R v N HC Gisborne CRI-2005-016-3120
[2006] NZHC 1182
•5 October 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2005-016-3120
THE QUEEN
v
N
Hearing: 18 September 2006
Counsel: C Hirschfeld and A N Poananga for Applicants
D M Kerr for Crown
Judgment: 5 October 2006 at 10.30 am
RESERVED JUDGMENT OF BARAGWANATH J
This judgment was delivered by Justice Baragwanath on 5 October 2006 at 10.30 am pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
Solicitors:
Crown Solicitor, Napier
Counsel:
Mr C Hirschfeld, Auckland
R V N AND ANOR HC GIS CRI-2005-016-3120 5 October 2006
[1] Mrs N and Mr M have been indicted in the District Court at Gisborne on a charge that on 30 June 2005 at Gisborne with intent to steal they demanded money from a complainant with menaces. They apply pursuant to s 28J of the District Court Acts 1947 for an order moving the proceeding into this Court and in the event that such order is made for an order under s 347 of the Crimes Act
1961 to dismiss the proceeding.
[2] The joint charge was the subject of a depositions hearing at the District Court at Gisborne on 4 November 2005 before Justices of the Peace. The Justices found that the evidence was insufficient and they were discharged pursuant to s 167 of the Summary Proceedings Act 1957. The police elected to re-lay the charge by fresh informations dated 16 November 2005 in identical terms.
[3] Counsel for the defence applied to the District Court under s 78 of the Summary Proceedings Act seeking its opinion on the question whether the proceedings had been properly reinstated. He applied at the hearing to amend the application to include an order for stay of proceedings on the grounds of abuse of process.
[4] In his judgment of 15 May 2006 Judge Perkins granted leave to amend. But the Judge was not prepared to find that the simple re-laying of charges, without proof of prejudice, constituted breach of process and dismissed both applications. The depositions hearing proceeded the same day and the applicants were committed for trial.
[5] Mr Hirschfeld did not dispute that the charge is one of a kind which it is in general appropriate to be tried in the District Court. But he submitted in effect that this Court should exercise its supervisory function to ensure the due administration of justice. Citing the decisions of the divisional English Court in R v Horsham Justices ex parte Reeves (1980) 75 Cr App R 236 and the Court of Appeal in Daemar v Gilliand [1981] 1 NZLR 61 he submitted that there had been procedural error and that the Crown ought to have applied under s 345(3) of the Crimes Act for consent of the Attorney-General or of the High Court to file an indictment as
occurred in Wallace v Abbott [2002] 19 CRNZ 585. He further submitted that this
Court should in any event exercise its jurisdiction to stay the prosecution.
[6] I agreed to consider the matter as effectively an oral application for judicial review of the decision of the District Court not to stay the proceeding, reserving the questions of what procedural route to justice should be adopted and of formal orders whether under s 28J for removal or under s 347 or otherwise until after argument on all issues.
The facts
[7] The primary facts are not in dispute. The background appears from the transcript of television interviews of Mrs N . On one programme she said that in
1999 she was appointed by the 44 member Confederation of Maori Chiefs as Prime Minister of the Maori Government. She later asserted that all lands, seas and assets were claimed by their rightful indigenous owners. She relies on a series of proclamations proclaimed at Gisborne on 30 May 2005 by the self-styled “Maori Government of Aotearoa NZ”:
a) The first proclamation is that some 66 million acres of land held by the Crown should be returned to the Maori Government of Aotearoa- NZ to be administered on behalf of hapu and whanau kin;
b)The second proclamation states that all the oceans, seabeds, foreshores, wharves, harbours waterways, streams and beaches that go for 400 miles out to the end of the continental shelf and held by the Crown must revert back to the Maori Government of Aotearoa-NZ to be administered on behalf of hapu and whanau kin;
c) The third proclamation provides for the immunity of all Maori people from all the laws of the colonial government of New Zealand. This includes immunity from the judicial system, penal correction, and police and defence systems. All the systems should be transferred to the Maori Government of Aotearoa-NZ to administer, formulate,
implement and adjudicate for the Maori people on behalf of hapu and whanau kin;
d)The fourth proclamation declared that the Maori Marae Justice Tribunal would now hear and adjudicate Maori cases. The proclamation also declares that the Maori Land Court is extinguished as well as the Waitangi Tribunal and Waitangi Settlement Organisations;
e) The fifth proclaimed that all licences for forestry-cutting rights shall be revoked and the Crown Forest Rental Trust, all capital funds (some
$253 million) and forestry titles shall be extinguished and returned to the Maori Government of Aotearoa-NZ to be administered on behalf of Maori;
f) The sixth proclaims that Te Puni Kokiri, the Maori Trustee, as well as all incorporations, trusts and runanaga tribal organisations are extinguished. The proclamation also extinguishes the Maori Trustee Act 1953 and Te Ture Whenua Act 1993; and
g) The seventh proclamation is an assertion of tinorangatiratanga on behalf of the tangata whenua signed by Mrs N .
[8] There is evidence that Mrs N arranged for the screen printing of vests bearing the legend “MAORI POLICE” in black print. A search warrant executed at her house yielded a document in the following terms:
Land and Marine Rent Collection: To the House and Business Occupier:
Let it be known that as from 21 June 2005; our Maori Police and our Land and Marine Rent Collectors shall be visiting house and business premises each week, to collect Land and Marine Rent from you. They shall visit, three times only, and after that, eviction orders shall be promulgated.
All lands and Marines throughout Aotearoa-NZ, has always been, legally, the property of the tangata whenua. For one hundred and sixty-five years, they have never received remuneration from their heritage. Hence, the
Maori Government of Aotearoa-NZ, shall ensure that tangata-whenua shall be recompensed for their property rights, as from 21 June 2005 and shall collect monies, on their behalf.
Charges: Item: $¼ Acre $½ Acre $other House $50-100 $100-200 $ 500- Business $200-400 $500-600 $1000 Churches/Schools/Gymnasiums/Playing Fields/etc $1000- Wharves/harbours/marine buildings $1000- Farms/Orchards/etc (per acre) $200
NB:No rates shall be imposed on all our lands and marines, only rents, as stipulated, as above.
By Sovereign Order
[signed]
Arikinui Inuwai Hauturu Minister of Lands and Fisheries Maori Government of Aotearoa/NZ
689 Gladstone Road
(06) 867 5246
[9] Another document recorded the names and addresses of 27 motels and hotels, five substantial businesses, three garages and 15 churches as “areas in Gisborne that have land & marine rents collected”. The document described itself as:
Maori Government of Aotearoa/NZ Minister of Police…
Police Port-folio
It stated:
Maori Government of Aotearoa–NZ Directive–one:
…
04 June 2005
Kia Ora……………………………….
After the hui at Te Poho-o-Rawiri Marae, at Gisborne on Monday 30 May
2005, we met in CAUCUS to discuss an action plan on the –• Lands and Marines matters – it was agreed that the Minister of Lands and Fisheries, put out a house to house and business occupier flyer to
each community warning them, that rentals for land and marines were to start being collected on 21 June 2005.
• Maori Police and Rental Collectors: the Police Plan, job descriptions, uniforms, training, attitudes, Police Warrants, the Constitution, tikanga Maori, the emblem and ranking. Oaths to be taken by the Arikinui, on the Constitution. (enclosed are warrants and Police Plan for your aid. A discussion on ranking occurred and it was decided that Maori Ranking depended on whakapapa – on the teina-tuakana concept and not on the Private/Sgt/Inspector like they have with Colonial set-up, which is a suppressive form of delegation of authority – which suits pakeha, but does little for our tikanga Maori.
The authority of protectorism, aroha, respect, Tikanga Maori were tantamount. CA need for all, to learn te reo and mau rakau.
• The Emblem or Piki was explained: 1. Kei runga ko te Piki Turangi –
3 plumes – te iho makawerau – upright, sign of chiefly rank and authority 2. The ever-greens as an emblem of victory. 3. Circle – to embrace people of a unique and special kind. 4. Tuunga – He tuuranga waewae, ko Aotearoa. Stand- is the foundation and Aotearoa is our stronghold. 5. He Haki – he tohu mo te mana o Aotearoa nui tonu. A flag as an emblem for the authority of the Maori Nation. Its flutter is indicative of movement and progress.
• All of you, have received copies of the Proclamations and I am sending you a copy of the Land and Marine Collection Flyer. You need to photocopy these and deliver them to mail boxes, before 21 June 2005.
• Form of Government: Our Government is a Sovereign Government which is a Constitutional Monarchy form of Government.
NB: I wish to commend those of you, who travel[l]ed far, to be here for such
an auspicious event at the time, our Proclamations were announced to the world, even though we had six mokos who were laid in state on our marae, during our adjournment. A thank you to Rangatahi who helped.
Naaku noa.
Arikinui Tapaiuru Ngakawaingarangi
Prime Minister
[signed]
[10] A typed document dated 5 June 2005 headed “Confidential Maori police data” stated:
Enclosed please find–
• Update of Proclamations, inclusive of Proclamation Seven.
• Copy of First Caucus Hui of 03 June 2005
• Copy of Land & Marine Rent Collection which need to be distributed to all House Occupiers and Gisborne Businesses
• Copy of my letter to Waata Shepherd.
• Copy of threat of war from Waata Shepherd to you and to our Maori Government. The matter is in the hands of our Lawyer and I have been to see the Mayor who is Chief Magistrate of Gisborne. Meanwhile, we wait for a reply from our Lawyer in regards to the wearing of the yellow reflective vest that Waata is worried about. You shall wait, until I give you further orders.
Other Responsibilities:
♦ Procure for yourself, a note-book and all the duties you perform-making sure to write down – day: date: time: location: reason:
♦ In another note-book; for all your extra-curricular work-performances, you shall be duly re-imbursed, when the time comes. Remember to also write down, day: date: time: location: duty performed.
Naaku noa Arikinui Tapaiuru Ngakawaingarangi Minister of Police
[signed]
[11] There were three printed report documents headed “Maori S P Squad Department of Aotearoa”. One is said to have been made by Mr M . It recounts how he and another man approached a motel and told the owner about the Maori government and how it was put in place. Mr M recorded that the owner had agreed to be part of the Maori Government and was willing to give $300 a week to the Maori Government. There was then a reference to the failure to pay rent. The report records that the owner refused to be part of the Maori Government and that she would call Mrs N to talk to her. It notes that Mr M and his colleague told the owner that they would be back next week. The owner is then recorded as saying that she would issue a trespass notice against them if they came back and would not enter into any agreement. The total amount owed by the owner was recorded as $300. A second incident report timed about an hour and a half later recorded that the owner was told about the lands and rivers given back and the proclamations:
…she spent 30 mins to talk about what has been going on in the
Maori Government.
She then found it hard to receive the idea of being given the amount of
$300.00. She then got her husband to come and listen they both then took our I.D. & proclamations & they asked us to come back next week.
They were very hesitat[ant] to give the[ir] money...
[12] The third incident report dated 29 June 2005 recorded:
I was not given the chance to talk to the owner of the motel, the owner just said he was not interested and asked us just to get off his land.
[H]e carr[i]ed on to say he was a[n] ex-police officer and was already told that the Maori Government was coming around he then said that he was told what would happen & said he is still no[t] interested in what we say then walked away saying ka kite (goodbye) as he walked away to his office, I did give him a pamphlet to read.
[13] Another form, “Maori S.P Squad of Aotearoa–NZ Land Rentals Report”, recorded the names of three motels and the “amount owing” and “amount in arrears” which was fixed at $300 in each case. In two instances Mr M ’s name was entered as “land rentals name”.
[14] The police also found what a witness described as a template for “Maori police warrant” cards, each containing provision for the signature “Minister of Police of Maori Government of Aotearoa New Zealand”.
[15] On the evening of 9 June 2005 Constable Sycamore interviewed Mrs N about jackets bearing the words “Maori Police”. Mrs N said that she had spent about $800 on them and that the function of the Maori Police was “to collect rents from our lands, seas” and other assets and “to protect our people, our women, our forests, our lands”. She said that the jackets had gone to Maori police in the North and South Islands.
[16] At the depositions hearing, Constable Sycamore in cross-examination advised that police intervention followed the receipt of complaints about the Maori Government police.
This case
[17] The present charge results from the evidence of the owner of a motel, the complainant. The complainant deposed that two men got out of the van and came into the reception area. The men were described as “quite large”. One of the men was identified as Mr M . Mr M was allegedly wearing a black short-sleeved shirt with epaulets on the shoulder with logos embroidered on the shirt. Mr M produced what the complainant described as a “warrant”. It was in the following form:
A WARRANT
Issued by Minister of Security/Protection Force
of the
Maori Govt of Aotearoa-NZ
Warrant for:
Maori S/P Force
Name: Elijah M
Address: 14 Oswald St
Gisborne Tohu: S/P Force Number: x 515 0025
Date: 30 May 2005
Expiry Date: 30 May 2008
Issuer: Minister of S/P Force
Maori Govt of
Aotearoa-NZ
Signature of Assignor: [signed]
Maori S/P Force
Oath of Allegiance
Take this Oath and swear by Almighty io that I shall do my very best to execute my duties, fairly, justly and without prejudice to my Maori Kin-folk and abide by the Maori Government of Aotearoa-NZ the Constitution and Tikanga Maori.
So help me to.
Signature of Assignor: [signed]
[18] The witness gave evidence that Mr M was very polite. He did not raise his voice and was very calm although he was speaking forthrightly. The witness said:
It did run through my mind it was some sort of pseudo Mafia type operation. The way that Mr M conducted himself was that he seemed to have conviction with what he was saying and he obviously took himself seriously.
I guess some of the language he was using wasn’t quite scripted but it would appear as if he truly believed what he was talking about.
[19] The witness was told that the Prime Minister, the Mayor and the District Commander of Police had been informed about the Maori Government’s activities. He said that Mr M seemed to be keen to come back by making an appointment but the witness declined the offer. The men said that the document discussed land rentals that were to take the place of the motel’s council rates. The rents were to go
to the organisation Mr M represented. The incentive was that this was a better deal than the rates already being paid: the payment would be less than the amount of the Council rates. It was suggested that the witness write a letter to the Council to say he would be paying his rates in accordance with an arrangement with the Maori Government.
[20] Asked whether they discussed rental the witness said that they had not done so in specific amounts; that was to be discussed in the next meeting for which the witness was asked to make an appointment.
[21] The witness said that he looked at the “Land and Marine” form and said:
I guess in the first paragraph of that form the fact that there was three strikes and after that eviction certainly did send off some alarm bells… I guess I took it as some form of threat.
He said:
I thought it as quite a good deal. Seriously though I saw figures of $500,
600 and $1000, the frequency of those payments was unclear to me.
Asked “Was any sum of money requested at that visit?” he said “No.” Asked as to what he believed could to would happen in the future he replied:
Certainly during the visitation they certainly wanted to come back and see me or make an appointment to see me. And I assume that the amount would have been made clear upon their next visitation.
[22] The witness said that he did not feel that what the men were asking for was reasonable. He said that he basically wanted to get information out of them very quickly and get them out. That is why he asked for the opportunity to read the documents. He suggested to the men if he wanted to proceed or have any queries he would contact them. He admitted to feeling a little confused but said certainly they did not appear to be joking. They seemed to have a reasonable conviction and he did feel somewhat intimidated.
[23] He said that during the conversation it was clear that Mr M and the other man wanted to come back and make an appointment to see him. He was concerned, particularly as the complainant lived at the property with his wife, who
works alongside him, and his children. He did not want his family to be exposed to such conduct. The complainant tried to be as polite as possible and thanked them for calling, and stated that he would contact them. The complainant then read the documents with more care and contacted the police. The complainant stated that he understood that the purpose of the three visits was three chances and upon the third visit one would be evicted.
[24] In cross-examination the witness responded to the proposition that it was difficult to see a demand in these documents:
In the context of the people standing in front of me and reading through the documents and the verbal I felt there was some form of threat of demand for rental.
[25] He said it was unclear as to the capabilities of the people and the supposed group that they would represent. He acknowledged that they certainly were not going to evict him that day. He recorded that they were certainly polite.
[26] The cross-examination concluded:
Really, you called the police because you had a vague concern about what occurred ?… I was concerned about what just occurred yes.
But you weren’t from that sole occasion only you didn’t feel threatened ?… I did feel threatened and I think it is the context that it was not my business they are visiting it is my home, it is where I have a wife and children and the threat of a second or third visit did concern me. The threat of being evicted from my home did concern me.
You never paid any money to them ?… No.
You would never have paid them money correct ?… It would be hard to say, it would be hard to predict the future.
Maybe it is situation akin to mafia ?… Yes.
From my suggestion that watching too much TV is bad for you ?… I do admit watching too much TV.
On the occasion that sometimes you may agree with me that something that isn’t as bad as it may seem, seems worse because of that ?… …I have a wife and children and this is my home.
[27] The elements of the charge are four-fold:
a) a demand;
b) with menaces;
c) of property;
d) with intent to steal.
[28] “Menaces” consists of words suggesting something detrimental or unpleasant: Thorne v Motor Trade Association [1937] AC 797, 806. They must usually be of such a nature as to influence the mind of an ordinary person of normal courage or firmness of purpose but it is not essential that the mind of the recipient be overborne: R v Clear [1968] 1 QB 70. But where there is conduct which would not affect the ordinary person, there will be a threat if the person at whom the conduct is directed perceives the conduct to be a threat and is influenced by it, and the accused is aware that his or her conduct is likely to so affect the person at whom it is addressed: R v Garwood [1987] 1 All ER 1032 (CA). The demand is simply the means by which the menace is carried out. A mere request for money can amount to a demand if accompanied by menaces even if no express demand is made: R v Studer (1915) 11 Cr App R 307; R v Collister and Warhurst (1955) 39 Cr App R 100.
[29] So here the test of “menaces” may be satisfied in either of two ways. The first is objective – that despite Mr M ’s courteous demeanour, the combination of his appearance and that of his colleague, his words and the paper he passed to the witness would have influenced the mind of an ordinary person of normal courage or firmness of purpose, even if his own mind was not overborne. The second is subjective – whether the complainant perceived a threat and Mr M was aware that his conduct gave rise to that perception but persisted in it.
[31] The fourth element, intent to steal, imports intending to take property without the consent of the victim.
Section 347(3)
[32] Section 347(3) provides:
(3) The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.
In Parris v Attorney-General [2004] 1 NZLR 519, 522 the Court of Appeal said as to its application:
If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds. Of course if another ground for a s 347 order exists, unrelated to the sufficiency of the evidence, that will be another matter.
[33] In R v Flyer [2001] 2 NZLR 721 the Court of Appeal said at para [13]:
…a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case.
Discussion
[34] Here a demand was clearly made. Mr M and his colleague were making a request for payment in accordance with the schedule which they supplied to the complainant. While the request was not for immediate payment the visit was the first of three planned and it was made clear that the visits would continue unless payment was made.
[35] A vital question is whether there were menaces and intent to steal. The prosecution must exclude as a reasonable possibility that the complainant believed that the demand for money was real, rather than theoretical and conditional upon the consents both of the occupier and of the Council which could never have
been secured. The assertion that in the event of failure to respond to three visits there would be eviction is certainly capable of a sinister interpretation. There is however no suggestion that Mrs N and Mr M had or exhibited either the means or the intent of any immediate action that could reasonably be perceived as meeting the test of a criminal menace. Clearly the Justices did not think so. Telling the other way is the decision of an experienced and respected District Court Judge.
[36] Although the document spoke of eviction it seems likely that what Mr M would have been taken to seek was an arrangement whereby the complainant would make payment to Mrs N ’s “Maori Government” in lieu of rate payments. Implicit in such arrangement is the notion of an agreement between the complainant and the Council that the Council would agree to forego its rates. Such a proposition is so far-fetched as to be unreal. Given Mr M ’s courtesy I consider that, measured objectively, the conduct could not be said by a jury to meet the test of R v Clear.
[37] That is not however the end of the matter. Given the large size of the two men it would be difficult, without seeing and hearing the witnesses, to determine whether a reasonable jury would be unable to find satisfied the lower test in R v Garwood. So I am just brought to the conclusion reached by the Judge that, while ambivalent, the facts could allow a jury to find such test to be met.
[38] It is unnecessary to the decision in this case to determine the bounds of the s 347 discretion exercised in such cases as R v Hillhouse [1965] NZLR 893, R v Harrington [1976] 2 NZLR 763 and R v Harlick HC AK T177/86 27 February
1987. Nor is it necessary to consider the application in New Zealand of Reeves where the police decision simply to re-lay charges dismissed after an extensive depositions hearing was held to constitute abuse of the process of the Court. I am satisfied that the facts clearly require the exercise of this Court’s discretions both under s 28J and under s 347.
[39] Reduced to its essence, this case concerns Mrs N ’s successful attempt to obtain extensive publicity for a political exercise. In my view the real question for decision is whether overall, because of the treatment of the complainant, her conduct
and that of Mr M warrant the solemn procedures of jury trial. No doubt there was some element of apprehension on the complainant’s part, not least because of the uncertainty of what was put in stock for him and his family. He acted properly and prudently in referring the matter to the police. There are currently pending in the District Court charges of unlawfully using the protected police name on clothing. Although I have found it is open to a reasonable jury properly directed to find the element of menaces and that of intention to steal are met to the standard required by law, that threshold is not passed on an objective test. It is speculative whether at trial the subjective test could be met.
[40] There are three factors relevant to the exercise of this Court’s discretion: (1) the thinness of the Crown case; (2) the failure to secure leave of this Court under s 345 before re-laying the charges and, importantly, (3) that to accord further publicity in what was essentially a political exercise would be disproportionate.
[41] While no argument was addressed to the right of freedom of expression stated by s 14 of the New Zealand Bill of Rights Act 1990, it tends to point in a similar direction.
[42] I have concluded that, viewed in its true perspective, the conduct falls short of the degree of antisocial character needed to justify trial. The dismissal of the charges by Justices reinforces that view. The reinstatement of the charges without application to the Court clears away any residual argument as to the proper course.
Order
[43] There will be orders under s 28J moving the indictable charge to this Court and under s 347 that the accused be discharged upon it. That will leave them to face in the District Court a charge of wrongly using the police name.
Comment
[44] It is important that this decision should not be misunderstood. The intrusion of persons making any form of demand with adverse consequences is likely to result, as has occurred in this case, in arrest and exposure to the serious charge of demanding with menaces. The particular circumstances of the meticulous courtesy on Mr M ’s part and the obvious lack of real apprehension on the complainant’s part are the major factors that lead to my conclusion that the Justices’ original decision to dismiss the charge was correct.
[45] It must however be plainly stated that persons such as Mrs N and Mr M who trouble other citizens in attempts to assert claimed rights seek to put themselves in breach of the Treaty of Waitangi which gives to all New Zealanders, including them, the protection of the law. The history of the past twenty years has been that bona fide claims by Maori receive a sensitive and informed response from the Waitangi Tribunal which is better equipped to deal with such matters than the Courts before which attempts at self-help will inevitably come.
[46] It is a function of the Courts to encourage and where necessary enforce compliance with the law. But, as Sir Francis Bacon noted four centuries ago, sometimes that is best done by removing a platform for politicking: The Works of
Lord Bacon Ward, Locke & Co p273 Apothegym 127. This is such a case.
W D Baragwanath J
0
0
1