WHITI TE RA KAIHAU v SOUTH WAIKATO DISTRICT COUNCIL [2001] NZCA 323 (22 August 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca73/01

	between	WHITI TE RA KAIHAU
		Appellant

	and	SOUTH WAIKATO DISTRICT COUNCIL
		Respondent

Coram:	Gault J Thomas J Tipping J
Judgment: (On the papers)	22 August 2001

judgment of the court delivered by tipping j

[1] Mr Kaihau was found guilty in the District Court of an offence under section 57(5) of the Dog Control Act 1996, namely that he was the owner of a male bull terrier dog that attacked a person.He unsuccessfully appealed against his conviction to the High Court and subsequently sought leave to appeal to this Court.Leave was refused by the High Court and Mr Kaihau now applies to this Court for special leave to appeal against his conviction.The basis of his application is that, as a constituent of an independent state, he was not subject to the Dog Control Act 1996, or indeed any statute made by the New Zealand Parliament.With the consent of both parties this application has been determined on the basis of written submissions.

[2] Both on his appeal against conviction and his application for leave to appeal, Mr Kaihau's submission challenging the sovereignty of Parliament was rejected by the High Court.Delivering judgment in the latter proceeding, Chambers J held that the issue was not one which met the test set out in section 144 of the Summary Proceedings Act 1957 in that Mr Kaihau's argument had no chance of success.His Honour noted that the Court of Appeal and other courts have considered numerous challenges to Parliamentary sovereignty and on every occasion have rejected them.He also noted that Mr Kaihau himself had unsuccessfully presented exactly the same argument in an earlier appeal against his conviction for various traffic offences (Kaihau v New Zealand Police High Court Palmerston North, AP5.2000, 11 May 2000, Durie J).Accordingly, Chambers J declined the application for leave to appeal as he considered that there was no justiciable question which it would be proper to send to this Court.

[3] The basis of Mr Kaihau's written submissions to this Court was again that he is a constituent of an independent state, the State Government of Kahukoka, and as a result is not subject to the Dog Control Act 1996.Reliance was placed on New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, the Human Rights Act 1993, the Race Relations Act 1971 (repealed) and natural law.Mr Kaihau submitted that the Dog Control Act unlawfully interfered with the constitutional rights he enjoys as a constituent of the State Government of Kahukoka.A subsidiary submission was also raised challenging the evidence given by the victim in the District Court on the basis that she had fabricated that evidence.This argument was raised, and rejected, in both the District Court and the High Court.

[4] The issue is whether the question of law involved in Mr Kaihau's appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. As Chambers J noted in the High Court, the Courts have on numerous occasions been asked to consider challenges to the sovereignty of the New Zealand Parliament and on every occasion have rejected them (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, Berkett v Tauranga District Court [1992] 3 NZLR 206 and R v Knowles CA146/98, 12 October 1998). This Court has noted very recently that matters such as those raised by Mr Kaihau would require a political change to the criminal justice system, rather than the exercise of the appellate review of Mr Kaihau's conviction (R v Miru CA65/01, 23 July 2001).

[5] Nor do we consider that Mr Kaihau's challenge to the victim's evidence can justify an appeal to this Court.Disputes of a factual nature will rarely justify the granting of special leave to appeal, being by their very nature unlikely to raise a question of general or public importance.No such importance is shown in this case.

[6] For the reasons given the application for special leave to appeal is dismissed.