R v Police HC Whangarei CRI 2007-488-31
[2008] NZHC 383
•27 March 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2007-488-0031
CRI 2007-488-0032
CRI 2007-488-0033
CRI 2007-488-0034
R
T
M
G
Applicants
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 March 2008
Appearances: T R (in person and on behalf of all applicants) M Smith and A Hyndman for the respondent
Judgment: 27 March 2008
JUDGMENT OF STEVENS J
This judgment was delivered by me on Thursday, 27 March 2008 at 1pm pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 146, Whangarei
Copy to:
T R , Waimahana Bay, Mangonui, Northland
R AND ORS V NEW ZEALAND POLICE HC WHA CRI 2007-488-0031 27
March 2008
Introduction
[1] Mr R and the other applicants were in March 2007 convicted in the
District Court at Kaitaia on a number of charges brought under the Trespass Act
1980. The charges concerned trespass on land known as Stoney Creek Station. Following their conviction the applicants were each fined $100 and ordered to pay court costs of $130.
[2] The applicants then appealed to the High Court against their convictions, essentially on three grounds: the District Court did not have jurisdiction to hear the charges; the applicants could not in law be trespassers; and there had been a breach of the principles of the Treaty of Waitangi.
[3] Two other points were raised at the hearing of the appeal in the High Court. The first was whether the appeal could proceed in the absence of Her Majesty the Queen. Second, an order was sought transferring the appeal from the High Court directly to the Supreme Court. Andrews J ruled that she did not have jurisdiction to make the order for transfer to the Supreme Court. She also ruled that the hearing of the appeal should proceed irrespective of the name of the respondent to the appeal and the absence of Her Majesty.
[4] In a reserved judgment delivered on 16 October 2007, Andrews J dismissed all appeals.
[5] The applicants have sought leave of the High Court to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957. That application was argued before me in the High Court at Whangarei on 18 March 2008. For the reasons set out below, the applications must be dismissed.
Materials filed in support
[6] The applicants filed a detailed notice of application for leave, which set out three questions of law for which leave to appeal was sought. Essentially, these
questions mirrored the grounds of appeal which were argued in the High Court and were the subject of the judgment of Andrews J.
[7] The applicants also filed an affidavit of evidence of Rewi Maniapoto Gregory. This was sworn on 14 March 2008 and was said to relate to a “dispute over trespass of customary lands”. The affidavit purported to refer to a case history on land, law and customs that are entrenched in the law of New Zealand. It referred to the Treaty of Waitangi of 1840 and the Land Claims Ordinance 1841. It also included various case references on which the applicants sought to rely to advance their application for leave.
[8] Finally, Mr R , on his behalf and that of the three other applicants, advanced oral submissions directed at why leave to appeal should be granted. He submitted that the whole of the judgment of Andrews J was “wrong”. His submissions were largely a repeat of the grounds set out in the notice and comprehensively dealt with in the judgment of Andrews J.
The law relating to second appeals
[9] The jurisdiction to grant leave to appeal from a decision of the High Court to the Court of Appeal is governed by s 144 of the Summary Proceedings Act. The High Court may only grant leave if it is of the opinion that the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[10] The test for the grant of leave has been more fully explained in a number of cases including R v Slater [1997] 1 NZLR 211 (CA). There the Court of Appeal confirmed at 215 that there are three prerequisites to a grant of leave under s 144(2):
a) A question of law must be involved.
b)The question must be one which by reasons of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.
c) The Court must be of the opinion that it ought to be so submitted.
[11] The Court of Appeal also stated (at 215):
Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
First ground - sovereignty and jurisdiction
[12] The main ground of appeal is the same as that which was argued before Andrews J. In essence, this is a challenge to the sovereignty of Parliament and the jurisdiction of the Courts. The submission was that the applicants’ hapu, Ngati Aukiwa, is the only entity with authority to deal with matters pertaining to Stoney Creek Station (or Waikonatu, which is its customary Mäori name).
[13] It is fair to say that this type of challenge has come before the Courts, both the High Court and Court of Appeal, on a number of occasions. The Court of Appeal has repeatedly said that these issues are not ones that can be addressed and resolved by the Courts: see Knowles v Police CA146/98 12 October 1998; R v Mitchell CA68/04 23 August 2004; R v Harawira CA180/05 1 August 2005 and R v Brown CA354/06 14 February 2007. In these cases, the Court of Appeal emphasised that the issues which the applicants are seeking to raise are for “public and political processes and not for judicial ones”.
[14] The Court of Appeal in Mitchell dismissed an application for special leave to appeal in the following terms at [14]:
This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our courts are bound to accept the validity of Acts of Parliament, including the Land Transport Act 1998. Although this issue does involve a point of law, Mr Mitchell's proposition has been squarely rejected on many occasions in the High Court and Court of Appeal.
No useful purpose would be served in retraversing the authorities. Mr Mitchell was perfectly familiar with them, and indeed was physically in possession of some of those authorities before us, including Knowles. He just does not accept them. He is not entitled to put himself outside the law of New Zealand.
[15] With respect to these issues, Mr Smith for the respondent submitted that there was no basis upon which the question ought to be submitted to the Court of Appeal. The issues had been considered and determined, for example, in the cases cited at [13] above. In particular, the Court of Appeal had considered a similar argument as recently as August 2007 in the case of R v Toia CA310/06 3 August 2007.
[16] Mr Smith also emphasised that the issues had been thoroughly canvassed in the judgment of Andrews J and did not warrant further airing in the Court of Appeal.
Second ground – offence of trespass not made out
[17] The second question was based on the proposition that Stoney Creek Station is “customary land” over which the applicants have “unextinguished native aboriginal rights”. The applicants had a right to be on their land and could not be guilty of trespass.
[18] In Anaru v Police HC WHA CRI 2005-488-21 27 July 2005, Venning J helpfully set out the relevant legal principles in relation to claims disputing trespass convictions. At [29] he stated:
This Court is bound to apply the law as enacted by Parliament including the
Trespass Act. The legal position is:
(a) the New Zealand Parliament is empowered to make legislation;
(b) the Acts of Parliament do not derive their authority from the Treaty of
Waitangi or the Declaration of Independence;
(c) the Acts of Parliament are binding on all persons in the territory of New
Zealand including both Pakeha and Maori;
(d) the Courts of New Zealand must uphold the legislation enacted by New
Zealand Parliament including the Trespass Act;
(e) the Trespass Act was enacted by the Parliament of New Zealand under the authority of the Constitution Act 1852 (UK).
(f) While the Constitution Act 1986 repealed the 1852 Act it preserved existing legislation including the Trespass Act.
(g) As a result of the above the Courts have jurisdiction to deal with all Acts and omissions which constitute offences under the Trespass Act committed within New Zealand: Warren v Police (HC Hamilton, AP133/99, 1 February
2000); Manukau v Attorney-General [2000] NZAR 621; Rameka v Police
(HC Whangarei, AP4/00, 23 March 2000); Kaihau v Police (HC Rotorua, AP42/00, 11 May 2001); McQueen v Police (HC Hamilton, AP56/00, 9
August 2000, Hammond J); Adam v Police (HC Auckland, A81/00, 3 July
2000, Paterson J).
[19] On the trespass question, Mr Smith contended in response that customary rights did not give rise to a defence to the charge of trespass. The applicants have no title under the Land Transfer Act 1952. The legal title to the land, which in this instance triggers the application of the Trespass Act, is with the complainant. Again, the applicants are raising matters which are more apt to be determined in a public or political forum.
[20] Mr Smith submitted that this question was not one that ought to be submitted to the Court of Appeal for decision. The applicants have not made out grounds to show that the question was of general or public importance.
Third ground – breach of the Treaty of Waitangi
[21] Mr R next referred to an alleged “breach of the Treaty of Waitangi and its principles” in the notice seeking leave. Apart from this general reference, he offered no further elaboration as to why this gave rise to a question of law that met the requirements of s 144 of the Summary Proceedings Act.
[22] In response, Mr Smith submitted that this question was really linked to the first question. It should be rejected as a ground of appeal for the same reasons discussed under the sovereignty and jurisdiction heading.
[23] In this context, it is appropriate to refer to the observations of the Court of
Appeal in R v Miru CA65/01 26 July 2001. It was there stated at [8] that:
Important however as the moral force of the Treaty of Waitangi is to New
Zealand it does not of itself give rise to legal authority such as that exercised
by the Courts in their criminal jurisdiction. That legal authority can only be conferred by the New Zealand Parliament which has had full and exclusive legislative power in New Zealand since the adoption in 1947 of the United Kingdom Statute of Westminster 1931.
Conclusion
[24] In respect of each of the proposed questions for which leave was sought by the applicants, I agree with the submissions of Mr Smith for the respondent. The applicants have not established grounds which meet the strict criteria in s 144 of the Summary Proceedings Act.
[25] Further, all the issues were fully canvassed in the judgment of Andrews J. None of the points raised has any merit outside the public or political context. While there is no doubting the bona fides of the applicants, they have not succeeded with any of the grounds advanced as a basis for obtaining leave. Accordingly, the application must therefore be, and is, dismissed.
[26] As to the question of costs, the respondent did not seek costs. There will be no order as to costs.
Stevens J
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