Wallace v Chief Executive of the Department of Corrections HC Auckland Civ-2011-404-004235

[2011] NZHC 780

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-004235

UNDER  the Habeas Corpus Act 2001

BETWEEN  JAY MAUI WALLACE Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:         18 July 2011

Counsel:         Applicant in person

A R Longdill for respondent

Judgment:      19 July 2011 at 4:00 PM

RESERVED JUDGMENT OF DOBSON J

This judgment was delivered by me on .19 July 2011 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland for respondent ([email protected])

Copy to:

Jay Wallace, C/- Mt Eden Correctional Facility, PO Box 92625, Symonds Street, Auckland 1150

WALLACE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2011-404-

004235 19 July 2011

[1]      Mr Wallace has made application for a writ of habeas corpus.   On 30 June

2011, he was sentenced to terms of imprisonment totalling four years three months cumulatively, in respect of convictions for injuring with intent to injure.

[2]      Mr Wallace has  raised  two objections  to  the lawfulness  of his  detention. First, he argues that acts of the New Zealand Parliament cannot be applied against him because he is tangata whenua.   He told me that he does not recognise the jurisdiction of the Court over him, has consistently protested that the Court has no jurisdiction, and has not had an answer to that protest.

[3]      The second point Mr Wallace raised was that because he did not recognise the jurisdiction of the Court, he had not entered pleas, and when that occurred, a Judge of the Court entered a plea of not guilty on his behalf which meant that he was not guilty  and  New Zealand  statutes  attempted  to  be  enforced  against  him  were themselves unlawful.

[4]      As to the first of these grounds, Mr Wallace’s protests to jurisdiction were raised  in  a  pre-trial  argument  before  Brewer J  on  29  September  2010.    In  the judgment issued on 11 October 2010, the protest was rejected.[1]   On that occasion, the Court cited a number of authorities that have consistently dismissed arguments that accused persons can avoid criminal prosecution in New Zealand because, as tangata whenua, they have not ceded sovereignty and therefore are not subject to jurisdiction arising from statutes of the New Zealand Parliament.[2]

[1] R v Wallace HC Auckland CRI-2010-092-2879, 11 October 2010 at [3]-[7].

[2] R v McKinnon (2004) 20 CRNZ 709 (HC), Knowles v Police CA146/98, 12 October 1998, R v Mitchell CA68/04, 23 August 2004, R v Harawira CA180/05, 1 August 2005, R v Toia [2007] NZCA 331.

[5]      The detail of such arguments sometimes presents slightly different issues.  In the  present  case,  the  materials  Mr Wallace  handed  to  me  include  a  document purportedly addressed to him and one other person, cast as an order for his release into “tribal custody o Te One One”, purportedly issued pursuant to “Tikanga o

Te One One Tribal Land and Title Act 2003”.

[6]      This approach is well within the range of arguments characterised as Maori sovereignty challenges.  The point was resolved, inevitably against Mr Wallace, pre- trial, and could only be pursued by means of an appeal.

[7]      It was not entirely clear, but I understood Mr Wallace’s description of steps subsequent to that pre-trial ruling to include an application for leave to appeal to the Court of Appeal, which was declined.

[8]      In any event, it cannot constitute a challenge to the lawfulness of his present detention.

[9]      The second point raised by Mr Wallace is misconceived.   The entry of not guilty pleas given his refusal to make a plea himself is the procedure that applies whenever the Court is confronted with an accused person who refuses to plead.  The consequence of it is that the accused person is treated as having entered a not guilty plea, so that the Crown is thereafter required to prove beyond reasonable doubt all requisite elements of the charges. That is the course that ensued.

[10]     For the respondent, Ms Longdill argued that it is not open for Mr Wallace to challenge  his  convictions  in  an  application  for  writ  of  habeas  corpus.    Section

14(2)(a) of the Habeas Corpus Act 2001 expressly excludes inquiry into a conviction entered by a court of competent jurisdiction.   The application of that section to situations such as the present was confirmed by the Court of Appeal in Misiuk v Chief Executive of the Department of Corrections.[3]

[3] Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 318.

[11]     Accordingly, Mr Wallace’s application for a writ of habeas corpus had to be

dismissed, and I did so.

Dobson J