Robinson-Wiki v Police HC Whangarei CRI 2011-488-47

[2011] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-47

BETWEEN  GEORGINA ROBINSON-WIKI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 October 2011

Counsel:         No appearance by, or on behalf of Appellant

M Jarman-Taylor for Respondent

Judgment:      27 October 2011

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Copy to:

Appellant in person

ROBINSON-WIKI V NEW ZEALAND POLICE HC WHA CRI 2011-488-47 27 October 2011

[1]      Ms Robinson-Wiki was charged with disorderly behaviour likely to cause violence, pursuant to s 3 of the Summary Offences Act 1981.

[2]      On 30 May 2011, she entered a plea of guilty to that charge. An adjournment was granted for questions of diversion to be considered.  Subsequently, for reasons into which I need not go, an offer of diversion was withdrawn.  That occurred on 12

July 2011.

[3]      On 12 July 2011, Ms Robinson-Wiki came before Judge Rota, in the District Court at Kaikohe.  After some extensive discussion, the Judge sentenced her to 40 hours  community  work  requiring  Ms  Robinson-Wiki  to  see  a  probation  officer within 72 hours.

[4]      Ms Robinson-Wiki has appealed against that sentence.  The appeal was set down for hearing today and notice of the date was provided by the Registrar.  The appeal was called outside the Court some fifteen minutes after the appointed time for the hearing.  No appearance has been entered.

[5]      The appeal has been brought primarily on grounds that can be summarised (broadly) as Maori Sovereignty issues.  The grounds of appeal attack both the right of Parliament to legislate in relation to crimes affecting Maori and the role of the Courts to uphold such laws.

[6]      These points have been considered on many occasions in the past. This Court is bound by higher authority that makes it clear that there is no merit in such arguments.  On that basis, it is clear that the appeal must be dismissed.

[7]      Ms Jarman-Taylor, for the Crown, has helpfully referred to the Court of Appeal’s decision in R v Toia.[1]     That decision sets out a useful summary of the reasons why a plea of this nature cannot be accepted by the Courts.  In the context of

[1] R v Toia [2007] NZCA 331.

more serious crimes for which provision is made in the Crimes Act 1961, delivering

the judgment of the Court of Appeal, Randerson J said, in relation to “Sovereignty”

arguments:

[10]     We are satisfied that the appellant’s argument on this point must be

dismissed. In summary:

(a)       The crimes with which the appellant was charged are all under the Crimes Act 1961 which, in terms of s 5, applies to all offences for which the offender may be proceeded against and tried in New Zealand and to all acts done or omitted in New Zealand.

(b)       The  Crimes Act  1961  was  enacted  by  the  New  Zealand Parliament which has sovereign power to legislate: Berkett v Tauranga  District  Court  [1992] 3 NZLR 206 at 212-

213(HC); R v Knowles CA146/98 12 October 1998; Nga Uri
O  Te  Ngahue  v  Wellington  City  Council  CA  470/03  18

February 2004; R v McKinnon CA240/04 4 May 2005; and

R v Harawira CA180/05 1 August 2005.

(c)       This Court’s duty is to apply enactments of the legislature: Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and New  Zealand Maori Council  v Attorney-General [1987] 1 NZLR 641 at 690 (CA).

(d)       The submission that the courts of New Zealand do not have jurisdiction over Maori incorporations, their members or lands vested in such incorporations has been rejected in New Zealand on a number of occasions: see, in particular, the decision of this Court in R v Miru CA65/01 26 July 2011 at [4] – [8] and [19].

(e)       Arguments based on s 71 of the New Zealand Constitution Act 1852 (UK), the Native Districts Regulation Act 1958 and the Native Circuit Courts Act 1858 cannot aid the appellant.   That legislation was repealed by Part 3 of the First Schedule of the Repeals Act 1891 and no longer have any force or effect: Barrett v Police HC HAM CRI 2003-

419-64 14 June 2004.

(f)       Finally, arguments based on s 36 of the Maori Community Development Act 1962, the Maori Community Development Regulations 1963 and the Maori Councils Act 1900 do not assist the appellant.   Section 36 of the Maori Community Development Act empowers a Maori Committee established under the Act to impose penalties for certain minor offences but does not apply to the crimes at issue here.  The Maori Councils Act 1900 has been repealed.

[8]      I add that nothing in Te Ture Whenua Maori Act 1993 contradicts any of those propositions.

[9]      I have also considered whether the sentence was inappropriate or manifestly excessive.  It was neither.  Ms Robinson-Wiki was unable to pay a fine.  The term of community work was at the lowest end of the scale.

[10]     For those reasons, the appeal is dismissed.

P R Heath J