W v Police HC Rotorua CRI-2007-069-1274

[2008] NZHC 1241

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-069-1274

CRI-2007-069-1275

W

Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 June 2008

Appearances: Appellants in person

Ms A Gordon and Mr R Maze for Respondent

Judgment:      6 August 2008 at 3 pm

JUDGMENT OF LANG J [on appeals against conviction]

This judgment was delivered by me on 6 August 2008 at 3 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Rotorua

Copy to: Appellants

W AND ANOR V NZ POLICE HC ROT CRI-2007-069-1274  6 August 2008

[1]      W   appeal against conviction and sentence following a defended hearing before His Honour Judge McGuire in the District Court at Taupo on 10 September 2007.  The Judge convicted each appellant on a single charge of trespass laid under s 3(1) of the Trespass Act 1980 (“the Act”).   He ordered them to come up for sentence if called upon to do so within 12 months.

The facts

[2]      The facts fall within a very small compass.  The charge that each appellant faced  followed  an  incident  that  occurred  on  27  June  2007  at  a  house  property situated  at  405  State  Highway  1,  Wharewaka.    The  Taupo  District  Council  is currently the registered proprietor of that property.

[3]      The  incident  occurred  after  Mr  Stuart  Hickman,  a  Corporate  Solicitor employed by the Council, went to the property accompanied by several police officers.   The house had been vacant for some time before that date, because the Council had decided to remove it from the property.  The Council proposed to gift the house to the Tauhara hapu for use as a traditional Mäori healing clinic.

[4]      Prior to 27 June the Council had received information to the effect  that unauthorised persons were living in the house.   Council staff had travelled to the property and met with the occupants, including the appellants, on 16 April 2007.  As a result of that meeting and subsequent events, the Council reached the conclusion that the occupiers had no intention of leaving the property.   The purpose of Mr Hickman’s visit on 27 June 2007 was therefore to serve formal written warnings on the occupants pursuant to the provisions of the Act.  These required the occupants to leave the property and not to return.

[5]      Mr Hickman and the police officers arrived at the property at about 7am. There they met and introduced themselves to both appellants.   Whilst the introductions were being made, Mr Hickman observed a number of other persons leaving  in  a  motor  vehicle.    The  appellants  appeared  to  be  the  only  persons remaining at the address.

[6]      Mr  Hickman  explained  to  both  appellants  that  the  Council  owned  the property, and that it required them to leave.  He handed a written warning to Ngatoru W  , but Kenneth W   declined to accept the notice that Mr Hickman tendered to him.  Nothing turns for present purposes on the fact that Mr Hickman was unable to physically serve a written  warning on  Mr W  .    Section  5  of  the Act  permits warnings under the Act to be given orally or by notice in writing.  In the present case there is no challenge to Mr Hickman’s evidence that he orally advised Mr W   that the  Council  wanted  him  to  leave  the  property  and  not  return.    That  is  clearly sufficient to constitute a warning under the Act.

[7]      The police then gave the appellants an opportunity to leave the property. When they did not do so, they were charged with trespassing under s 3(1) of the Act. That section makes it an offence for any person who trespasses on any place and, after being warned to leave that place by an occupier of that place, refuses to do so.

Grounds of appeal

[8]      The Notice of Appeal contains three broad grounds of appeal.  These can be summarised as follows:

a)       The District Court did not have jurisdiction over the appellants by virtue of their status as Tangata Whenua, Maori, Ngati Tutemohuta.

b)The land upon which the acts of trespass are alleged to have occurred remains subject to “unextinguished Native Titles”.  Ngati Tutemohuta continue to have customary ownership of all Tauhara lands, and the Taupo District Council has no lawful or legal interest in respect of the property on which the incident occurred.

c)       Discontent with the manner in which the District Court Judge dealt with the proceeding.

[9]      The appellants filed very extensive and detailed submissions in support of their appeals.  Those submissions addressed the grounds of appeal referred to above. I therefore deal with each in turn.

Jurisdiction

[10]     In short, the appellants argue that the laws of New Zealand do not apply to them and that the courts of New Zealand have no jurisdiction over them.

[11]     The  courts  in  New  Zealand  have,  however,  rejected  this  argument  on numerous previous occasions.   A summary of the relevant authorities can be found in R v McKinnon (2004) 20 CRNZ 709.    The decisions of the Court of Appeal in Knowles v Police (CA146/98, 12 October 1998) and R v Mitchell (CA68/04, 23

August 2004) are also often cited in this context.    In Mitchell the Court said (at

[14]):

This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand  cannot  succeed  before  it.    Our  courts  are  bound  to  accept  the validity of Acts of Parliament, including the Land Transport Act 1998. Although this issue does involve a point of law, Mr Mitchell’s proposition has been squarely rejected on many occasions in the High Court and Court of Appeal.    No useful purpose would then be served in re-traversing the authorities.   Mr Mitchell was perfectly familiar with them, and indeed was physically in possession of some of those authorities before us, including Knowles.   He just does not accept them.   He is not entitled to put himself outside the law of New Zealand.

[12]     Another useful decision is that of Randerson J in Barrett v Police (HC HM, CRI-2003-419-64, 14 June 2004).     In that case Randerson J noted (at [6]) that arguments such as those now advanced by the appellants have been before the courts of New Zealand repeatedly, and that they have been rejected at all levels.

[13]     I adopt a similar approach.  The appellants are subject to the laws of New Zealand, including the provisions of the Trespass Act 1980, in the same manner as every other citizen.  This ground of appeal cannot succeed.

The status of the land

[14]     The appellants contend that the land upon which the acts of trespass are said to have occurred remains in the customary ownership of Ngati Tutemohuta.  Given that they are members of Ngati Tutemohuta, they contend that they cannot be convicted of trespass.  They say that they were entitled to be, and to remain, on the property at 405 State Highway 1, Wharewaka because they owned that land.

[15]     The appellants advance the following submission in support of this argument:

ARGUMENT IN OUR DEFENCE

1.        The land in question being Mäori Customary Land was alienated by the Government unlawfully through misuse of Crown prerogative power and processes thereof in place through to 1907.   Therefore those decisions are Ultra Vires, unenforceable and null and void; and no valid Certificate of Title exists in Fee Simple; the Land is still in Aboriginal Title, known as Native Customary Title not Freehold Title, and an action is enforceable in regards to Fee Simple Certificate of Title, on Tangata Whenua of the said District

[16]     The appellants develop their argument from the premise that Maori originally owned  the  land  prior  to  European  occupation  of  it,  and  that  Native  Title,  or customary ownership, of land is protected by the common law of New Zealand.  The only way in which such title can be extinguished is through valid legislation.

[17]     They submit that the New Zealand General Assembly only has power to enact laws for the “peace, order and Good Government of New Zealand”.   They contend that legislation extinguishing Native Title cannot be described as being for those purposes, because it disenfranchised and rendered landless a large section of the population.  As a result, they argue that such legislation was unlawful and must be regarded as null and void.

[18]   The difficulty with this argument is that, as the appellants effectively acknowledge, Parliament is empowered to pass legislation.  That power flows from the proclamations approved by the Crown and the gazetting of the acquisition of New  Zealand  by the  Crown  in  the  London  Gazette  on  2  October  1840.    This authoritatively  established  Crown  sovereignty  over  New  Zealand:  New  Zealand

Mäori Council v Attorney-General [1987] 1 NZLR 641 at 690 per Richardson J. This principle was also affirmed by Fisher J in Berkett v Tauranga District Council [1992] 3 NZLR 206 at 212-213.

[19]     As a result, the Acts of Parliament are binding on all persons of whatever race within the territory of New Zealand: Warren v Police HC HAM AP133/99 9

February 2000, affirming Knowles v Police HC HAM AP123/97 Penlington J, Hammond J 27 February 1998.

[20]     Moreover, the courts are obliged to give effect to all legislation that purports to be in effect in New Zealand.   They cannot consider any challenge to the assumptions or procedures that may have led to the legislation being passed: Berkett at 213-14.

[21]     Like  the  learned  Judge  in  the  District  Court,  I  have  no  doubt  that  the provisions of the Land Transfer Act 1952 determine the question of the identity of the owner of the land at Wharewaka in the present case.  This Court and the District Court are required by law to apply the provisions of that Act in all proceedings before them.

[22]     The position  in  New  Zealand  is  that  Maori  customary title  can  only be extinguished by sale, by an Act of Parliament or by a lawful change of status.  The latter can occur, for example, where the owners of a parcel of land apply to the Mäori Land Court for an order changing the status of the land.   All of these acts make the land in question the subject of a Crown grant.  Thereafter the fee simple or leasehold interest in the land is either held directly by the Crown or by a private individual (or company) by way of Crown grant.

[23]     If land is the subject of a Crown grant, a certificate of title will be issued. The land will then be held under the Torrens system of land ownership that provides the model for the Land Transfer Act 1952.  Registration of an interest in land under that Act will provide the registered proprietor of that interest with indefeasible title to it.  Once registration has occurred, the only way in which the title can be attacked

is to show that the registered proprietor acquired its interest by means of fraud. Fraud in this context means actual dishonesty.

[24]     Section s 57 of the Land Transfer Act 1952 requires the courts to receive a sealed copy of a certificate of title in respect of a property in evidence.   It also requires the courts to treat that certificate as providing conclusive proof, until the contrary is proved, of the ownership of the property to which the certificate of title relates.  The Council was therefore entitled to prove the identity of the owner of the land in the present case by producing a copy of the certificate of title in respect of the land at State Highway 405, Wharewaka.

[25]     Mr Hickman told the Court that the Council had acquired that property from a Crown enterprise, namely Landcorp.  He also produced a copy of the certificate of title in respect of the property.  This confirmed that, as at 27 June 2007, the Taupo District Council was the registered proprietor of the property in terms of the Land Transfer Act 1952.

[26]     Mr  Hickman  also  said  that  on  29  May  2007  the  Council  had  passed  a resolution authorising the Council’s Chief Executive to be the person in occupation of all land owned, occupied or controlled by the Council for the purposes of the Trespass Act 1980.   The same resolution permitted the Chief Executive to sub- delegate his authority.  He said that on 25 June 2007 the Chief Executive had sub- delegated to him the authority to issue notices under the Act in respect of any land that was owned by, or under the  control of, the Council.   As a  result, he was authorised on behalf of the Council on 27 June 2007 to give warnings to the appellants under the Act.

[27]     Taken  as  a  whole,  this  evidence  provides  a  complete  answer  to  the appellants’ submission.  Once the Council produced a copy of the certificate of title showing that it was the registered proprietor of the land as at 27 June 2007, s 57 of the Land Transfer Act 1952 required the Judge to accept that the Council owned the land as at that date.  As the Judge acknowledged at [12], he had no jurisdiction to go behind the contents of the certificate of title.  He had no option but to proceed on the basis that the Council was the legal and beneficial owner of the land.

[28]     The appellants did not challenge the validity of the sub-delegation of the Council’s powers to Mr Hickman.  The Judge was therefore also entitled to proceed on the basis that Mr Hickman acted with the authority of the owner of the land when he warned the appellants under the Act.

[29]     For these reasons this ground of appeal cannot succeed either.

Judge’s conduct

[30]       The appellants summarise this ground of appeal as follows:

Courts Misbehaviour is evident in the transcripts and oral judgments of C.J. Mcquire highlighting the Courts interference with the case of Mr W   and Ms W   effecting the rights of both Mr W   and Ms W   by prejudicing the case and denying the Natives a right to a fair hearing.   Examples of this behaviour is as follows:

(i)        Court interference with cross-examination of Witnesses, pg 209, P

vs W   et ors…

(ii)      Courts  overruling  of  “Te  Titiri  o  Waitangi  1840”  and  “The

Declaration of Independence 1835”, pg 189, P vs W   et ors. …

(iii)      Courts insistence to alter my submissions and insist the removal of the word “terrorist”, from the statement of defence, pg 221.    P vs W   et ors. …

(iv)      Spelling errors. …

(v)       Oral Judgment of Judge Mcquire makes assumption to the basis of his judgment by which referring to statements of claim of Ngati Tutemohuta and in which he was not competent to make such recommendations.

(vi)      Reference as to what our status is within our hapu, Paragraph 14. … (vii)     Para. 6 referring to trustees on behalf of the hapu, when instead they

were Crown Grants. …

[31]     Some of these matters could never amount to a ground of appeal.  The fact that the transcript of the hearing contains spelling mistakes, for example, could not provide a valid ground of challenge.  Responsibility for the transcript of the hearing, and any mistakes that it may contain, rests with the transcriber and not the Judge. Similarly, the fact that a Judge may have decided a legal issue in a particular way could not amount to “misbehaviour”.  In the present case I am satisfied in any event

that the Judge was entirely correct in the approach that he took to the issue of jurisdiction.   A Judge is also entitled to intervene during the course of the oral evidence in order to clarify matters or to stop an inappropriate line of questioning. The interventions to which the appellants refer were, in my view, appropriate when viewed in context.

[32]     I have read the transcript of the hearing in this case in order to satisfy myself that the Judge did not overstep the limits of acceptable judicial conduct in any way. Having done so, I can find no basis for any complaint regarding the Judge’s conduct during the hearing.   My own view is that he exercised his judicial function in a restrained and patient manner. That was not an easy task in the present case, because it is apparent from the transcript that the hearing attracted a large audience of people who held strong views regarding the issue of land ownership.   Given the circumstances in which the hearing came to be conducted, I do not consider that the Judge can be criticised for the manner in which he conducted himself or worded his decision.

Result

[33]     None of the grounds of appeal has been made out.   The appeals against conviction are dismissed.

[34]     Although the appellants also appeal against their sentence, I do not consider that the sentence can be criticised.   The Judge was required to select a penalty that reflected both the gravity of the offence and the circumstances in which it came to be committed.   I consider that the sentence that he selected was entirely appropriate in the circumstances.

Lang J