Morunga v Police

[2016] NZCA 599

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2016
[2016] NZCA 599

BETWEEN	DAVID LEE MORUNGA (ALSO KNOWN AS LEE HAPI) Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Winkelmann, Duffy and Whata JJ

Counsel:

Applicant in person
J A Herring for Respondent

Judgment:

(On the papers)

13 December 2016 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction and sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. Following a defended hearing in the Hamilton District Court before Judge Burnett, Mr Morunga was convicted of one charge of driving while disqualified and one charge of threatening to injure a police constable.[1]  The Judge subsequently sentenced Mr Morunga to 16 months’ imprisonment and disqualified him from driving for a period of two years from the date of sentencing.[2]

   [1]Police v Hapi [2015] NZDC 1557.

   [2]Police v Hapi [2016] NZDC 1377 at [9]–[10].

2. Mr Morunga appealed against his conviction and sentence to the High Court.  That appeal was dismissed by Woolford J.[3]  He now applies for leave to bring a second appeal to this Court against conviction and sentence.  That application is opposed by the Crown.[4]

Proposed grounds of appeal

[3]Hapi v Police [2016] NZHC 1360.

[4]By minute dated 5 August 2016, Miller J directed that the application for leave be dealt with on the papers.

1. Mr Morunga has not filed submissions in any conventional sense, although he was given adequate time and then an extension of time to do so.  In his notice of application he states that his inalienable rights have been “totally disregarded”, that he holds a native traveller’s permit and that there has been no extinguishment of native title in New Zealand.  He also argues that the lower court Judges have “breached their judicial oaths”.

2. In response to the Registry’s request that he comply with the timetable for filing submissions, Mr Morunga sent an email setting out a list of matters upon which he relies.  This list includes, inter alia, the Treaty of Waitangi, the Declaratory Judgments Act 1908 and the Te Ture Whenua Maori Act 1993.  Mr Morunga said he also relies upon the arguments he presented in the High Court.  Mr Morunga was asked to file a copy of those submissions in Court.  He has failed to do so.  We have liaised with the High Court at Hamilton and it appears that Mr Morunga in fact did not file written submissions in that Court.  However, we have had regard to the arguments made on his behalf in the High Court as recorded in the High Court judgment.

Jurisdiction

1. The jurisdiction of this Court to grant leave for a second appeal is well settled.  The appeal must involve a matter of general or public importance and/or be necessary to avoid a miscarriage of justice.[5]  As this Court made clear in R (CA176/2016) v Police, the threshold for leave to bring a second appeal is high:[6]

   [N]ot every error at trial will amount to a miscarriage.  This Court is slow to grant leave where success for an appellant would require this Court to reverse concurrent findings of fact below.  That is particularly so where, as here, the trial was before a judge alone, giving the applicant the benefit of two judgments giving reasons for those factual findings.

Discussion

[5]Criminal Procedure Act 2011, ss 237(2) and 253(3).

[6]R (CA176/2016) v Police [2016] NZCA 403 at [26].

1. It is clear from the material Mr Morunga has filed in support of this application that he wishes to rerun, on appeal, arguments already advanced in the lower Courts.  He wishes to challenge again whether the legislation under which he was convicted applies to him on that basis that, as he is in possession of a “native traveller’s permit”, he was entitled to drive on the roads of this country despite having been disqualified from doing so.   

2. At the heart of this contention are arguments regarding the sovereignty of Parliament and the jurisdiction of the Courts.  The Full Court of the High Court in Creeks v R said relevantly:[7]

   [7]       The Court of Appeal has made it clear that the courts are not the forum for a fundamental challenge to the entire constitutional structure of the country or for political campaigns of the sort the appellants are waging.  Maori sovereignty can be the subject of debate in Parliament.  The Waitangi Tribunal may be prepared to consider it.  It can be debated in public meetings or the media.  It may be the subject of lawful protest.  But an assertion of Maori sovereignty does not raise a justiciable question.  It cannot succeed in the general courts of New Zealand.  …

   [7]Creeks v R HC Auckland A139/00, 6 November 2000.

3. Mr Morunga also seeks leave to argue that the lower court Judges have somehow “breached their judicial oaths”.  This appears to be another formulation of his principal argument that the Judges were wrong to apply the relevant law to him. But their judgments reflect the application of well-settled law to the facts.   

4. To conclude, the arguments Mr Morunga seeks leave to advance on appeal are a repetition of arguments advanced and rejected in the District Court and on his first appeal to the High Court.  They are also arguments which have no prospect of success.  They do not therefore involve a matter of general or public importance.  Nor is it necessary that Mr Morunga have an opportunity to advance them to avoid a miscarriage of justice.

Result

1. The application for leave to bring a second appeal against conviction and sentence is declined.

Solicitors:
Crown Law Office, Wellington for Respondent