Phillips v R

[2011] NZCA 225

IN THE COURT OF APPEAL OF NEW ZEALAND

CA903/2010
[2011] NZCA 225

BETWEEN  DION MONTAGUE PHILLIPS
Appellant

AND  THE QUEEN
Respondent

CA904/2010

AND BETWEEN             JACOB MARKAVINA PHILLIPS
Appellant

AND  THE QUEEN
Respondent

Court:             Randerson, Harrison and Wild JJ

Counsel:         Appellants in Person
J E Mildenhall for Respondent

Judgment:      26 May 2011 at 10 a.m.

(On the papers)

JUDGMENT OF THE COURT

The appeals against conviction are dismissed.

REASONS OF THE COURT

(Given by Randerson J)

1. On 22 June 2010 the appellants pleaded guilty to four jointly laid charges in the District Court: possession of cannabis for sale (s 6(1)(e) and (f) Misuse of Drugs Act 1975); cultivating cannabis (s 9(1) Misuse of Drugs Act 1975); unlawful possession of a firearm (s 45(1)(b) Arms Act 1983); and unlawful possession of ammunition (s 45(1)(b) Arms Act 1983).

2. Each appellant also pleaded guilty to a charge of selling cannabis under s 6(1)(e) of the Misuse of Drugs Act 1975. 

3. On 30 November 2010, Judge Marshall sentenced each of the appellants to concurrent terms of 18 months imprisonment on each of the cannabis charges and six months imprisonment on the firearms and ammunition charges.  The appellant, Jacob Phillips, was also sentenced to two months imprisonment (also concurrent) on a separate later charge of driving while disqualified (third or subsequent offence).[1] 

   [1]R v Phillips DC Tauranga CRI 2008-068-443, 30 November 2010.

4. Both appellants then filed notices of appeal against conviction and sentence.  Each has now formally abandoned the appeals against sentence.

5. On 4 March 2011, Stevens J determined under s 392A of the Crimes Act 1961 that the appeals against conviction could properly be heard on the papers.

6. Thereafter the appellants filed some 103 pages of submissions largely raising Maori sovereignty issues.  The Crown has filed submissions in response.  The appellants were permitted to file submissions in reply by 16 May 2011 but none have been filed.

The grounds of appeal against conviction

1. In summary, the appellants:

   (a)Submit that the District Court had no jurisdiction over them because they are not subject to statutes enacted by the Parliament of New Zealand;

   (b)Request this Court to refer the case to a marae-based court, submitting that this is possible under the Te Ture Whenua Maori Act 1993;

   (c)Submit that they hold ‘prerogative power’ as tangata whenua and by virtue of the Declaration of Independence 1835 and the Treaty of Waitangi.

2. They rely also on a wide range of legislation including the Magna Carta, the New Zealand Constitution Act 1852 (UK) and the Native Circuit Courts Act 1858. 

3. It is unnecessary to rehearse the numerous decisions of this Court in which similar challenges have been made and failed.  Examples include R v Miru, R v Mitchell, R v Takao, R v Toia, Nga Uri O Te Ngahue v Wellington City Council, R v Waetford and R v Knowles.[2]

   [2]R v Miru CA65/01, 26 July 2001; R v Mitchell CA68/04, 23 August 2004; R v Takao CA379/03, 15 November 2004; R v Toia [2007] NZCA 331; Nga Uri O Te Ngahue v Wellington City Council CA407/03 18 February 2004; R v Knowles CA146/98, 12 October 1998.

4. The New Zealand Parliament has the sovereign power to legislate for criminal offending such as that disclosed in the present appeals.  None of the legislation cited by the appellants provides a separate justice system for Maori offenders.  While some legislation in New Zealand expressly recognises the customary rights of Maori, the legislation at issue in these appeals does not do so.  We also note that the Supreme Court has recently declined leave to an appellant to advance similar Maori sovereignty arguments on the basis that they were “plainly unsound legally”.[3]

   [3]Wallace v R [2011] NZSC 10.

5. We conclude that the District Court had jurisdiction to deal with the charges at issue and that there was no jurisdiction to transfer the proceedings in the manner sought by the appellants.[4] 

   [4]Harris v R [2011] NZCA 86.

6. We record that the appellants made three submissions which do not relate to Maori sovereignty issues.  The first two of these relate solely to sentence and are no longer relevant.  Nevertheless we mention them briefly.  The first was that cash found at the appellants’ address was not relevant to the charges.  In this respect we note that the Judge accepted that the money was returned to other persons and was not seized by the police.  The Judge took that factor into account at sentence.  The Judge also noted and took into account a submission made by the appellant, Dion Phillips, that he was dependent upon cannabis for medication.  The third issue was that the appellants were entitled to have possession of a .22 calibre rifle (the subject of the charges laid under the Arms Act) under customary Maori law.  We are satisfied this would not have provided a defence to that charge.  For these reasons, the appeals against conviction are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent