B v Police HC Whangarei CRI 2009-488-33 [2009] NZHC 1919 (20 July 2009)

Last Updated: 21 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2009-488-33
_{CRI 2009-488-35}

B

Appellant

v

THE POLICE

_Respondent

Hearing: 15 July 2009

Appearances: Appellant in person (accompanied by K B as McKenzie friend) B M O'Connor for respondent

Judgment: 20 July 2009

_{REASONS FOR JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Monday 20 July 2009

Solicitors/Parties :

R T B , PO Box 171, Kaikohe

_{Crown Solicitor Whangarei}

B V THE POLICE HC WHA CRI 2009-488-33 20 July 2009

[1] The appellant faces trial on an indictment in the Kaikohe District Court which contains two counts of cultivating cannabis and one of possession of cannabis for supply. He was committed for trial in respect of count 1 on 4 February 2009, following a preliminary hearing. Subsequently, on 24 March 2009, he was committed for trial in respect of counts 2 and 3, following a second preliminary hearing.

[2] During the course of the second hearing the appellant challenged the jurisdiction of the Court on Maori sovereignty grounds. Judge Harvey rejected the appellant’s argument as to jurisdiction and directed that the depositions hearing proceed. The Judge’s ruling is the subject of appeal CRI 2009-488-035.

[3] Following the first committal, the appellant made a pre-trial application in the Kaikohe District Court, in respect of count 1. Again, he challenged the jurisdiction of the District Court to try him. That application was heard and determined by Judge McDonald on 26 March 2009. The appeal to this Court, CRI-2009-488-33, relates to Judge McDonald’s ruling.

[4] In each appeal the appellant sought orders reversing the decisions made in the District Court. That is, he sought orders from this Court declaring that the District Court had no jurisdiction to try him on indictment.

[5] The appeals were set down for hearing on 15 July 2009, the trial itself having been scheduled to commence the following day in the Kaikohe District Court before a Judge and jury. The appellant appeared with a McKenzie friend, Mr Ken B .

[6] Ms O’Connor for the Crown submitted that there was no right of appeal to this Court from the decisions taken by the respective Judges in the District Court, and that the appeals were a nullity. She is plainly right. I therefore dismissed the appeals and indicated to the parties that I would provide written reasons later. This judgment contains my reasons.

[7] The appeals were brought pursuant to s 116 of the Summary Proceedings Act

1957. A defendant in criminal proceedings in the District Court has a general right of appeal to this Court: s 115 of the Summary Proceedings Act, which relevantly provides:

115 Defendant's general right of appeal to High Court

(1) Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a) Convicts any defendant; or

(b) Makes any order, including—

(i) An order for the payment for costs; or

(ii) An order declining an application for the payment for such costs; or

(iii) An order for the estreat of a bond,—

the person convicted or against whom the order is made may appeal to the

High Court.

[8] The scope of s 115 was discussed in detail by Fisher J in Herewini v Ministry of Transport [1992] 3 NZLR 482 at 488:

In this case the appellant must rely upon s 115(1) of the Summary

Proceedings Act 1957 which provides:

Defendant's general right of appeal to High Court -- (1) Except as expressly provided by this Act or by any other enactment, where on the determination by a District Court of any information or complaint any defendant is convicted or any order is made other than for the payment of costs on the dismissal of the information or complaint, or where any order for the estreat of a bond is made by any such Court, the person convicted or against whom any such order is made may appeal to the High Court."

The scope of the jurisdiction conferred by s 115 has been the subject of numerous decisions, recent examples including Police v S [1977] 1 NZLR 1; Black v Fulcher [1988] 1 NZLR 417; and Davies v Ministry of Transport [1989] NZCA 157; [1989] 3 NZLR 300. As I understand s 115(1) and those decisions, at least three conditions must be satisfied before there will be a right of appeal other than an appeal against orders for the estreat of a bond.

First, the information or complaint in question must have been determined by the District Court. Ordinarily this will require that the prosecution be brought to an end by conviction or dismissal (Black v Fulcher at p 420) or be otherwise disposed of in a final way by the Judge's exercise of his or her judicial functions (Davies v Ministry of Transport at p 302). In the summary criminal jurisdiction, there is no provision for interlocutory appeals. If a ruling or order does not determine an information, the proper course is to

hear the information on the merits so that if necessary the same point can be taken again in the context of an appeal against the conviction itself: Black v Fulcher at p 420; Police v S at p 5.

Secondly the appellant must have been convicted or an order must have been made against him or her: see concluding words of the subsection and Delaney v Police at p 649. For this purpose, an order is made against a person if a judicial determination has resulted in a state of affairs which is adverse to his or her interests: Police v S at pp 4 and 5.

Thirdly, if it is an order which is appealed against, the order may have preceded the conviction but must have been made in the course of determining the information or complaint: Police v S at p 4. It is sufficient if the order is so closely linked with the process of deciding the information that it can properly be described as being made in the course or process of so doing: ibid; Black v Fulcher at p 428.

[9] In essence, three conditions must be satisfied before a right of appeal arises under s 115:

a) The information must have been determined in the District Court by way of conviction or dismissal, or have been otherwise disposed of in a final way by the exercise of judicial functions;

b) The appellant must have been convicted, or an order made against him or her in the sense of a judicial determination resulting in a state of affairs which was adverse to his or her interests;

c) Where the appeal was against the making of an order, that order may have preceded the conviction, but must have been made in the course of determining the information or complaint.

[10] Here, the informations against the appellant have not been determined by way of conviction or dismissal or otherwise disposed of in a final way by the exercise of a judicial function. This Court therefore had no jurisdiction to determine the appeals.

[11] There is a further basis upon which the High Court is unable to entertain these appeals. The provisions of s 115 of the Summary Proceedings Act are simply inapplicable to the criminal proceedings brought against the appellant. His right of appeal, if any, is to the Court of Appeal. His forthcoming jury trial in the District

Court is governed by the provisions of Part 2A of the District Courts Act 1947. Section 28D(3) of that Act provides that where any person is committed to a District Court for trial, the provisions of Parts 12 and 13 of the Crimes Act 1961, so far as they are applicable and with the necessary modifications, shall apply until the matter is finally disposed of.

[12] Part 13 of the Crimes Act provides for appeals to the Court of Appeal, and to the Supreme Court (not to the High Court). Section 379A of the Act sets out the circumstances in which, before trial, an accused person may appeal with leave of the Court of Appeal from a pre-trial ruling.

[13] The appellant’s challenge to the jurisdiction of the District Court to try him on indictment is not among the matters which may be the subject of an application for leave to appeal under s 379A. The appellant must stand trial. If he is convicted then he has a right of appeal to the Court of Appeal. It is at that stage of the trial process that he may exercise his right to appeal on jurisdictional grounds.

[14] It was for these reasons that I dismissed the appellant’s appeals to this Court.

[15] Immediately following my indication that the appeals were dismissed, Mr B sought to make an oral application for a succession of orders under the Te Ture Whenua Maori Act 1993. In particular, he sought an order referring the question of jurisdiction to the Maori Appellate Court pursuant to the provisions of s 61(1)(b) of that Act. I declined that application, both because there were no valid proceedings before the Court, and because the provisions of Te Ture Whenua Maori Act have absolutely no application to the issues which the appellant seeks to raise.

[16] The scope of the criminal jurisdiction enacted by the District Courts Act

1947, the Summary Judgments Act 1957 and the Crimes Act 1961, is not a matter within the purview of the Maori Appellate Court.

C J Allan J