Kohai v Police

[2014] NZHC 2421

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000021 [2014] NZHC 2421

DEREK MARK KOHAI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	30 September 2014
Appearances:	Appellant in Person Richard Jenson for the Respondent
Judgment:	3 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by  on 3 October 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

KOHAI v NEW ZEALAND POLICE [2014] NZHC 2421 [3 October 2014]

Introduction

[1]      The  appellant,  Mr  Kohai,  was  found  guilty  of  two  charges;  breach  of protection order and assault on a child. He was sentenced to 160 hours community service on both charges.1  On the assault charge he was also sentenced to pay $300 emotional harm reparation. Mr Kohai appeals both his conviction and sentence.

Appeal Grounds

[2]      Essentially Mr Kohai advances his appeals on two grounds.

(a)      First,  he  submits  this  Court  has  no  jurisdiction.    He  bases  this argument on his claim he is not a person, but a sovereign de jure, born of the Land of Aotearoa. He submits that the New Zealand courts are only “contracts for persons” and that the charges against him were brought unlawfully as the “fiction stillborn Mark Kohai, has no ongoing arrangement with the State”.

(b)Secondly he submits the Police failed to provide full disclosure of all evidence for the amicus curiae and the appellant.

Appeal against Conviction

Lack of Jurisdiction

[3]      Mr Kohai submits the Court has no jurisdiction over him as a sovereign de jure. In his affidavit in support he submits that Maori sovereignty was established in

1835 with the signing of the Declaration of Independence and has not been ceded to the Crown. Mr Kohai refers to a comprehensive range of legal instruments in support of his argument.

[4]      It  is  trite  law  that  the  New  Zealand  Parliament  is  empowered  to  make legislation.2  Accordingly, Acts of Parliament are binding on all persons within the

territory of New Zealand. The Courts are subservient to Parliament and must apply

1 Ordered to be served concurrently.

2 Warren v Police HC HAM AP 133/99, 9 February 2000, Penlington J at [39].

an Act of Parliament in the terms in which it has been enacted.3 A claim to a right to be judged in accordance with a separate law is a political and constitutional issue which cannot be resolved by the Courts.4

[5]      In R v Toia the Court of Appeal considered a series of arguments as to Maori sovereignty claims which are relevant to the present case.5 The Court held that:6

(a)       The crimes with which the appellant was charged are all under the Crimes Act 1961 which, in terms of s 5, applies to all offences for which the offender may be proceeded against and tried in New Zealand and to all acts done or omitted in New Zealand.

(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.

[6]      On this basis the jurisdictional argument put forward by Mr Kohai cannot succeed.

Lack of Disclosure

[7]      Mr Kohai, as part of his defence in the District Court, argued that on the dates of the alleged offending he had not been permitted access to his children by their mother.  In this sense, he appears to advance a defence of alibi.  He says that due to earlier difficulties around access to his children, he had been advised to report every breach of the parenting order to the Police. Thus if Mr Kohai’s account was accurate, i.e. he was not at the children’s home at the time it is alleged he offended because the mother of the children denied him access, it follows that there would be evidence of

a Police complaint made by him. No such complaint was disclosed.

3 R v Fuimaono CA159/96, 24 October 1996 at 4.

4 R v Knowles CA146/98, 12 October 1998.
5 R v Toia [2007] NZCA 331

6 At [10].

[8]       The District Court Judge noted that he suspected full disclosure had not been made available on the issue of whether there were visits following the first complaint on 11 July as there were different files out of different Police stations.7

[9]      However in the course of being cross-examined at trial, Mr Kohai was asked directly about the complaints he had made.   He admitted he made only two complaints to the Police, namely on 11 July and 29 August. The alleged offending occurred between those dates. Mr Kohai stated that there had been other breaches between those two complaints but he did not complain to the Police about them as he was tired of the Police’s inaction following his first complaint to them.

[10]     After referring to this evidence the Judge rejected Mr Kohai’s account that a breach had occurred but had not resulted in a complaint. The Judge noted that this was inconsistent with Mr Kohai’s earlier testimony or Mr Kohai’s “stickler-type attitude to detail.” He concluded on the evidence that Mr Kohai had exercised his visitation rights during the relevant period.

[11]     Thus  on  Mr  Kohai’s  own  evidence,  no  complaint  was  made  during  the relevant time period. It follows further Police disclosure would not have produced evidence of a complaint supportive of Mr Kohai’s defence. As a result, even if there had been inadequate Police disclosure, I am satisfied no miscarriage of justice has occurred in this instance.8

[12]     The appeal against conviction is dismissed.

Appeal against Sentence

[13]     The appeal against sentence was not pursued at the hearing. In any event I note that the sentence was, if anything, lenient. The maximum sentence for assault on a child charge is two years’ imprisonment and for breach of a protection order

three years’ imprisonment.

7 Police v Kohai DC Whakatane CRI-2013-087-001867, 9 May 2014 at [39].

8 Criminal Procedure Act 2011, s 232.

[14]     Williams J in Solomon v Police considered a range of assault on a child sentences and concluded:9

Taken together the cases do follow a broad pattern. First, one-off assaults, even when they lead to some kind of injury, are generally treated leniently particularly where the assaults are out of character and/or committed in the heat of the moment. Second, assaults involving weapons or implements, relatively significant injury, severe and/or multiple blows, or cruelty are likely to be dealt with by a term of imprisonment — usually of six months or more.

[15]     It would appear that the assault was largely out of character and occurred in the context of a stressful custody and domestic situation thus, arguably, justifying a lenient sentence. On the other hand it cannot be overlooked the assault involved the use of an implement. In these circumstances I am satisfied that the sentence of community work and reparation was entirely appropriate and well within the range available to the Judge, perhaps even at the lower end.

[16]     The appeal against sentence is dismissed.

Moore J

Solicitors:

Crown Solicitor, Tauranga

Copy to:

Mr Kohai

9 Solomon v Police HC Wanganui CRI-2010-483-63, 3 December 2010.