Wallace v Ministry of Justice
[2011] NZCA 678
•20 December 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA783/2011 |
| BETWEEN JAY MAUI WALLACE |
| AND MINISTRY OF JUSTICE AND CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS |
| Hearing: 1 December 2011 |
| Court: Arnold, Randerson and Harrison JJ |
| Counsel: Appellant in Person |
| Judgment: 20 December 2011 at 3 pm |
JUDGMENT OF THE COURT
A The appellant is granted leave to extend the time for filing an appeal.
B An order is made striking out the Ministry of Justice as first respondent.
C The appeal is dismissed.
D There is no order for costs.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Hei Rangatira J Maui Wallace appeals against a judgment of Dobson J delivered in the High Court at Auckland dismissing his application for a writ of habeas corpus.[1]
[1]Wallace v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-4235, 19 July 2011.
Before addressing the merits of Mr Wallace’s appeal, we record three introductory points.
First, Dobson J’s decision was delivered on 19 July 2011. The time limit for filing an appeal expired on 16 August 2011. Mr Wallace did not file his appeal until 1 November 2011. He was well out of time but he did not formally apply for an extension. Nevertheless, we treated Mr Wallace’s notice of appeal as an application for extension of time. Originally the Crown opposed the application. However, at the hearing on 1 December 2011 Ms Griffin responsibly withdrew that objection.
Second, Mr Wallace has cited the Ministry of Justice as the first respondent and the Chief Executive of the Department of Corrections as the second respondent. The Ministry is not the appropriate defendant or respondent in habeas corpus proceedings.[2]
[2] Habeas Corpus Act 2001, s 8.
Third, at the hearing Mr Wallace advised that he had not received a copy of Ms Griffin’s written synopsis of submissions filed on 30 November or the Crown’s bundle of authorities. Following the hearing Ms Griffin confirmed Mr Wallace’s advice. She advised the Registry that, due a misunderstanding the previous day, the prison authorities had failed to serve the documents on Mr Wallace. In order to rectify any unfairness we allowed Mr Wallace until 4 pm on 12 December to file a supplementary synopsis of submissions in reply. Mr Wallace has since filed a supplementary synopsis which we have read. We add that it was apparent from Mr Wallace’s oral arguments advanced at the hearing on 1 December that he was familiar with the essence of the Crown’s argument in answer to his appeal and with the relevant authorities.
Background
Mr Wallace is currently serving a term of five years and three months imprisonment imposed in the High Court at Auckland on 30 June 2011 following his conviction on two counts of injuring with intent to injure, one count of threatening to kill, one count of assault with intent to injure, and two counts of possession of a firearm.[3] All counts were laid under the Crimes Act 1961. The offences were committed against Mr Wallace’s partner. He was found guilty following trial before a Judge and a jury.
[3] R v Wallace HC Auckland CRI-2010-092-2879, 30 June 2011.
Mr Wallace had earlier protested the High Court’s jurisdiction and applied for a discharge on all counts. Mr Wallace submitted that Parliament was not sovereign because its statutory enactments did not apply to him as tangata whenua. As a result, he submitted, the Crimes Act and other relevant statutes were null and void and at most only applied to non-Maori. Similar arguments have been advanced in a number of earlier cases. Brewer J dismissed Mr Wallace’s application on 11 October 2010[4] following a consistent line of authority in this Court.[5] The Judge concluded that the High Court did have jurisdiction to try Mr Wallace.
[4]Wallace v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-4235, 11 December 2010.
[5]See for example Knowles v Police CA146/98, 12 October 1998; R v Mitchell CA68/04, 23 August 2004; R v Toia [2007] NZCA 331.
Mr Wallace attempted to appeal against Brewer J’s decision directly to the Supreme Court. It treated his appeal as an application for special leave to bypass this Court, declining the application on 7 March 2011 on the grounds that it was “plainly unsound legally”.[6]
[6] Wallace v R [2011] NZSC 10 at [2].
Mr Wallace then appealed out of time to this Court against Brewer J’s decision. His application for leave under s 379A of the Crimes Act was dismissed.[7] This Court upheld Brewer J in finding that Mr Wallace like every citizen of this country is and was subject to Parliament’s sovereign will.[8]
[7] Wallace v R [2011] NZCA 123.
[8] At [8].
Following his conviction, Mr Wallace applied to the High Court for a writ of habeas corpus. His grounds were essentially the same as those advanced in support of his unsuccessful protest to jurisdiction in the High Court. As noted, Dobson J dismissed the application on 19 July 2011.
Mr Wallace filed an appeal in this Court on 15 August 2011 against his conviction and sentence. His notice of appeal maintained his challenge to the High Court’s jurisdiction on sovereignty grounds and also alleged that the trial was conducted unfairly and that justice miscarried as a result. He applied for bail to an address at a rural property in Northland. His application was dismissed on 30 August 2011.[9]
[9] Wallace v R [2011] NZCA 424.
Finally, Mr Wallace appealed against this Court’s refusal to grant him bail pending determination of his appeal. The Supreme Court dismissed his application for leave on 18 October 2011.[10] He apparently filed a further application for a writ of habeas corpus in the High Court on 19 October. That application has not been heard or determined.
Decision
[10] Wallace v R [2011] NZSC 126.
Mr Wallace lodged a considerable amount of material in support of his appeal. In summary, he appears to raise three grounds.
First, Mr Wallace submits that he did not receive Dobson J’s decision in a timely fashion and thus he had reasonable grounds to believe that the writ was granted. As a result, he says that his current imprisonment is invalid. However, Mr Wallace is serving a term of imprisonment imposed by a Judge of the High Court in accordance with the provisions of the Crimes Act. Mr Wallace’s belief that Dobson J had granted his application is contrary to the terms of the judgment and the relevant statutory provisions.
Second, Mr Wallace submits that he was denied a hearing in the High Court on a second application for habeas corpus filed on 19 October 2011. We understand that the High Court Registry did not appreciate that Mr Wallace was making a fresh application for habeas corpus rather than following up on the application he had already made. It will be for the High Court to address that second application now that the true position has emerged, assuming that Mr Wallace intends to pursue it. In that connection, we draw Mr Wallace’s attention to s 15 of the Habeas Corpus Act 2001, which deals with applications which raise substantially the same issues as applications already dealt with.
Third, Mr Wallace repeats the jurisdictional challenges which he has made previously in the High Court, in this Court and in the Supreme Court. He says that a unicameral Parliament has no jurisdiction to make laws applying to him; that Parliament is not validly constituted because there is no written constitution; and that the New Zealand Parliament has no jurisdiction over tangata whenua including Mr Wallace.
We do not need to address this argument or its components in detail. It is answered by this Court’s earlier decisions, to which we have referred (see above at [7]) and by the Supreme Court’s refusal to grant Mr Wallace leave to pursue an appeal directly to that Court (see above at [8]).
We add our acceptance of Ms Griffin’s submission that Mr Wallace is lawfully detained pursuant to valid warrants of commitment issued under s 91 of the Sentencing Act 2002 on 30 June 2011. The validity of Mr Wallace’s criminal convictions and sentence cannot be reviewed on an application for habeas corpus.[11] Mr Wallace’s sole available ground of challenge to his detention is through his appeal against conviction and sentence to this Court. That appeal has yet to be determined.
Result
[11]Habeas Corpus Act 2001, s 14(2)(a); Misiuk v Chief Executive of Department of Corrections [2011] NZCA 318 at [7], leave to appeal was declined by the Supreme Court in [2011] NZSC 122 at [1].
Mr Wallace is granted leave to extend the time for filing an appeal against the decision of the High Court.
An order is made striking out the name of the Ministry of Justice as first respondent.
Mr Wallace’s appeal is dismissed.
There will be no order for costs.
Solicitors:
Crown Law Office, Wellington, for Respondent
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