R v Police HC Whangarei CRI 2008-488-41 [2009] NZHC 1601 (27 March 2009)

Last Updated: 30 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2008-488-041}

R

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing: 25 March 2009

Appearances: M B Smith and D A Coleman for the respondent

Applicant in person with P T McLeod as McKenzie friend

Judgment: 27 March 2009

_{JUDGMENT OF STEVENS J}

This judgment was delivered by me on Friday, 27 March 2009 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, PO Box 146, Whangarei 0140

Copy to:

_{A R , 1/105 Pilkington Road, Panmure, Auckland}

R V NEW ZEALAND POLICE HC WHA CRI 2008-488-041 27 March 2009

[1] Mr R (the applicant) was charged on 9 November 2006, along with several other persons not involved in this application, with wilfully trespassing on Stoney Creek Station contrary to ss 4 and 11 of the Trespass Act 1980. Following a defended hearing before Judge J R Callander extending over eight days, the applicant was convicted. The reasons for the Judge’s decision are set out in a reserved decision dated 14 May 2008. The applicant was fined $500 and ordered to pay Court costs of $130.

[2] The applicant then appealed to the High Court against conviction and sentence. The appeal was heard by Dobson J. Three main grounds were advanced by the applicant. In summary, these were first that he was immune from arrest and not subject to the jurisdiction of the New Zealand courts. Secondly, he should be treated as being one of the genuine owners of the land at Stoney Creek Station because of his appointment as agent of the Ngati Aukiwa hapu, which has original customary rights to the land. The third ground was to the effect that the Crown, or Crown agencies, had no entitlement to issue the trespass notice against the applicant.

[3] These grounds, as well as a number of subsidiary arguments, were all considered and rejected in a reserved judgment dated 21 November 2008. Dobson J dismissed the appeal.

[4] The applicant has sought leave of the High Court to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957. The application was argued before me in the High Court at Whangarei on 25 March 2009. For the reasons which follow, the application for leave must be dismissed.

Factual background

[5] Stoney Creek Station is known by local Maori as Waikoatu. It is a substantial and attractive farming property at Mangonui, Northland, previously owned by Landcorp Farming Ltd. In 1995, Stoney Creek Station was transferred to Her Majesty the Queen for Crown land purposes under the Land Act 1948. It is part

of a national land bank likely to be used to settle claims under the Treaty of

Waitangi.

[6] The applicant was invited by members of the Ngati Aukiwa hapu to assist them as their agent. The applicant said that his employment by the hapu as their agent occurred on 13 July 2006. No doubt in that capacity he was present at Stoney Creek Station on 9 November 2006. On the day in question, the applicant and others were warned to “stay off Stoney Creek Station”. Having heard that warning, the applicant and others deliberately, and no doubt as part of a plan to assert their perceived rights to the land, walked onto Stoney Creek Station. Hence, the applicant and others who had appointed him agent were part of what the Judge in the District Court described as “a planned, carefully considered protest, a genuine cry from the heart about the land they considered to be part of their ancestral right”.

[7] It was this conduct which led to the applicant’s conviction for trespass along with other members of the hapu. Incidentally, I note that trespass charges in respect of the same land have been brought against other persons in respect of a different occasion: see Police v Roha & Ors [2008] NZCA 541. Some of the arguments advanced in this case were raised by the applicants in Roha.

Application for leave

[8] The applicant filed an application for leave to appeal on 19 December 2008. This document was not clear as to the grounds on which leave to appeal would be sought. No question of law was articulated. Rather, the applicant claimed that the judgment of Dobson J was “erroneous in both fact and said law” in a number of respects including the jurisdiction of the District Court.

[9] One of the points which the applicant sought to re-advance at the hearing was that he ought not to have been charged with trespass because such action was precluded by steps which he and others had taken prior to 9 November 2006 to injunct the prospect of criminal charges. At the heart of this concern was a claim that the applicant, and no doubt his principals, did not recognise the jurisdiction of any of the courts of New Zealand.

[10] The jurisdiction of the High Court to grant leave to appeal to the Court of Appeal from a High Court decision is governed by s 144 of the Summary Proceedings Act. The High Court may only grant leave if it is of the opinion that 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: see s 144(2).

[11] The test for determining an application for leave was more fully explained by the Court of Appeal in R v Slater [1997] 1 NZLR 211. The judgment, given by Thomas J for the Court, stated at 215 that:

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[12] A key feature of s 144 of the Summary Proceedings Act is that a second tier of appeal is concerned only with the resolution of points of law. It is not to be used for the determination of appeals which involve the application of law to the facts of a specific case.

Grounds for seeking a second appeal

[13] In large measure, the hearing of the application for leave was a re-run of the arguments previously canvassed before Dobson J. Three main points were argued. It again is convenient to refer to the way in which Dobson J described them and his conclusions in relation to each of them.

Immunity from suit

[14] The first ground was as follows:

[7] ...that Mr R was immune from arrest and consequently not subject to the jurisdiction of New Zealand Courts because of litigious initiatives he and others have taken previously. He treats those claims as having been made out because they were not opposed by the Crown or others cited as defendants in them. Mr R considers that he has succeeded for the relief claim, because the Courts have not declined it.

[15] This argument was fully analysed by Dobson J and rejected in the following terms:

[19] None of these grounds for challenging the District Court decision have any foundation whatsoever. Assertions by any litigant as to outcome sought from proceedings cannot have any standing in affecting either the relationships between the parties to that litigation in relation to it, or more broadly than that. The proceedings may demonstrate Mr R ’s commitment to his cause, and the range of propositions by which he seeks to advance the cause of his hapu. However, even if the proceedings raise a justifiable claim in any form, such assertions could not have any standing to affect criminal proceedings until they were reflected in orders of the Court. Accordingly, the first range of arguments advanced must fail.

No factual basis for finding of trespass

[16] The second ground was as follows:

[8] Secondly, that he could not have been trespassing on the Stoney Creek Station land because he is among the genuine owners of the land and was there as agent of his hapu. These arguments included challenging the evidence of ownership as reflected in the Certificate of Title. Mr R claimed to have questioned the agent of the registered owner who “prevaricated” and did not assert ownership in terms of the title. He also argued there was not sufficient proof as to ownership because Her Majesty the Queen as ultimate owner did not appear in the witness box during the District Court criminal proceeding.

[9] Although his criticisms were not particularised in any way, as part of his criticism of the rejection of arguments of this type in the District Court, he submitted that Judge Callander was “erroneous in all respects”.

[17] This argument too was carefully analysed and rejected as follows:

[20] The second group of arguments appeared to be a variation on what was argued in the District Court. The argument that Mr R could not have been trespassing because he was in fact an owner raises the contention that the Certificate of Title evidencing legal ownership is in some way wrong, or to be disregarded.

...

[22] Mr R did not raise any credible challenge to [the Judge’s] findings. His further argument that at least a state of some uncertainty exists given the claims made in the 2006 proceedings must fail on the same reasoning. The record of legal ownership in the Certificate of Title is conclusive for all purposes relevant to the present criminal trespass proceedings.

[18] The third ground was as follows:

[10] [It] was to the effect that the Crown, or Crown agencies, had conducted themselves inconsistently in certain proceedings in the Hastings Mäori Land Court, when considering the entitlement to issue a trespass notice. Mr R argued that the State was acting inconsistently, and that meant that those who had requested the Police intervention that led to his arrest on the present trespass charge had done so in some way improperly or without sufficient legal standing.

[19] Again, this argument was considered and rejected in the following terms:

[26] The third group of arguments relates to apparently inconsistent stances adopted by the Crown in relation to trespass. The papers provided since the hearing include a document recording Mr R ’s “vehement” objection lodged with the Mäori Land Court in Hastings to the “re-release of the whenua Poukawa 9E2” involving the Mäori Trustee and a farmer lessee. Mr R ’s argument was that he was among the beneficial owners of the Poukawa 9E2 property, and as part of his protest at the lease of the property, he indicated that he had served a trespass notice on either or both of the Mäori Trustee and the farmer lessee. The Mäori Land Court had apparently authorised the persons served with his trespass notices to ignore them. Mr R suggested that if his authority as an owner of the Poukawa property could be questioned in that way, then it was equally competent for him to question the authority of the Commissioner of Crown Lands in relation to the trespass charge he faced at Stoney Creek Station.

[27] The initial response to this is that two wrongs could never make a right. There was certainly not enough material put before me to evaluate the grounds on which the Mäori Land Court appears to have overridden Mr R ’s claimed entitlement to issue a trespass notice in respect of the relevant property. There are, however, numerous likely explanations where control of Mäori land held for a range of beneficial owners is dealt with by an agent on their behalf, with the Mäori Land Court having appropriate jurisdiction to direct the supervision and management of such land.

[28] There is no basis on which Mr R can cite the way he was dealt with by the Mäori Land Court in Hastings as a ground for challenging the correctness in law or in fact of the outcome of the trespass charge against him in the Kaitaia District Court.

[20] A final more general point raised by the applicant was his reason for being present at Stoney Creek Station on 9 November 2006 and his relationship with the local hapu Ngati Aukiwa. The applicant sought to emphasise that he was not a

“protester”. Rather, he argued that he held the status as agent or representative of Ngati Aukiwa in matters of land ownership and claims in relation to Stoney Creek Station. He argued that the hapu had original rights to the land and these had never been extinguished.

Discussion

[21] The factual aspects concerning the applicant’s relationship with Ngati Aukiwa can have no bearing on the disposition of a criminal charge of trespass. There is no dispute that the applicant was at Stoney Creek Station on 9 November

2006 and entered upon the land after being warned to stay off it. His reasons for being there and his employment status are irrelevant. In any event, they raise factual issues and are not apt for a second tier appeal. Dobson J was clearly aware that the applicant was involved as an agent of the hapu.

[22] With respect to the three grounds argued before Dobson J, the applicant was unable to formulate a question of law that would qualify for the grant of leave under the requirements of s 144 of the Summary Proceedings Act. The applicant’s submissions on these grounds were fully canvassed in the High Court and were all rejected by Dobson J. In my view, the Judge was entirely correct to do so. At the leave hearing, the applicant was unable to advance any sound basis for obtaining leave to argue a question of law in the Court of Appeal.

[23] On the question of lack of jurisdiction of the District Court (raised in the notice of 19 December 2008), this aspect also does not warrant a grant of leave. This type of challenge has come before both the High Court and Court of Appeal on a number of occasions. The Court of Appeal has repeatedly said that these issues are not ones that can be addressed and resolved by the courts: see Knowles v Police CA146/98 12 October 1998; R v Mitchell CA68/04 23 August 2004; R v Harawira CA180/05 1 August 2005 and R v Brown CA354/06 14 February 2007. In these cases, the Court of Appeal emphasised that the issues that the applicants seek to raise are for “public and political processes and not for judicial ones”.

Disposal

[24] None of the grounds raised by the applicant provides a proper foundation for the grant of leave to appeal. By any measure, the applicant has failed to meet the strict criteria in s 144(2) of the Summary Proceedings Act required to proceed to a second tier of appeal.

[25] Further, all of the issues which he raised by way of appeal were fully canvassed in the High Court appeal and in the judgment of Dobson J. None of the points raised have any merit outside the public or political context. While there is no doubting the bona fides of the applicant, I am satisfied that he has not succeeded with any of the grounds advanced as a basis for obtaining leave.

[26] Accordingly, the application must be, and is, dismissed.

Costs

[27] The respondent sought a modest award of costs under the provisions of the Costs in Criminal Cases Act 1967. Mr Smith submitted that the application for leave was entirely without merit and the respondent had been put to considerable unnecessary cost.

[28] I agree. The application was meritless. There is a case for costs. I award costs in favour of the respondent in the sum of $226 as provided for in the costs in

_{Criminal Cases Regulations 1987.}

Stevens J