Police v Albert [2017] NZDC 4724 (7 March 2017)

Last Updated: 18 January 2018

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-005535 [2017] NZDC 4724

NEW ZEALAND POLICE

Prosecutor

v

DAVID RHODES ALBERT

_Defendant

Hearing:	7 March 2017
Appearances:	S Dayal for the Prosecutor A Williams for the Defendant
Judgment:	7 March 2017

_{ORAL JUDGMENT OF JUDGE D J L SAUNDERS}

[1] Mr David Albert has been charged with offences relating to a search that took place at his property on 3 June last year. The charges involve cultivation of a prohibited plant, namely cannabis, possession of a Class C controlled drug and possession of a Class C controlled drug for the purposes of selling or offering to sell to a person of or over the age of 18 years of age.

[2] When he first appeared on 9 June he was represented by different counsel to the counsel appearing for him today. Mr Hembrow was recorded on the record, guilty pleas were noted to the charges and the matter was remanded on bail for a pre-sentence report and a home detention report to be furnished.

[3] Following that there was an incident of assault on 5 July, which Mr Albert pleaded guilty to the summary offences assault on [the victim]. A guilty plea was

NEW ZEALAND POLICE v DAVID RHODES ALBERT [2017] NZDC 4724 [7 March 2017]

recorded. He was remanded on bail to 23 August for the pre-sentence report that was directed for the earlier matters that I have mentioned. Bail was varied at that stage and he, clearly, had bail conditions varied during the currency of these proceedings.

[4] A pre-sentence report has been prepared in relation to this matter. However, when Mr Williams appeared on 18 November a challenge was then raised as to the sufficiency of the evidence for the granting of a search warrant. The matter initially was set today to be proceeded with upon the basis that Mr Albert wished to know the basis upon which a warrant had been granted by a judicial officer for the search of his property. Mr Williams indicated that the defendant had run a close circuit or TV surveillance system and somebody was seen on that to have unlawfully entered the property. He had concerns, no doubt, that the police may have undertaken some covert operation and that he wished to know what the basis of their search was.

[5] The search warrant material has been made available to me by the detective in charge of the operation and I have been through the information that was provided to the police and for good reasons they have edited the material which has been released to counsel. I have assured myself that the basis of the evidence that was presented for the granting of the warrant was based on appropriate information which was cross-checked and there was sufficient material available to the issuing officer to issue a search warrant. Mr Williams has not been able to take the matter any further than that that was raised back on 18 November and I have refused to release the copies of the material which identify material that gave the basis for the search warrant.

[6] After Mr Williams had spoken to Mr Albert in relation to that matter he indicated to the Court that he wished Mr Albert to be given permission to address the Court concerning his ability to withdraw his guilty pleas. Mr Albert has made it clear that he does not seek to interfere with the guilty plea entered to the charge related to 5 July and that matter stands.

[7] The basis upon which he seeks to now remove his guilty pleas from the record and to be able to defend the charges of cultivation, possession of cannabis and

possession for the purposes of supply seems to be very much tied up with a document which he has presented to the Court today intituled “Proclamation of Self-Determination and Individual Sovereignty”. It is quite a lengthy document, but one upon which Mr Albert says that he:

Is not bound by any jurisdiction or any legislative body that I have not knowingly, willing with full disclosure of my free will joined. I endeavour to the best of my abilities to keep the peace and uphold the constitutional order and rule of law of the land which I live as well as internationally recognise agreements, treaties involving human rights, self-determination, sovereignty and freedom.

[8] He cites the Treaty of Waitangi, the Universal Declaration of Human Rights, the Supplementary Convention of the Abolition of Slavery, the International Covenants of Civil and Political Rights and the Declaration of the High-Level Meeting of the General Assembly of the Rule of Law at the National and International Levels 2012. In summary he says:

In the interests avoiding any and all conflict with you, your principles and/or agents the onus of burden and duty is upon you as a servant of the people or otherwise to inform any and all parties, persons and agents, Parliamentary, police and judiciary and otherwise within and without the realm of New Zealand of my rights and my proclaimed sovereignty let any who have claim against me state and substantiate their claim or forever keep the peace. Take notice that until such time as this proclamation is rebutted to an exacting point of law it prevails in truth and in law.

[9] Mr Albert’s, from the way in which he conducted himself today, clearly believes that he has this individual sovereignty and that he is not bound by the laws of the Misuse of Drugs Act 1975, which prohibits the possession of cannabis, the cultivation of it and the possession for the purposes of supply.

[10] The bottom line is that I must obey Parliament and the Courts superior to me. Superior Courts have not accepted a claim that means that Māori are not bound by statutes of New Zealand, particularly the Crimes Act 1961 and the Misuse of Drugs Act. Only Parliament is able to make laws empowered by the proclamation of

21 May 1840 by Captain Hobson and the acquisition of New Zealand by the Crown gazetted in the London Gazette on 2 October 1840, which authoritatively establish

Crown sovereignty over New Zealand. The reference to that is the

New Zealand Māori v Attorney-General.1

[11] Acts of Parliament are binding on all persons within the geographical territory of New Zealand, whether Māori or non-Māori. Acts of Parliament do not derive the authority from the Treaty of Waitangi 1840 and they are binding upon all persons within the territory of New Zealand. The acts or omissions of one’s ancestors could have no bearing on one’s liability under a New Zealand statute of general application. Rights conferred under the Treaty cannot be enforced unless there is a statutory recognition of those rights. I refer to the case of

Berkett v Tauranga District Court.2 The Courts of New Zealand must uphold all

Acts of Parliament as enacted regardless of any attack upon the assumptions or procedures which may have led to their enactment.

[12] Crimes Act 1961 and the Misuse of Drugs Act 1975 are Acts of Parliament. The Courts have power to deal with all actions that amount to criminal offences in this country. All New Zealanders are thus subject to one national Criminal Court system. The Courts are not the forum for fundamental challenge to the entire constitutional structure of New Zealand or political campaigns. Māori sovereignty can be the subject of debate in Parliament. The Waitangi Tribunal may be prepared to consider it. It can be debated in public meetings or the media. It may be the subject of lawful protest, but an assertion of Māori sovereignty does not raise a judicable question. It cannot succeed in the general Courts of New Zealand and that

has been decided in the case of Creeks v R.3

[13] Mr Albert, your challenge and document that you have presented to the Court does not succeed in absolving you from liability under the Misuse of Drugs Act. The matter then has to be looked at as to whether or not you have established any grounds to set aside a guilty plea which came based on legal advice back in June of last year. Matters that have been raised concerning the search warrant have been dismissed. It is clear that your property was lawfully searched, cannabis was located

_{there and in the summary of facts that was prepared and which was submitted at the}

1 _{New Zealand Māori Council v Attorney-General CA54/87, 9 December 1987}

2 _{Berkett v Tauranga District Court [1992] 3 NZLR 206}

3 Creeks v R HC Auckland A138/00, 6 November 2000

time of the plea you stated the cannabis plants and all related equipment belonged to you. You stated that you supplied cannabis free of charge to his neighbours. That, however, is in contravention of an earlier paragraph in which it was noted that your mobile phone was checked, there were numerous messages asking to buy cannabis and the defendant replying with quantities, prices for sale and organising delivery. It is clear that you accepted that you were cultivating cannabis, but considered that you were not committing any crime for which there was a victim.

[14] I am not satisfied that you have established appropriate grounds in which to set aside the guilty pleas that were entered. The only matter which may be subject of a disputed facts hearing is whether or not the cannabis that you are alleged to have supplied was being offered for sale. You maintain that you were giving it away for free. However, there is clear reference in the summary of facts to a cellphone. That is the one issue that may need some further resolution before sentencing takes place and I will ask for the police to provide evidence in relation to that.

[15] It is to be noted, however, that under the Misuse of Drugs Act if you are found in possession of a certain quantity of cannabis material you can be deemed to be in possession for the purpose alleged and the onus of proof effectively turns onto you on the balance of probabilities to show that you were not selling or offering to supply to other persons over the age of 18. The summary is defective or deficient in that information and that can be provided by a further disclosure.

[16] On the charges of cultivation and simple possession, I am satisfied that there is no appropriate defence available and I will not set aside the guilty pleas entered.

[17] On the other matter, I stand it over for further information to be provided and for sentencing to then take place. The date and time for that will be required, Mr Williams.

[18] Mr Dayal, I wonder if perhaps you could see that in relation to that part of the summary that there is further information supplied. It is clear from the summary of facts that there was a cellphone that was analysed. The presumption is on Mr Albert to show that he was not in possession for that purpose and he has pleaded guilty on

legal advice, but he says also in the summary that he was giving it to the neighbours for free. That does not constitute a sale, but it may constitute an offering to supply to persons over 18 in any event, so I just think if that could be fleshed out a little bit more.

D J L Saunders

District Court Judge