Te Hiwi v Police - [2016] NZHC 817

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-1 [2016] NZHC 817

BETWEEN
JOHN PAUL NATANA TE HIWI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 27 April 2016

Appearances:

Appellant in person
C Ure for the Respondent

Judgment:

27 April 2016

ORAL JUDGMENT OF WOODHOUSE J

Parties / Solicitors: The appellant
Ms C Ure, Almao Douch, Office of the Crown Solicitor, Hamilton

TE HIWI v NEW ZEALAND POLICE [2016] NZHC 817 [27 April 2016]

[1] Mr Te Hiwi appeals against conviction under the Land Transport Act for refusing to permit a blood specimen to be taken. He was fined $1,000 and disqualified.

[2] In the District Court there was clear evidence of refusal not only from the police officer but also from the appellant himself. The appellant’s case was summarised by Judge KBF Saunders as follows:1

[14] Mr Te Hiwi gave evidence and as I have said the conflict between him and Constable Wiggins was in respect to what happened on the roadside at the checkpoint. Mr Te Hiwi says that he refused to co-operate and refused all requests because he is entitled to do so as his father has taught him under the Bill of Rights Act and in particular ss 10 and 11. He explains the bloodshot eyes because of lack of sleep. The smell of alcohol, he says that came from the car that was his sister’s. He had just borrowed it for the night. As I have said he admits that he refused all other requests after that.

[15] At the conclusion of the defence case Mr Te Hiwi Snr addressed me on a defence and he made submissions that the defendant did not comply with any of the requests that evening because he does not have to do so. Sections 10 and 11 provide a defence and he also referred to s 4 and s 19
New Zealand Bill of Rights Act.

[3] At the conclusion of her reasons for the conviction the Judge then imposed the fine. She overlooked the need for mandatory disqualification which in this case was under s 65. Mr Te Hiwi was recalled and on 11 September 2015 – eight days later – the disqualification under s 65 was imposed.2

[4] At the hearing this morning Mr Te Hiwi appeared with his father. Mr Te Hiwi Snr told me that he wished to make submissions on behalf of his son. He acknowledged that he is not qualified as a barrister and solicitor but advised me that he considered he had authority effectively through Maori customary rights. Because he had been permitted to speak in the District Court, and to avoid unfairness to the appellant or delay, I permitted him to make submissions.

[5] The essence of his submission was that although, as he put it, there is no challenge to the jurisdiction of this Court, the charge against his son could not be
brought because all the land of Aotearoa is customary Maori land and, Mr Te Hiwi

1

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 817
Decision Date: 27 April 2016

CaseChat Overview and Summary

In the case of Te Hiwi v Police, the appellant, Mr. Te Hiwi, appealed against his conviction for refusing to permit a blood specimen to be taken under the Land Transport Act, which resulted in a fine of $1,000 and disqualification from driving. The District Court had clear evidence of the appellant's refusal, as well as his own admission to the refusal. The appellant argued that he was entitled to refuse the blood test under the New Zealand Bill of Rights Act, specifically sections 10 and 11. The District Court Judge imposed a fine but overlooked the need for mandatory disqualification, which was later imposed on September 11, 2015. At the hearing in the High Court, the appellant's father attempted to make submissions on his son's behalf, claiming authority through Māori customary rights. The court, however, did not allow these submissions to proceed.

The legal issues in this case involved the appellant's arguments under the New Zealand Bill of Rights Act and whether the legislation cited by the appellants provided a separate justice system for Māori offenders. The court needed to determine whether the Māori customary rights could override the legislation enacted by the New Zealand Parliament. The court also needed to address the appellant's argument that his disqualification constituted a breach of section 26(2) of the New Zealand Bill of Rights Act, which deals with retroactive penalties and double jeopardy.

The court found that the appellant's arguments under the New Zealand Bill of Rights Act and the Māori customary rights were not valid. The court cited numerous cases where similar challenges had been made and failed, including R v Miru, R v Mitchell, R v Takao, R v Toia, Nga Uri O Te Ngahue v Wellington City Council, R v Waetford, and R v Knowles. The court also noted that the New Zealand Parliament had the sovereign power to legislate for criminal offences such as the one in this case. The court further found that section 26(2) of the New Zealand Bill of Rights Act did not apply in this case due to section 180(1) of the Criminal Procedure Act 2011. Finally, the court found that sections 10, 11, and 19 of the New Zealand Bill of Rights Act had no application in this case.

In conclusion, the High Court dismissed the appellant's appeal, upholding the conviction and sentence imposed by the District Court. The court found that the appellant's arguments under the New Zealand Bill of Rights Act and Māori customary rights were not valid and that the New Zealand Parliament had the sovereign power to legislate for criminal offences such as the one in this case. The court also found that the appellant's disqualification did not constitute a breach of section 26(2) of the New Zealand Bill of Rights Act.

Orders