WorkSafe New Zealand v Rupa [2022] NZDC 8966 (31 May 2022)

Last Updated: 29 January 2023

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-009-009160 [2022] NZDC 8966

WORKSAFE NEW ZEALAND Prosecutor

v

DILIP KUMAR RUPA Defendant

Hearing:	7 April 2022
Appearances:	Mr B Finn and Ms Simpson for the Prosecutor Mr Rupa is Self-Represented
Judgment:	31 May 2022

RESERVED DECISION OF JUDGE K MAXWELL

[1] Dilip Rupa1 is the proprietor of Rupa’s Café in Freeman’s Bay. He is charged that on or about 16 October 2020 he intentionally failed to comply with a COVID-19 order, namely Clause 8(1) of the COVID-19 Public Health Response (Alert Level Requirements) Order 2020.

[2] In short, it is alleged that he failed to ensure that a copy of a QR Code was displayed in a prominent place at or near the entrance of Rupa’s Café.

1 Dilip Rupa requested the Court not address him as “Mr Rupa”

WORKSAFE NEW ZEALAND v DILIP KUMAR RUPA [2022] NZDC 8966 [31 May 2022]

[3] The legislative reference is s 26(1) of the COVID-19 Public Health Response Act 2020. The maximum penalty is imprisonment for a term not exceeding six months or a fine not exceeding $4,000.

[4] On 7 April 2022, Dilip Rupa was due to appear in the Auckland District Court for a Judge Alone trial. The hearing did not commence. When Dilip Rupa’s matter was called, it became apparent that he was raising issues as regards the jurisdiction of the Court. Dilip Rupa was unequivocal.

[5] Earlier that morning Dilip Rupa had put the Court on notice by means of an email that such issues were likely to arise. An earlier email had also been sent by Dilip Rupa on 5 April 2022.

[6] Dilip Rupa was invited to take the Court through his emails. He referred the Court to the coat of arms in the courtroom. Fundamentally the issue he raised was as regards jurisdiction. Shortly thereafter Dilip Rupa left the courtroom and the Court was advised that he had in fact left the building.

[7] Mr Finn, Counsel for Worksafe, was however in a position to respond to the challenge to jurisdiction. Mr Finn further made application pursuant to s 122 of the Criminal Procedure Act 2011 for the hearing to proceed in the absence of Dilip Rupa.

[8] I reserved my decision on the issue of jurisdiction and advised Mr Finn that the application to proceed in the absence of Dilip Rupa was refused but with reasons to follow. These are those reasons.

Jurisdiction

[9] It is perhaps helpful to refer to aspects of the two emails which were forwarded to the Court. These assist in illustrating the concerns raised by Dilip Rupa bearing on jurisdiction.

[10] The most recent email was sent by Dilip Rupa on 7 April 2022 at 7.41 am. It is directed to the Non-Jury section of the Court and various other organisations or individuals. The subject matter is the prosecution against Dilip Rupa. It is specifically

addressed to three NZME Herald employees, the Law Society (complaints), the Chief Human Rights Commissioner, the Chief Electoral Commissioner, the Media Council and the Non-Jury section of the Court. The email includes the coat of arms and the name of a Court Registry Officer. The body of the email is signed by Dilip Rupa. Under Dilip Rupa’s name it notes, “Defender of the Defender of the Faith”.

[11] The email asserts that the Court Registry Officer and others have no respect for “Gandhiji”. It also refers to “the flag in the COAT OF ARMS was never part of the nation’s foundational ceremony”. Further in the email it states, “Therefore the operations of the Court are not lawful. My attendance is purely under duress.”

[12] The email includes a further email which Dilip Rupa had sent on 6 April 2022 at 8.02.06 am. This was addressed to the prosecutor, the Law Society and various Government Ministers. The Non-Jury section of the court has been included. Again, the subject matter is the prosecution against Dilip Rupa. To summarise, the email is a complaint to the Law Society about the prosecutor and the fact that evidence had not been provided “to prove the treaty jurisdiction is lawful”. Dilip Rupa refers to the fundamental obligations that apply to lawyers.

[13] There is further reference to “flags” and “Article 8” where there is a reference to “the Constitution”. The email states, “My concern is not the matter was wrongfully placed before the Court. Correspondence specifies the Constitutional concerns raised.” Towards the end of the email Dilip Rupa states, “An ethical concern needs public disclosure because the Orders had no democratic input”. He refers to the media and the “FOURTH ESTATE”. Again, the email is signed by Dilip Rupa, Defender of the Defender of the Faith.

[14] As noted above, Dilip Rupa had also sent an earlier email through to the Court on 5 April 2020 at 8.00 am. The Non-Jury section was included. There was no subject matter noted. The email is directed to “the most senior member of the Electoral Commission and Chief Human Rights Commissioner and Matt King”. The email includes two questions. The first is identified by the number 3, “When the Treaty was signed, was the flag that rose on the 28th October 1835 lowered before the Union Jack rose on the 6th February 1840”. The second is identified as number 4, “If the answer

to point 3 is no ... what Flag was lowered before the Union Jack rose.” The email goes on to state “that the cabinet manual states the Treaty as a founding document” and “That would indicate there is more than one”.

[15] Further in the email Dilip Rupa states, “the Chief Human Rights Commissioner is asked via this communication to request Ben Finn the Lawyer for Worksafe to postpone matters because of the circumstances presented which question the lawfulness of jurisdiction. It is not correctly determined by the constitutional Monarch will violate the CONSTITUTIONAL FRAMEWORK is democracy is based.” The email is signed by Dilip Rupa, Defender of the Defender of the Faith.

[16] This email also attaches an exchange from March 2021 between Phil Bridge, the Outdoors Party candidate for Panmure-Otahuhu in the 2020 elections, and the Electoral Commission.

[17] The points which Dilip Rupa had raised in his email were also identified by Mr Bridge. The email attaches a six-page document. It appears to be directed to the Prime Minister, the Minister for Worksafe Transport, the WORKSAFE legal team, the Media Council and Media operators. The document refers to colonisation, the Declaration of Independence and the flag. On page 3 is noted “Applying for the QR CODE required a driver’s licence with a flag that was not present at the signing of A FOUNDING DOCUMENT”. On the final two pages of the document Dilip Rupa refers to four issues. At paragraph ‘B’ he states, “the lawfulness of the orders including the QR CODE requirements and non-vaccine people’s rights to retain jobs were correctly processed DEMOCRATICALLY to protect our CONSTITUTIONAL rights”. Again, this document is signed Dilip Rupa, Defender of the Defender of the Faith.

[18] Mr Finn responded to the matters raised by Dilip Rupa by way of oral submissions. He fairly acknowledged that he did not pretend to one hundred percent comprehend every aspect of the argument advanced by Dilip Rupa. He understood the argument to be that the proceedings against Dilip Rupa are unconstitutional and that this extends to the validity of the COVID-19 Public Health Response Act 2020 and the order made under that Act. In short, his understanding was that Dilip Rupa’s argument is that the proceedings are unconstitutional and unlawful.

[19] Mr Finn referred to the rule of law; that Parliament has the power to make laws and to promulgate orders under those laws and that the Courts and the Judiciary are the body or bodies that determine whether criminal charges under those Acts are proven. Mr Finn observed that New Zealand does not have a Constitution, that it has a Bill of Rights as an aid to interpretation.

[20] Mr Finn referred to various challenges to COVID-19 orders and legislation over the last couple of years. Mr Finn submitted that there was no indication from those decisions that the particular COVID-19 order, including in it Clause 8 requiring a workplace to have a QR Code displayed in a prominent place at or near the entrance, is anything but lawful.

The Law

[21] Challenges of the type which Dilip Rupa has advanced have been uniformly dismissed by the Courts on many previous occasions. The most authoritative consideration of the application of the Declaration of Independence can be found in the Court of Appeal judgment in Ngaronoa and Wilde v The Attorney General of New Zealand.2 At paragraph [57] the Court of Appeal noted the following:

The genesis of the Declaration is described in detail in the 2014 Waitangi Tribunal Report He and Whakaputanga me te Tiriti: the Declaration and the Treaty. The Declaration, signed on 28 October 1835 by 34 leading Te Raki rangatira, was a declaration by those rangatira of sovereignty and independence.

[22] At paragraph [60]:

We acknowledge the perspective that the Declaration may be viewed as the parent document to the Treaty, and that given the repetition in the Treaty of terms in the Declaration such as rangatiratanga and kawanatanga the Declaration was not superseded by it. However we do not consider, given the context in which the Declaration was signed and the content of the Treaty which followed five years later, that the Declaration should be accorded discrete status as an extrinsic aid to the interpretation of contemporary statutes. In our view, Fogarty J’s conclusion that, rightly or wrongly, the Treaty is the starting point for the legitimacy narrative of New Zealand’s constitutional arrangement was sound. We do not consider that there was any error of the nature alleged.

2 Ngaronoa and Wilde v The Attorney General of New Zealand [2017] NZCA 351.

[23] This Court’s position is that it must obey what Parliament and the Superior Courts have set down. Parliament does not derive its authority from the Declaration of Independence. The Courts of New Zealand must uphold all the Acts of Parliament. The COVID-19 Public Health Response Act 2020 is one such Act of Parliament. The District Court has the power to hear proceedings for alleged offences under that Act and is not a forum to challenge the constitutional structure of New Zealand.

[24] Accordingly, I find that the Court has jurisdiction to hear these proceedings.

Application to Proceed in the Absence of Dilip Rupa

[25] The starting point is the statutory scheme. Section 122 of the Criminal Procedure Act 2011 addresses circumstances where there is a non-attendance of a defendant at trial for a category 23 offence:

122 Non-attendance of defendant at trial for offence in category 2, 3, or 4

(1) This section applies to any trial if—

• (a) the offence charged is a category 2, 3, or 4 offence; and
  
• (b) the defendant is required, under section 118, to be present at the trial; and
  
• (c) the prosecutor attends the trial, but the defendant does not.
  

(2) If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant’s absence will not prejudice his or her defence.

(3) If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:

• (a) proceed with the trial in the absence of the defendant:
  
• (b) issue a warrant to arrest the defendant and bring him or her before the court.
  

(4) Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

3 See 6(1) Criminal Procedure Act 2011 – an offence punishable by a term of imprisonment of less than two years.

(5) Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 121(4).

[26] In Kumar v R,4 the Court of Appeal the Court referred to the judgment of the House of Lords in R v Jones.5 Whilst Kumar specifically addressed s 376 of the Crimes Act 1961 (as it then was), the Court of Appeal confirmed that the same principles would apply in respect of applications under s 122.

[27] The Court of Appeal set out the relevant principles and referred s 25 of the New Zealand Bill of Rights Act 1990 which sets out various minimum standards of criminal procedure. Section 25(a) provides for the right to a “fair and public hearing by an independent and impartial court”. Section 25(e) protects “[t]he right to be present at the trial and to present a defence”.

[28] The Court in Kumar confirmed that great care is needed in the exercise of its discretion to proceed in the absence of a defendant, and that discretion is to be exercised in the context of a right to be present.6

[29] The first issue was whether Dilip Rupa had a “reasonable excuse” for his absence. Dilip Rupa was aware of the date and chose to leave. In my view, a belief that the Court lacked jurisdiction would not amount to a reasonable excuse. Therefore, the issue becomes whether it was in the interests of justice to proceed with his trial in his absence.

[30] Pursuant to s 122(4) the Court must not proceed with a trial in the absence of a defendant if the Court is satisfied it would be contrary to the interests of justice to do so. The decision as to what is in the “interests of justice” is guided by s 121(4):

• (4) Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:
  
  • (a) any information available to the court about the reasons for the defendant’s absence:
    

4 Kumar v R [2013] NZCA 77, [2013] 3 NZLR 201.

5 R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [58].

6 R v Momi and Others [2019] NZHC 2681.

(b) any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:

(c) the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

(d) the nature and seriousness of the offence:

(e) the interests of any co-defendant.

Section 121(4)(a) Any Information Available to the Court about the Reasons for the Defendant’s Absence

[31] Having regard to the matters outlined above it is apparent that Dilip Rupa left the Court because he was of the view that there was no jurisdiction. The Court understands that he has raised this issue at earlier appearances and that the issue has never been specifically addressed by means of a ruling. In my view, it was important to address this issue prior to the commencement of any Judge Alone trial. Therefore, I was not satisfied that Dilip Rupa had necessarily waived any right to appear at a Judge Alone trial.

Section 121(4)(b) Any Issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues

[32] The Court was not in a position to second guess what defence Dilip Rupa may be intending to raise.

Section 121(4)(c) The likely length of any adjournment

[33] At the point of the application by Worksafe an alternative date was unable to be secured. This was because a full day was required. However, the Court was optimistic that any delay would be relatively short and that a date could be quickly obtained. A date was subsequently secured for 19 July 2022 at 9.30 am.

Section 121(4)(d) The nature and seriousness of the offence

[34] The offence is punishable by imprisonment for a term not exceeding six months, or a fine not exceeding $4,000. It could be seen as being towards the lower end of the scale.

Overall Assessment of the Interests of Justice

[35] Whilst Dilip Rupa clearly made a deliberate decision to leave the Court, I was not satisfied that this was an appropriate case for the matter to proceed in his absence. The issue of jurisdiction required consideration and needed to be considered prior to the commencement of any Judge Alone trial. Further, I was not satisfied that Dilip Rupa had waived his right to be present at the hearing. I was also not satisfied that he was aware that a hearing could potentially proceed in his absence.

[36] The interests of justice weighed against the application by Worksafe and therefore the application was refused.

[37] That is not to say that Worksafe may need to bring a renewed application if history was to repeat. The reality is that the Judge Alone trial was ready to proceed and there were many witnesses at the Court ready to give evidence. However, at this stage the Court does not attempt to anticipate what may occur at any future Judge Alone trial date.

Signed at Auckland this 31st day of May 2022 at 2.30 pm

Judge KH Maxwell

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 31/05/2022