Te Pairi v The King
[2023] NZHC 992
•28 April 2023
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-416-11
[2023] NZHC 992
BETWEEN BENJAMIN TE PAIRI
Plaintiff
AND
THE KING
Defendant
Hearing: 26 April 2023 (via AVL/VMR) Counsel:
Appellant in Person
C Stuart for Respondent
Judgment:
28 April 2023
JUDGMENT OF ISAC J
[Leave for second appeal against conviction]
Introduction
[1] Mr Te Pairi was convicted by a Magistrate of one charge each of driving without a current warrant of fitness and driving without a valid vehicle registration.1 He seeks leave of the Court to bring a second appeal against his conviction on these charges.
Background and procedural history
[2] Mr Te Pairi was pulled over driving a motor vehicle in Gisborne by Sergeant Brooking on 9 April 2021. After speaking to the driver, the Sergeant completed a vehicle record check and discovered that the car’s registration and warrant of fitness
1 These charges were laid pursuant to the following provisions respectively; s 34(1)(b) of the Land Transport Act 1998 (maximum penalty $2,000 fine); and reg 77(1)(a) of the Land Transport (Motor Vehicle Registration and Licencing) Regulations 2011 (maximum penalty $1,000 fine).
TE PAIRI v R [2023] NZHC 992 [28 April 2023]
had expired in 2013. As a result, Mr Te Pairi was subsequently issued with infringement notices.
[3] Mr Te Pairi defended the charges and appeared in front of a Community Magistrate on 9 February 2022. Sergeant Brooking was called to give evidence and identified Mr Te Pairi as the driver of the vehicle. The Sergeant also confirmed that Mr Te Pairi was on a public road and that the vehicle he was driving did not have a current warrant of fitness or registration. Mr Te Pairi did not dispute the Sergeant’s evidence. Instead, he submitted repeatedly (both during cross-examination of the Sergeant and before the Magistrate) that the name on the infringement notices referred to a “fictitious entity” and not Mr Te Pairi personally.
[4] The Magistrate found the charges proven on the evidence, and convicted Mr Te Pairi accordingly. He was fined $300 for failing to register his motor vehicle, and a further $400 for failing to have a valid warrant of fitness. He was also ordered to pay court costs of $130.
[5] Mr Te Pairi then appealed the Magistrate’s decision to the District Court. Judge Bolstad dismissed the appeal on 22 August 2022.2 The District Court’s judgment is brief:
[1]Mr Te Pairi, we are here because you have filed an appeal notice in respect of a Community Magistrate’s decision on 9 February 2022.
[2]Mr Te Pairi, where I am going with this is that I am going to dismiss your appeal because you do not have any grounds for appeal. Appeal dismissed.
Approach on appeal
[6] Under the Criminal Procedure Act 2011 second appeals against conviction require leave of this Court. The Court must not give leave for a second appeal unless:3
(a)the appeal involves a matter of general importance or public importance; or
2 Te Pairi v New Zealand Police [2022] NZDC 16167.
3 Criminal Procedure Act 2011, s 237(2).
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[7] An appeal will be a matter of general or public important where it gives rise to an issue of general principle or of general importance in the administration of the criminal law in the courts. An example of this is where the appeal raises a question of law that has broad application beyond the circumstances of the case.4
[8] A miscarriage of justice is something that has “gone wrong and which [is] capable of affecting the result of the trial”.5 The term is defined in s 232(4) of the Criminal Procedure Act as “any error, irregularity, or occurrence in or in relation to or affecting a trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”.6 The threshold for a miscarriage is high and not every error will give rise to one.7
Submissions
[9] The essence of Mr Te Pairi’s case on appeal was the same as that advanced before the Community Magistrate: he is not criminally liable for the offences because the infringement notices name a “fictitious entity”. In particular, he says that his real name is Benjiman Te Pairi (lowercase) but that the name on the infringement notices and conviction sheets is BENJIMAN TE PAIRI (uppercase). At the hearing, he referred to this as his “strawman” argument.
[10] Mr Te Pairi also filed two documents in support of his appeal. The first is a statutory declaration that he is Benjamin Te Pairi, a “natural and unenfranchised individual” that is not to be confused with the fictitious entity “BENJIMAN TEPAIRI” (nor several other fictitious formulations of that name).
4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]; and Keenan v R [2021] NZCA 118 at [13].
5 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].
6 While the definition of miscarriage is stated to apply to s 232(2), as the Court of Appeal observed in McAllister v R, it will likely be relevant to applications for leave to appeal against conviction.
7 At [38].
[11] The second document is a letter from a person identifying themselves as “the Registrar” of “Te Koti Ateha Rangatira”. This was said by Mr Te Pairi to have been a court convened by members of his “whanau hapū” under the Te Ture Whenua Māori Act 1993. The letter records that a hearing was held on 7 April 2023 (long after Mr Te Pairi was driving the motor vehicle and his convictions) at which it was determined :
… Mr Te Pairi is known and spelt in lower case only in accordance with his Birth Certificate… and not spelt in capital letters (upper case) as in Particulars of Conviction sent from the Court Registrar from Wellington.
However Mr Te Pairi has been given instructions from the Te Koti Ateha Rangatira, that the misuse or inappropriate use of any document identifying him in lower case or otherwise will not be tolerated with, and if so will be dealt with in Te Koti Ateha Rangatira.
[12] As I understood it, Mr Te Pairi’s submission was that the Te Ture Whenua Māori Act confers jurisdiction on his whanau hapū to constitute a court that has the power to make decisions governing his affairs that are binding this Court. In particular, Mr Te Pairi pointed to the preamble of the Act, and ss 2, 3, 5 and 214. The effect of the “judgment” of the Te Koti Ateha Rangatira, he says, is that he is not liable for conviction of the offences he was charged with.
Consideration
[13]There is no doubt about three things:
(a)Mr Te Pairi drove the vehicle in issue on a road;
(b)the vehicle was unregistered and unwarranted; and
(c)Mr Te Pairi is subject to the same laws as every other person in Aotearoa New Zealand.
[14] Mr Te Pairi’s strawman argument is firmly grounded in Sovereign Citizen “dual personality” or “split-person” theories. Such theories are sometimes referred to as “pseudolaw”. The term refers to a phenomenon whereby litigants deploy “a collection
of legal-sounding but false rules that purport to be law”.8 Pseudolaw “mirrors and co-opts the language, forms and structures of legal reasoning, but it lacks the substantive engagement with the core norms, principles and methods of legal reasoning”.
[15] Dual personality theories essentially contend that people have two separate and distinct entities: a natural or corporeal form; and a fictitious, legal personality. The law only applies to the latter, and cannot bind the former. The theory has been explained in these terms:9
The basis of [the split-person argument] is that there are natural individuals and some sort of ‘artificial’, corporate or fictive legal personality. As mentioned above, adherents believe that every person is an individual sovereign. Because every person has inalienable, natural rights, governments must assert their authority over natural or ‘flesh and blood’ persons to make them subjects. Governments do that, for example, when a birth certificate, bank account, driver’s license or government identity is issued. Those actions create an ‘artificial’ person — a legal person, personality, corporation, or ‘strawman’ — over whom the government and its agencies, which are parallel corporate forms, have jurisdiction. The crucial aspect is that the natural or living man or woman is freed from government subjection when they assert their status, claim it, and prove it.
[16] These theories have been consistently rejected by the courts as a nonsense utterly lacking any legal foundation. In Niwa v Commissioner of Inland Revenue, Ellis J observed that attempts to employ such concepts to avoid or defeat any state, regulatory, contract, family or other obligations recognised by law “will inevitably be an abuse of process”.10 And as the Court of Appeal has held:11
Acts of Parliament, including criminal enactments, are binding on all persons within the geographical territory of New Zealand. The Courts of New Zealand must uphold all Acts of Parliament as enacted. …No person within New Zealand is able to dissociate themselves from their “legal persona” so as to remove themselves from the jurisdiction of the courts. The arguments advanced by [the appellant] are untenable and without legal foundation.
8 Stephen Young, Harry Hobbs and Joe McIntyre The growth of pseudolaw and sovereign citizens in Aotearoa New Zealand courts [2023] NZLJ 6 at 6, citing Donald Netolitzky “A Rebellion of Furious Paper: Pseudolaw as a Revolutionary System” (Paper delivered to the Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: ‘Sovereign Citizens in Canada’, Montreal, 3 May 2018).
9 At 8. As the authors note, however, these types of arguments tend to be fluid (or jumbled), and accordingly may not always be capable of clear articulation.
10 Niwa v Commissioner of Inland Revenue [2019] NZHC 853, [2019] NZAR 1104.
11 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [10]–[11].
[17] Similarly, as Mr Stewart for the Crown observed, the courts have consistently rejected arguments asserting the existence of a separate Māori sovereignty or Māori legal system, under enactments such as the Treaty of Waitangi and the Declaration of Independence 1835.12 In R v Miru, the Court of Appeal rejected an argument that the Te Ture Whenua Maori Act conferred a right on the defendant to be tried on a marae:13
The preamble records the desirability of recognising that land is a taonga tuku iho of special significance to Māori people, and of promoting retention of Māori ownership of land. There is nothing in that statement of the Act’s purpose in its long title, nor in the Preamble to the Act, which suggests it is intended to provide a means for the enforcement of the criminal law. The provisions in Part XIII of the Act for Māori incorporations are concerned with providing for incorporation as a mechanism for multiple ownership of land. Sections 253 and 253A of the 1993 Act make provision for capacity, powers and the constitution of incorporations only in that context. Mr Miru's submission to us that the 1993 Act provides a means for recognition of a separate justice system for Māori people is completely at odds with the important scheme and purpose of that Act and accordingly must fail.
[18] It follows that Te Ture Whenua Maori Act has no application to driving offences or infringement notices. The licensing and registration of drivers and their vehicles on public roads are matters dealt with by the Land Transport Act 1998, under which Mr Te Pairi was prosecuted and (quite properly) convicted.
[19] It follows that none of the matters Mr Te Pairi wishes to raise if granted leave to appeal have any prospect of success. The appeal discloses no matter of general or public importance, nor any suggestion of a miscarriage.
12 Citing Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA5.07]
13 R v Miru CA65/01, 26 July 2001 at [7].
Result
[20]For these reasons, the application for leave to appeal is declined.
Isac J
Solicitors
Crown Solicitor’s Office, Gisborne for Crown
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