Police v Teddy

• Jurisdiction: New Zealand
• Judge: Woolford J
• Judgment Date: 07 March 2013
• Neutral Citation: [2013] NZHC 432
• Docket Number: CRI-2011-470-000031
• Court: High Court
• Date: 07 March 2013

New Zealand Police

Appellant

and

Elvis Heremia Teddy

Respondent

[2013] NZHC 432

CRI-2011-470-000031

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

Appeal from a decision of the District Court which held charges against the respondent were nullities — respondent charged with operating a vessel in a manner that caused unnecessary risk contrary to s65(1)(a) Maritime Transport Act 1994 (“MTA”) (dangerous activity involving ships) and resisting a constable acting in pursuance of his duty, contrary to s23(a) Summary Offences Act 1981 (“SOA”) (resisting Police) — District Court held that s65 MTA did not apply beyond New Zealand's 12 mile territorial limit – respondent had operated a Greenpeace protest vessel outside NZ's territorial limit — whether NZ ships beyond the territorial sea were part of NZ territory — whether s65(1)(a) MTA and s23 SOA did not have any application beyond New Zealand's territorial sea — whether Police powers to stop and board vehicles and to arrest offenders did not have any application to vessels at sea, including beyond NZ's territorial sea.

Appearances:

B Keith and B Martin for Appellant

R Mansfield and V Withy for Respondent

JUDGMENT OF Woolford J

Introduction

1 In April 2011, the motor vessel, Orient Explorer was conducting a seismic survey of the Raukumara Basin, on behalf of Petrobras, a Brazilian oil and gas exploration company. In 2010, Petrobras had been granted a five year permit by the New Zealand Government to carry out exploratory activities over a substantial part of the basin, which extends about 300 kilometres north of East Cape and tapers from a width about 100 kilometres in the south to about 50 kilometres in the north.

2 On 23 April 2011, the New Zealand Police boarded a fishing vessel, the San Pietro, which was being sailed by the respondent within about 20 metres of the bow of the Orient Explorer as part of protest activity involving Greenpeace and East Cape iwi. The San Pietro was, at the time, outside New Zealand's 12 mile territorial limit. The respondent refused to relinquish the wheel of the vessel, alter course or comply with Police instructions. He was arrested and charged with operating a vessel, the San Pietro, in a manner that caused unnecessary risk to the Orient Explorer, contrary to s 65(1)(a) of the Maritime Transport Act 1994, and resisting a constable acting in pursuance of his duty, contrary to s 23(a) of the Summary Offences Act 1968.

3 Following a defended hearing in the Tauranga District Court on 23, 24, 25 and 26 July 2012, Judge Treston ruled that the charges were nullities because s 65(1)(a) did not apply beyond New Zealand's 12 mile territorial limit. The Police subsequently filed an appeal by way of case stated against Judge Treston's ruling.

4 The questions for the opinion of the High Court are whether Judge Treston was erroneous in point of law to rule that:

• • Section 65(1)(a) of the Maritime Transport Act does not have any application beyond New Zealand's territorial sea.

• • Police powers to stop and board vehicles and to arrest offenders do not have any application to vessels at sea, including beyond New Zealand's territorial sea.

• • Section 23(1) of the Summary Offences Act does not have any application beyond New Zealand's territorial sea.

District Court decision

5 Judge Treston based his ruling that s 65(1)(a) of the Maritime Transport Act does not apply beyond New Zealand's 12 mile territorial limit on four points.

• (a) Section 65(1)(a) did not apply to New Zealand ships beyond the territorial limit because it lacks “a specific, explicit and express provision” to confer such extraterritorial effect. An express provision was required by the general presumption that New Zealand legislation does not apply extraterritorially and the parallel provisions in ss 5(2) & 6 of the Crimes Act. 1

• (b) Section 413 of the Maritime Transport Act (which was relied upon by the Police prosecutor) was too imprecise to afford jurisdiction. It provides:

  For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed either in the place in which the same actually was committed or in any place in which the offender may be.

  The Judge had also earlier noted that Maritime Transport Act offences, along with offences under the Civil Aviation Act 1990, were specifically exempted from the general provision in s 8 of the Crimes Act allowing the prosecution of offences committed on board New Zealand and certain other ships and aircraft while beyond New Zealand's territorial limit.

• (c) The interpretation of s 65(1)(a) was further supported by the express jurisdiction conferred in certain cases of marine pollution by ss 223 and 224 of the Act; and

• (d) The powers of stopping and arrest under ss 317 and 317A of the Crimes Act did not apply to ships or outside New Zealand's territorial limit on their terms and/or by s 5(2), while the Summary Offences Act similarly only applied within territorial waters because it, too, contained no express provision for extraterritoriality.

Does s 65(1)(a) of the Maritime Transport Act apply beyond New Zealand's territorial sea?

New Zealand's jurisdiction over New Zealand ships

6 The San Pietro is a New Zealand ship. New Zealand has jurisdiction over all New Zealand ships on the high seas. The Court of Appeal in Sellers v Maritime Safety Inspector 2 confirmed that :

The freedom of navigation is one of the longest and best-established principles of international law. An essential feature of the freedom is that the state of nationality of a ship (the flag state) has exclusive jurisdiction over the ship when it is on the high seas.

7 This is affirmed by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to which New Zealand is a party. Article 92 states: 3

Ships shall sail under the flag of one State only and…shall be subject to its exclusive jurisdiction on the high seas.

8 This point is reiterated in art 97, which provides that only the flag state has penal jurisdiction in the event of collisions and other navigational incidents. It is not open to another state to apply its law on board, such that it is necessary for New Zealand law generally to apply.

9 Reflecting that practical necessity, art 94 in turn requires flag states to exercise their jurisdiction. It states:

• 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.

• 2. In particular, every State shall:

  • …

  • (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

• 3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

  • …

  • (c) the use of signals, the maintenance of communications and the prevention of collisions.

10 As stated by Professor Malcolm Shaw QC: 4

The foundation of the maintenance of order on the high seas has rested upon the concept of the nationality of the ship, and the consequent jurisdiction of the flag state over the ship. It is, basically, the flag state that will enforce the rules and regulations not only of its municipal law but of international law as well.

11 The respondent accepts that New Zealand, as the flag state, has exclusive jurisdiction over the San Pietro outside its territorial limit but argues that the Maritime Transport Act does not have extra-territorial effect because it does not expressly state that it so applies. In this regard the respondent refers to Poynter v Commerce Commission 5 which sets out the general proposition that legislation does not have extra-territorial effect save for express statutory wording or necessary implication.

Are New Zealand ships part of New Zealand territory?

12 The Crown argued that there was no need to consider the extra-territorial application of New Zealand law as New Zealand ships are part of New Zealand territory. There is no requirement for the legislation to have extra-territorial effect by express wording or necessary implication if ships are part of New Zealand territory. Some commentators are of the view that New Zealand ships may be considered part of New Zealand territory. Halsbury's Laws of England states that a state has

jurisdiction (over acts done on a ship carrying its flag) on the territorial principle of criminalising conduct which occurs within its territory. For this purpose, the territory of a state includes “its quasi-territorial regimes, such as ships, aircraft and space vehicles”. 6

13 Similarly, in The Amalia, 7 it was accepted that if a collision had occurred between two British ships on the high seas then British law would have applied even though the British Act in question made no express provision for such a situation. Accordingly, British territory could be viewed as including British ships. Equally, the Court of Appeal in Wellington Cooks and Stewards Union 8 held that a ship owned and registered in New Zealand would come under New Zealand jurisdiction. If New Zealand ships are part of New Zealand's territory for the purposes of jurisdiction, there is no need for provisions relating to offences on such ships to be given express extra-territorial effect. Therefore, if New Zealand ships are part of New Zealand territory, New Zealand law and the Maritime Transport Act, in particular, would apply.

14 However, s 7A of the Crimes Act is titled “Extraterritorial jurisdiction in respect of certain offences with transnational aspects”. It provides that certain offences of the Crimes Act apply to ships registered under the Ships Registration Act 1992, New Zealand...