Whatarau v Statistics New Zealand [2014] NZHC 1452 (26 June 2014)

Last Updated: 9 July 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-13 [2014] NZHC 1452

SHANE SEAN WHATARAU

v

_{STATISTICS NEW ZEALAND}

Hearing:	25 June 2014
Counsel: Appearances:	CM Gisler for respondent SS Whatarau, appellant in person
Judgment:	26 June 2014

_{JUDGMENT OF FAIRE J}

This judgment was delivered by me on 26 June 2014 at 12:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Marsden Woods Inskip & Smith, Whangarei

_{And To: SS Whatarau, Whangarei}

Whatarau v Statistics New Zealand [2014] NZHC 1452 [26 June 2014]

The charge and conviction

[1] On 14 May 2014 in the Whangarei District Court the appellant was convicted on one charge of failing to complete an individual census form pursuant to s 43(1) of the Statistics Act 1975. He was sentenced to a fine of $150 and court costs of $130.

[2] Section 43(1) of the Statistics Act 1975 provides:

43 Neglect or refusal to supply particulars

(1) Every person commits an offence who fails to produce any books of account, vouchers, documents, or other business records when lawfully required so to do, or who neglects or refuses to fill in and supply the particulars required in any schedule lawfully left with or sent to him, or who neglects or refuses to answer any question or inquiry lawfully addressed to him by the Statistician, or by an employee of the Department authorised in writing by the Statistician, and is liable on ... conviction to a fine not exceeding $500 or, in the case of a body corporate, to a fine not exceeding $2,000.

[3] The District Court dismissed a second charge which related to a dwelling census form. The Court found that there was no evidence that the appellant was the occupier of the property at 103 Ford Road, Towai, Northland.

The appeal

[4] The appellant appeals against his conviction and sentence.

Grounds for appeal

[5] The grounds for the appeal are the same matters that the appellant advanced in the District Court. He relied on Te Ture Whenua Māori Act 1993. From the documents that the appellant filed in the District Court I note that his argument alleges that under regulatory enactments from Ngati Rehia Koopurehana and the Huiarau Whanau Kotahi Trust he is not permitted to enter into any contractual arrangements or give information such as the information requested of him by Statistics New Zealand without express permission from Ngati Rehia Koopurehana and Huiarau Whanu Kotahi Trust. His claim is that by not filling out the form he was only following the law of the land and should not be punished for doing so. In

short, his submission is that the obligations imposed by the Statistics Act 1975 are subject to the regulatory enactments that I have referred to.

Background facts

[6] The charge arises out of a failure to complete the 2013 census form which had been left with or sent to the appellant by an appropriately authorised statistician from Statistics New Zealand. The census was to be completed on the night of

5 March 2013. Ms Barbara Clark went to the address at 103 Ford Road, Towai. The person there identified himself as Mr Shane Whatarau. She left four forms with him. One form was to be completed in respect of the dwelling. The other forms were to be completed by the occupants of the home. Ms Clark returned to 103 Ford Road on

7 March 2013 to collect what she believed to be the completed forms. She was met by a second person who said he was Shane Whatarau. He refused to fill out the forms or to give the completed forms to Ms Clark. Ms Clark completed a refusal form and sent it to Statistics New Zealand.

[7] Mr Graeme Wilson is a statistician with Statistics New Zealand. It is his job to ensure that appropriate census forms are completed. When they are not completed he initiates prosecutions if they are required. Mr Wilson’s evidence was that he sent various follow-up letters, including an urgent reminder dated 22 March 2013 and a letter on 9 April 2013 and a notice of liability to prosecute.

The decision of the District Court

[8] The District Court Judge summarised the submissions placed before him and his conclusions as follows:¹

Mr Whatarau raises a slightly different argument. He relies on the provisions of Te Ture Whenua Mäori Act 1993. He has filed an affidavit seeking dismissal of the charges pursuant to the provisions of ss 2(3), 5, 210,

211(2), 214, 237, 253A and 253B and s 328 Te Ture Whenua Mäori Act or the Mäori Land Act as the case may be. I indicated in respect of

Mr Whatarau as a preliminary matter that I formed the view that this Court had jurisdiction to deal with the matters. I made reference to the series of

cases in Mason v R [2013] NZCA 310, decisions which started at first instance in the High Court before His Honour Heath J, involving a murder

¹ Statistics New Zealand v Karaitiana and Whatarau DC CRI-2013-088-003178, 14 May 2014 at

[11] – [12].

charge in which the defendants sought to be sentenced on the marae. Heath J made it clear that the proper forum for sentencing was the Court and that the law of the land applied to everybody. That decision was appealed and upheld on appeal by the Court of Appeal, and again affirmed by the Supreme Court recently.

I take the view that there is no merit in Mr Whatarau’s arguments under Te

Ture Whenua Mäori Act.

The appeal against conviction

[9] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”

[10] “Miscarriage of justice” is defined in s 232(4) as:

any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[11] Section 232 makes clear, not every “error or irregularity” causes a miscarriage of justice. “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”² The error or irregularity must lead to either of the consequences that are listed in s 232(4)(a) or (b).

[12] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”³ This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there

_{is a real possibility the verdict would be unsafe.}⁴

² _{Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].}

³ _{R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].}

⁴ R v Sungsuwan at [110].

[13] Unfairness does not necessarily give rise to a nullity;⁵ there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction.⁶

[14] The offence with which the appellant is charged was created by s 43 of the

Statistics Act 1975.

[15] Section 31 of the Statistics Act 1975 creates the obligation to complete a census form once delivered to a person’s address. To sustain a conviction Mr Whatarau must be:

(a) A person;

(b) Who neglected or refused to fill in and supply particulars; and

(c) Those particulars having been required in a schedule lawfully given to him.

[16] The evidence adduced confirms that Mr Whatarau was left with three individual census forms and one dwelling house census form. He was provided with a reminder letter and further follow-up reminder letters and Notice of Liability to Prosecution. The District Court Judge did not err in the assessment of the evidence. Mr Whatarau was obliged to fill out the individual census form and the evidence shows that he did not do so. The form was lawfully given to him pursuant to s 30 of the Statistics Act 1975.

[17] The provision creating the offence is silent as to mens rea so it must be considered whether there is anything weighty enough to displace the ordinary presumption that an offence requires mens rea.⁷ Mens rea is not required in this case. The offence of failing to fill out a census supports a policy decision that people

_{in New Zealand should provide statistical information on a regular basis. The}

⁵ Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 (HCA) at 57 per Dunne J

_{cited in Condon v R [2006] NZCA 62, [2007] 1 NZLR 300.}

⁶ _{R v O (No 2) [1999] 1 NZLR 326 (CA).}

⁷ Millar v Ministry of Transport [1986] NZLR 660 (CA); Cooke v Auckland Transport (formerly

Auckland City Council) HC Auckland CRI-2010-404-454, 20 June 2001 at [20].

penalty and moral stigma that attach to an offence under s 43 are low. There is no need to read a mens rea element into the offence.⁸

[18] I conclude that the offence is one of strict liability. All the prosecution had to prove was that Mr Whatarau did fail to provide particulars in a schedule lawfully given to him. The burden is then on Mr Whatarau to prove absence of fault to the balance of probabilities.⁹

[19] Although there is no discussion in the District Court judgment, I infer that Mr Whatarau’s reason for not filling out the form was because he thought that the trust he is trustee of forbade him from giving the information. Te Ture Whenua Māori Act 1993, relied on by Mr Whatarau, is of specific application and does not extend into the purview of laws of general application.¹⁰ Mr Whatarau may have made a mistake of law thinking he did not have to fill out the form because he thought the trust forbade to do so. That, however, does not provide a defence.¹¹

[20] Alternatively, this could be phrased as being an issue of whether some gloss must be imposed on the provisions of the Statistics Act by Te Ture Whenua Māori Act 1993. Although Mr Whatarau submitted that this was not a jurisdiction challenge, in essence that is what it is. The answer to his submissions is contained in

the judgment of the Court of Appeal in R v Toia where the Court said:¹²

(b) The Crimes Act 1961 was enacted by the New Zealand Parliament which has sovereign power to legislate: Berkett v Tauranga District Court [1992] 3 NZLR 206 at 212 – 213 (HC); R v Knowles CA146/98 12 October 1998; Nga Uri O Te Ngahue v Wellington City Council CA470/03 18 February 2004; R v McKinnon CA240/04

4 May 2005; and R v Harawira CA180/05 1 August 2005.

(c) This Court’s duty is to apply enactments of the legislature: Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] UKPC 6; [1941] AC 308 (PC) and New Zealand Māori Council v Attorney-General [1987]

1 NZLR 641 at 690 (CA).

(d) The submission that the courts of New Zealand do not have jurisdiction over Māori incorporations, their members or lands

⁸ _{Cooke v Auckland Transport, above n 7.}

⁹ _{Tell v Maritime Safety Authority [2008] NZAR 306 at [13] (CA)..}

¹⁰ _{Brookers Local Government Law (online ed) at TWIntro.100(2).}

¹¹ _{Crimes Act 1961, s 25.}

¹² R v Toia [2007] NZCA 331 at [10].

vested in such incorporations has been rejected in New Zealand on a number of occasions: see, in particular, the decision of this Court in R v Miru CA65/01 26 July 2001 at [4] – [8] and [19].

[21] In this case, for the Crimes Act one should read the Statistics Act 1975. Te Ture Whenua Māori Act 1993 is concerned with issues relating to land. It cannot justify a jurisdictional argument or a gloss argument of the kind advanced by Mr Whatarau in this case. To do so would be to import a direct challenge to the sovereignty of Parliament. That, having regard to the authorities referred to, has been rejected on a number of occasions. In my view, Judge Davis was correct to reject the argument that Mr Whatarau advanced to him.

[22] I conclude that the District Court did not err in the assessment of the evidence. No miscarriage of justice has occurred. The appeal against conviction is therefore dismissed.

Appeal against sentence

[23] Section 250 of the Criminal Procedure Act 2011 provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

The maximum penalty for offending contrary to s 43(1) of the Statistics Act 1975 is a fine of $500. The sentence imposed by the District Court of $150 is not in error. It is not manifestly excessive nor is it inappropriate for this particular case.

_{Accordingly, the appeal against sentence is dismissed.}

JA Faire J