THE QUEEN v ROBIN EARLE PARANGI [2001] NZCA 27 (20 February 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 365/00 CA 366/00

THE QUEEN

V

ROBIN EARLE PARANGI
AND
WILLIAM MARSH PARATA

Hearing:	20 February 2001
Coram:	Gault J Robertson J Potter J
Appearances:	J C Pike for Crown
Judgment:	20 February 2001

judgment of the court DELIVERED BY ROBERTSON J

[1] This matter was listed before the Court as a case stated under s 380 of the Crimes Act 1961.The case stated noted :
1. On or about 6 September 1999 charges of cultivation of cannabis were laid against Robin Earle Parangi and William Marsh Parata in the North Shore District Court.Following their preliminary hearings they were committed for trial by a Judge and jury in the Auckland District Court.
2. The indictment filed by the Crown Solicitor in the Auckland District Court charged these two accused jointly that on or about 2 September 1999 at Auckland they cultivated a prohibited plant of the genus cannabis pursuant to s 9 of the Misuse of Drugs Act 1975.At the jury trial callover on 9 March 2000 a standby jury trial date was allocated for the week of 29 May 2000.When their case was called on that date the firm fixture jury trials were proceeding but because it was possible their case could start later in the week, the accused were remanded to appear again for trial on 31 May 2000.
3. Before 31 May 2000 both accused had declined legal representation including an offer of a legal aid counsel.However, on 31 May 2000 Mr Leo Brown appeared for both the accused as their McKenzie Friend.Mr Brown had filed an affidavit which included extensive submissions on behalf of both accused challenging the jurisdiction of the District Court to hear the case.
4. Before the jury panel were called into Court and a jury empanelled, Mr Brown applied for the transfer of the proceedings either to an incorporated body called Te Tii Mangonui Maori Kaporeihana for hearing or determination or to "The Queen's High Court of New Zealand" for a judicial review.In brief, Mr Brown submitted that the two accused challenged the jurisdiction of the District Court to hear the case concerning the cultivation of cannabis both accused had been jointly charged with.He relied upon the Te Ture Whenua Maori Land Act 1993 and the other material referred to in his written application. A copy of the affidavit filed by Mr Brown is annexed to the back of this case stated.
5. Having considered the contents of this affidavit and the submissions made I told both accused and Mr Brown that similar applications had been made in the past and the Courts had rejected their argument.I cited as an example, the judgment of Penlington J in Warren v The Police (HC Hamilton Registry, AP 133/99, 9 February 2000).I drew Mr Brown's attention particularly to the case of R v Clarke & Anor mentioned therein which had considered a similar submission and rejected it.
6. Following the argument I dismissed the accuseds' application to transfer the case and dismissed the accuseds' application challenging the jurisdiction of the District Court to hear their trial on a joint charge of cultivating cannabis.Mr Brown asked me if it was possible to appeal the question of jurisdiction to the Court of Appeal.I therefore agreed to reserve the question of jurisdiction for the opinion of the Court of Appeal under s 380 of the Crimes Act 1961.
7. Mr Brown then asked for some time for both the accused to consider their position.When the District Court reconvened Mr Brown advised me that both accused would plead guilty to the count in the indictment.Before the jury panel were called into Court and a jury empanelled both accused were arraigned and pleaded guilty to the one count of cultivating cannabis.I confirmed my decision for a case to be stated to the Court of Appeal on the question of jurisdiction.
8. Both accused were remanded on bail to appear for sentence on 4 July 2000.On that date I sentenced each accused to 18 months imprisonment but I granted them leave to apply for home detention.
9. The following questions of law are stated for the opinion of the Court of Appeal :
(i) Can a criminal jury trial where two accused have been committed for trial before a Judge and jury in the District Court be transferred to an incorporated body called Te Tii Mangonui Maori Kaporehana for hearing?
(ii) Does the District Court have jurisdiction to hear a trial before a Judge and jury when two accused charged with cultivating cannabis challenge the jurisdiction of the District Court in reliance on Te Ture Whenua Maori Land Act 1993 and the other material contained in the affidavit filed by Mr Brown?
(iii) Was I correct in dismissing the applications made by Mr Brown on behalf of the accused?
(iv) If I was wrong to dismiss the applications does the case need to be referred back to the District Court or some other forum for further hearing?
[2] Mr Pike in his written submissions argued that the circumstances of this case did not fall within the parameters of s 380 of the Crimes Act.In as much as they are relevant they provide :
380Reserving Question Of The Law
(1)The Court before which any accused person is tried may, either during or after the trial, reserve for the opinion of the Court of Appeal, in manner hereinafter provided, any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the Judge, [other than a question arising on any of the proceedings preliminary to the trial and already determined by the Court of Appeal under section 379A of this Act].
...
(6)If the question is reserved, a case shall be stated for the opinion of the Court of Appeal, to be approved and signed by the Judge who presided at the trial.
[3] Mr Pike referred to the decision of this Court in R v Grime [1985] 2 NZLR 265.In a judgment of himself and Woodhouse P, Richardson J noted at 267 :
A question of law can only be reserved under s 380(1) during or after the trial.
[4] Mr Pike argues that the Grimes approach must determine this case. Here the jury was empanelled and after legal argument on jurisdiction, the appellants with the assistance of a McKenzie Friend, decided after an intimation that the argument about jurisdiction must fail, that they would both plead guilty.The Crown therefore asserts that there was no trial. Notwithstanding the initial intimation by the Judge that a s 380 point would be reserved, or his subsequent confirmation of that after conviction, as there was no trial the jurisdiction of this Court does not exist.
[5] As Mr Pike reminded us, persons in the position of these appellants can have a jury empanelled, the accused can be put in charge and the jury can be invited to return a directed verdict so that there is a trial.That did not occur in this case and therefore this Court has no jurisdiction to hear the case stated.
[6] The case stated cannot be considered by this Court and the matter is still within the purview of the District Court.
[7] Any future action will be a matter for Mr Parangi and Mr Parata (and those who advise them).With the effluxion of time it may all have become something of an academic exercise.If they were to make an application to change their plea even at this late stage, the District Court should properly reconsider and sympathetically approach such an application.It is clear that the decision to enter pleas of guilty was influenced by the mistaken belief that there would be the legal consequence of a case stated being determined in this Court.That is not the legal position and if they wish to pursue the point they should not be hindered by an earlier decision taken under a mistaken apprehension of their rights.
Solicitors:
Crown Law Office, Wellington