Wallace v The Queen

[2012] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/2011
[2012] NZCA 139

BETWEEN  JAY MAUI WALLACE
Appellant

AND  THE QUEEN
Respondent

Hearing:         28 March 2012

Court:             Randerson, Keane and Lang JJ

Counsel:         Appellant in person
K Raftery for Respondent

Judgment:      4 April 2012 at 4 p.m.

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1. The appellant was convicted on 4 April 2011 on a range of charges relating to domestic abuse of his partner in February 2010.[1]  The convictions followed a jury trial before Brewer J.  They comprised two counts of injuring with intent to injure; one count of assault with intent to injure; one count of threatening to kill; two counts of unlawful possession of a firearm; and one count of unlawful possession of explosives.

   [1]      R v Wallace HC Auckland CRI-2010-092-2879, 4 April 2011.

2. On 30 June 2011, the appellant was sentenced to five years and three months imprisonment.[2]  He now appeals against both conviction and sentence.

Grounds of appeal

[2]      R v Wallace HC Auckland CRI-2010-092-2879, 30 June 2011.

1. In his notice of appeal, the sole ground raised by the appellant was that the courts of New Zealand have no jurisdiction to try him.  He made that assertion on the basis that the courts lacked statutory authority and upon the further basis that he was a tribal leader of Te Hapu OneOne Society.  He requested that he be released to the tribal custody of Te Hapu OneOne for trial by a tribal court.

Brewer J’s ruling on jurisdiction

1. After a hearing on 29 September 2010, Brewer J issued a reserved decision on 11 October 2010 dismissing the appellant’s application protesting the jurisdiction of the court on the same grounds the appellant now seeks to advance on appeal.[3]  The Judge found that Parliament has the sovereign power to legislate for offending under the Crimes Act 1961 and the Arms Act 1983, under which the appellant was charged.  Brewer J also found that the offences established by the legislation applied to all persons present in New Zealand.  He noted that the same or similar arguments as those advanced by Mr Wallace have been rejected by the courts of New Zealand on numerous previous occasions citing, for example, R v McKinnon;[4] Knowles v Police;[5] R v Mitchell;[6] R v Harawira;[7] and R v Toia.[8]

Previous challenges by the appellant to jurisdiction

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

[4]      R v McKinnon (2004) 20 CRNZ 709 (HC).

[5]      Knowles v Police CA146/98, 12 October 1998.

[6]      R v Mitchell CA68/04, 23 August 2004.

[7]      R v Harawira CA180/05, 1 August 2005.

[8]      R v Toia [2007] NZCA 331.

1. Prior to his trial, the appellant attempted to appeal directly to the Supreme Court against Brewer J’s pre-trial ruling on the issue of jurisdiction.  On 7 March 2011, the Supreme Court dismissed his application for leave, describing the jurisdictional arguments as “plainly unsound legally”.[9]  The appellant then attempted to appeal the pre-trial ruling to this Court.  After an oral hearing, this Court dismissed the appellant’s application for leave to appeal on 31 March 2011.[10]

   [9]      Wallace v R [2011] NZSC 10 at [2].

   [10]      Wallace v R [2011] NZCA 123.

2. The appellant’s trial then proceeded.  He represented himself with the assistance of amicus curiae.  After the conclusion of his trial, the appellant applied to the High Court on 15 July 2011 for a writ of habeas corpus.  This application was made on the same grounds as those the appellant now advances.  Dobson J dismissed the application on 19 July 2011.[11]  An appeal against the refusal of habeas corpus was dismissed by this Court.[12]

   [11]Wallace v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-4235, 19 July 2011.

   [12]      Wallace v Ministry of Justice [2011] NZCA 678.

3. After sentencing, the appellant sought bail pending the determination of his appeal against conviction and sentence.  That application was dismissed by this Court.[13]  The Supreme Court declined leave to appeal against the refusal of bail.[14]

Discussion

[13]      Wallace v R [2011] NZCA 424.

[14]      Wallace v R [2011] NZSC 126.

1. On all of the occasions we have just detailed, the appellant has raised the same grounds as those advanced on the current appeal.  His arguments have been consistently made and consistently rejected by the High Court, this Court and the Supreme Court.  We have read the extensive volume of material presented to us by the appellant, but we are satisfied that no new issue has been raised which has not already been firmly rejected by the courts on previous occasions.

2. The appellant called upon this Court to enunciate the basis for asserting jurisdiction to try him.  We declined to do so and commend to him a reading of the numerous decisions of the High Court and this Court which state clearly the statutory and constitutional basis upon which the courts of New Zealand rely in the criminal jurisdiction.

3. No separate grounds were advanced by Mr Wallace in support of his appeal against sentence.  We are satisfied that the sentence was a proper one in the circumstances. 

Result

1. The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent