R v Takao

[2004] NZCA 279

IN THE COURT OF APPEAL OF NEW ZEALAND

CA379/03

THE QUEEN

v

DICE TAKAO

Court:McGrath J
W Young J
O'Regan J

Counsel:G C de Graaff for Crown

Judgment:15 November 2004 

(On the papers)

JUDGMENT OF THE COURT

WE DISMISS THE APPEAL.

____________________________________________________________________

REASONS

(Given by O’Regan J)

[1]        Mr Takao was convicted on two counts of kidnapping after a jury trial at the High Court in Rotorua.  He was sentenced to 150 hours of community work.  He filed a notice of appeal against conviction and sentence.  The grounds of appeal set out in that notice of appeal are:

No jurisdiction.

Need to go to Maori Land Court or Privy Council [because] no other has jurisdiction over tangata whenua issues.

No jurisdiction.

[2]        This appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including the notice of appeal and the written submissions received from the Crown in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment. 

The facts

[3]        Mr Takao was charged along with three others, Mr Heta, Mr Tuwairua and Mr Hillman-Rua.  The factual background was described by the trial judge, Randerson J, in his sentencing remarks as follows:

[1]       You were all convicted on 27 August 2003 after trial on counts of unlawful detention under s 209 of the Crimes Act 1961.  The maximum penalty for that offence is 14 years imprisonment.  Mr Takao you were convicted on two counts relating to incidents on 9 September and 8 October 2002.  Mr Heta you were convicted on one count relating to the September incident.  Mr Tuwairua and Mr Hillman-Rua, you were both convicted on one count following the October incident.

The facts

[2]       Both these incidents occurred on the Matahi Valley Rd and involved the stopping of deer recovery trucks bringing venison from the Te Urewera National Park down the roadway and past the marae with which you were all associated in the valley.  The background of these incidents was your concern that helicopter operators were shooting deer in the National Park.  They had obtained licences from the Department of Conservation to do so but you maintained that they had not consulted with you as tangata whenua before obtaining those licences.

[3]       As well, you claimed that you were entitled to the animals as tangata whenua and you asserted a right to stop the vehicles and to confiscate the deer unless the operators had obtained some form of permit issued by you or the relevant marae committee.

[4]       In the September incident, the driver of the truck was a man in his early 60s and an employee of the deer recovery operator.  He gave evidence that his vehicle was stopped near to the entrance to Omuriwaka Marae by four men who were blocking the road and signalling him to stop.  Mr Takao and Mr Heta, you were two of those men.  On that occasion Mr Takao, you acted as the spokesman while Mr Heta had a lesser role.

[5]       The driver and his vehicle were kept at the side of the road for approximately an hour while two of the group were despatched to Waimana to obtain instructions as to what was to be done with the truck and the driver.  Mr Heta, you were one of those who was despatched and you returned to the scene later.  By the time you and the other people came back, the driver had been stopped on the road for one and three-quarter hours.  He was then directed by you Mr Takao to drive the vehicle on to the nearby marae and the venison was unloaded into the marae chillers.  There were four carcasses.

[6]       In the October incident, two men were driving a truck down the valley with a load of venison.  One of them was the owner of the deer recovery operation which was separate from that involved in the first incident.  Their vehicle was also stopped by at least six people although about five or six kilometres from the Omuriwaka Marae.  The truck driver recognised you Mr Takao and you Mr Tuwairua as being two of those involved.

[7]       On this occasion you Mr Tuwairua were the main spokesman.  You claimed to be a warranted animal control officer for Tuhoe and asked the driver whether he had any permits issued by Tuhoe.  When he said he did not, he was told the deer carcasses were going to be confiscated.  He was also told you would have to speak to the “CEO” before taking any further steps.

[8]       After being stopped at the side of the road for about ten or fifteen minutes, the driver was told that he would have to drive his truck to the Omuriwaka Marae to await the arrival of the CEO.  He said he had no choice about that or the prior step of stopping his vehicle.   When he arrived at the entrance of the marae, he pulled his truck over to the side of the road and refused to go into the marae.  At that point, you Mr Takao became aggressive according to the driver’s evidence, and looked as though you were preparing to fight.  He therefore decided to drive the truck into the marae but he did not do so willingly.

[9]       A police officer arrived at the marae about the same time as you Mr Hillman-Rua.  By then, the driver and passenger had been kept there for between one and two hours.  There was then a discussion in which the helicopter operator said he was cornered into an agreement to give one deer to the marae for every five brought out of the National Part without permission from the marae.  One carcass was handed over.

[10]     By their verdicts, the jury must have determined that each of the complainants was detained unlawfully and without their consent.  I am satisfied on the evidence I heard that the verdicts were proper in the circumstances.  In my summing up, I rejected as a matter of law that you were entitled to stop the vehicles for any of the reasons advanced by you.  Those reasons included your claim that you had a separate and independent system of law that entitled you to do so; a claim that you were entitled to the land in the area including the roadway; and a claim that you were entitled to stop the vehicles and confiscate the deer because you owned them.

[11]     There was an issue at trial about the legal status of the roadway.  A witness from the Whakatane District Council was called who established that the roadway was formed largely within the legal road reserve as declared by a proclamation in 1930.  But there was a portion of road, about 300 m in length, which traversed land owned by the administrators of the Omuriwaka Marae.  That state of affairs resulted from a flood in 1964 which washed out a portion of the roadway then in existence, necessitating moving the road to higher ground.  The Council produced a letter written in 2001 from one of the senior administrators of the Omuriwaka Marae confirming that the public had the right to use that portion of the roadway, provided the Council maintained the road.  The evidence was that the Council had done so.

[12]     Accordingly, the truck drivers involved were quite entitled lawfully to drive down the roadway, including the portion of roadway over the privately owned land at the marae.  They clearly had a licence to do so.

[13]     In any event, I directed the jury that a private citizen does not have the right to detain people even if they are on their own land for the purposes which occurred in the present case.  There are limited rights to remove a trespasser from privately owned land but that is not what occurred in this case.  Rather, the trucks and their drivers were detained for a substantial period of time before being allowed to proceed on their way.

[14]     The October incident occurred on a portion of roadway which the Council witness said was public roadway.  Again, there could be no question that the trucks had the right to use that portion of roadway or ordinary purposes.

[15]     I accept that there was no actual violence used although remarks made by you Mr Takao, gave the elderly driver of the truck involved in the September incident, some cause to feel intimidated.  In the October incident, I accept the driver’s evidence that you behaved in an intimidating manner as if you were preparing to fight him.  There is no evidence of any cogency that the hammer later found and recovered in long grass near the entrance to the marae was there for any sinister purpose.

Procedure

[4]        A Judge of this Court, acting under s 392A of the Crimes Act, decided that this appeal can fairly be dealt with on the papers and that it has no realistic prospect of success.  Accordingly the mode of hearing is to be on the papers.  Mr Takao was directed to file any written submissions he wished to make in support of his appeal by 19 March 2004.  No submissions were filed.  Another request was made on 1 July 2004, but again no submissions have been filed.

[5]        On 17 August 2004, the Crown was asked to provide submissions in the absence of any submissions from Mr Takao.  Those submissions were filed by Crown counsel on 27 August 2004.

[6]        In R v Hiroti CA384/01 25 September 2002, this Court considered the procedure which should be followed for determining an appeal which is to be dealt with on the papers where the appellant has made no submissions.  In that case, the Court determined that, where no submissions have been filed, it is appropriate for the Court to consider afresh the initial decision made by a single judge of the Court under s 392A as to the mode of hearing.  The Court said at [15] that the Court must have sufficient information as to the appellant’s grievance concerning the decision appealed against for the Court fairly to deal with the appeal.

[7]        We have reconsidered the issue of the appropriate mode of hearing in the present case.  The notice of appeal makes it clear that the appellant’s challenge to both his conviction and sentence is based on a single ground to the effect that the Court has no jurisdiction over him because he is Maori.  In view of that, we are satisfied that we are sufficiently apprised of his grievance to determine fairly the appeal on the papers.  The appellant has been provided with the case on appeal and has been given a lengthy period of time in which to prepare and forward submissions to the Court.  The issue which he wishes to raise is one which has been raised on many occasions (unsuccessfully) in this Court and the High Court, and the issue is clear.

[8]        It appears that the challenge to jurisdiction was made in the High Court at sentencing.  Randerson J commented on the issue in his sentencing remarks as follows:

[38]     Arguments about the jurisdiction of this court in criminal cases have been raised many times and have been consistently rejected.  The cases are referred to in Adams on Criminal Law, CA 5.15 and include Warren v Police [1995] 3 NZLR 411; Creeks and Ors v R (High Court, Auckland, A.138/00, 6 November 2000, Chambers J); and other authorities.  Section 5 of the Crimes Act provides that the Act applies to all acts done or omitted in New Zealand and s 18 of the Oaths and Declarations Act 1957 requires me to act according to law and to do right by all manner of people after the law and usages of New Zealand.

[39]     The law in New Zealand is that I am bound to apply the law laid down by Parliament in the form of the Crimes Act and the Sentencing Act.  Similarly with systems of marae justice which have been mentioned.  There is no reason at all why any groups, private citizens, or peoples cannot establish rules and procedures to govern their actions.  But that does not permit them to carry out actions which interfere with the lawful rights of others such as the citizens involved in this case.  You, like any other person in this country, must obey the laws set down by the Parliament of New Zealand which bind all of us, including me.

The jurisdiction issues

[9]        This Court has dealt with many cases involving a challenge by Maori to the jurisdiction of the New Zealand Courts to try and sentence offenders who are of Maori origin.  Such challenges have failed, for reasons which have been traversed in those earlier cases.  The reasons are well summarised in the judgment of this Court in R v Knowles CA146/98 12 October 1998.  In that case, Keith J giving the judgment of the Court said:

Since 1947, with the adoption of the Statute of Westminster 1931 and the amendments to the 1852 Act, further elaborated in 1973, the New Zealand Parliament has had full power to make laws, as s15(1) of the Constitution Act says.  It was in exercise of those powers that the New Zealand Parliament in 1975 enacted the Misuse of Drugs Act under which Mrs Knowles was convicted.  Faced with that orthodox exercise of the lawmaking power of Parliament this Court, like other courts, is obliged to give effect to the terms of the Act.  This Court made that point a few months ago in rejecting an appeal to provisions of the Magna Carta as a reason for not applying the Misuse of Drugs Act, R v Creser (38/98, judgment of 21 May 1998); see also Berkett v Tauranga District Court [1992] 3 NZLR 206 and the cases it refers to. The Court cannot read down those full powers of Parliament to make laws by reference to the historical documents to which we were referred.

[10]     In the present case the charges were under the Crimes Act rather than the Misuse of Drugs Act, but the same logic applies.

[11]     Accordingly the ground of appeal based on a challenge to the jurisdiction of the High Court must fail. 

[12]     The notice of appeal suggests that the matter should have been heard either by the Maori Land Court or the Privy Council.  Neither has jurisdiction to do so.  The Maori Land Court’s jurisdiction does not extend to the criminal law.  The jurisdiction of the Privy Council is limited to an appeal jurisdiction from decisions of this Court, and, of course, that jurisdiction was ended by the passing of the Supreme Act 2003.

Sentence

[13]     We have considered whether there is any basis for altering the sentence imposed on Mr Takao.  However it is clear from the Judge’s sentencing remarks that he took an extremely merciful approach and there is no basis for an assertion that the sentence was excessive.  Of course, no such assertion was made in the notice of appeal in any event.

Solicitors:
Crown Law Office, Wellington