Phillips v Police

[2013] NZHC 644

n

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  cases  from  the  exercise  of  Parliament’s  legislative powers.  Once a statute has conferred jurisdiction on a Court to hear and determine a criminal cause, it is impermissible for any other institution or tribunal to attempt to replicate those powers.

[33]     As an example of a case in which jurisdiction was challenged on a number of bases, I refer to Barrett v Police.    Two broad challenges were made.  One was that the New Zealand Parliament was unconstitutional and its laws invalid.  The other was that Parliament and the Courts created under various constitutional instruments had no authority over Maori.   In addressing those arguments, Randerson J considered the doctrine of Parliamentary  Sovereignty,  arguments  based  on  rights  derived  from  the Treaty of Waitangi and the Declaration of Independence, arguments based on Te Ture Whenua Maori Act 1993 and others grounded on s 71 of the New Zealand Constitution Act 1852 (Imp) and the Native Districts Regulation Act

1858.

[34]      Without rehearsing the full extent of Randerson J’s reasoning in Barrett, His Honour held that, since the adoption of the Statute of Westminster 1931 (Imp) in 1947, the New Zealand Parliament has had full and exclusive power to legislate in New Zealand.  Today, the power to legislate springs from the Constitution Act 1986.   After referring to s 5 of the Crimes Act and the definition of “offence”, Randerson J continued:

[10]     The inevitable conclusion must be that the provisions of the Land Transport Act and the Bail Act under which the appellant was prosecuted are valid statutes passed by the New Zealand Parliament. This court’s duty is to apply enactments made by the legislature: Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 690.

[35]      I return to Ms Sykes’ argument that the customary system could only be extinguished with both the “consent” of Maori and the use of “clear and plain” statutory language.  As to consent, once it is accepted that a society has   authorised   a   properly   constituted   Parliament   (a   proposition   not challenged in this case) to legislate, no further consent is required for a statute enacted by the Legislature to extinguish a pre-existing customary right.   I accept that “clear and plain” statutory language is required to extinguish such a right but, in agreement with Elias CJ and Tipping J in Ngati Apa, I consider that may be done either “by express words, or at least by necessary implication”.

[36]      On this point, R v Iti,   is instructive.   While the Court of Appeal accepted that a statute could extinguish a customary right, it drew a distinction between the prohibition of an asserted customary right to possess cannabis for supply (which it held Parliament had extinguished) and a provision in the Arms Act 1983 which prohibited discharge of a firearm “without reasonable cause”.    The latter is a circumstance that, if present, means that no crime has been committed.  As the Court said, interpretation of the term “reasonable” might be informed by customary rights; though the point was not fully argued in that case.

[37]      Iti does not support Ms Sykes’ argument that Mr Mason is entitled to be tried on the charges of murder and attempted murder under the customary system.  Parliament, for the reasons given by Randerson J in Barrett, had the power to enact legislation conferring exclusive powers to try charges such as murder and attempted murder in the Courts that it created.   Given the combined effect of ss 5 and 9 of the Crimes Act 1961, the customary system has been extinguished.   It is not possible to regard the customary system as an existing parallel system.   That is why I ruled against Mr Mason’s application.

(footnotes omitted)

[7]      The first ground of appeal fails.

[8]      I asked Mr Phillips for copies of the documents he asserted that the District Court Judge had not considered.  They were not on the Court file prepared for the appeal.  Having reviewed them, I am satisfied they add nothing to Mr Phillips’ first ground of appeal.  For the reasons I have already given, this ground also fails.

[9]      The appeals are dismissed.

P R Heath J

Delivered at 10.00am on 28 March 2013