Teddy v New Zealand Police Ca

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWhite J
Judgment Date28 August 2014
Neutral Citation[2014] NZCA 422
Date28 August 2014
Docket NumberCA614/2013

[2014] NZCA 422

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Stevens, White and French JJ

CA614/2013

BETWEEN
Elvis Heremia Teddy
Appellant
and
New Zealand Police
Respondents
Counsel:

R M Mansfield for Appellant

B J R Keith and K Laurenson for Respondent

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.

Held: The issues were: whether s65 MTA could be applied extraterritorially by necessary implication; and whether the arrest powers provided by the Crimes Act 1961 (“Crimes Act”) empowered the Police to stop and board vessels and to arrest offenders extraterritorially.

Held: When there were relevant international obligations, it was well-established that New Zealand legislation should be interpreted consistently with its international treaty obligations wherever possible ( Sellers v Maritime Safety Inspector).

On the issue of whether a NZ statute had extraterritorial effect, the leading authority was the decision of the Supreme Court in Poynter v Commerce Commission [where it was held that a statute should not have extraterritorial effect unless that effect was signalled by express language or by necessary implication

The offences created by s65 MTA were general offences which did not appear to be duplicated in any other NZ legislation. As general offences and in the absence of any other relevant statutory offence provisions, they also effectively provided significant criminal sanctions for breach of the maritime rules prescribing safe navigational and maritime operational and emergency procedures.

There was nothing in s65 MTA itself or elsewhere in the MTA that expressly stated that s65 MTA had or did not have, extraterritorial effect. Prior to the 2013 amendments, it was not immediately clear from the text of the offences themselves whether they could be committed only within the 12 nautical mile limit of New Zealand's territorial sea.

The offences created by s65 MTA were clearly designed to deter people from causing “unnecessary danger or risk” to any other person or to any property from the operation of any ship or Maritime product by providing criminal sanctions for such offending. The section had a clear public safety purpose. From a practical point of view, it would be strange if offences of this nature should depend for their existence on whether the alleged breach occurred at the outer reach of the 12 nautical mile limit or just beyond it. The public safety purpose of s 65 did not support a territorial limitation of this nature, especially in the context of New Zealand's geography with coastal shipping between the country's various islands inevitably passing through areas outside the territorial sea.

For these reasons it would be surprising if s 65 did not have extraterritorial effect.

Section 413 MTA (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) included the offences under s65 MTA through the use of “every offence”. Section 413 MTA expressly conferred extraterritorial jurisdiction on a New Zealand Court in respect of offences under s65 MTA ( R v Hinde).

Alternatively, the extraterritorial effect of s413 flowed as a matter of inevitable logic from its text read in light of the public safety purposes of the MTA and the practicalities of New Zealand's geography. The extraterritorial effect of s413 therefore arose by necessary implication. That was consistent with NZ's international obligations under art 92 United Nations Convention on the Law of the Sea (“UNCLOS”) (status of ships — ships shall sail under the flag of one State only and … shall be subject to its exclusive jurisdiction on the high seas) and article 94 UNCLOS (duties of the flag State — every State shall effectively exercise its jurisdiction and control … over ships flying its flag) which were recognised by s5(b) MTA (objectives of Minister — ensure that NZ's obligations under the conventions are implemented) as one of the objectives of the MTA.

That was also consistent with the scheme of the MTA which contained other provisions that had or recognised extraterritorial application and was consistent with the legislative history of s65 MTA and s413 MTA. There was nothing in the legislative history of s65 MTA that suggested that, with the assistance of s413 MTA, it should not apply to offences committed on NZ ships outside NZ's territorial sea.

Section 65 MTA should be applied extraterritorially by necessary implication (at least in respect of NZ ships).That was in line with s 8(7) CA (jurisdiction in respect of crimes on ships or aircraft beyond New Zealand — nothing in this section shall apply with respect to any offence against the MTA) which expressly recognised that the Court might have separate jurisdiction in respect of offences under the MTA.

By virtue of s5(1) CA (application of Act — applies to all offences for which the offender may be proceeded against and tried in NZ and to all acts done or omitted in NZ), the police were able to arrest T without a warrant pursuant to s31 (arrest by constable pursuant to statutory powers), s315 (power to enter premises to arrest offender or prevent offence) and s317 (power to enter premises to arrest offender or prevent offence) Crimes Act. A necessary corollary of the extraterritorial application of the power to arrest was that the offence of resisting arrest under s23(a) SOA must also apply extraterritorially

The appeal was dismissed. The case was remitted to the DC for the resumption of the defended hearing in accordance with the direction of the HC.

JUDGMENT OF THE COURT
  • 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.

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...

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