TITO and TITO v NEW ZEALAND POLICE [2023] NZHC 1235

TITO and TITO v NEW ZEALAND POLICE [2023] NZHC 1235 [24 May 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV 2022-488-74[2023] NZHC 1235BETWEEN KEVIN-JOHN TITO and TUI-DOROTHYTITOAppellantsAND NEW ZEALAND POLICERespondentHearing: 24 May 2023Appearances: The appellants in personJ Golightly for the respondentJudgment: 24 May 2023JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 24 May 2023 at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy Registrar[1] Mr and Mrs Tito had their firearms licences revoked by the Police under ss 27and 28 of the Arms Act 1983. They appealed against the revocation to the DistrictCourt. Judge D J Clark dismissed their appeal.1 Mr and Mrs Tito wish to make afurther appeal to this Court.[2] An appeal to this Court is limited to questions of law and can be brought onlywith leave. Mr and Mrs Tito say the questions of law that would be raised on theirproposed appeal are:(a) Is there a conflict between the Arms Act 1983 and the Imperial LawsApplication Act 1988?(b) Is the Parliament of New Zealand able to legislate over Māori whereland has been declared and adjudicated to be unextinguished nativetitle?(c) Is there a conflict between the Arms Act 1983 and tikanga Māori?Representation[3] Mr and Mrs Tito represent themselves. They were accompanied at the hearingby Mr Samuels. They asked that Mr Samuels speak on their behalf. Mr Samuels is nota lawyer. He told me he had nonetheless assisted Mr and Mrs Tito to prepare thedocuments that they had filed and that he would be better placed to speak to theirarguments than they would. Mr and Mrs Tito told me they agreed.[4] After hearing briefly from Ms Golightly, who appeared for the Police, Iallowed Mr Samuels to speak on behalf of Mr and Mrs Tito. I considered this waslikely to be of more assistance to me than hearing directly from Mr and Mrs Tito. Iasked Mr Samuels to confirm that the three questions of law proposed by Mr and MrsTito were as set out in [2]. He confirmed that was the case, and briefly explained Mrand Mrs Tito's position on each question.1 Tito v New Zealand Police [2022] NZDC 16431.Background[5] Mr and Mrs Tito have been involved in litigation in the Māori Land Court forsome years. They have received adverse decisions from that Court. They have beendispleased with those decisions. Their displeasure has sometimes manifested itselfin aggression towards staff of that Court.[6] On 9 March 2021, Mr and Mrs Tito went to a registry of the Māori Land Court.There were heated discussions between Mr and Mrs Tito and staff at that Registry.The staff alleged that Mr and Mrs Tito became abusive. One of the staff said he wassubjected not only to oral abuse but to threatening hand gestures such as Mr andMrs Tito using their fingers to form a pistol and pointing the same towards him.[7] On 3 May 2021, Police wrote to Mr and Mrs Tito advising that their firearmslicences would be temporarily suspended. Several grounds for the suspension werestated, including the incident at the Māori Land Court Registry on 9 March 2021. On17 June 2021, Police wrote to Mr and Mrs Tito advising that their respective firearmslicences were revoked. The grounds for revocation were the same grounds as in theearlier letter.[8] Mr and Mrs Tito applied to have that decision reviewed. On 10 September2021, Police wrote to them advising their review was unsuccessful. Mr and Mrs Titothen appealed to the District Court.The District Court judgment[9] Judge Clark set out Mr and Mrs Tito's grounds of appeal. These wereessentially factual challenges to the grounds the Police had given for revoking theirfirearms licences.2 His Honour also recorded that Mr and Mrs Tito relied on art 6of the International Covenant on Civil and Political Rights and s 8 of the New ZealandBill of Rights Act 1990.2 At [28].[10] The Judge noted that the hearing before him was to proceed de novo. Thequestion was whether Mr and Mrs Tito were each a "fit and proper person" to holda firearms licence.[11] The Judge reviewed the evidence on what had occurred at the Registry of theMāori Land Court on 9 March 2021. His Honour accepted the staff member'sevidence that Mr and Mrs Tito had made threatening hand gestures.3 His Honour alsoreferred to other incidents and concluded that they reflected "an uneven temperamentwhen things do not go their way".4 The threat against the Registry staff member wasof significant concern: persons prepared to make such threats could not be trusted tohold firearms licences.5 Accordingly, the Judge found Mr and Mrs Tito were not fitand proper persons to hold firearms licences and he dismissed their appeal.6The scope of appeals under the Arms Act[12] Mr and Mrs Tito's appeal to the District Court was under s 62B of the ArmsAct. Section 64 provides for appeals to this Court from decisions by the District Courtunder s 62B. It provides:64 Appeal on a question of law(1) Where any party to any appeal under section 62B or to any applicationunder section 63 is dissatisfied with the decision of the District CourtJudge as being erroneous in point of law, he may appeal to the HighCourt on the question of law only.(2) Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as faras applicable with the necessary modifications to every appeal underthis section.[13] Section 64(2) applies the provisions of subpt 8 of pt 6 of the CriminalProcedure Act 2011 "as far as applicable" and subject to "necessary modifications".Subpart 8 includes s 296, the effect of which is that Mr and Mrs Tito may appeal to thisCourt only with leave. Section 298 requires them to state, in their application for leaveto appeal, the question of law on which the appeal is being taken.3 At [62].4 At [65].5 At [66].6 At [67].The course of the appeal[14] Mr and Mrs Tito commenced this proceeding by filing a notice of appeal. Theydid not apply for leave to appeal.[15] At the first case management conference, Gordon J gave Mr and Mrs Tito theopportunity to remedy that situation by filing an application for leave to appeal, settingout the questions of law on which they proposed to take the appeal. Her Honour alsodirected that the application for leave be heard at the same time as the proposedsubstantive appeal.[16] Mr and Mrs Tito then filed, in November 2022, an amended notice of appealand an application for leave to appeal. These stated one question of law:Can the Court revoke the appellants [sic] licences under an Act, namely theArms Act 1983, if that Act does not have an Imperial Enactment to conferpower on the subordinate legislation pursuant to s.6 of the ImperialApplications Act 1988 [sic].[17] Gordon J also directed Mr and Mrs Tito to file submissions by 10 March 2023.On 9 March 2023, Mr and Mrs Tito filed two documents. One was a further notice ofappeal. This stated four grounds of appeal:(a) There is a conflict in fact and law namely between the Arms Act 1983and the Imperial Law Applications Act 1988 s4(1) and s5 EnglishCommon law in NZ.(b) Jurisdiction: There is a question in fact and law re: The District Courtin accordance with Tikanga Maori and Te Ture Whenua Maori Act1993 s2(3).(c) There is a question in fact and law as to the ability of the Parliamentof New Zealand to legislate over Maori, where land has been declaredand adjudicated to be un-extinguished of the Native Title in NewZealand.(d) That this matter has led to a total and serious miscarriage of justice onthe part of the court.[18] The other document was an unsworn "affidavit" by Mr and Mrs Tito.In substance, it consists of Mr and Mrs Tito's submissions. At the end of thatdocument Mr and Mrs Tito say that their only other option (if, I infer, their appealfails) would be to accept a firearms licence issued by "Nga Tikanga Māori Law/LoreSociety o Aotearoa". They annex to their affidavit copies of plastic cards bearing thetitle "Aotearoa Firearms Licence" with their names, dates of birth and photographs.The cards are in the style of a firearms licence lawfully issued by the Police under theArms Act but appear to be issued by a Māori incorporated society.Should leave to appeal be granted?[19] I consider I should not grant leave to appeal if the proposed questions of laware not arguable. Nor should I grant leave if the proposed questions would not ariseon the appeal. Beyond those propositions, it is not necessary for me to explore theprinciples that govern the discretion whether to grant leave under s 296 of the CriminalProcedure Act in the context of an appeal against a decision under s 62B of the ArmsAct.[20] I therefore turn to consider whether any of the questions of law proposed byMr and Mrs Tito are arguable and would arise on the appeal.Is there a conflict between the Arms Act 1983 and the Imperial Laws ApplicationAct 1988?[21] Mr and Mrs Tito, in their application for leave to appeal, said that the questionof law that would arise on their appeal is whether the District Court could revoke theirlicences under the Arms Act if that Act "does not have an Imperial Enactment to conferpower on the subordinate legislation pursuant to s.6 of the Imperial Applications [sic]Act 1988". In their affidavit, they say there is a conflict between the Arms Act ands 4 of the Imperial Laws Application Act.[22] Mr Samuels said the Arms Act was subordinate legislation that required powerfrom an Imperial Act from Westminster. The proposition put forward by Mr and MrsTito appears to be that the Arms Act is not referred to in the Imperial Laws ApplicationAct and that this somehow means the Arms Act is invalid.[23] This proposition is not arguable. It is based on a misunderstanding of theImperial Laws Application Act. That Act specifies the extent to which Imperialenactments, Imperial subordinate legislation and English common law are part of thelaws of New Zealand. An Imperial enactment is any Act of the Parliament of England,or of the Parliament of Great Britain, or of the Parliament of the United Kingdom.Imperial subordinate legislation is any Order in Council, regulation or other legislativeinstrument made under any such Imperial enactment.7[24] Imperial enactments and Imperial subordinate legislation that are part of thelaws of New Zealand are specified in s 3 and sch 2 of the Act. Section 4 provides thatno other Imperial enactments or Imperial subordinate legislation is part of the lawsof New Zealand.[25] Mr and Mrs Tito rely on s 6 of the Act. Section 6 deals with the power to makesubordinate legislation under any Imperial enactment that is part of the laws ofNew Zealand. Section 6 has no application here. The Arms Act is an enactment ofthe New Zealand Parliament. It is not subordinate legislation made under an Imperialenactment.[26] Mr and Mrs Tito also rely on s 4 of the Act. As I understand it, their argumentis that, because the Arms Act is not specified in s 3 and sch 2, the effect of s 4 is thatthe Arms Act is not part of the laws of New Zealand. This argument presupposes thatthe Arms Act is an Imperial enactment or is Imperial subordinate legislation. It isneither of those things. It is an enactment of the New Zealand Parliament.Is the Parliament of New Zealand able to legislate over Māori where land hasbeen declared and adjudicated to be unextinguished native title?[27] I consider this question of law would not arise on the proposed appeal. Therewas no finding in the District Court about any land having been declared andadjudicated to be unextinguished native title. Mr and Mrs Tito did not explain howany such land had any connection to them. Nor did Mr Samuels.[28] Further, it is not arguable that the New Zealand Parliament is unable to legislateover Māori in the circumstances described. Section 15(1) of the Constitution Act 1986provides that the Parliament of New Zealand "continues" to have "full power" to make7 Imperial Laws Application Act 1988, s 2.laws. This continues the power that the Parliament had before that Act was passed –such as when the Arms Act was enacted in 1983. Acts of the New Zealand Parliamentare binding on all persons within New Zealand.8 Recognition of unextinguished Māoricustomary interests in land does not disempower Parliament from legislating overMāori. As Ms Golightly submitted, when the Court of Appeal recognised, in Attorney-General v Ngati Apa, that the Crown's acquisition of radical title was not inconsistentwith common law recognition of Māori customary interests in land, the Court at thesame time affirmed Parliament's legislative supremacy.9Is there a conflict between the Arms Act 1983 and tikanga Māori?[29] Mr and Mrs Tito say that they are farmers and require firearms as tools of theirtrade. They say they also need firearms to hunt and gather food. They claim thatunder tikanga Māori the tools of one's trade cannot be taken to prevent themundertaking that trade or from hunting and gathering. As I understood it, they arguethat in this case tikanga Māori prevails over the provisions in the Arms Act governingfirearms licences.[30] I consider this question would not arise on the proposed appeal. Mr and MrsTito did not rely on tikanga in the District Court. The Judge therefore did not exploretikanga and did not explore the intersection of tikanga and the Arms Act.[31] Further, as Harvey J has recently observed in another context, "considerationof tikanga will not always be relevant or necessary where tikanga will not or cannotassist, such as when it would be contrary to statute".10 The ultimate issue before JudgeClark was whether, in terms of the Arms Act, Mr and Mrs Tito were "fit and proper"persons to hold firearms licences. Mr and Mrs Tito claim that under tikanga theirfirearms cannot be taken away to prevent them from undertaking their trade or huntingand gathering. Even if that claim were correct (a matter I do not have to decide),it would be contrary to the regulation of firearms licences under the Arms Act. Theirposition on the proposed question of law is not arguable.8 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [11].9 Attorney-General v Ngati Apa [2003] 3 NZLR 643 at [34] and [47] per Elias CJ, at [147] per Keithand Anderson JJ and at [185] per Tipping J.10 Bamber v Official Assignee [2023] NZHC 260.Conclusion[32] None of the questions of law that Mr and Mrs Tito wish to pursue on theirproposed appeal are arguable, and two of them would not arise on the appeal.Accordingly, I decline their application for leave to appeal.[33] The Police, as the successful party, are entitled to costs. Ms Golightly soughtcosts merely on a category 1A basis. I consider that approach is generous to Mr andMrs Tito. On a 1A basis, they must pay the Police costs of $3,295.50.Result[34] The application for leave to appeal is declined.[35] Mr and Mrs Tito are to pay the Police costs of $3,295.50.______________________Campbell J