12 October 1998; R v Mitchell CA68/04, 23 August 2004; Harawira v R CA180/05, 1 August 2005; and R v Toia [2007] NZCA 331; Smith v R [2017] NZCA 288; R v Cann [1989] 1 NZLR 210 (CA); R v Rowley [2012] NZHC 2087; R v Patterson [2008] NZCA 75; and R v Swann HC Dunedin CRI- 2007-012-4181, 11 March 2009.
appeared to be a challenge to the officer’s evidence that he did not recall Mr Mahia challenging his jurisdiction and authority.
[29] The Judge discussed the practicability of introducing the cell phone videos with Mr Maino and the Police prosecutor. The prosecutor would not agree to the admission of the videos by consent under s 9 the Evidence Act 2006.
[30] There was a discussion about the possibility of Mr Mahia giving evidence but ultimately the Judge took it that Mr Mahia did not want to give evidence and be subjected to cross-examination. Instead Mr Mahia and his support person both addressed submissions to the Court.
[31] Mr Mahia did not seek to produce the video evidence on appeal. On the information before the Court, the evidence could not, in any event, be considered to be cogent, in that it did not directly address the elements of the offending on which Mr Mahia was convicted. For example, one challenged the actions of Sergeant Whitecliff-Davies on 4 October 2021, but Mr Mahia was in any event found not guilty of the alleged offending on that day. The other video seems to have been taken by his daughter at Arthur Street, after the offending on 20 September 2021.
[32] On my review of the notes of evidence the findings by the Judge that there was sufficient evidence to establish the charges beyond reasonable doubt was clearly open to him. The grounds Mr Mahia seeks to raise to challenge the convictions lack any substantive merit. The appeal against conviction must be dismissed.
Sentence appeal
[33] The Mandamus document goes on to purport to offer some form of response to Mr Mahia’s offending. It refers to a “Restorative Justice Lawful Process Remedy to Amend the Matter”. It suggests that a “Paa Kooti” offer for consideration based on a native assessor’s decision was a form of recompense to the offending.
[34] Mr Mahia apparently relies on the document as an offer under s 8(i) and (g) and/or s 10(1)(c) of the Sentencing Act 2002.
[35] Section 8(i) requires the Court to take into account the offender’s background (including cultural background), and s 8(j) requires the Court to take account of any restorative justice process. Neither apply to the document. Nor does s 10(1)(c). The proposals in the Mandamus document are not “remedial action” or a response in relation to the offending. Rather they are an attempt to place Mr Mahia outside the jurisdiction of the Court.
[36] While s 27 of the Sentencing Act 2002 enables a defendant to put material before the Court at sentencing regarding his personal, family, whanau, community, and cultural background, the proposal in the Mandamus document, which effectively suggests dealing with the charges outside the laws which apply to all people within New Zealand is not a report under s 27.
[37]Mr Mahia and his adviser’s reliance on it is misplaced.
[38] As to the sentence I generally observe that the Judge imposed the bare minimum disqualification mandated by law on the charge of driving while suspended. The fine of $500 cannot be described as manifestly excessive, particularly given the totality of the offending and the fact that Mr Mahia was convicted and discharged on the remaining three offences.
Result
[39]The appeals against conviction and sentence are dismissed.
Venning J
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