Teddy v Police

[2013] NZHC 756

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-470-000031 [2013] NZHC 756

ELVIS HEREMEIA TEDDY

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         On the papers

Counsel:         R Mansfield and V Withy for the Applicant

B Keith and B Martin for Respondent

Judgment:      15 April 2013

JUDGMENT OF WOOLFORD J

[On application for leave to appeal to the Court of Appeal]

This judgment was delivered by me on Monday, 15 April 2013 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

R Mansfield, Barrister, PO Box 2674, Shortland Street, Auckland

V Withy, Barrister, PO Box 2674, Shortland Street, Auckland

B Keith, Crown Law, PO Box 2858, Wellington

B Martin, Crown Law, PO Box 2858, Wellington

TEDDY V NZ POLICE HC ROT CRI-2012-470-000031 [15 April 2013]

Introduction

[1]      During the course of protest activity in the Raukumara Basin beyond New Zealand’s 12 mile territorial sea, Mr Teddy was arrested by the New Zealand Police and charged with operating a vessel in a manner that caused unnecessary risk to a seismic survey vessel contrary to s 65(1)(a) of the Maritime Transport Act 1994 and resisting a constable acting in pursuance of his duty contrary to s 23(a) of the Summary Offences Act 1968.

[2]      Following a defended hearing in the Tauranga District Court in July 2012, Judge Treston ruled that the charges were nullities because s 65(1)(a) did not apply beyond New Zealand’s territorial sea.  On appeal by the New Zealand Police, in a judgment delivered on 7 March 2013, I quashed the decision of Judge Treston and remitted the matter back to the District Court for a resumption of the defended hearing.   I did so on the basis that s 65(1)(a) does have application beyond New Zealand’s territorial sea and that the New Zealand Police do have the power to stop and board vessels and arrest offenders, including beyond New Zealand’s territorial sea, in circumstances as described in my judgment.

[3]      Mr Teddy now seeks leave to appeal to the Court of Appeal against my decision.

Legal principles

[4]      Section 144 of the Summary Proceedings Act 1957 governs applications for leave to appeal to the Court of Appeal.  It provides:

144      Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:

provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)        A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its  general  or  public  importance  or  for  any  other  reason,  ought  to  be submitted to the Court of Appeal for decision.

(3)      Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      There are three requirements set out in s 144.   The proposed appeal must involve a question of law.  The question of law must be of general or public importance and finally, it ought to be submitted to the Court of Appeal for decision.

[6]      In the leading authority R v Slater,[1] the Court of Appeal stated:

[1] R v Slater [1997] 1 NZLR 211.

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Application for leave to appeal

[7]      In his application for leave to appeal, Mr Teddy states that there are two issues to be advanced on appeal, namely:

(a)       Should s 65 of the Maritime Transport Act 1994 be applied extra- territorially by necessary implication?; and

(b)Do the arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extra-territorially?

[8]      Mr Teddy submits that the proposed appeal clearly involves questions of law that are of general or public importance.   He submits that the issue of the extra- territorial application of s 65 is of public importance as my decision affects the interpretation and enforcement of the Maritime Transport Act 1994 as a whole.  It means that all the provisions of the Act will now apply to any act or omission aboard a New Zealand registered vessel wherever it may be.

[9]      Further, Mr Teddy submits that the appeal raises important issues concerning the appropriate scope of New Zealand’s extra-territorial jurisdiction, the presumption that legislation does not have extra-territorial effect and the principle of legality.  It is therefore submitted as being appropriate that these issues are considered by the Court of Appeal.

[10]     The Police oppose the application for leave to appeal on the basis that the proposed questions are not reasonably arguable.  Counsel refers to two decisions of superior Courts, the Court of Appeal in Sellers v Maritime Safety Inspector[2] and the Supreme Court in Poynter v Commerce Commission[3] in which it was determined that the law of the sea confers not only a right, but an obligation, for flag states to

regulate their vessels and also that extra-territorial application could arise not only by express provision but also by necessary implication.

[2] Sellers v Maritime Safety Inspector [1999] 2 NZLR 44.

[3] Poynter v Commerce Commission [2010] 3 NZLR 300.

[11]     Counsel submits that Mr Teddy accepted both propositions in argument in the High Court.  For that reason counsel submits that it is necessary that the Act apply to New   Zealand   vessels   in   order   to   avoid   breaching   elementary   international obligations.   The question of that application is not a point reasonably open to

argument and so does not satisfy the requirements of s 144.

Discussion

[12]     In my judgment I specifically noted that it was troubling that there was no express provision in the Maritime Transport Act stating that the Act as a whole applied beyond the territorial sea.  I also referred to the fact that it was necessary to bear in mind the presumption against reading criminal statutes widely which may caution against identifying extra-territorial application from the statutory context.

[13]     I  am  therefore  of  the  view  that  the  proper  application  of  the  Maritime

Transport Act is a question of law and that it is of public or general importance.

[14]     As  to  whether the question  of law should be  submitted to  the Court  of Appeal, I note that the issue is currently one of some public debate in that the Government has introduced a Supplementary Order Paper No 205 to the Crown Minerals (Permitting and Crown Land) Amendment Bill 2012, which proposes that five new offences be added to the Act.   These include being the master of a ship entering an area specified by notice as an area into which a ship must not enter without  reasonable  excuse  (called  a  specified  non-interference  zone).    It  also proposes that an enforcement officer who has reasonable cause to suspect that a person is committing an offence against the above provision may stop a ship within a specified non-interference zone and detain the ship, remove any person or ship from the zone, or board a ship, give directions to the person appearing to be in charge and require the person to give his or her name and address.  An enforcement officer may also arrest such a person with warrant.

[15]     This appears to have arisen following concerns expressed by the Petroleum Exploration and Production Association of New Zealand (PEPANZ) about the lack of protection from disruptive actions that is available for seismic survey vessels.  A definitive statement from the Court of Appeal about the availability of the Maritime Transport Act and the provisions of the Crimes Act in such circumstances would, it seem, be of some benefit to the public debate.

[16]     Accordingly, leave is given to Mr Teddy to appeal to the Court of Appeal on the two questions of law specified in the application.

……………………………….

Woolford J