Te Moni v Police

[2020] NZHC 119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-347

[2020] NZHC 119

BETWEEN

WIMARUKI DIONE DARRIN TE MONI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Appearances:

Appellant, on own behalf

S Murphy for the Respondent

Judgment:

11 February 2020

JUDGMENT OF GORDON J

This judgment was delivered by me

on 11 February 2020 at 11.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Manukau Copy To: The Appellant

TE MONI v POLICE [2020] NZHC 119 [11 February 2020]

Introduction

[1]    This is an application by Wimaruki Te Moni for a transcript of the hearing of his appeal against  conviction  and  sentence  which  proceeded  in  this  Court  on  11 November 2019. By judgment dated 12 November 2019 (the judgment) I dismissed the appeal.1

[2]    Mr Te Moni had been convicted of driving while disqualified following a judge-alone trial in the Manukau District Court on 30 July 2019. He was sentenced to 60 hours’ community work and six months’ disqualification from driving. The judgment refers to the District Court hearing and Judge’s decision as follows:

[4]   Mr Te Moni represented himself at the hearing.  He did not challenge the constable’s evidence that he was disqualified from holding or obtaining a driver’s licence at the relevant time, nor that he was the driver of the vehicle stopped by the constable. Instead, he brought to the Judge’s attention a document which he believed created a valid challenge to the authority of the District Court based on Māori sovereignty. The Judge dismissed Mr Te Moni’s submission, noting that:

[10]  …  I must, as a District Court Judge, obey [P]arliament and   the Courts superior to me. Acts of Parliament are binding within [sic] all persons within the geographical territory of New Zealand whether Māori or non-Māori. The Courts of New Zealand must uphold all [A]cts of Parliament as enacted regardless of any attack upon these presumptions or procedures which might have led to their enactment.

The Land Transport Act 1998 is one such [A]ct of Parliament. …

[3]    Mr Te Moni again represented himself at the hearing of his appeal. He did not file any written submissions and in his notice of appeal he specified the ground of appeal as “100% Maori sovereignty”. The judgment refers to his submissions as follows:

[6]  Mr Te Moni addressed the Court orally.  He submitted that the Queen had no jurisdiction or power to override native title. That submission, together with his ground of appeal of “100% Maori sovereignty”, was, in effect, a challenge to the authority of Parliament to make and enforce the law he was convicted of breaking.

…

[10] This Court, like the District Court Judge, is bound by the decisions of the Court of Appeal and Supreme Court. The authorities are clear that challenges to the Court’s jurisdiction or the authority of Acts of Parliament on

1      Te Moni v Police [2019] NZHC 2951.

the basis of Māori sovereignty are “plainly unsound legally” and cannot succeed.

The application

[4]    Mr Te Moni made his application in an email to the Court dated 7 January 2020, saying:

I, Wimaruki Te Moni, hereby request the Transcript of my High Court appearance on 11/11/19 CRI-2019-404-347 2019 NZHC-2951, by judge Gordon J. As i [sic] am filing an application to the Court of Appeal to oppose the decision made due to a miscarriage of justice. Thankyou [sic] for your assistance in this matter.

Legal principles

[5]    Requests for access to court documents fall under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). As Mr Te Moni was a party to this appeal, he has a general right to search, inspect and copy any part of the court file or any document relating to the proceeding.2

[6]    However, the transcript of Mr Te Moni’s appeal does not fall within the definition of a document, in the context of an appeal, or within the definition of the court file.3 That is because there is at present no written transcript of the appeal hearing in this Court. The only resource available is the electronic recording of the hearing.

[7]    Therefore, Mr Te Moni does not have a right to access the transcript. Rule 3(3) provides that the Rules do not require a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it.

[8]    The Court of Appeal stated in Mackenzie v Attorney-General, “[b]ecause there is time and expense involved in the preparation of a transcript of a hearing, transcripts are not prepared as a matter of course”.4

2      Senior Courts (Access to Court Documents) Rules 2017, r 9(4).

3      Rule 4.

4      Mackenzie v Attorney-General [2016] NZCA 24 at [22].

[9]    The Supreme Court’s comments in Siemer v Heron provide guidance as to whether Mr Te Moni should be granted access to the transcript:5

[9]        … There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters general on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions …

[10]     I also note Dobson J’s comments in Misiuk v Superintendent of a Penal Institution:6

[19] … The resources of the Ministry to undertake such transcription are limited … Obviously, any widespread practice of producing transcripts of electronic recordings in response to requests … would create substantial resourcing difficulties for the Ministry.

Discussion

[11]     Mr Te Moni’s indicated appeal to the Court of Appeal would be a second appeal. Section 237 of the Criminal Procedure Act 2011 (the Act) governs applications for leave to bring a second appeal against a conviction.7 It provides as follows:

237      Right of appeal against determination of first appeal court

(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)the appeal involves a matter of general or public importance; or

(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[12]     The standard under s 237(2)(a) is a high one. The threshold is unlikely to be met unless the proposed appeal gives rise to an issue of general principle or of general importance in the administration of the criminal law by the Courts, such as one having

5      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293. See also Mackenzie v Attorney-General, above n 4, at [22]; Cook v Housing New Zealand Corp [2017] NZHC 3202 at [11].

6      Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.

7      See s 253 of the Criminal Procedure Act for applications for leave to bring a second appeal against sentence.

a broad application beyond the circumstances of a particular case.8 The threshold for a miscarriage of justice under s 237(2)(b) is similarly high, with not every error amounting to a miscarriage.9

[13]     While Mr Te Moni says there is a miscarriage of justice arising from the judgment, he provides no further details. I regard his prospects on any leave application as extremely low. This Court simply applied settled legal principles.

[14]     I am therefore satisfied that there is no good reason in the interests of justice for providing a transcript of the appeal hearing to Mr Te Moni.

Result

[15]     Mr Te Moni’s application for a transcript of the hearing on 11 November 2019 is refused.

Gordon J

8      McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

9      McAllister v R, above n 8, at [38].