Tamihere v Ird Commissioner

[2014] NZHC 1986

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-002061 [2014] NZHC 1986

BETWEEN

ROBIN NOEMA HUGHES TAMIHERE

Applicant

AND

IRD COMMISSIONER Respondent

Hearing:	21 August 2014
Appearances:	R N H Tamihere in person A Todd for Respondent
Judgment:	21 August 2014
Reasons:	21 August 2014

REASONS FOR JUDGMENT OF ANDREWS J

This judgment is delivered by me on 21 August 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

TAMIHERE v IRD COMMISSIONER [2014] NZHC 1986 [21 August 2014]

[1]      Mr Tamihere’s application for a writ of habeas corpus has been heard before me  today,  on  an  urgent  basis.    At  the  conclusion  of  the  hearing  I  advised Mr Tamihere that his application for a writ could not succeed.   I now set out my reasons.

Background

[2]      On 8 January 2014, Mr Tamihere was convicted on a total of 55 charges laid under  the  Tax  Administration  Act  1994  regarding  the  application  of  PAYE deductions for purposes other than payment to the Commissioner of Inland Revenue Department.  That conviction followed hearings before Judge S E C McAusland on

28 June 2013, 31 July 2013, and 18 October 2013, and were set out in a reserved judgment delivered by Judge McAusland.

[3]      Mr Tamihere’s sentencing was scheduled for 8 April 2014.  He did not appear on that date.  In his submissions, Mr Tamihere said that he had not been made aware of it.

[4]      On Mr Tamihere’s non-appearance for sentencing, a warrant for his arrest was issued in the Manukau District Court.

[5]      Mr Tamihere was arrested on 7 August 2014.   He was brought before the

District Court at Manukau and granted bail to appear for sentencing on 19 August

2014.

[6]      Mr Tamihere appeared in the District Court at Manukau on 19 August 2014. Sentencing could not proceed on that day as a pre-sentence report and reparation report were not available.

[7]      Mr Tamihere has argued, and continues to argue, that the District Court has no jurisdiction over him, as he is the beneficiary of a Maori Incorporation which has sole jurisdiction.   As such, Mr Tamihere contends that Judge McAusland did not have jurisdiction to enter convictions against him.

[8]      On 19 August 2014, Mr Tamihere again challenged the jurisdiction of the District Court to deal with him.  The presiding Judge, Judge André-Wiltens, advised Mr Tamihere that he could be remanded on bail if he accepted the jurisdiction, would

co-operate with the preparation of a pre-sentence report, and attend the sentencing hearing.   If Mr Tamihere would not accept those conditions, then he would be remanded in custody until sentencing.  Mr Tamihere was not prepared to accept the jurisdiction of the Court and was, accordingly, remanded in custody.   The District Court Judge signed a warrant of commitment on adjournment, setting out the charges on which Mr Tamihere was required to appear in Court on 14 October 2014, and directing that Mr Tamihere be delivered to the Mt Eden Correction Facility for his detention until 14 October 2014.

[9]      I am satisfied that Mr Tamihere has been detained pursuant to a lawfully issued warrant of commitment.  On that basis, his application for a writ of habeas corpus cannot succeed.   Further, the application for a writ of habeas corpus is, in fact, a challenge to the District Court Judge’s refusal to grant him bail until sentencing. As such, pursuant to s 14(2)(b) of the Habeas Corpus Act 2001, a writ of habeas corpus cannot be issued when it calls into question a ruling as to bail.

[10]     Thirdly, in any event, Mr Tamihere’s challenge to jurisdiction cannot succeed. Such challenges, and assertions that another entity has jurisdiction, have been raised on many occasions, and have consistently been rejected. As the Court of Appeal said in Phillips v R,1 the legal foundation for arguments that the New Zealand Courts lack jurisdiction have been considered and rejected by the Court of Appeal and also, significantly, by the Supreme Court as plainly unarguable.   The leading decisions

affirm that the New Zealand Parliament is sovereign and its legislation applies to all New Zealanders irrespective of race.  Accordingly, Mr Tamihere’s challenge to the jurisdiction of the District Court in his case cannot succeed.

[11]     For the above reasons, Mr Tamihere’s application for a writ of habeas corpus was dismissed.

Andrews  J

1      See Phillips v R [2013] NZCA 580 and Wallace v R [2011] NZSC 10.