R v Police HC Whangarei Cri-2008-488-14

[2008] NZHC 1825

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2008-488-014

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 October 2008

Counsel:         Appellant in person

M B Smith for Respondent

Judgment:      21 November 2008

RESERVED JUDGMENT OF DOBSON J

Solicitors:

Appellant in person

Crown Solicitor, Whangarei for Respondent

R V NEW ZEALAND POLICE HC WHA CRI-2008-488-014  21 November 2008

[1]      In form, this was an appeal against conviction and sentence.  Mr R   was one of a number of protesters who had sought to assert rights to a farming property  at  Mangonui  in  Northland,  presently  called  Stoney  Creek  Station. Mr R   and other protesters claim, in the name of their hapu, Ngati Aukiwa, that it has an unextinguished native aboriginal customary title to the land.   Their hapu contests the entitlement of the Ngai Kahu Ki Whangaroa Trust Board to negotiate with the Crown on the future of the land.

[2]      The conduct leading to the present charge involved protesters going on to the station, and being warned by a Police officer that they were trespassing.   On the occasion relevant to the present conviction, Mr R   and others were warned on

9 November 2006 to “stay off Stoney Creek Station”.  Having heard that warning, deliberately and as part of their protest, they walked onto the land.  As District Court Judge Callander records in his reserved decision of 14 May 2008, this walking onto the land:

…was the whole point of the exercise.   This was a planned, carefully considered protest, a genuine cry from the heart about land they considered to be part of their ancestral right.

[3]      Mr R   and a number of others were convicted of trespass.  Each was fined $500, together with Court costs of $130.

[4]     Judge Callander’s decision deals with numerous legal arguments raised, including a challenge to the basis on which the Commissioner of Crown Lands could assert ownership and occupancy rights, sufficient to serve trespass notices on the defendants.   Arguments of this type have been advanced in similar trespass cases involving  protest  action  in  the  past.    Judge  Callander’s  decision  adopted  the reasoning in those earlier cases, in particular a 21 November 2005 decision of Judge D M Wilson  QC  (New  Zealand  Police  v  Wilfred  Michael  Peterson  and  Tamati Roha), and a High Court appeal from a decision by another District Court Judge, determined by Andrews J in T Roha aka H Thomas & ors v NZ Police HC WHA CRI-2007-488-31 16 October 2007.

[5]      Mr R  ’s notice of appeal was not enlightening as to the grounds to be advanced, and no submissions were filed addressing alleged errors by the Judge.  In

substance,  Mr  R    used  the  opportunity  for  a  wide-ranging  attack  on  the Crown, in any manifestation that conflicted with his aspiration to be recognised as a person not subject to the jurisdiction of New Zealand Courts in general, and certainly in particular, in relation to his activities on Stoney Creek Station.

[6]      From what he told me, it is apparent that he is a seasoned litigant, both on his own behalf, and also as an agent for like-minded persons who pursue a range of challenges, including those relating to access and control of the land to which they lay claim.   As best I can distil the arguments he advanced, they can be arranged under three headings.

[7]      First,  that  Mr  R    was  immune  from  arrest  and  consequently  not subject to the jurisdiction of New Zealand Courts because of litigious initiatives he and others have taken previously.  He treats those claims as having been made out because they were not opposed by the Crown or others cited as defendants in them. Mr R   considers that he has succeeded for the relief claimed, because the Courts have not declined it.

[8]      Secondly,  that  he  could  not  have  been  trespassing  on  the  Stoney  Creek Station land because he is among the genuine owners of the land and was there as agent of his hapu.  These arguments included challenging the evidence of ownership as reflected in the Certificate of Title.  Mr R   claimed to have questioned the agent of the registered owner who “prevaricated” and did not assert ownership in terms of the title.   He also argued there was not sufficient proof as to ownership because Her Majesty the Queen as ultimate owner did not appear in the witness box during the District Court criminal proceeding.

[9]      Although his criticisms were not particularised in any way, as part of his criticism of the rejection of arguments of this type in the District Court, he submitted that Judge Callander was “erroneous in all respects”.

[10]     The third argument was to the effect that the Crown, or Crown agencies, had conducted themselves inconsistently in certain proceedings in the Hastings Mäori Land   Court,   when   considering   the   entitlement   to   issue   a   trespass   notice.

Mr R   argued that the State was acting inconsistently, and that meant that those who had requested the Police intervention that led to his arrest on the present trespass charge had done so in some way improperly or without sufficient legal standing.

[11]    As to the first group of arguments, Mr R   provided a volume of documents to me at the end of the hearing, which appear to reproduce parts of proceedings he advised me he filed as an original proceeding in the Court of Appeal in 2005.  Subsequent to the hearing, he delivered to the Registry for forwarding to me a further volume of documents, some of which appear to relate to proceedings in which he is involved in the Mäori Land Court at Hastings.  The arrangement made in relation to these voluminous papers which were not copied to the Police was that if I considered any of them to materially assist his appeal, then I would arrange to have copies of such documents provided to Mr Smith, and afford him an opportunity to comment on them.  In the event, some of the documents have enabled me to better understand the points Mr R   was making, but I have not considered it necessary to refer any of them to Mr Smith for comment.

[12]     In addition, the Court made available at Mr R  ’s request certain of the documents in civil proceedings commenced in the name of Wilfred Mick Peterson and Elizabeth Peterson, CIV-2006-488-414, in which Mr R   has appeared as agent for the plaintiffs.

[13]     It appears that the 2005 proceedings were an attempt by Mr R   to injunct all members of the New Zealand judiciary from asserting any jurisdiction over him and others with whom he was associated.   Ironically, neither Judge Callander who as a retired Judge heard the trespass charges in the Kaitaia District Court on a temporary warrant, nor me because of my more recent appointment, were among the judicial officers whom those proceedings sought to injunct.

[14]     In any event, having had certain papers apparently accepted by the Court of Appeal Registry, in the absence of any formal opposition by the Crown and in the absence of any relief being ordered by the Court of Appeal, Mr R   treats the injunctions applied for in those proceedings as if they are in force.  That assertion of

relief without Court order is obviously wrong.   I sense that Mr R   did appreciate that he needed the Court to take a positive step in making orders on defined terms before they could have lawful effect, but may have assumed this default position out of frustration that proceedings he treats as worthy of consideration have not been dealt with.

[15]     The  likely  rejoinder  to  that  is  that  the  papers  filed  did  not  sufficiently articulate a cause of action or basis for relief to warrant a response.

[16]     The  Petersons’  2006  proceedings  are  styled  as  a  motion  for  summary judgment seeking a declaration of ownership by Te Hapu Aukiwa of land to which the hapu lays claim, including Stoney Creek Station.   Although  not  a  plaintiff, Mr R   is specified as “agent” for the plaintiffs in those proceedings.   The Crown has filed an application to strike out the proceedings.   A first minute in respect of them by Hugh Williams J ends with the observation:

It is only fair, however, to those present to record that the nature of the papers lodged in Court on their behalf and the assertions made are such as not to fit within recognised Court procedures, and accordingly the chances of success on their part must be correspondingly diminished.

[17]     Consistently with his approach to his 2005 Court of Appeal proceedings, Mr R   argued that because the proceedings had not been dealt with, he was entitled to treat them as if a positive outcome had been procured.  He also suggested that the Court has disqualified itself from dealing with it by the period of inactivity.

[18]     At  one  point  in  his  argument,  Mr  R    suggested  an  alternative proposition which was that the present trespass proceedings should not have been dealt with by the Court until these 2006 proceedings which challenged ownership of the land on which the trespass occurred had been decided.

[19]     None of these grounds for challenging the District Court decision have any foundation whatsoever.   Assertions by any litigant as to outcome sought from proceedings cannot have any standing in affecting either the relationships between the parties to that litigation in relation to it, or more broadly than that.   The proceedings may demonstrate Mr R  ’s commitment to his cause, and the

range of propositions by which he seeks to advance the cause of his hapu.  However, even if the proceedings raise a justiciable claim in any form, such assertions could not have any standing to affect criminal proceedings until they were reflected in orders of the Court.  Accordingly, the first range of arguments advanced must fail.

[20]     The second group of arguments appeared to be a variation on what was argued in the District Court.  The argument that Mr R   could not have been trespassing because he was in fact an owner raises the contention that the Certificate of Title evidencing legal ownership is in some way wrong, or to be disregarded.  On that issue, the judgment under appeal observed:

Judge Wilson also considered a challenge to the Certificates of Title to the land.   The register is conclusive and no other documentation of claim can stand against the indefeasible right of the Commissioner in this case.

[21]     The judgment also quotes from the High Court decision of Andrews J in the following terms:

Certificates of Title are indefeasible.  On the face of it they are correct.  The appellants’  appeal  against  conviction  for  trespass  is  not  the  appropriate forum to deal with their, or their hapu’s challenge in respect of Stoney Creek Station.

[22]     Mr R   did not raise any credible challenge to these findings.   His further argument that at least a state of some uncertainty exists given the claims made in the 2006 proceedings must fail on the same reasoning.  The record of legal ownership in the Certificate of Title is conclusive for all purposes relevant to the present criminal trespass proceedings.

[23]     Mr R   also challenged the adequacy of evidence establishing authority in the individual who requested the Police to remove the protesters, as being an agent duly authorised by the legal owner.  I sense that the first stage of this is a challenge to the adequacy of the evidence of appointment of the Commissioner of Crown Lands.   That was explicitly dealt with by the Judge, who found that the letter of appointment  of  the  Commissioner  by  the  Chief  Executive  of  Land  Information New Zealand which was exhibited, was within the modes of appointment provided for in s 63 of the State Sector Act 1988.   There is no basis for challenging the correctness of that proposition.

[24]     The exhibits produced to the District Court also include the written request made by the Commissioner to the Officer in Charge at the Kaitaia Police Station. Again, that is an entirely lawful mode of direction to the Police officer, Detective Sergeant  Beatson,  who  dealt  with  the  Commissioner’s  request  to  deal  with trespassers, and eventually arrested them.  I am satisfied that there is no deficiency in the standing of the persons who dealt with the trespassers, and that ground must accordingly fail.

[25]     Mr  R    also  criticised  the  absence  of  direct  evidence  from  the registered owner.  This argument started with the proposition that if the Queen was the owner she should have been in the witness box.  He said that he had questioned the person who supposedly appeared on behalf of the Queen, and that that witness had prevaricated.  Any prevarication there was related not to any question of fact, but to the question of law as to how title to land held in the name of Her Majesty the Queen for Crown land under the Land Act 1948 is to be personified in an agent of the Crown within New Zealand.  Again, that does not represent a deficiency in the evidence on the elements required to be established by the Police.  Accordingly, no error can be established in this second group of arguments raised by Mr R  .

[26]     The  third  group  of  arguments  relates  to  apparently  inconsistent  stances adopted by the Crown in relation to trespass.  The papers provided since the hearing include a document recording Mr R  ’s “vehement” objection lodged with the Mäori  Land Court in Hastings to the “re-release of the whenua  Poukawa 9E2” involving the Mäori Trustee and a farmer lessee.  Mr R  ’s argument was that he was among the beneficial owners of the Poukawa 9E2 property, and as part of his protest at the lease of the property, he indicated that he had served a trespass notice on either or both of the Mäori Trustee and the farmer lessee.  The Mäori Land Court had apparently authorised the persons served with his trespass notices to ignore them.   Mr R   suggested that if his authority as an owner of the Poukawa property could be questioned in that way, then it was equally competent for him to question  the  authority  of  the  Commissioner  of  Crown  Lands  in  relation  to  the trespass charge he faced at Stoney Creek Station.

[27]     The initial response to this is that two wrongs could never make a right. There was certainly not enough material put before me to evaluate the grounds on which the Mäori Land Court appears to have overridden Mr R  ’s claimed entitlement to issue a trespass notice in respect of the relevant property.  There are, however, numerous likely explanations where control of Mäori land held for a range of beneficial owners is dealt with by an agent on their behalf, with the Mäori Land Court having appropriate jurisdiction to direct the supervision and management of such land.

[28]     There is no basis on which Mr R   can cite the way he was dealt with by the Mäori Land Court in Hastings as a ground for challenging the correctness in law or in fact of the outcome of the trespass charge against him in the Kaitaia District Court.

[29]     As other Judges who have dealt with this group of protesters have observed, determinations against them are no reflection on the genuineness of their concerns. Nor have these decisions in any way pre-judged the ultimate outcome of contested claims to beneficial rights to Stoney Creek Station.  However, the present status of legal ownership, and rights to occupy that flow from it, are what must determine the elements of trespass charges.  None of the diverse matters raised by Mr R   establish any error in the reasoning applied in the determination against him.   His appeal is dismissed.

Dobson J