An extension of time for filing the application for special leave to appeal is refused and the application for special leave to appeal is dismissed.

B The applicants are ordered to pay costs of $226.
___________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1] Tamati Roha and others seek special leave to appeal under s 144(3) of the Summary Proceedings Act 1957 against a judgment of the High Court delivered by Andrews J on 16 October 2007, leave to appeal having been declined by Stevens J on 27 March 2008: HC WHA CRI 2007-488-31.
[2] In March 2007, Mr Roha and the other applicants were convicted in the District Court at Kaitaia on a number of charges brought under the Trespass Act 1980. The charges concerned trespass on land known as the Stoney Creek Station. The applicants were each fined $100 and ordered to pay court costs of $130.
[3] The applicants appealed to the High Court against their convictions essentially on three grounds:

(a) The District Court did not have jurisdiction to hear the charges;

(b) The applicants could not in law be trespassers; and

[4] In the High Court hearing before Andrews J two other points were raised:

(a) Whether the appeal could proceed in the absence of Her Majesty the Queen; and

(b) The applicants sought an order transferring the appeal from the High Court directly to the Supreme Court.

[5] In a reserved judgment Andrews J dismissed all appeals.
[6] The applicants sought the leave of the High Court to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957. That application was dismissed by Stevens J.

Factual background

[7] The factual background is helpfully set out in the judgment of Andrews J, from which the following summary is adopted.
[8] Stoney Creek Station (or Waikoatu, which the applicants gave as its customary Maori name) is situated near Mangonui, Northland. It is held under Certificates of Title. On 7 July 1995 the then registered owner, Landcorp Farming Limited (a State-owned enterprise), transferred the land to Her Majesty the Queen for Crown land purposes under the Land Act 1948. Evidence was given at the District Court hearing that Stoney Creek Station is held in a “land bank” for the purposes of settlement of Treaty of Waitangi claims. Stoney Creek Station is managed through the office of Treaty Settlements, on behalf of the Commissioner of Crown Lands.
[9] The applicants are members of the Ngati Aukiwa hapu. This hapu was previously part of Ngati Kahu Ki Whangaroa Trust Board which was negotiating with the Crown for the return of Stoney Creek Station.
[10] Apparently Ngati Aukiwa now refuses to accept the mandate of the Trust Board to negotiate settlements with the Crown. Since 2003 hapu members have undertaken various acts to draw attention to their claims. The trespass charges of which the applicants were convicted in the District Court at Kaitaia on 13 March 2007 arose out of such acts. They included going on to the land and attempting to erect signs on it, being on the land with a group of people including media reporters, and attempting to move stock from the land.

The threshold test for special leave

[11] Section 144(1) of the Summary Proceedings Act permits an unsuccessful applicant for leave in the High Court to seek from this Court special leave to bring a second appeal. Section 144(3) provides:

Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the 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.

(Emphasis added.)

[12] The case of R v Slater [1997] 1 NZLR 211 (CA) is authority for the proposition that a second tier of appeal is concerned with resolution of points of law, rather than the application of law to the facts of a specific case. This Court also referred to the statutory policy that summary proceedings should generally be finally disposed of, following the exercise by one party of a right of appeal to the High Court.

Grounds for application

[13] The application for special leave to appeal sets out a number of questions on which the applicants seek determination by this Court. These were amplified in oral submissions by Mr Roha. They largely reflect the grounds of appeal addressed in the judgment of Andrews J. The crux of the submissions, as identified by Mr Roha, is the contention that as tangata whenua the applicants cannot be trespassed on what they claim is their own customary property, including the land known as Stoney Creek Station. They claim they have “unextinguished native aboriginal rights” in respect of the land and therefore could not trespass on it.
[14] This issue was addressed in [22] – [31] of the judgment of Andrews J and in [17] – [20] of the judgment of Stevens J.
[15] The short point, as noted by Andrews J at [30], is that the Trespass Act protects rights of occupation, not ownership.
[16] Section 3 of the Trespass Act provides:

Trespass after warning to leave

(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

(Emphasis added.)

[17] Section 4 of the Trespass Act provides for the occupier of the place trespassed upon to issue a warning to the trespasser.
[18] Judge Duncan Harvey in the District Court at Kaitaia found established on the evidence that the Crown was the owner and occupier of the land in question at the relevant time: DC KAIT CRI 2006-029-000107 13 March 2007. He further held that there was evidence to prove the charges of trespass against the applicants.
[19] Accordingly as both Andrews J and Stevens J held, the applicants cannot succeed on this ground of appeal.
[20] The applicants in oral submissions raised a number of matters including issues that have been dealt with by the judgments in the High Court. None of these questions or issues gives rise to a point of law arising out of the convictions for trespass against the applicants.
[21] We do not doubt the various grievances expressed by the applicants are heartfelt. This was acknowledged by Mr Downs for the New Zealand Police in his submissions. But the various matters addressed by the applicants in their submissions simply do not arise, and have no relevance, in relation to the convictions for trespass against the applicants.
[22] Mr Roha also sought leave from this Court to appeal directly to the Supreme Court. We note this was an application also made in the High Court which was dealt with at [12] – [14] of the judgment of Andrews J. We advised the applicants, as did Andrews J, that appeals to the Supreme Court can be heard only with the leave of that Court. This Court has no jurisdiction to grant the leave sought by Mr Roha.
[23] We note that the application for special leave to this Court is out of time. No extension of time for filing the application for special leave was sought and the reason for the delay is unclear. Given our view of the merits, we decline to grant an extension of time for filing the application for special leave.

Costs

[24] The Police seek costs under the Costs in Criminal Cases Act 1967. The application was advanced on the basis that the application for special leave constitutes a persistent and unjustified attack on the sovereignty of Parliament and the jurisdiction of the courts, lacks any merit and is a further consequence of the applicants’ persistent refusal to accept the judgments of any of the lower court judges, each of which has emphasised the futility of pursuing political complaint through judicial process. Counsel for the Police referred to R v Mitchell CA68/04 23 August 2004 where this Court ordered Mr Mitchell to pay costs and emphasised that where legal rights have been exhausted, endeavours to prosecute particular matters beyond legitimate and lawful bounds will attract awards of costs.
[25] Mr Downs accepted that costs are limited to $226 by the relevant legislation. That is an extremely modest amount.
[26] The applicants must understand that their persistence with acts and proceedings which cannot possibly yield the outcomes they seek, but which nevertheless involve the Police in considerable cost, will be met by awards of costs. Accordingly there will be costs awarded in favour of the New Zealand Police of $226.

Solicitors:
Crown Law Office, Wellington for the New Zealand Police

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