Phillips v Police - [2013] NZHC 644

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-71 [2013] NZHC 644

BETWEEN WHANAUNGA NEIL PHILLIPS Appellant

ANDNEW ZEALAND POLICE Respondent

CRI 2012-488-65

AND BETWEEN WHANAUNGA NEIL PHILLIPS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 March 2013

Counsel: W N Phillips, Appellant in person
D M Stevens for Respondent

Judgment: 28 March 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 March 2013 at 10.00am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Copy to
Mr W N Phillips, Appellant

PHILLIPS V NEW ZEALAND POLICE HC WHA CRI 2012-488-71 [28 March 2013]

[1] Mr Phillips appeals against two decisions given by Judge Davis in the District Court at Kaikohe. The first, delivered on 17 September 2012, resulted in Mr Phillips being convicted and sentenced to a fine of $350 and Court costs on a charge of careless use of a motor vehicle. The second followed a hearing on 2 October
2012, when Judge Davis imposed fines in respect of regulatory transport offences. For convenience, the appeals were heard together.

[2] On the first ground of his appeal, the essence of Mr Phillips’ case (in his own words) is that he:

is protected within the tai tamariki whanau whare and embodied within te tiaki topu whenua of Te tii Waitangi Maori Inc by way of a vesting order vesting all interests and assets, protected in accordance with he whakaputanga ote rangatira and te tiriti o waitangi and subject to tikanga Maori.

[3] Mr Phillips submits that the appeal should be allowed and the issues with which Judge Davis dealt remitted to the Maori Appellate Court to determine any questions of tikanga.

[4] A second ground, applicable to both appeals, is that Judge Davis erred in failing to accept written affidavits in breach of art 2 of Te Tiriti o Waitangi. Contraventions of Te Ture Whenua Maori Act 1993 are also alleged.

[5] Mr Phillips’ first argument cannot succeed. I am bound by the decisions of the senior appellate Courts (Supreme Court and Court of Appeal) to hold that any person within New Zealand is subject to legislation passed by Parliament, or some delegated authority, with any allegation that the criminal law has been breached being determined by a Court of competent jurisdiction established by Parliament.1

[6] I had cause to revisit the relevant authorities recently, in R v Mason.2 The issue in that case was whether a Maori accused was entitle to be tried in accordance
with tikanga Maori. I said:

1 For example, see Wallace v R [2011] NZSC 10, R v Knowles CA146/98, Phillips v R [2011] NZCA 225.
2 R v Mason [2012] 2 NZLR 695 (HC).

[32] Objections to the jurisdiction of the District and High Courts to try alleged offenders for criminal offences have been roundly rejected in cases leading up to Wallace v R. Courts derive their authority to hear and determine criminal…

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 Phillips v Police

Details

AGLC: Phillips v Police [2013] NZHC 644
Case: [2013] NZHC 644
Decision Date: 28 March 2013

CaseChat Overview and Summary

The case of Phillips v Police involves an appeal by Whanaunga Neil Phillips against two decisions made by Judge Davis in the District Court at Kaikohe. The first decision, rendered on 17 September 2012, resulted in Mr Phillips being convicted and sentenced to a fine of $350 and court costs for careless use of a motor vehicle. The second decision, delivered on 2 October 2012, imposed fines in respect of regulatory transport offences. Mr Phillips appeals against both decisions and seeks to have them remitted to the Maori Appellate Court for determination of any questions of tikanga.

The primary legal issue in this case is whether Mr Phillips' claim of protection under the principles of Te Tiriti o Waitangi and tikanga Maori can override the jurisdiction of the District Court and the authority of the New Zealand Parliament. Mr Phillips argues that his conviction and sentence should be overturned because Judge Davis failed to consider his written affidavits and allegedly breached Article 2 of Te Tiriti o Waitangi and the Te Ture Whenua Maori Act 1993. The court must determine if Mr Phillips' arguments have merit and if the District Court judge's decisions should be set aside.

The court thoroughly examined Mr Phillips' arguments and found them to be without merit. The court is bound by the decisions of the senior appellate Courts, which hold that any person within New Zealand is subject to legislation passed by Parliament. The authority of the District and High Courts to hear and determine criminal cases derives from the exercise of Parliament's legislative powers. The court's duty is to apply the enactments made by the legislature, as established in previous cases such as Hoani Te Heuheu Tukino v Aotea District Maori Land Board and New Zealand Maori Council v Attorney-General. The court rejected Mr Phillips' claim that the customary system could only be extinguished with both the "consent" of Maori and the use of "clear and plain" statutory language. The court held that Parliament had the power to enact legislation conferring exclusive powers to try charges such as murder and attempted murder in the Courts that it created.

The appeals are dismissed. The court found that the District Court judge's decisions were valid and in accordance with the law. Mr Phillips' arguments based on Te Tiriti o Waitangi and tikanga Maori did not succeed in challenging the authority of the District Court or the legislation enacted by Parliament. The court's decision upholds the jurisdiction of the District Court and the legislative authority of Parliament in criminal matters.

Orders