Smith v R

[2017] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/2017
[2017] NZCA 288

BETWEEN	GEOFFREY MARTIN SMITH Appellant
AND	THE QUEEN Respondent

Court:

Harrison, French and Winkelmann JJ

Counsel:

R K Thomson for Respondent

Judgment:

(On the papers)

6 July 2017 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. Mr Smith faced 11 charges of importing and attempting to possess GBL, a class B controlled drug.  He entered guilty pleas to these charges in the District Court but subsequently sought leave to withdraw them.  Prior to that application being heard, he challenged the jurisdiction of the District Court over him, a challenge rejected by Judge Moala.  She said:[1]

   Superior Courts have refused to accept your claim that the Declaration of Independence or the Treaty of Waitangi means Maori or you claiming under the same sovereignty argument are not bound by the Statutes of New Zealand, particularly the Crimes Act and the Misuse of Drugs Act.

   [1]R v Smith [2017] NZDC 4801 at [2].

2. Mr Smith has applied for leave to appeal that decision.[2]  He has not filed written submissions in a conventional sense, but rather a document entitled “Statement of Claim Set Aside Void Judgment As Of Right”.  From that document it appears that Mr Smith wishes to argue again that the District Court lacked jurisdiction over him.  For example, he says:

   When the “New Zealand Police” or other “Government Agencies” act as the Plaintiff in your Court case, they are in fact a “Fictitious Plaintiff” and a fictitious plaintiff cannot prosecute a case in Court, Black’s Law states this is contempt of court.  The Judgment entered thereafter is void ab initio void (from the beginning).  Therefore you go back to Court and file a Hearing – ex debito justitiae – to have the court set aside that judgment.  Its automatic.

   [2]In a minute of 9 May 2017 Winkelmann J directed that the leave application be heard on the papers and separately to the substantive appeal.

3. The Crown opposes leave on the grounds that there is no jurisdiction to hear the appeal under the Criminal Procedure Act 2011 as either a pre-trial appeal or as a question of law.  Second, it says that in any event, the appeal is hopeless because challenges of this sort have been routinely rejected by the courts.

4. We agree that this Court has no jurisdiction to hear the proposed appeal under ss 217–218 of the Criminal Procedure Act.  A challenge to jurisdiction is not listed as an available category of pre-trial appeal under s 217 or s 218. 

5. In our view the jurisdictional issue Mr Smith wishes to pursue does not raise a question of law under s 296 because it does not relate to or follow the determination of the charge.  Judge Moala’s finding that the District Court had jurisdiction over Mr Smith did not dispose of the charges Mr Smith was facing.[3]  Mr Smith may raise the same issue on a post-conviction appeal which, if brought within time, will not require leave.  But we do not need to decide this issue because, even if there were jurisdiction, we would decline leave under s 296 as we assess the appeal he seeks leave to pursue as having no merit.[4]  As Judge Moala said, challenges of the type Mr Smith wishes to pursue have been uniformly dismissed by the courts.[5]

Result

[3]See D (CA716/2015) v R [2016] NZCA 190 at [16]–[20].

[4]At [32].

[5]See for example Wallace v R [2011] NZSC 10 at [2]; Phillips v R [2013] NZCA 580 at [3]; and R v Mitchell CA68/04, 23 August 2004 at [14].

1. The application for leave to appeal is declined.    

Solicitors:
Crown Law Office, Wellington for Respondent