Police v Teddy
[2013] NZHC 432
•7 March 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-470-000031 [2013] NZHC 432
NEW ZEALAND POLICE
Appellant
v
ELVIS HEREMIA TEDDY
Respondent
Hearing: 16 November 2012
Counsel: B Keith and B Martin for Appellant
R Mansfield and V Withy for Respondent
Judgment: 7 March 2013
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 7 March 2013 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
B Keith, Crown Law, PO Box 2858, Wellington. B Martin, Crown Law, PO Box 2858, Wellington
R Mansfield, Barrister, PO Box 2674, Shortland Street, Auckland.
V Withy, Barrister, PO Box 2674, Shortland Street, Auckland.
POLICE V TEDDY HC ROT CRI-2011-470-000031 [7 March 2013]
Introduction
[1] In April 2011, the motor vessel, Orient Explorer was conducting a seismic survey of the Raukumara Basin, on behalf of Petrobras, a Brazilian oil and gas exploration company. In 2010, Petrobras had been granted a five year permit by the New Zealand Government to carry out exploratory activities over a substantial part of the basin, which extends about 300 kilometres north of East Cape and tapers from a width about 100 kilometres in the south to about 50 kilometres in the north.
[2] On 23 April 2011, the New Zealand Police boarded a fishing vessel, the San Pietro, which was being sailed by the respondent within about 20 metres of the bow of the Orient Explorer as part of protest activity involving Greenpeace and East Cape iwi. The San Pietro was, at the time, outside New Zealand’s 12 mile territorial limit. The respondent refused to relinquish the wheel of the vessel, alter course or comply with Police instructions. He was arrested and charged with operating a vessel, the San Pietro, in a manner that caused unnecessary risk to the Orient Explorer, contrary to s 65(1)(a) of the Maritime Transport Act 1994, and resisting a constable acting in pursuance of his duty, contrary to s 23(a) of the Summary Offences Act 1968.
[3] Following a defended hearing in the Tauranga District Court on 23, 24, 25 and 26 July 2012, Judge Treston ruled that the charges were nullities because s
65(1)(a) did not apply beyond New Zealand’s 12 mile territorial limit. The Police subsequently filed an appeal by way of case stated against Judge Treston’s ruling.
[4] The questions for the opinion of the High Court are whether Judge Treston was erroneous in point of law to rule that:
Section 65(1)(a) of the Maritime Transport Act does not have any
application beyond New Zealand’s territorial sea.
Police powers to stop and board vehicles and to arrest offenders do not have any application to vessels at sea, including beyond New Zealand’s territorial sea.
Section 23(1) of the Summary Offences Act does not have any application beyond New Zealand’s territorial sea.
District Court decision
[5] Judge Treston based his ruling that s 65(1)(a) of the Maritime Transport Act
does not apply beyond New Zealand’s 12 mile territorial limit on four points.
(a) Section 65(1)(a) did not apply to New Zealand ships beyond the territorial limit because it lacks “a specific, explicit and express provision” to confer such extraterritorial effect. An express provision was required by the general presumption that New Zealand legislation does not apply extraterritorially and the parallel provisions in ss 5(2)
& 6 of the Crimes Act.1
(b)Section 413 of the Maritime Transport Act (which was relied upon by the Police prosecutor) was too imprecise to afford jurisdiction. It provides:
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed either in the place in which the same actually was committed or in any place in which the offender may be.
The Judge had also earlier noted that Maritime Transport Act offences, along with offences under the Civil Aviation Act 1990, were specifically exempted from the general provision in s 8 of the Crimes Act allowing the prosecution of offences committed on board New Zealand and certain other ships and aircraft while beyond New Zealand’s territorial limit.
(c) The interpretation of s 65(1)(a) was further supported by the express jurisdiction conferred in certain cases of marine pollution by ss 223
and 224 of the Act; and
1 Section 5(2) states that the Crimes Act applies to all acts done or omitted in New Zealand while s 6 provides that no act done or omitted outside New Zealand is an offence unless it is an offence by virtue of any provision of the Crimes Act or of any other enactment.
(d)The powers of stopping and arrest under ss 317 and 317A of the Crimes Act did not apply to ships or outside New Zealand’s territorial limit on their terms and/or by s 5(2), while the Summary Offences Act similarly only applied within territorial waters because it, too, contained no express provision for extraterritoriality.
Does s 65(1)(a) of the Maritime Transport Act apply beyond New Zealand’s
territorial sea?
New Zealand’s jurisdiction over New Zealand ships
[6] The San Pietro is a New Zealand ship. New Zealand has jurisdiction over all New Zealand ships on the high seas. The Court of Appeal in Sellers v Maritime Safety Inspector2 confirmed that :
The freedom of navigation is one of the longest and best-established principles of international law. An essential feature of the freedom is that the state of nationality of a ship (the flag state) has exclusive jurisdiction over the ship when it is on the high seas.
[7] This is affirmed by the 1982 United Nations Convention on the Law of the
Sea (UNCLOS) to which New Zealand is a party. Article 92 states:3
Ships shall sail under the flag of one State only and...shall be subject to its exclusive jurisdiction on the high seas.
[8] This point is reiterated in art 97, which provides that only the flag state has penal jurisdiction in the event of collisions and other navigational incidents. It is not open to another state to apply its law on board, such that it is necessary for New Zealand law generally to apply.
[9] Reflecting that practical necessity, art 94 in turn requires flag states to exercise their jurisdiction. It states:
1.Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 46–47.
3 United Nations Convention on the Law of the Sea 1833 UNTS3 (opened for signature
10 December 1982, entered into force 16 November 1994) [UNCLOS] art 92.
2. In particular, every State shall:
...
(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
3.Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:
...
(c) the use of signals, the maintenance of communications and the prevention of collisions.
[10] As stated by Professor Malcolm Shaw QC:4
The foundation of the maintenance of order on the high seas has rested upon the concept of the nationality of the ship, and the consequent jurisdiction of the flag state over the ship. It is, basically, the flag state that will enforce the rules and regulations not only of its municipal law but of international law as well.
[11] The respondent accepts that New Zealand, as the flag state, has exclusive jurisdiction over the San Pietro outside its territorial limit but argues that the Maritime Transport Act does not have extra-territorial effect because it does not expressly state that it so applies. In this regard the respondent refers to Poynter v Commerce Commission5 which sets out the general proposition that legislation does not have extra-territorial effect save for express statutory wording or necessary implication.
Are New Zealand ships part of New Zealand territory?
[12] The Crown argued that there was no need to consider the extra-territorial application of New Zealand law as New Zealand ships are part of New Zealand territory. There is no requirement for the legislation to have extra-territorial effect by express wording or necessary implication if ships are part of New Zealand territory. Some commentators are of the view that New Zealand ships may be considered part
of New Zealand territory. Halsbury’s Laws of England states that a state has
4 M Shaw International Law (6th ed Cambridge University Press, Cambridge 2008), at 611.
5 Poynter v Commerce Commission [2010] NZSC 38; [2010] 3 NZLR 300 at [36].
jurisdiction (over acts done on a ship carrying its flag) on the territorial principle of criminalising conduct which occurs within its territory. For this purpose, the territory of a state includes “its quasi-territorial regimes, such as ships, aircraft and space vehicles”.6
[13] Similarly, in The Amalia,7 it was accepted that if a collision had occurred between two British ships on the high seas then British law would have applied even though the British Act in question made no express provision for such a situation. Accordingly, British territory could be viewed as including British ships. Equally, the Court of Appeal in Wellington Cooks and Stewards Union8 held that a ship owned and registered in New Zealand would come under New Zealand jurisdiction. If New Zealand ships are part of New Zealand’s territory for the purposes of jurisdiction, there is no need for provisions relating to offences on such ships to be given express extra-territorial effect. Therefore, if New Zealand ships are part of New Zealand territory, New Zealand law and the Maritime Transport Act, in particular, would apply.
[14] However, s 7A of the Crimes Act is titled “Extraterritorial jurisdiction in respect of certain offences with transnational aspects”. It provides that certain offences of the Crimes Act apply to ships registered under the Ships Registration Act
1992, New Zealand Defence Force ships and New Zealand aircraft. If aircraft and ships were considered part of New Zealand’s territory then s 7A would not need to expressly state that it has extraterritorial effect. This appears to indicate that New Zealand ships beyond the territorial sea are not part of New Zealand’s territory and therefore legislation must give express or implied extraterritorial effect in order to apply. Hirst also states that British ships are not part of the United Kingdom and the jurisdiction exercisable over them when they are outside British waters is not
territorial.9 I agree with Hirst and consider the better approach is not to treat ships
6 Halsbury’s Laws of England: International Relations Law (5th ed, 2010) vol 61, parts 8 & 10 at
[222].
7 Cail v Papayanni (“The Amalia”) (1863) 15 ER 778, 780 at [477].
8 Re The Award of the Wellington Cooks and Stewards’ Union (1906) 26 NZLR 394 (CA) at 410 –
411.
9 M Hirst Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, New York,
2003) at 283.
registered in New Zealand as part of New Zealand territory. Such a concept is both artificial and unnecessary.
If New Zealand ships beyond the territorial sea are not part of New Zealand territory, does the Maritime Transport Act apply extraterritorially through its express wording or by implication?
[15] Although there is no express wording in the Maritime Transport Act, I am of the view that the Act applies by necessary implication to New Zealand ships beyond the territorial sea. I am of this view both because of the statutory context and New Zealand’s international law obligations.
[16] As to the statutory context, in finding that the Maritime Transport Act did not apply extraterritorially, Judge Treston relied on the fact that s 8 of the Crimes Act provides for the prosecution of offences which occur on board Commonwealth ships or aircraft, but s 8(7) of the Crimes Act excluded the Maritime Transport Act from this jurisdiction. However, it would be an odd result, and inconsistent with Parliament’s intention, for an Act specifically regulating maritime offences to not apply beyond New Zealand’s territorial sea when New Zealand’s general criminal law applies beyond the territorial sea to all acts occurring on Commonwealth ships. This is an untenable interpretation. The only reasonable interpretation is that the Maritime Transport Act has its own regime also applying extraterritorially to New Zealand ships. The exclusion of the Maritime Transport Act in s 8(7) represents a parliamentary intention to maintain an extraterritorial regime distinct from that contained in the Crimes Act.
[17] Section 415 of the Maritime Transport Act also provides that any proper officer in a foreign country or any master of any New Zealand ship can take actions to send a New Zealand seafarer in safe custody to New Zealand if they have committed any offence against person or property. Section 415 is premised on seafarers on New Zealand ships on the high seas being subject to New Zealand law.
[18] Section 413 (which was discounted by Judge Treston as too imprecise to afford jurisdiction) provides:
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed either in the place in which the same actually was committed or in any place in which the offender may be.
[19] It would seem absurd for s 413 to relate only to offences committed in New Zealand’s territorial waters but for s 415 to allow New Zealand seafarers to be prosecuted for an offence anywhere in the world. It also appears incongruous for foreign officers to be able to take into custody New Zealand seafarers beyond territorial waters but for New Zealand Police to be unable to do so.
[20] The purpose of the Maritime Transport Act also illustrates that it was intended to have extraterritorial effect. The Chief Justice stated in Poynter that where statutes are silent on extraterritorial application the content and purpose of the legislation may overcome the presumption.10 One of the objectives in s 5 of the Maritime Transport Act is to ensure New Zealand’s obligations under conventions, such as the United Nations Convention on the Law of the Sea (UNCLOS), are implemented.11 New Zealand has legal obligations to regulate New Zealand ships beyond its territorial sea. It could not achieve these if the Maritime Transport Act did not have extraterritorial effect.
[21] The surrounding sections of the Maritime Transport Act also indicate that the Act should be interpreted broadly to cover offences beyond the territorial sea. For example, s 224 of the Act provides that the prosecution of persons other than New Zealand citizens or residents, for actions beyond the territorial sea requires the consent of the Attorney-General. Consent is not required for New Zealand citizens or residents arrested under the Act. This indicates that New Zealand citizens and residents are subject to the Act when beyond the territorial sea.
[22] However, it is troubling that there is no express provision in the Maritime Transport Act stating that the Act as a whole applies beyond the territorial sea. It is also necessary to bear in mind the presumption against reading criminal statutes widely which may caution against identifying extraterritorial application from the
statutory context.
10 Poynter v Commerce Commission, above n 5, at [15].
11 Maritime Transport Act 1994, s 5(b).
[23] I am, however, also of the view that the Maritime Transport Act applies by necessary implication. It must be read to have extraterritorial effect in accordance with New Zealand’s international law obligations. The Maritime Transport Act must be read consistently with international law. In Sellers v Maritime Safety Inspector, Keith J stated that:12
It is in the above context that the Maritime Transport Act, in particular s 21, is to be understood and interpreted. New Zealand Courts have for over a century made in plain that legislation regulating maritime matters should be read in the context of the international law of the sea and, if possible, consistently with that law.
[24] Accordingly, s 65(1)(a) of the Maritime Transport Act and the jurisdictional provision in s 413 should be read consistently with our international obligations regarding the law of the sea. Under UNCLOS New Zealand has an obligation to exercise exclusive penal jurisdiction in collisions and navigational accidents.13 Each state has a responsibility to ensure its ships (and those using them) are acting responsibly on the high seas.14 New Zealand would be in breach of its international obligations if the Maritime Transport Act did not confer jurisdiction to arrest seafarers who are breaching New Zealand’s navigational laws. The Convention specifically requires New Zealand to exercise jurisdiction over navigational matters.15 No other state has the ability to exercise jurisdiction over New Zealand flag state ships on the high seas. Accordingly, in order for New Zealand to meet its international obligations, s 65(1)(a) must apply to all New Zealand ships whether within or beyond New Zealand’s territorial sea.
[25] As to s 413, there is conflicting authority on whether it should be interpreted as a jurisdictional provision. Section 413 provides that:
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed either in the place in which the same actually was committed or in any place in which the offender may be.
[26] Section 684 of the Merchant Shipping Act 1894 (UK), which was part of
New Zealand’s legislation, is almost identical to s 413 of the Maritime Transport Act.
12 Sellers v Maritime Safety Inspector, above n 2, at 57.
13 Article 97.
14 Articles 92 and 94.
15 Article 97.
In R v Hinde16 the Court of Appeal held that the provision did not merely indicate a venue for the offence but is a jurisdictional provision allowing any offence committed in “his Majesty’s dominion” to be tried in any other part of his Majesty’s dominion. A very similar provision was found to extend jurisdiction to offences committed on British aircraft anywhere in the word in R v Naylor.17 DP O’Connell states that the almost identically worded Merchant Shipping Act extends jurisdiction for offences within the Act to the high seas.18 However, Michael Hirst maintains s
413 is merely a provision that provides the venue to enforce offences under the Act, and the word “jurisdiction” is used incorrectly.19 Glanville Williams also states that the equivalent provision in the Merchant Shipping Act was not intended to and does not give extraterritorial effect to all offences created by the Act.20 For myself, I consider that it is difficult to read s 413 as expressly conferring jurisdiction over New Zealand ships beyond the territorial sea. Nonetheless, and for the reasons already given, it is my view that the Maritime Transport Act does apply extraterritorially by necessary implication.
Where do the Police powers to stop and board a vessel and to arrest offenders come from and do they apply outside the territorial sea?
[27] It is my view that the power to board the San Pietro came from s 317 of the Crimes Act. The Crown submitted that the power to board the vessel and arrest the respondent came from ss 317 and 317A respectively. I will later address why I consider an interpretation of s 317A to include ships within the definition of “vehicle” is untenable.
[28] Section 317 of the Crimes provided that:
S 317 Power to enter premises to arrest offender or prevent offence
(1) Where any constable is authorised by this Act or by any other enactment to arrest any person without warrant, that constable, and all persons whom he calls to his assistance, may enter on any
16 R v Hinde (1902) XXII NZLR 436 at 442.
17 R v Naylor [1962] 2 QB 527 at 529.
18 DP O’Connell The International Law of the Sea (Clarendon, Oxford, 1984) at 933.
19 M Hirst, above n 9, at 13–14.
20 Glanville Williams “Venue and the Ambit of Criminal law” (1965) 81 LQR 395 at 409.
premises, by force if necessary, to arrest that person if the constable
–
(a) Has found that person committing any offence punishable by
... imprisonment and is freshly pursuing that person; or
(b) Has good cause to suspect that that person has committed any such offence on those premises.
[29] The section has now been repealed but was in force at the time.
[30] Section 317 largely codified Police powers to enter premises. Although premises is not defined in the Crimes Act, I am of the view that in this context it does include a vessel. In this case the Police had good cause to suspect that the respondent had committed an offence on the vessel as they had seen the San Pietro repeatedly sailing within 20 metres of the Orient Explorer. They had warned the respondent but he had nevertheless continued to keep sailing dangerously close to the Orient Explorer. The test for “good cause to suspect” is “reasonable and probable grounds” which was met on the facts as the Police witnessed the respondent
break the law.21 Therefore, s 317 applies and the Police were authorised by the
section to board the vessel to arrest the respondent.
[31] As to whether that power applies extraterritorially, s 5(1) provides that the Crimes Act applies to all offences for which the offender may be tried in New Zealand. Section 5(2) further provides that the Act applies to all acts done or omitted in New Zealand. The combination of ss 5(1) and 5(2) provide for the application of the Act. Accordingly, if an act or offence fits within one or other of ss 5(1) or 5(2) then the Act will apply.
[32] Section 5(1) applies to all offences that can be tried in New Zealand. The offence provided for in s 65(1)(a) of the Maritime Transport Act may be tried in New Zealand. Therefore the Crimes Act, and in particular the powers of arrest under Part
12 of the Act, apply.
[33] However, application of the Act to any offence that may be tried in New
Zealand does not, of itself, mean that a Court will have jurisdiction over every
21 Traber v Police HC Masterton CRI-2004-435-20, 1 December 2004.
offence in the Crimes Act committed outside New Zealand territorial waters. This is because jurisdiction over certain offences is conferred by ss7A and 8 (and other provisions in Part 7 of the Act). Although the Act can apply extra-territorially by virtue of s 5(1), a Court will only have jurisdiction over crimes committed extra- territorially when jurisdiction is expressly provided for by the above mentioned sections of the Act. The Court only has jurisdiction over extra-territorial offences as provided for in ss 7A and 8 of the Act.
[34] However, only the extra-territorial effect of the offence provisions of the Act are controlled by ss 7A and 8, the powers under the Act – such as the power to board the vessel and the powers of arrest under ss 31, 315 and 317 – apply outside New Zealand’s territorial waters by virtue of s 5(1).
Where do the Police powers of arrest come from in this circumstance and do they apply beyond the territorial sea?
[35] It is also my view that the power to arrest Mr Teddy without a warrant came from ss 31 and 315 of the Crimes Act. The Crown however claimed that powers of arrest arose from s 317A of the Crimes Act.
[36] Section 317A provides that:
317A Power to stop vehicles for purpose of arrest
(1) Any member of the Police who—
(a) Has reasonable grounds to suspect that there is in or on any vehicle any person who either—
(i) Is unlawfully at large; or
(ii) Has committed an offence punishable by imprisonment; and
(b) Either—
(i) Is wearing a uniform or a distinctive cap, hat, or helmet with a badge of authority affixed thereto; or
(ii) Is following immediately behind the vehicle in a motor vehicle displaying flashing blue lights, or flashing blue and red lights, and sounding a siren—
may stop the vehicle for the purpose of arresting that person.
[37] The word “vehicle” is not defined in the Act but the cases of R v Pratt22 and R v Lee23 have both addressed the meaning of “vehicle” within the Act. In R v Pratt, the Court held that a motorised road roller was a vehicle and in R v Lee it was held that a bicycle was a vehicle. Both were interpreting s 228 of the Crimes Act, which
expressly deals with conversion of a motorcar or vehicle under s 228(1)(a) and conversion of a ship under s 228(1)(b). The Court in R v Lee used the Shorter Oxford English Dictionary to define a vehicle as “A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart,
wagon, sledge, or similar contrivance”.24 It referenced the case of Hensley v Police25
where Haslam J observed that s 228(1)(a) “appears to be drafted in the broadest manner, and designed to embrace all forms of land transport of a mechanically propelled kind”.26
[38] The meaning of vehicle under s 317A of the Crimes Act is, in my view, confined to land based means of conveyance. “Vehicle” is however now defined to include a “ship” in s 317A’s replacement provision in the Search and Surveillance Act 2012.27
[39] Section 31 of the Crimes Act provides:
31 Arrest by constable pursuant to statutory powers
Every constable is justified in arresting any person without warrant in accordance with the provisions of section 315 of this Act or in accordance with any other enactment conferring on him a power so to arrest.
[40] Section 315 of the Crimes Act provides:
315 Arrest without warrant
(1) No one shall be arrested without warrant except pursuant to the provisions of—
22 R v Pratt [1990] 2 NZLR 129.
23 R v Lee (1992) 8 CRNZ 573.
24 At 6.
25 Hensley v Police [1965] NZLR 963.
26 R v Lee, above n 22, at 7.
27 See Search and Surveillance Act 2012, s 3.
(a) This Act; or
(b) Some other enactment expressly giving power to arrest without warrant.
(2) Any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant—
(a) Any person whom he finds disturbing the public peace or
committing any offence punishable by … imprisonment:
(b) Any person whom he has good cause to suspect of having committed a breach of the peace or any offence punishable by … imprisonment:
[41] The Police found Mr Teddy committing an offence punishable by imprisonment. Persons violating s 65(1) of the Maritime Transport Act are liable to a term of imprisonment of up to one year. Accordingly, the Police were able to arrest Mr Teddy without a warrant pursuant to ss 31 and 315 of the Crimes Act 1961. These powers apply by virtue of s 5(1).
Does s 23(1) of the Summary Offences Act apply beyond New Zealand’s
territorial sea?
[42] Mr Teddy has also been charged with resisting arrest under s 23(1) of the Summary Offences Act. The Summary Offences Act has no express provision as to its extraterritorial application. In s 3(1)(a), the Summary Proceedings Act expressly excludes s 8 of the Crimes Act from applying to summary offences. However, a necessary corollary of the extraterritorial application of the power to arrest is that the offence of resisting arrest must also apply extraterritorially. If this were not so, the Police’s power of arrest would be hollow, as a person would be able to successfully evade arrest with impunity.
Conclusion
[43] The answers to the case stated are:
Section 65(1)(a) of the Maritime Transport Act does have application beyond New Zealand’s territorial sea in circumstances as described in this judgment.
TheNew Zealand Police do have the power to stop and board vessels and to arrest offenders, including beyond New Zealand’s territorial sea
in circumstances as described in this judgment.
Section 23(1) of the Summary Offences Act does have application
beyond New Zealand’s territorial sea in circumstances as described in
this judgment.
[44] The decision of Judge Treston on 26 July 2012, that informations CRN 11070003416 and CRN 11070003417 are nullities is quashed and the matter remitted to the District Court for a resumption of the defended hearing.
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Woolford J
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