Te Hiwi v Police [2016] NZHC 817 (27 April 2016)

Last Updated: 6 May 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-1 [2016] NZHC 817

BETWEEN	JOHN PAUL NATANA TE HIWI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 April 2016
Appearances:	Appellant in person C Ure for the Respondent
Judgment:	27 April 2016

_{ORAL JUDGMENT OF WOODHOUSE J}

Parties / Solicitors: The appellant

Ms C Ure, Almao Douch, Office of the Crown Solicitor, Hamilton

TE HIWI v NEW ZEALAND POLICE [2016] NZHC 817 [27 April 2016]

[1] Mr Te Hiwi appeals against conviction under the Land Transport Act for refusing to permit a blood specimen to be taken. He was fined $1,000 and disqualified.

[2] In the District Court there was clear evidence of refusal not only from the police officer but also from the appellant himself. The appellant’s case was summarised by Judge KBF Saunders as follows:¹

[14] Mr Te Hiwi gave evidence and as I have said the conflict between him and Constable Wiggins was in respect to what happened on the roadside at the checkpoint. Mr Te Hiwi says that he refused to co-operate and refused all requests because he is entitled to do so as his father has taught him under the Bill of Rights Act and in particular ss 10 and 11. He explains the bloodshot eyes because of lack of sleep. The smell of alcohol, he says that came from the car that was his sister’s. He had just borrowed it for the night. As I have said he admits that he refused all other requests after that.

[15] At the conclusion of the defence case Mr Te Hiwi Snr addressed me on a defence and he made submissions that the defendant did not comply with any of the requests that evening because he does not have to do so. Sections 10 and 11 provide a defence and he also referred to s 4 and s 19

New Zealand Bill of Rights Act.

[3] At the conclusion of her reasons for the conviction the Judge then imposed the fine. She overlooked the need for mandatory disqualification which in this case was under s 65. Mr Te Hiwi was recalled and on 11 September 2015 – eight days later – the disqualification under s 65 was imposed.²

[4] At the hearing this morning Mr Te Hiwi appeared with his father. Mr Te Hiwi Snr told me that he wished to make submissions on behalf of his son. He acknowledged that he is not qualified as a barrister and solicitor but advised me that he considered he had authority effectively through Maori customary rights. Because he had been permitted to speak in the District Court, and to avoid unfairness to the appellant or delay, I permitted him to make submissions.

[5] The essence of his submission was that although, as he put it, there is no challenge to the jurisdiction of this Court, the charge against his son could not be

_{brought because all the land of Aotearoa is customary Maori land and, Mr Te Hiwi}

¹ _{Police v Te Hiwi [2015] NZDC 25860.}

² Police v Te Hiwi DC Hamilton CRI-2015-019-1233, 11 September 2015.

that his people can do whatever they want on their land. There may not be a challenge to the jurisdiction of this Court, but what underlies this is the proposition that the laws of Parliament, in this case contained in the Land Transport Act, do not apply to Mr Te Hiwi’s son or to Mr Te Hiwi himself. Propositions of this nature were also made clear in what was presented as the written submissions for Mr Te Hiwi Jnr, prepared by Mr Te Hiwi Snr. These commence with the following statement:

This is not a challenge to Jurisdiction, however a Stipulation for rightful Jurisdictions wherein an illegitimate process for legislation has NO JURISDICTION over Mana Whenua or any Rangatira an affirmative statute cannot derogate from common law. Therein is an unlawful wrong resulting in damages.

[6] Numerous cases of the Court of Appeal have made clear that challenges of this sort cannot succeed. A more recent Court of Appeal decision is that in Phillips v R.³ In case it may assist the appellant for the future I will quote two paragraphs from that judgment:

[9] It is unnecessary to rehearse the numerous decisions of this Court in which similar challenges have been made and failed. Examples include R v Miru, R v Mitchell, R v Takao, R v Toia, Nga Uri O Te Ngahue v Wellington City Council, R v Waetford and R v Knowles.⁴

[10] The New Zealand Parliament has the sovereign power to legislate for criminal offending such as that disclosed in the present appeals. None of the legislation cited by the appellants provides a separate justice system for Maori offenders. While some legislation in New Zealand expressly recognises the customary rights of Maori, the legislation at issue in these appeals does not do so. We also note that the Supreme Court has recently declined leave to an appellant to advance similar Maori sovereignty arguments on the basis that they were “plainly unsound legally”.⁵

[7] Some other more specific matters raised by the appellant do need to be addressed.

³ _{Phillips v R [2011] NZCA 225.}

⁴ R v Miru CA65/01, 26 July 2001; R v Mitchell CA68/04, 23 August 2004; R v Takao CA379/03,

15 November 2004; R v Toia [2007] NZCA 331; Nga Uri O Te Ngahue v Wellington City

_{Council CA407/03 18 February 2004; R v Knowles CA146/98, 12 October 1998.}

⁵ Wallace v R [2011] NZSC 10.

disqualification constituted breach of s 26(2) of the New Zealand Bill of Rights Act. Section 26(2) is as follows:

26 Retroactive penalties and double jeopardy

...

(2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

[9] Section 26(2) does not apply because of s 180(1) of the Criminal Procedure

Act 2011 which is as follows:

180 Court may correct erroneous sentence

(1) If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a) on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or

(b) on its own motion.

[10] Section 4 of the New Zealand Bill of Rights Act also applies and is as follows:

4 Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this

Bill of Rights.

[11] For completeness I refer to the submissions made in the District Court, and indeed referred to by the appellant himself when he was on the roadside, directed to ss 10, 11 and 19 of the New Zealand Bill of Rights Act. I agree with the Judge’s conclusion to the essential effect that these provisions have no application.

Woodhouse J