M v Police HC Rotorua CRI 2009-463-66 [2009] NZHC 2196 (7 December 2009)

Last Updated: 12 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2009-463-66}

BETWEEN M

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 December 2009

Appearances: Appellant in person

Laura Owen for Respondent

Judgment: 7 December 2009

_{JUDGMENT OF HARRISON J}

In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of

_{5:00 pm on 7 December 2009}

SOLICITORS

Gordon Pilditch (Rotorua) for Respondent

_{(copy to Appellant in person)}

M V POLICE HC ROT CRI 2009-463-66 7 December 2009

Introduction

[1] Mr M appeals against his convictions in the District Court at Rotorua on charges of wilful trespass and failing to supply identifying particulars and his sentence of 100 hours community work.

Facts

[2] The material facts do not appear to be in dispute. On 29 July 2008 Constable Michael West, a police officer then stationed in Murupara, served a trespass notice on Mr M . The notice barred him from entering blocks within the Kaingaroa forest within two years. He explained the notice to Mr M and the consequences of any breaches.

[3] The three blocks which were the subject of the trespass notice are owned by Kaingaroa Timberlands. Its forestry risk manager, Mr Colin Maunder, gave evidence of ownership. He confirmed that Timberlands had delegated authority to the New Zealand Police to enforce trespass orders. He told the Court that access to the forest had to be regulated for health and safety reasons, especially given the large number of over dimension logging trucks using the road. Other risks related to firearms and fire. The owner's primary objective is the safety and protection of its forestry crop. Also, a very large amount of diesel fuel has been stolen from the forest in recent years.

[4] Constable James Fitzgerald is also a police officer stationed at Murupara. He was on duty on 13 November 2008. He observed a vehicle enter the forestry block from State Highway 38. The roadway was controlled by a gate which was open at the time to allow free access for logging trucks. A sign was erected indicating that the roadway was private.

[5] Constable Fitzgerald activated his vehicle's flashing lights to intercept the other car about 200 metres into the forestry road. The driver was aggressive but eventually identified himself as Mr M .

[6] Constable Fitzgerald later spoke with Mr M at the Murupara Police Station. Mr M exercised his right of silence. The officer then advised that he was exercising his power to require Mr M to present himself for a photograph and give fingerprints: s 32 Policing Act 2008. At this stage Mr M was aware that he was under arrest. Mr M refused to comply with the officer's directions.

District Court

[7] Mr M had refused to acknowledge the District Court when he appeared. He claimed to be a sovereign being over whom the Court had no jurisdiction. Pleas of not guilty were entered on his behalf.

[8] Judge McGuire reserved his decision. The material facts were not in dispute. Mr M did not give evidence but instead raised arguments in support of his sovereignty submission, described by the Judge as follows:

[8] Mr M declined to give evidence. He did, however, tender two documents described as affidavits. The documents ranged over quotes from United States cases, the BBC News, the Bible, and the fact that he was a sovereign being living in a sovereign estate in the Greater Universe Continuum.

[9] He also tendered a document and drew the Court's attention to the words:

The Court therefore abjudges that the Kaingaroa No 1 Block as shown on the Plan belongs to the Descendants of Tangiharuru and Apa, who are living on it, ...

[10] Although completely unreferenced and unexplained, this document may well be an excerpt of minutes from the Maori Land Court. However, given that it lists a number of people living on the block, it plainly is not referring to where the defendant was found. In any event, it was not tendered in evidence.

[9] Judge McGuire concluded as follows:

[11] So far as the trespass notice is concerned, the trespass notice itself constitutes a warning for the purposes of s 4. I accept Constable Fitzgerald's evidence of the defendant's apprehension on Wairapakau Road on

13 November he was trespassing after having been warned. Accordingly, I

find the charge proved against him beyond reasonable doubt. Likewise, the defendant having failed to supply fingerprints and photograph when required

to do so, he must also be found guilty of the charge under s 32(4) Policing

Act 2008 which, again, I find proved beyond reasonable doubt.

Decision

[10] Today Mr M has addressed the same or similar arguments in support of his appeal to those advanced at the hearing before Judge McGuire. Mr M did not file a written synopsis but instead relied on the contents of an affidavit, described as a notice of defence, dated 28 January 2009. The same document was before the District Court.

[11] Mr M 's submission ranged over arguments with which this and other Courts are well familiar. At the core of all is an assertion of sovereignty, and that the charges were political in nature. As Ms Owen points out for the Crown, the law is settled by the Court of Appeal, by which the District Court and this Court are bound. It is sufficient for these purposes to refer only to R v Brown [2007] NZCA 5 at [7]:

This challenge to sovereignty has frequently been raised by Maori in recent cases in the High Court and this court. This court has repeatedly said it is not an issue which can be addressed and resolved by the courts: see, by way of example, R v Knowles CA146/98 12 October 1998, R v Mitchell CA68/04

23 August 2004, and R v Harawira CA180/05 1 August 2005. As was said in all those cases, the issues which Mr Brown seeks to raise are matters 'for

public and political processes and not for judicial ones'.

[12] It is well settled, as Ms Owen submits, that acts of Parliament, which create the criminal law and confer criminal jurisdiction and powers on the Courts, derive their authority from Parliament's exercise of its legislative powers, as conferred by the Constitution Act 1852 (UK) and its successor, the Constitution Act 1986: see R v Knowles CA146/98 12 October 1998 at p2:

In any event, the 1852 Act, including s 71, was repealed by the Constitution Act 1986. Since 1947, with the adoption of the Statute of Westminster 1931 and the amendments to the 1852 Act, further elaborated in 1973, the New Zealand Parliament has had full power to make laws, as s 15(1) of the Constitution Act says.

[13] The sovereignty argument must fail.

[14] Additionally, Mr M submits that he was never informed of the nature of the charges, that there was no evidence of a complaint or damage, and that proceedings were "not under privilege to the Crown". Leaving aside this last ground, which does not have any apparent legal basis, the unchallenged evidence accepted by Judge McGuire was that Mr M was served with the trespass notice and that Constable Fitzgerald was acting in accordance with his lawful powers in arresting Mr M . Evidence of damage is not an element of the offence.

[15] Mr M did not address submissions in support of his appeal against sentence.

_{[16] Mr M 's appeals against conviction and sentence are dismissed.}

Rhys Harrison J