Teddy v New Zealand Police Ca

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 28 August 2014
• Neutral Citation: [2014] NZCA 422
• Docket Number: CA614/2013
• Court: Court of Appeal
• Date: 28 August 2014

BETWEEN

Elvis Heremia Teddy

Appellant

and

New Zealand Police

Respondents

[2014] NZCA 422

Court:

Stevens, White and French JJ

CA614/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court decision which found s65 Maritime Transport Act 1994 (“MTA”) (dangerous activity involving ships) had extraterritorial effect and arrest powers under the Crimes Act 1961 (CA) empowered the respondent to stop and board New Zealand vessels and to arrest offenders extraterritorially — appellant was also charged under s23(a) Summary Offences Act 1981 (resisting a constable acting in the execution of their duty) — the appellant was a fisherman who objected to deep sea oil and gas exploration in an area off the East Cape which he said included his customary fishing grounds — as part of protest activity, he sailed his fishing vessel across the bow of the another vessel conducting an underwater survey pursuant to a permit allowing it to carry out exploration activities — MTA subsequently amended to apply in this situation so decision of limited precedent value — whether s65(1)(a) MTA applied to incidents that occurred outside the 12 nautical mile territorial sea limit — whether the arrest powers provided by the CA empowered the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially.

Counsel:

R M Mansfield for Appellant

B J R Keith and K Laurenson for Respondent

• A The questions of law raised in this appeal are answered as follows:.

  • 1. Should s 65 of the Maritime Transport Act 1994 be applied extraterritorially by necessary implication?

    Answer: Yes (at least in respect of New Zealand ships).

  • 2. Do the arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially?

    Answer: Yes (at least in respect of offences involving New Zealand ships).

• B The appeal is dismissed.

• C The case is remitted to the District Court for the resumption of the defended hearing in accordance with the direction of the High Court.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Introduction	[1]
Factual background	[7]
The District Court decision	[15]
The High Court decision	[18]
Submissions for the parties
Mr Teddy	[21]
New Zealand Police	[24]
Further submissions	[27]
Principles of statutory interpretation	[28]
Should s 65 of the Maritime Transport Act 1994 be applied extraterritorially by necessary implication?
Section 65	[39]
Section 413	[46]
R v Hinde	[49]
International obligations	[60]
The scheme of the Maritime Transport Act 1994	[64]
Legislative history	[67]
Other legislation	[72]
Do the arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially?	[75]
Result	[78]

Introduction

1 The central question in this appeal is: does the District Court have jurisdiction over charges against the appellant, Mr Teddy, laid under's 65(1)(a) of the Maritime Transport Act 1994 (the MTA) and s 23(a) of the Summary Offences Act 1981 (the SOA) in respect of incidents that occurred outside the 12 nautical mile limit of New Zealand's territorial sea?

2 Following a defended hearing in the Tauranga District Court, Judge Treston decided that the Court did not have jurisdiction and the charges were nullities. 1

3 In an appeal by way of case stated to the High Court, Woolford J decided that the Court did have jurisdiction and quashed Judge Treston's decision. 2 The case was remitted to the District Court for a resumption of the defended hearing.

4 Before the District Court hearing resumed, Mr Teddy sought and obtained leave from Woolford J to appeal to this Court under's 144 of the Summary Proceedings Act 1957 on the following questions of law: 3

• (a) Should 65 of the MTA 1994 be applied extraterritorially by necessary implication?; and

• (b) Do the arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially?

5 Since Mr Teddy's case arose, the MTA has been amended to make it clear that the Act, including s 65, applies to New Zealand ships wherever they may be. 4 We refer to the implications of amendments of this nature later, 5 but it does mean that this judgment will have no further direct effect as a precedent.

6 We now summarise the factual background to the charges against Mr Teddy and the decisions of the Courts below, before referring to the submissions for the parties, setting out the relevant principles of statutory interpretation and addressing the two questions of law.

Factual background

7 The appellant, Mr Teddy, is a fisherman who, along with iwi groups and Greenpeace, objects to deep sea oil and gas exploration in an area off the East Cape of New Zealand which he says includes his customary fishing grounds.

8 Petróleo Brasileiro SA (Petrobras) is a Brazilian multinational energy corporation which engages in oil and gas exploration. It was granted a five year permit by the New Zealand Government to carry out exploration activities over a substantial part of the Raukumara Basin, an area of ocean that includes Mr Teddy's customary fishing grounds.

9 In April 2011 the marine survey vessel MV Orient Explorer and its support vessel the MV Orient Pioneer were conducting an underwater survey of the Raukumara Basin on behalf of Petrobras.

10 The Orient Explorer towed a steel cable approximately six nautical miles in length to which were attached sonar and seismic sensors. The cable was supported by a series of buoys and was suspended below the ocean surface. The Orient Explorer travelled in a straight line from one end of the survey area to the other, making a turn and repeating the process.

11 The Ocean Pioneer travelled behind the cable and detection equipment being towed by the Orient Explorer.

12 On 23 April 2011 Mr Teddy, as part of protest activity, sailed his New Zealand fishing vessel, the San Pietro, across the bow of the Orient Explorer. He did so in an area which the police had notified protestors was an “exclusion zone”. When approached by a police contingent on board a navy boat, Mr Teddy refused to alter course or comply with police instructions. He repeatedly left the wheel of the San Pietro unattended to remonstrate with the police. When police boarded the San Pietro Mr Teddy declined to relinquish the wheel of his vessel.

13 Mr Teddy was arrested and charged with two offences:

• (a) operating the San Pietro in a manner that caused unnecessary risk to the Orient Explorer contrary to s 65(1)(a) of the MTA; and

• (b) resisting a constable acting in the execution of his or her duty contrary to s 23(a) of the SOA.

14 The events giving rise to both offences occurred outside the 12 nautical mile limit of New Zealand's territorial sea. 6

The District Court decision

15 Judge Treston's reasons for deciding that the Court did not have jurisdiction in respect of the charge under's 65(1)(a) of the MTA were:

• (a) Under's 6 of the Crimes Act, no act done or omitted outside New Zealand's territorial sea is an offence unless it is an offence by virtue of any provision of the Crimes Act or of any other enactment. 7

• (b) The jurisdiction in respect of crimes on ships beyond New Zealand conferred by s 8 of the Crimes Act does not apply with respect to any offence under the MTA. 8

• (c) Section 65(1)(a) was not “a specific, explicit and express provision” as required by the words “or of any other enactment” in s 6 of the Crimes Act. 9

• (d) It is not reasonable to infer that s 65 applies to any person on a New Zealand ship outside New Zealand's territorial sea. 10

• (e) The text of s 413 of the MTA, which provides:

  413 Place where offences deemed to be committed

  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.

  was too imprecise to justify the inference that the whole of the MTA could be applied extraterritorially, particularly because there were

  other sections such as s 415 which referred specifically to offences committed on the high seas. 11

• (f) Part 6 of the MTA, which includes s 65, is headed “Powers and duties of Director of Maritime New Zealand in relation to maritime activity” and contains provisions relating to pilots and pilotage which is a local activity within the 12 nautical mile zone. 12

• (g) Jurisdiction beyond New Zealand's territorial sea is conferred expressly by ss 223 and 224 of the MTA. 13

• (h) There was nothing in the interpretation section, s 2, or the application section, s 4, or pt 6 of the MTA stating that s 65 was intended to apply extraterritorially. 14

16 Judge Treston's reasons for deciding that the Court did not have jurisdiction in respect of the charge under's 23(a) of the SOA were:

• (a) The police powers of stopping and arrest under ss 317 and 317A of the Crimes Act only applied to acts done or omitted in New Zealand (that is, within the limits of the territorial sea). 15

• (b) The power to stop vehicles under's 317A of the Crimes Act applies to land-based operations and not to a vessel. 16

• (c) There is nothing in the SOA to say that it applies extraterritorially. 17

17 In response to a prosecution submission that his ruling, carried to its logical extreme, could cause difficulties for ships subject to protest action outside the 12 nautical mile limit in the future, Judge Treston said that he was sure that there

were “other actions and other powers that are available that could be utilised in those circumstances”. 18

The High Court decision

18 Woolford J's reasons for deciding...