Tito v Police

[2023] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2022-488-74

[2023] NZHC 1235

BETWEEN

KEVIN-JOHN TITO and TUI-DOROTHY TITO
Appellants

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 May 2023

Appearances:

The appellants in person

J Golightly for the respondent

Judgment:

24 May 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 24 May 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

TITO and TITO v NEW ZEALAND POLICE [2023] NZHC 1235 [24 May 2023]

[1]    Mr and Mrs Tito had their firearms licences revoked by the Police under ss 27 and 28 of the Arms Act 1983. They appealed against the revocation to the District Court. Judge D J Clark dismissed their appeal.1 Mr and Mrs Tito wish to make a further appeal to this Court.

[2]    An appeal to this Court is limited to questions of law and can be brought only with leave. Mr and Mrs Tito say the questions of law that would be raised on their proposed appeal are:

(a)Is there a conflict between the Arms Act 1983 and the Imperial Laws Application Act 1988?

(b)Is the Parliament of New Zealand able to legislate over Māori where land has been declared and adjudicated to be unextinguished native title?

(c)Is there a conflict between the Arms Act 1983 and tikanga Māori?

Representation

[3]    Mr and Mrs Tito represent themselves. They were accompanied at the hearing by Mr Samuels. They asked that Mr Samuels speak on their behalf. Mr Samuels is not a lawyer. He told me he had nonetheless assisted Mr and Mrs Tito to prepare the documents that they had filed and that he would be better placed to speak to their arguments than they would. Mr and Mrs Tito told me they agreed.

[4] After hearing briefly from Ms Golightly, who appeared for the Police, I allowed Mr Samuels to speak on behalf of Mr and Mrs Tito. I considered this was likely to be of more assistance to me than hearing directly from Mr and Mrs Tito. I asked Mr Samuels to confirm that the three questions of law proposed by Mr and Mrs Tito were as set out in [2]. He confirmed that was the case, and briefly explained Mr and Mrs Tito’s position on each question.

1      Tito v New Zealand Police [2022] NZDC 16431.

Background

[5]    Mr and Mrs Tito have been involved in litigation in the Māori Land Court for some years. They have received adverse decisions from that Court. They have been displeased with those decisions. Their displeasure has sometimes manifested itself  in aggression towards staff of that Court.

[6]    On 9 March 2021, Mr and Mrs Tito went to a registry of the Māori Land Court. There were heated discussions between Mr and Mrs Tito and staff at that Registry. The staff alleged that Mr and Mrs Tito became abusive. One of the staff said he was subjected not only to oral abuse but to threatening hand gestures such as Mr  and  Mrs Tito using their fingers to form a pistol and pointing the same towards him.

[7]    On 3 May 2021, Police wrote to Mr and Mrs Tito advising that their firearms licences would be temporarily suspended. Several grounds for the suspension were stated, including the incident at the Māori Land Court Registry on 9 March 2021. On 17 June 2021, Police wrote to Mr and Mrs Tito advising that their respective firearms licences were revoked. The grounds for revocation were the same grounds as in the earlier letter.

[8]    Mr and Mrs Tito applied to have that decision reviewed. On 10 September 2021, Police wrote to them advising their review was unsuccessful. Mr and Mrs Tito then appealed to the District Court.

The District Court judgment

[9]    Judge Clark set out Mr and Mrs Tito’s grounds of appeal. These were essentially factual challenges to the grounds the Police had given for revoking their firearms licences.2 His Honour also  recorded that  Mr and Mrs Tito relied on art 6  of the International Covenant on Civil and Political Rights and s 8 of the New Zealand Bill of Rights Act 1990.

2 At [28].

[10]   The Judge noted that the hearing before him was to proceed de novo. The question was whether Mr and Mrs Tito were each a “fit and proper person” to hold   a firearms licence.

[11]   The Judge reviewed the evidence on what had occurred at the Registry of the Māori Land Court on 9 March 2021. His Honour accepted the staff member’s evidence that Mr and Mrs Tito had made threatening hand gestures.3 His Honour also referred to other incidents and concluded that they reflected “an uneven temperament when things do not go their way”.4 The threat against the Registry staff member was of significant concern: persons prepared to make such threats could not be trusted to hold firearms licences.5 Accordingly, the Judge found Mr and Mrs Tito were not fit and proper persons to hold firearms licences and he dismissed their appeal.6

The scope of appeals under the Arms Act

[12]   Mr and Mrs Tito’s appeal to the District Court was under s 62B of the Arms Act. Section 64 provides for appeals to this Court from decisions by the District Court under s 62B. It provides:

64       Appeal on a question of law

(1)Where any party to any appeal under section 62B or to any application under section 63 is dissatisfied with the decision of the District Court Judge as being erroneous in point of law, he may appeal to the High Court on the question of law only.

(2)Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to every appeal under this section.

[13]   Section 64(2) applies the provisions of subpt 8 of pt 6 of the Criminal Procedure Act 2011 “as far as applicable” and subject to “necessary modifications”. Subpart 8 includes s 296, the effect of which is that Mr and Mrs Tito may appeal to this Court only with leave. Section 298 requires them to state, in their application for leave to appeal, the question of law on which the appeal is being taken.

3 At [62].

4 At [65].

5 At [66].

6 At [67].

The course of the appeal

[14]   Mr and Mrs Tito commenced this proceeding by filing a notice of appeal. They did not apply for leave to appeal.

[15]   At the first case management conference, Gordon J gave Mr and Mrs Tito the opportunity to remedy that situation by filing an application for leave to appeal, setting out the questions of law on which they proposed to take the appeal. Her Honour also directed that the application for leave be heard at the same time as the proposed substantive appeal.

[16]   Mr and Mrs Tito then filed, in November 2022, an amended notice of appeal and an application for leave to appeal. These stated one question of law:

Can the Court revoke the appellants [sic] licences under an Act, namely the Arms Act 1983, if that Act does not have an Imperial Enactment to confer power on the subordinate legislation pursuant to s.6 of the Imperial Applications Act 1988 [sic].

[17]   Gordon J also directed Mr and Mrs Tito to file submissions by 10 March 2023. On 9 March 2023, Mr and Mrs Tito filed two documents. One was a further notice of appeal. This stated four grounds of appeal:

(a)There is a conflict in fact and law namely between the Arms Act 1983 and the Imperial Law Applications Act 1988 s4(1) and s5 English Common law in NZ.

(b)Jurisdiction: There is a question in fact and law re: The District Court in accordance with Tikanga Maori and Te Ture Whenua Maori Act 1993 s2(3).

(c)There is a question in fact and law as to the ability of the Parliament of New Zealand to legislate over Maori, where land has been declared and adjudicated to be un-extinguished of the Native Title in New Zealand.

(d)That this matter has led to a total and serious miscarriage of justice on the part of the court.

[18]   The other document  was  an  unsworn  “affidavit”  by  Mr  and  Mrs  Tito.  In substance, it consists of Mr and Mrs Tito’s submissions. At the end of that document Mr and Mrs Tito say that their only other option (if, I infer, their appeal fails) would be to accept a firearms licence issued by “Nga Tikanga Māori Law/Lore

Society o Aotearoa”. They annex to their affidavit copies of plastic cards bearing the title “Aotearoa Firearms Licence” with their names, dates of birth and photographs. The cards are in the style of a firearms licence lawfully issued by the Police under the Arms Act but appear to be issued by a Māori incorporated society.

Should leave to appeal be granted?

[19]   I consider I should not grant leave to appeal if the proposed questions of law are not arguable. Nor should I grant leave if the proposed questions would not arise on the appeal. Beyond those propositions, it is not necessary for me to explore the principles that govern the discretion whether to grant leave under s 296 of the Criminal Procedure Act in the context of an appeal against a decision under s 62B of the Arms Act.

[20]   I therefore turn to consider whether any of the questions of law proposed by Mr and Mrs Tito are arguable and would arise on the appeal.

Is there a conflict between the Arms Act 1983 and the Imperial Laws Application Act 1988?

[21]   Mr and Mrs Tito, in their application for leave to appeal, said that the question of law that would arise on their appeal is whether the District Court could revoke their licences under the Arms Act if that Act “does not have an Imperial Enactment to confer power on the subordinate legislation pursuant to s.6 of the Imperial Applications [sic] Act 1988”.  In their affidavit, they say there is a conflict between the Arms Act and  s 4 of the Imperial Laws Application Act.

[22]   Mr Samuels said the Arms Act was subordinate legislation that required power from an Imperial Act from Westminster. The proposition put forward by Mr and Mrs Tito appears to be that the Arms Act is not referred to in the Imperial Laws Application Act and that this somehow means the Arms Act is invalid.

[23]   This proposition is not arguable. It is based on a misunderstanding of the Imperial Laws Application Act. That Act specifies the extent to which Imperial enactments, Imperial subordinate legislation and English common law are part of the

laws of New Zealand. An Imperial enactment is any Act of the Parliament of England, or of the Parliament of Great Britain, or of the Parliament of the United Kingdom. Imperial subordinate legislation is any Order in Council, regulation or other legislative instrument made under any such Imperial enactment.7

[24]   Imperial enactments and Imperial subordinate legislation that are part of the laws of New Zealand are specified in s 3 and sch 2 of the Act. Section 4 provides that no other Imperial enactments or Imperial subordinate legislation is part of the laws  of New Zealand.

[25]   Mr and Mrs Tito rely on s 6 of the Act. Section 6 deals with the power to make subordinate legislation under any Imperial  enactment that is part of  the laws of  New Zealand. Section 6 has no application here. The Arms Act is an enactment of the New Zealand Parliament. It is not subordinate legislation made under an Imperial enactment.

[26]   Mr and Mrs Tito also rely on s 4 of the Act. As I understand it, their argument is that, because the Arms Act is not specified in s 3 and sch 2, the effect of s 4 is that the Arms Act is not part of the laws of New Zealand. This argument presupposes that the Arms Act is an Imperial enactment or is Imperial subordinate legislation. It is neither of those things. It is an enactment of the New Zealand Parliament.

Is the Parliament of New Zealand able to legislate over Māori where land has been declared and adjudicated to be unextinguished native title?

[27]   I consider this question of law would not arise on the proposed appeal. There was no finding in the District Court about any land having been declared and adjudicated to be unextinguished native title. Mr and Mrs Tito did not explain how any such land had any connection to them. Nor did Mr Samuels.

[28]   Further, it is not arguable that the New Zealand Parliament is unable to legislate over Māori in the circumstances described. Section 15(1) of the Constitution Act 1986 provides that the Parliament of New Zealand “continues” to have “full power” to make

7      Imperial Laws Application Act 1988, s 2.

laws. This continues the power that the Parliament had before that Act was passed – such as when the Arms Act was enacted in 1983. Acts of the New Zealand Parliament are binding on all persons within New Zealand.8 Recognition of unextinguished Māori customary interests in land does not disempower Parliament from legislating over Māori. As Ms Golightly submitted, when the Court of Appeal recognised, in Attorney- General v Ngati Apa, that the Crown’s acquisition of radical title was not inconsistent with common law recognition of Māori customary interests in land, the Court at the same time affirmed Parliament’s legislative supremacy.9

Is there a conflict between the Arms Act 1983 and tikanga Māori?

[29]   Mr and Mrs Tito say that they are farmers and require firearms as tools of their trade. They say they also need firearms to hunt and gather food. They claim that under tikanga Māori the tools of one’s trade cannot be taken to prevent them undertaking that trade or from hunting and gathering. As I understood it, they argue that in this case tikanga Māori prevails over the provisions in the Arms Act governing firearms licences.

[30]   I consider this question would not arise on the proposed appeal. Mr and Mrs Tito did not rely on tikanga in the District Court. The Judge therefore did not explore tikanga and did not explore the intersection of tikanga and the Arms Act.

[31]   Further, as Harvey J has recently observed in another context, “consideration of tikanga will not always be relevant or necessary where tikanga will not or cannot assist, such as when it would be contrary to statute”.10 The ultimate issue before Judge Clark was whether, in terms of the Arms Act, Mr and Mrs Tito were “fit and proper” persons to hold firearms licences. Mr and Mrs Tito claim that under tikanga their firearms cannot be taken away to prevent them from undertaking their trade or hunting and gathering.   Even if that claim were correct (a matter I do not have to decide),     it would be contrary to the regulation of firearms licences under the Arms Act. Their position on the proposed question of law is not arguable.

8      Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [11].

9      Attorney-General v Ngati Apa [2003] 3 NZLR 643 at [34] and [47] per Elias CJ, at [147] per Keith and Anderson JJ and at [185] per Tipping J.

10     Bamber v Official Assignee [2023] NZHC 260.

Conclusion

[32]   None of the questions of law that Mr and Mrs Tito wish to pursue on their proposed appeal are arguable, and two of them would not arise on the appeal. Accordingly, I decline their application for leave to appeal.

[33]   The Police, as the successful party, are entitled to costs. Ms Golightly sought costs merely on a category 1A basis. I consider that approach is generous to Mr and Mrs Tito. On a 1A basis, they must pay the Police costs of $3,295.50.

Result

[34]The application for leave to appeal is declined.

[35]Mr and Mrs Tito are to pay the Police costs of $3,295.50.

Campbell J