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

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.
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.

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wallace v The Queen

Details

AGLC: Wallace v The Queen [2012] NZCA 139
Case: [2012] NZCA 139
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the case of Wallace v The Queen, Jay Maui Wallace, the appellant, appealed against his conviction and sentence in relation to charges of domestic abuse against his partner. The appeal was heard before Randerson, Keane, and Lang JJ in the Court of Appeal of New Zealand. The appellant's conviction and sentence were both dismissed. The primary legal issue before the court was whether the New Zealand courts had the jurisdiction to try the appellant on the charges brought against him. The appellant argued that the courts lacked statutory authority and that he, as a tribal leader, should be tried by a tribal court. The court dismissed the appeal on the basis that the jurisdictional arguments had been consistently rejected by the High Court, the Court of Appeal, and the Supreme Court. The court found that the appellant had not raised any new issues that had not already been rejected by the courts on previous occasions.

The court noted that the appellant had raised the same jurisdictional arguments before the High Court, which dismissed his application on 11 October 2010. The Supreme Court also dismissed his application for leave to appeal on 7 March 2011, describing the jurisdictional arguments as "plainly unsound legally." The Court of Appeal dismissed his application for leave to appeal on 31 March 2011. After his trial, the appellant applied for a writ of habeas corpus, which was dismissed by the High Court on 19 July 2011. The Court of Appeal also dismissed the appeal against the refusal of habeas corpus. The appellant's application for bail pending the determination of his appeal was dismissed by the Court of Appeal and the Supreme Court declined leave to appeal against the refusal of bail. The court was satisfied that the sentence was proper in the circumstances.

The Court of Appeal dismissed the appeal against conviction and sentence. The Crown Law Office represented the respondent.

Orders