MAHIA v NEW ZEALAND POLICE [2022] NZHC 2413

MAHIA v NEW ZEALAND POLICE [2022] NZHC 2413 [21 September 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-000094[2022] NZHC 2413BETWEEN CHARLES HURIHIA MAHIAAppellantAND NEW ZEALAND POLICERespondentHearing: 19 September 2022Appearances: Appellant in Person with McKenzie friend Georgina o te whanauTuranga (by VMR)A Maino for Respondent (by VMR)Judgment: 21 September 2022JUDGMENT OF VENNING JConviction and Sentence AppealThis judgment was delivered by me on 21 September 2022 at 3.30 pm,Registrar/Deputy RegistrarDateSolicitors: Gordon Pilditch, RotoruaCopy to: AppellantIntroduction[1] Following a Judge-alone trial in the District Court at Tokoroa Judge D A Blairfound Charles Mahia guilty of the following charges:1(a) on 8 August 2021 driving a motor vehicle while his driver's licence wassuspended;2(b) being a driver of a vehicle that was stopped failed to remain stopped asrequired (on 8 August 2021);3(c) being a driver of a vehicle that was stopped failed to remain stopped asrequired (on 20 September 2021);4 and(d) on 20 September 2021 failed to comply with the lawful requirement tostop for a police vehicle displaying blue and red lights or sounding asiren.5[2] On the charge of driving while suspended the Judge sentenced Mr Mahia tothe mandatory disqualification of six months from driving, and fined him $500. Onthe other three charges which the Judge found proved he convicted and discharged MrMahia.Appeal[3] Mr Mahia now appeals to this Court against the conviction and sentence. Inhis notice of appeal Mr Mahia set out the following points:(a) miscarriage of justice;(b) common law of England;1 NZ Police v Mahia [2022] NZDC 13635. Two further charges arising from 8 August 2021 andone from 4 October 2021 were dismissed.2 Land Transport Act 1998 (LTA), ss 32(1)(c) and 32(3).3 LTA, ss 52A(1)(b) and 114.4 LTA, ss 52A(1)(b) and 114.5 LTA, s 114(2).(c) Te Tiriti o Waitangi 6 February 1840;(d) Maori customs and usages;(e) failing to not recognise Tikanga; and(f) oral evidence by way of a recording dismissed by the prosecution andCourt.[4] Mr Mahia also attached to the notice of appeal, a document noted as ExhibitA, Writ of Mandamus dated 25 January 2022.[5] Mr Mahia represented himself at his appeal hearing and was assisted by aMcKenzie friend. During the course of the hearing Mr Mahia expanded on aspects ofthe appeal points noted above. He made a number of points, some of which wereraised before Judge Blair, notably his reliance on mana Motuhake, sovereignty was aFrench word which he did not recognise, and he told the Court there was a differencebetween Te Tiriti o Waitangi, which was signed by over 500 Rangatira over a periodof nine months as opposed to the Treaty which was signed at Waitangi by 39 Waikatochiefs. Mr Mahia emphasised his right to travel and submitted that right pre-existedTe Tiriti and was protected by tikanga. Although he did not expressly articulate it thisway, he apparently does not consider the Land Transport Act 1998 (LTA) applies tohim.Principles[6] This Court must allow Mr Mahia's appeal against conviction if satisfied that:(a) the Judge erred in his assessment of the evidence to such an extent thata miscarriage of justice has occurred; or(b) in any case a miscarriage of justice has occurred for any reason.Otherwise this Court must dismiss the appeal.66 Criminal Procedure Act 2011 (CPA), s 232(2).[7] A miscarriage of justice means an error, irregularity or occurrence in or inrelation to or affecting the trial that created a real risk the outcome of the trial wasaffected or that resulted in an unfair trial or a trial that was a nullity.7[8] As to the sentence appeal this Court must allow the appeal if satisfied that iffor any reason there is an error in the sentence imposed and a different sentence shouldbe imposed.[9] As the Court of Appeal has confirmed in Tutakangahau v R8 the concept ofwhether a sentence is manifestly excessive is of long standing and should continue tobe utilised. The focus remains on whether the sentence imposed was within range.The Court does not start afresh nor simply substitute its own opinion for that of theoriginal sentencer. It is for the appellant to show there was an error in the sentence.9Facts[10] A review of the notes of evidence confirms the Judge was correct to find thefollowing facts established.[11] On 9 June 2021 Constable Anderson was working a late shift. He pulled overa red Holden vehicle on State Highway 32 which was travelling towards Tokoroa.Constable Anderson spoke to the person identified as Chaz Keepa, being the name thatCharles Mahia was using. Constable Anderson was aware there was an alert forservice of a demerit points suspension upon the appellant. Constable Andersonserved the appellant with a disqualification notice for excess demerit points at 21:02hours on 9 June 2021. A photocopy of Mr Mahia's licence referred to the appellant asChaz Hurihia Mahia Keepa. The notice advised the appellant that his driver's licencewas suspended for a period of three months starting from the time the notice was givento him and that he would be unlicensed when the period of suspension ended.Constable Anderson filled out, and provided in evidence, a statement of service of thatnotice upon Mr Mahia. While Mr Mahia did not willingly accept the notice, ConstableAnderson considered that Mr Mahia understood it. The specific information in7 CPA, s 232(4).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 48.9 CPA, s 250.relation to the demerits and the effect of the suspension is set out in the notice itself.Despite the service of the notice, the Constable allowed Mr Mahia to drive his cardirectly home to Tokoroa. Constable Anderson took Mr Mahia's licence and sent it tothe relevant authority.[12] On 8 August 2021 Constable Leiataua was working a night shift and stopped aHolden Commodore registration number BST 918 on Bridge Street just after midnight.He approached the driver and asked for his driver's licence which was refused.Constable Leiataua noticed a smell of alcohol. The driver then drove off. ConstableLeiataua identified Mr Mahia as the driver of the car. Mr Maino's cross-examinationof Constable Leiataua did not challenge that he was the driver. The Constabledescribed the person who he said was Mr Mahia as a male Maori with a bushy beardand dreadlocks. The same car was later seen by the Police at Arthur Street, Tokoroa.Constable Leiataua and a colleague (or colleagues) attended the address where theywere approached by Mr Mahia. Mr Mahia refused to talk to Police and the group hewas with were aggressive. Constable Leiataua returned to the Tokoroa station wherehe confirmed from Police records that the person he had been dealing with was theappellant, Charles Mahia. On the basis of that evidence the Judge found theingredients of driving while suspended proved beyond reasonable doubt.[13] The Judge also found that Constable Leiataua had commenced the process ofestablishing who Mr Mahia was when he initially stopped the car. He had asked forMr Mahia's driver's licence, which Mr Mahia refused to provide. There was noevidence that the discussion turned to a demand under s 114(3)(b) of the LTA forinformation about Mr Mahia's personal details or ownership of the vehicle, but theJudge accepted Constable Leiataua's evidence that the discussion quickly turned to hisrequest for breath testing and the advice of arrest, and at that stage Mr Mahia droveaway.[14] The Judge was satisfied that within that sequence the Police were deprived ofthe opportunity to further seek or obtain Mr Mahia's personal details before he lockedhimself in his car and drove away. The Judge found that Mr Mahia failed to remainstopped for as long as was reasonably necessary for his particulars to be obtained. MrMahia had driven away before the Police had finished dealing with him. The Judgefound that Mr Mahia knew he was required to remain stopped. His actions in lockinghimself in the car, putting up the window and driving off demonstrated he knew heshould have remained stopped.[15] The second charge of failing to stop arose on 20 September 2021. At about1700 hours Senior Constable Stevens-Toka stopped a grey Commodore that wastravelling north on State Highway 1 at Kinleith doing about 115 kph. The male driverdemanded to know under what authority he was being stopped. Senior ConstableStevens-Toka advised him of the speed and asked for his driver's licence. When thedriver again demanded to know under what Act he had been stopped he was told thatfailure to provide the information could result in arrest. The Senior Constable askedthe driver, who was Mr Mahia, for his identity pursuant to the LTA. Mr Mahia thensaid he did not recognise the authority and the police officer had no authority to stophim and he was leaving. Senior Constable Stevens-Toka advised Mr Mahia that if hefailed to remain he would be arrested. Despite that Mr Mahia drove off.[16] The Senior Constable then pursued Mr Mahia with lights and siren, followinghim north into Tokoroa. Senior Constable Stevens-Toka and another unit tried to slowMr Mahia down. Mr Mahia then swerved aggressively into a side street. The unitstried a second time to get Mr Mahia to stop in the approach to a T junction, with oneunit trying to cut him off. Mr Mahia swerved around the police unit, almost causinga collision. Mr Mahia was ultimately followed to Arthur Street, Tokoroa, and oncethere Mr Mahia was arrested. The Judge accepted the evidence of Senior ConstableStevens-Toka. It proved beyond reasonable doubt that Mr Mahia was the driver of thevehicle ultimately stopped. He also found that Mr Mahia had failed to stop for theblue and red flashing lights and earlier, had failed to keep his car stopped in order tocomply with the request for his identification details.Analysis[17] Although Mr Mahia did not accept he was challenging the jurisdiction of theCourt or the application of the LTA to him, that challenge to jurisdiction appears to bethe essence of the first five grounds of his appeal, focused as they are on the commonlaw, Te Tiriti, Maori custom and usage and tikanga.[18] In Phillips v R the Court of Appeal dismissed an application for special leaveto appeal based on an argument that the LTA and related legislation enacted byParliament did not apply to people of Maori heritage.10 In rejecting the argument theCourt noted:11[2] Mr Phillips now applies for special leave to appeal to this Court. Hisapplication raises a number of related propositions. Compositely, they reduceto the point that the Land Transport Act and related legislation enacted byParliament do not apply to people of Maori heritage. His argument is to theeffect that he is subject only to Tikanga Maori or customary law and thus theDistrict Court had no jurisdiction to determine the charge.[3] Mr Phillips' application does not raise an arguable question of law, letalone one which by reason of its general or public importance or otherwiseought to be submitted to this Court for determination. The legal foundationfor his argument has been considered and rejected by this Court and also,significantly, by the Supreme Court as plainly unarguable. The leadingdecisions affirm that Parliament is sovereign and its legislation applies to allNew Zealanders irrespective of race. Thus New Zealand Courts are bound toaccept the validity of all statutory enactments including the Land TransportAct, which as Ms Wong submits applies without limitation based onownership, title or status of land and to all "roads" as defined by s 2. It isunarguable that the District Court had jurisdiction to hear and determine thecharge against Mr Phillips.[19] The same reasoning applies to Mr Mahia. Despite Mr Mahia's arguments thattikanga entitles him to travel freely and that the concept of sovereignty (a French wordin his submission) is not applicable, the Court of Appeal authority is clear.[20] Further, in Wallace v R the Supreme Court rejected Mr Wallace's applicationto challenge this Court's rejection of his protest to jurisdiction, which had been"advanced essentially on Maori sovereignty grounds" on the basis the arguments were"plainly unsound legally".12[21] Mr Mahia also made the submission that the Supreme Court has ruled thatnative title is not extinguished. That is entirely irrelevant to the issue of the applicationof the laws passed by the Parliament of New Zealand to New Zealanders and peoplewithin New Zealand, including Maori.10 Phillips v R [2013] NZCA 580. See also R v McKinnon (2004) 20 CRNZ 709 (HC).11 Phillips v R, above n 10, (footnotes omitted).12 Wallace v R [2011] NZSC 10.[22] The short point is that Mr Mahia, like all other people in New Zealand, issubject to the provisions of the LTA and other legislation passed by the New ZealandParliament.[23] Mr Mahia also referred to and relied on the Mandamus document. It is aconfusing document. It purports to make the argument (which has been rejected on anumber of occasions by the Court) that the person before the Court is not the personnamed in the documentation:i: tangatawhenua: Chaz; is not the 'person' CHARLES HURIHIA MAHIA:CROWN PROPERTY DEFENDANT and cannot be presumed, deemed,purported to play a role of the 'dual persona' by deceit, ignorance, or deemed'NZ CITIZENSHIP'; without consent. No consent is implied or given. [24] Such arguments are gibberish and a legal nonsense. They have been rejectedby the Court before.13[25] The last and perhaps only possible substantive ground of appeal was MrMahia's complaint that the Judge had declined to accept into evidence recordings fromtwo cell phones that Mr Mahia had apparently brought to the Court.[26] From the notes of evidence it appears there were two pieces of cell phone videofootage that Mr Mahia wanted to show the Court. The first was footage Mr Mahiaapparently took on his cell phone and the second footage taken by his daughter on hercell phone.[27] The Prosecution did not agree to the evidence being admitted and without MrMahia giving evidence, the evidence of the first cell phone was excluded. Mr Mahia'sdaughter was not at Court so the recording from her cell phone could not be admitted.[28] It appears from the discussion between the Judge and Mr Mahia regarding thevideo footage that it was restricted to his interaction with the officers. The video13 Bracken v R [2022] NZCA 237; R v McKinnon, above n 10; R v Knowles CA146/98, 12 October1998; R v Mitchell CA68/04, 23 August 2004; Harawira v R CA180/05, 1 August 2005; and R vToia [2007] NZCA 331; Smith v R [2017] NZCA 288; R v Cann [1989] 1 NZLR 210 (CA); R vRowley [2012] NZHC 2087; R v Patterson [2008] NZCA 75; and R v Swann HC Dunedin CRI-2007-012-4181, 11 March 2009.appeared to be a challenge to the officer's evidence that he did not recall Mr Mahiachallenging his jurisdiction and authority.[29] The Judge discussed the practicability of introducing the cell phone videoswith Mr Maino and the Police prosecutor. The prosecutor would not agree to theadmission of the videos by consent under s 9 the Evidence Act 2006.[30] There was a discussion about the possibility of Mr Mahia giving evidence butultimately the Judge took it that Mr Mahia did not want to give evidence and besubjected to cross-examination. Instead Mr Mahia and his support person bothaddressed submissions to the Court.[31] Mr Mahia did not seek to produce the video evidence on appeal. On theinformation before the Court, the evidence could not, in any event, be considered tobe cogent, in that it did not directly address the elements of the offending on whichMr Mahia was convicted. For example, one challenged the actions of SergeantWhitecliff-Davies on 4 October 2021, but Mr Mahia was in any event found not guiltyof the alleged offending on that day. The other video seems to have been taken by hisdaughter at Arthur Street, after the offending on 20 September 2021.[32] On my review of the notes of evidence the findings by the Judge that there wassufficient evidence to establish the charges beyond reasonable doubt was clearly opento him. The grounds Mr Mahia seeks to raise to challenge the convictions lack anysubstantive merit. The appeal against conviction must be dismissed.Sentence appeal[33] The Mandamus document goes on to purport to offer some form of responseto Mr Mahia's offending. It refers to a "Restorative Justice Lawful Process Remedyto Amend the Matter". It suggests that a "Paa Kooti" offer for consideration based ona native assessor's decision was a form of recompense to the offending.[34] Mr Mahia apparently relies on the document as an offer under s 8(i) and (g)and/or s 10(1)(c) of the Sentencing Act 2002.[35] Section 8(i) requires the Court to take into account the offender's background(including cultural background), and s 8(j) requires the Court to take account of anyrestorative justice process. Neither apply to the document. Nor does s 10(1)(c). Theproposals in the Mandamus document are not "remedial action" or a response inrelation to the offending. Rather they are an attempt to place Mr Mahia outside thejurisdiction of the Court.[36] While s 27 of the Sentencing Act 2002 enables a defendant to put materialbefore the Court at sentencing regarding his personal, family, whanau, community,and cultural background, the proposal in the Mandamus document, which effectivelysuggests dealing with the charges outside the laws which apply to all people withinNew Zealand is not a report under s 27.[37] Mr Mahia and his adviser's reliance on it is misplaced.[38] As to the sentence I generally observe that the Judge imposed the bareminimum disqualification mandated by law on the charge of driving while suspended.The fine of $500 cannot be described as manifestly excessive, particularly given thetotality of the offending and the fact that Mr Mahia was convicted and discharged onthe remaining three offences.Result[39] The appeals against conviction and sentence are dismissed.__________________________Venning J