IN THE COURT OF APPEAL OF NEW ZEALAND
CA614/2013
[2014] NZCA 422
BETWEEN
ELVIS HEREMIA TEDDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
9 April 2014 (Further submissions received 9 July 2014)
Court:
Stevens, White and French JJ
Counsel:
R M Mansfield for Appellant
B J R Keith and K Laurenson for Respondent
Judgment:
28 August 2014 at 10.00 am
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.
____________________________________________________________________
TEDDY v NEW ZEALAND POLICE CA614/2013 [2014] NZCA 422 [28 August 2014]
REASONS OF THE COURT
(Given by White J)
Table of Contents
Para No
Introduction
Factual background
The District Court decision
The High Court decision
Submissions for the parties
Mr Teddy
New Zealand Police
Further submissions
Principles of statutory interpretation
Should s 65 of the Maritime Transport Act 1994 be applied
extraterritorially by necessary implication?
Section 65
Section 413
R v Hinde
International obligations
The scheme of the Maritime Transport Act 1994
Legislative history
Other legislation
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?
Result
[1]
[7]
[15]
[18]
[21]
[24]
[27]
[28]
[39]
[46]
[49]
[60]
[64]
[67]
[72]
[75]
[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
1
R v Teddy DC Tauranga CRI-2011-070-2669, 26 July 2012 [District Court decision].
[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.
2
3
4
5
New Zealand Police v Teddy [2013] NZHC 432 [High Court decision].
Teddy v New Zealand Police [2013] NZHC 756 [leave decision].
Maritime Transport Amendment Act 2013, ss 6 and 81, inserting a new s 4(4) into the principal
Act and amending s 451.
Below at [26], [32] and [42].
[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
6
7
8
9
10
Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 3.
District Court decision, above n 1, at [35]–[36].
At [37].
At [41]–[42].
At [38].
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)
[17]
There is nothing in the SOA to say that it applies extraterritorially.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
11
12
13
14
15
16
17
At [39].
At [40].
At [42].
At [42].
At [43].
At [44].
At [47].
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 that the Court did have jurisdiction in
respect of the charge under s 65(1)(a) of the MTA were:
(a)
By virtue of the decision in Sellers v Maritime Safety Inspector and
arts 92 and 97 of the 1982 United Nations Convention on the Law of
the Sea (UNCLOS),19 New Zealand has exclusive jurisdiction over
New Zealand ships on the high seas.20
(b)
Under art 94 of UNCLOS New Zealand is required to exercise its
jurisdiction by taking such measures for ships flying its flag as are
necessary to ensure safety at sea with regard to the prevention of
collisions.21
(c)
While New Zealand ships were not part of New Zealand territory,22
and there is no express wording in the MTA conferring extraterritorial
jurisdiction,23 the MTA applies by necessary implication to
New Zealand ships beyond the territorial sea because of both the
statutory context and New Zealand’s international law obligations.24
(d)
The factors in the statutory context supporting the necessary
implication were:
The exclusion of the MTA from s 8(7) of the Crimes Act
represented a Parliamentary intention to maintain an
18
19
20
21
22
23
24
At [46].
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 46–47; and United Nations
Convention on the Law of the Sea 1833 UNTS 3 (opened for signature 10 December 1982,
entered into force 16 November 1994) [UNCLOS].
High Court decision, above n 2, at [6]–[8].
At [9]–[10].
At [12]–[14].
At [15].
At [15].
extraterritorial regime distinct from that contained in the
Crimes Act.25
Section 415 of the MTA is premised on seafarers on
New Zealand ships on the high seas being subject to
New Zealand law because it provides that any proper
officer in a foreign country or any master of any
New Zealand ship can take action to send a New Zealand
seafarer in safe custody to New Zealand if they have
committed any offence against person or property.26
It would be “absurd” for s 413 to relate only to offences
committed in New Zealand’s territorial waters, but for
s 415 to allow New Zealand seafarers to be prosecuted for
an offence anywhere in the world.27
The purpose of the MTA illustrates that it was intended to
have extraterritorial effect because one of the objectives in
s 5 was to ensure that New Zealand’s obligations under
conventions such as UNCLOS were implemented.28
Surrounding sections of the MTA, such as s 224, which
provides that the prosecution of persons other than
New Zealand citizens or residents for actions beyond the
territorial
sea
requires
the
consent
of
the
Attorney-General, indicate that the Act should be
interpreted broadly to cover offences beyond the territorial
sea.29
(e)
New Zealand’s international law obligations under UNCLOS were
recognised by this Court in Sellers v Maritime Safety Inspector
25
26
27
28
29
At [16].
At [17].
At [19].
At [20].
At [21].
applying the necessary implication approach.30
[19]
Like Judge Treston, Woolford J did not consider that s 413 expressly
conferred jurisdiction over New Zealand ships beyond the territorial sea.
His
reasons were:31
[26]
Section 684 of the Merchant Shipping Act 1894 (UK), which was
part of New Zealand’s legislation, is almost identical to s 413 of the
Maritime Transport Act. In R v Hinde32 the Court of Appeal held that the
provision did not merely indicate a venue for the offence but is a
jurisdictional provision allowing any offence committed in “his Majesty’s
dominion” to be tried in any other part of his Majesty’s dominion. A very
similar provision was found to extend jurisdiction to offences committed on
British aircraft anywhere in the world in R v Naylor.33 DP O’Connell states
that the almost identically worded Merchant Shipping Act extends
jurisdiction for offences within the Act to the high seas.34 However,
Michael Hirst maintains s 413 is merely a provision that provides the venue
to enforce offences under the Act, and the word “jurisdiction” is used
incorrectly.35 Glanville Williams also states that the equivalent provision in
the Merchant Shipping Act was not intended to and does not give
extraterritorial effect to all offences created by the Act.36 For myself, I
consider that it is difficult to read s 413 as expressly conferring jurisdiction
over New Zealand ships beyond the territorial sea. Nonetheless, and for the
reasons already given, it is my view that the Maritime Transport Act does
apply extraterritorially by necessary implication.
[20]
Woolford J’s reasons for deciding that the Court did have jurisdiction in
respect of the charge under s 23(a) of the SOA were:
(a)
The power of the police under s 317 of the Crimes Act to enter
premises to arrest an offender authorised the police to board the
San Pietro and arrest Mr Teddy because a vessel is within the
expression “premises” and they had witnessed him breaking the law.37
(b)
The power of the police under s 317 of the Crimes Act to arrest
Mr Teddy applied extraterritorially by virtue of s 5(1) of that Act
30
31
32
33
34
35
36
37
At [23]–[24].
Footnotes modified.
R v Hinde (1902) 22 NZLR 436 (CA) at 442.
R v Naylor [1962] 2 QB 527 (QB) at 529.
DP O’Connell The International Law of the Sea (Oxford University Press, Oxford, 1984) at 933.
Michael Hirst Jurisdiction and the Ambit of the Criminal Law (Oxford University Press,
New York, 2003) at 12–14 and 282–299.
Glanville Williams “Venue and the Ambit of Criminal Law – Part 2” (1965) 81 LQR 395 at 409.
High Court decision, above n 2, at [30].
(rather than ss 7A and 8).38
(c)
The power of the police to arrest Mr Teddy without a warrant came
from ss 31 and 315 rather than s 317A of the Crimes Act. 39 Sections
31 and 315 applied because Mr Teddy was liable under s 65(1) of the
MTA to a term of imprisonment of up to one year and s 5(1) of the
Crimes Act gave them extraterritorial effect. Section 317A did not
apply because a vessel is not a “vehicle”.
(d)
The offence of resisting arrest under s 23(a) of the SOA must apply
extraterritorially as a necessary corollary of the extraterritorial
application of the power to arrest.40
Submissions for the parties
Mr Teddy
[21]
Mr Teddy’s grounds of appeal are that Woolford J erred in deciding that
s 65(1)(a) of the MTA and the police arrest powers under the Crimes Act applied
extraterritorially. In support of these grounds, Mr Mansfield submits that:
(a)
It is a fundamental principle of New Zealand domestic law that any
enactment is not presumed to apply extraterritorially, namely beyond
New Zealand’s territorial limit, unless the same is expressly stated or
jurisdiction is extended by necessary implication.
(b)
There is no express statement in the MTA providing that s 65 is
intended to apply extraterritorially.
(c)
It is clear from the MTA read as a whole that pt 6 (and s 65) was not
intended to apply extraterritorially.
(d)
38
39
40
To assert that pt 6 (and s 65) applies extraterritorially would not be
At [31]–[34].
At [35]–[41].
At [42].
consistent with the Territorial Sea, Contiguous Zone and Exclusive
Economic Zone Act 1977.
(e)
For similar reasons the offence of resisting arrest under s 23(a) of the
SOA does not apply extraterritorially.
[22]
Mr Mansfield also refers to other New Zealand legislation, namely the
Maritime Crimes Act 1999, the Health and Safety in Employment Act 1992, the
Continental Shelf Act 1964 and the Policing Act 2008, to show that Parliament
typically includes express statements in legislation that is to apply extraterritorially
in order to fulfil New Zealand’s obligations under international law. In addition
Mr Mansfield refers to comparative legislation in Australia, the United States,
Canada and the United Kingdom.41
[23]
Mr Mansfield supports the High Court Judge’s decision that s 413 of the
MTA is too imprecise to justify an inference that the whole of the Act could be
applied extraterritorially.
New Zealand Police
[24]
For the New Zealand Police, Mr Keith submits that the High Court decision
should be upheld because it is unremarkable that s 65(1)(a) applies to New Zealand
vessels wherever located. Mr Keith advances three reasons for this submission:
(a)
As held by this Court in R v Hinde,42 s 413 of the MTA means that the
Act has application to New Zealand vessels wherever situated.
(b)
The wider context of the MTA, including its express exclusion from
the general provision for extraterritorial offences in s 8 of the Crimes
Act, supports its application to New Zealand vessels wherever
located.
41
42
Australia: Criminal Code Act 1995 (Cth), s 15; Navigation Act 2012 (Cth), ss 8 and 175; and
Maritime Powers Act 2013 (Cth), ss 52 and 76. The United States: Coast Guard Act 14 USC §
2(1) and Shipping Act 46 USC § 2302–2304. Canada: Criminal Code RS C 1985 c C-46, s 249
and Oceans Act SC C c-32, s 12. The United Kingdom: Merchant Shipping Act 1995 (UK), s 58
and 256.
R v Hinde, above n 32.
(c)
The other New Zealand statutes and related statutes from other
jurisdictions, cited for Mr Teddy, also in fact lead to the same
conclusion.
[25]
Mr Keith submits that following long-standing authority on the presumption
against extraterritoriality and the policy basis for the presumption of avoidance of
inter-jurisdictional conflict, the presumption is displaced in matters of maritime
regulation on board New Zealand vessels. The MTA is on its terms and because of
its subject-matter to be interpreted in the context of New Zealand’s international
obligations under the law of the sea and consistently with the fundamental obligation
to exercise jurisdiction over its vessels, as well as its obligations as to safe navigation
and the avoidance of collisions given effect in relevant maritime rules.
[26]
Shortly before the hearing of the appeal, Mr Keith filed a memorandum
referring to the enactment of the Maritime Transport Amendment Act 2013. He
submits that the amendments are of indirect relevance because their purpose was
clarification rather than extension and their enactment should not alter the outcome
of the appeal.
Further submissions
[27]
Following the hearing of the appeal we received, at our request, further
helpful submissions from the parties relating to the legislative history of ss 65 and
413 of the MTA. We will address these submissions in the context of considering the
legislative history of these provisions.43
Principles of statutory interpretation
[28]
A number of different principles of statutory interpretation are relevant in this
case. The starting point is the well-established requirement to focus on the text and
purpose of the statutory provisions being interpreted.44 In determining purpose, the
43
44
Below at [39]–[48].
Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007]
NZSC 36, [2007] 3 NZLR 767 at [22]; Fonterra Co-Operative Group Ltd v The Grate Kiwi
Cheese Company Ltd [2012] NZSC 15, [2012] 2 NZLR 184; and JF Burrows and RI Carter
Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 201.
Court must have regard to both the immediate and the general legislative context.
The wider objectives of the enactment may also be relevant.
[29]
In considering the text and purpose of statutory provisions it is also useful to
look at the scheme of the relevant legislation, including the place of the particular
provisions in that scheme and the place of that legislation in the wider legislative
landscape.45 Internal and external consistency will be desirable objectives, even if
not always achieved.46
[30]
Legislation should be interpreted in a realistic and practical manner in order
to ensure that it works as intended.47
[31]
The legislative history of a provision may also be relevant to its
interpretation.48
[32]
Subsequent amendments to legislation, on the other hand, are unlikely to be
of assistance, especially in the criminal law context with the presumption against the
creation of an offence retrospectively.49
[33]
When there are relevant international obligations, it is well-established that
New Zealand legislation should be interpreted consistently with its international
treaty obligations wherever possible.50 This approach was followed by this Court in
45
46
47
48
49
50
Vector Ltd (formerly Mercury Energy Ltd) v Transpower New Zealand Ltd [1999] 3 NZLR 646
(CA) at [51].
Burrows and Carter, above n 44, at 232 and 247.
Northern Milk Vendors Assoc Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 538; and
Burrows and Carter, above n 44, at 205–206.
Burrows and Carter, above n 44, 258–268.
Commissioner of Inland Revenue v Databank Systems Ltd [1990] 3 NZLR 385 (PC) at 394; R v
Pora [2001] 2 NZLR 37 (CA); Attorney-General v Dotcom [Search Warrants] [2014] NZCA 19,
[2014] 2 NZLR 629 at [110]; and Burrows and Carter, above n 44, at 590–600.
New Zealand Air Line Pilots’ Assoc Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289;
United States of America v Dotcom [2013] NZCA 38, [2013] 2 NZLR 139 at [19] aff’d Dotcom
v United States of America [2014] NZSC 24, [2014] 1 NZLR 355; Attorney-General v Dotcom
[2014] NZCA 19, [2014] 2 NZLR 629 (leave to appeal granted on other grounds: Dotcom v
Attorney-General [2014] NZSC 52); and JF Burrows and RI Carter, above n 44, at 495–496.
Sellers v Maritime Safety Inspector when interpreting s 21 of the MTA consistently
with UNCLOS.51
[34]
On the issue of whether a New Zealand statute has extraterritorial effect, the
leading authority is 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 is signalled by express language or by necessary implication.52
[35]
As Tipping J, delivering the judgment of himself, Blanchard, McGrath and
Wilson JJ, explained, a necessary implication is not the same as a reasonable
implication:
[46]
It follows that we must examine the Commerce Act in order to see
whether, there being no express language providing for extraterritorial reach
other than s 4 (which does not apply), one can discern additional
extraterritorial effect as a matter of necessary implication from other
provisions of the Act. It is important to recognise that the Act is a code and,
for extraterritoriality purposes, the court should confine itself to the express
terms of the Act and any additional extraterritorial effect which flows as a
matter of inevitable logic from those express terms read contextually in the
light of the purposes of the Act. That is what necessary implication means.
A necessary implication is not something judicially engrafted onto
legislation as a judicial value or policy judgment, however reasonable that
judgment may appear to be.
[36]
The reference in this passage to “any additional extraterritorial effect which
flows as a matter of inevitable logic from those express terms read contextually in
the light of the purposes of the Act” brings the Court back to the starting point of
statutory interpretation, focusing on the text of the particular enactment, construed in
light of its purpose.
[37]
In following this approach in Poynter itself, the Supreme Court decided that
the Commerce Act 1986 did not have extraterritorial application beyond the express
provisions of ss 4 and 90. There was no indication in the Commerce Act that
51
52
Sellers v Maritime Safety Inspector, above n 19, at 57; John McGrath, “Commentary:
International Law’s Recent Influence on Domestic Court Decisions in New Zealand” in Dean R
Knight and Claudia Geiringer (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth
Keith (Victoria University Press, Wellington, 2008) 136 at 142–143; and Bevan Marten “Port
State Jurisdiction in New Zealand: The Problem with Sellers” (2013) 44 VUWLR 559.
Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300 at [15] and [78].
Parliament’s purpose was to bring an alleged overseas conspirator within the reach
of the Act, if that was not achievable under either s 4 or s 90.53
[38]
On the basis of these principles of statutory interpretation, we now turn to
address the two questions of law in this appeal.
Should s 65 of the Maritime Transport Act 1994 be applied extraterritorially by
necessary implication?
Section 65
[39]
Section 65 of the MTA provides:
65
Dangerous activity involving ships or maritime products
(1)
Every person commits an offence who—
(a)
operates, maintains, or services; or
(b)
does any other act in respect of—
any ship or maritime product in a manner which causes
unnecessary danger or risk to any other person or to any
property, irrespective of whether or not in fact any injury or
damage occurs.
Every person commits an offence who—
(a)
causes or permits any ship or maritime product to be
operated, maintained, or serviced; or
(b)
causes or permits any other act to be done in respect of any
ship or maritime product,—
in a manner which causes unnecessary danger or risk to any
other person or to any property, irrespective of whether or
not in fact any injury or damage occurs.
Every person who commits an offence against subsection (1) or
subsection (2) is liable on conviction,—
(a)
in the case of an individual, to imprisonment for a term not
exceeding 12 months or a fine not exceeding $10,000:
(b)
in the case of a body corporate, to a fine not exceeding
$100,000:
(c)
in any case, to an additional penalty under section 409.
(2)
(3)
[40]
The offences created by s 65 are general offences which do not appear to be
duplicated in any other New Zealand legislation. As general offences and in the
absence of any other relevant statutory offence provisions, they also effectively
provide significant criminal sanctions for breach of the maritime rules made under
53
At [78]. See also Kuehne + Nagel International AG v Commerce Commission [2012]
NZCA 221, [2012] 3 NZLR 187 at [41]–[43].
36(1)(g) and (u) of the MTA, prescribing safe navigational and maritime operational
and emergency procedures.54
[41]
Judge Treston’s suggestion that there were other powers available to the
police in this case is therefore not correct. Since this case, however, Parliament has
enacted new specific offences and police powers relating to interference with any
structure or ship engaged in mining operations.55
[42]
There is nothing in s 65 itself or elsewhere in the MTA that expressly states
that s 65 has, or does not have, extraterritorial effect.
Prior to the 2013
amendments,56 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.
[43]
But when the purpose of s 65 is considered in a practical way, a different
picture emerges. The offences created by s 65, which is headed “Dangerous activity
involving ships or maritime products”, are 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.57 The section has a clear public safety purpose.
[44]
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 does 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.
Practical
considerations of this nature understandably led the District Court to apply s 68(2),
which creates offences in respect of maritime documents, to a fishing ship operating
54
55
56
57
Commercial and Recreational Maritime Rules, pt 22. Compare Maritime Transport Act 1994,
s 201, and Maritime (Offences) Regulations 1998, reg 3 and sch 1.
Sections 101B and 101C of the Crown Minerals Act 1991, inserted by the Crown Minerals
Amendment Act 2013.
Above at [5].
Maritime Transport Act, s 65(1) and (2).
more than 12 nautical miles from the coast of the Chatham Islands in breach of the
terms of its maritime document.58
[45]
For these reasons it would be surprising if s 65 did not have extraterritorial
effect.
Section 413
[46]
As the Courts below recognised, the one provision in the MTA which does
potentially relate to the extraterritorial reach of s 65 is s 413 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.
[47]
There is no dispute that the reference in this provision to “every offence”
includes the offences under s 65.
[48]
Furthermore, on its face s 413 does appear to give jurisdiction under the MTA
by deeming every offence to have been committed either where it was committed or
“in any place in which the offender may be”. The second limb is clearly intended to
extend the Court’s jurisdiction in respect of any offence under the MTA to the place
where the offender is, even if that is not where the offence was in fact committed. In
other words, for present purposes, a person in New Zealand who is alleged to have
committed an offence under the MTA outside the territorial jurisdiction of the
New Zealand Courts may nonetheless be tried for that offence in New Zealand.
R v Hinde
[49]
The decision of this Court in R v Hinde supports this approach to the
interpretation of the predecessor to s 413.59 Mr Hinde was charged with forging a
copy of a character report in London, an offence under the Merchant Shipping Act
1894 (UK). This Court (Stout CJ, Williams, Denniston, Conolly and Edwards JJ)
held unanimously that s 684 of the 1894 Act, the predecessor to s 413 of the MTA,
58
59
Maritime New Zealand v Page DC Wellington CRNs 1200 8500 019-022, 14 January 2013.
R v Hinde, above n 42.
conferred jurisdiction on the New Zealand Court to try the case. Stout CJ pointed
out that:60
The policy of the law is that a seaman, wherever found, can be tried for an
offence against this Act.
[50]
The same approach was taken in R v Naylor in respect of a similar provision
in s 62(1) of the Civil Aviation Act 1949 (UK).61 Lord Parker CJ held that the
accused could be charged in England with larceny allegedly committed on a British
aircraft in flight over the high seas.
[51]
The Court of Appeal of Newfoundland also followed the same course in R v
Hopkins where it was held that the materially identical s 681(1) of the Canada
Shipping Act 1970 conferred jurisdiction over Atlantic Ocean fisheries offences,
notwithstanding that those fisheries areas were beyond the territorial jurisdiction of
the provincial courts.62 Delivering the judgment of the Court, Morgan JA said:63
The principal purpose of alleging the place of an offence in an information is
to disclose on the face of the record that the court hearing and determining
the matter is one having territorial jurisdiction over the offence. It is an
essential averment to the establishment of jurisdiction. With respect to
offences under the Fisheries Act and the Canada Shipping Act, however, all
courts and justices have jurisdiction to try any alleged offender who is found
within the court’s territorial jurisdiction, in which case the alleged offence is
deemed to have been committed within the territorial jurisdiction wherein
the offender may be.
[52]
As already mentioned,64 Woolford J did not consider that R v Hinde applied.
After noting that respected commentators have expressed different views about the
interpretation of provisions of this nature, Woolford J considered that it was difficult
to read s 413 as “expressly conferring jurisdiction over New Zealand ships beyond
the territorial seas”.
[53]
While the views of commentators may be influential, Woolford J was, in our
view, bound by the doctrine of precedent to follow the decision of this Court in R v
60
61
62
63
64
At 441.
R v Naylor, above n 33.
R v Hopkins (1987) 67 Nfld & PEIR 203.
At [10].
Above at [19].
Hinde. This Court will also follow its own previous decisions unless it is persuaded
that there are good reasons to depart from them.65
[54]
In argument before us, Mr Mansfield accepted that s 684 of the Merchant
Shipping Act 1894 and s 413 of the MTA were materially identical, but submitted
that we should not follow R v Hinde because it has been impliedly overruled by the
Supreme Court in Poynter v Commerce Commission. Alternatively, he submitted
that R v Hinde should be distinguished because it related to a different offence.
[55]
We do not accept Mr Mansfield’s submissions. If the effect of the decision in
R v Hinde is that s 413 expressly or by necessary implication confers extraterritorial
jurisdiction on a New Zealand Court in respect of an offence under s 65, then it is
consistent with Poynter and was not impliedly overruled. Nor do we consider that
the fact that different offences were involved provides a proper basis for
distinguishing R v Hinde. As the subsequent decisions in R v Naylor and R v
Hopkins show, s 413 equivalents apply equally to a range of different offences.
Furthermore, as Stout CJ recognised in R v Hinde, this reflects the policy behind the
provision which is to ensure that a New Zealand Court has jurisdiction to try an
alleged offender notwithstanding that the offence may have been committed outside
the territorial jurisdiction.
[56]
Mr Mansfield did not argue that if his submissions failed we should ourselves
overrule R v Hinde. Bearing in mind that that decision has stood now for over
110 years, we would not have been prepared to do so. As Cooke P observed in
Dahya v Dahya, the length of time for which an earlier decision of this Court has
stood is a relevant factor.66 Another is the nature of the issue with which the decision
is concerned. As we have mentioned, the issue here relates to territorial jurisdiction
in relation to public safety maritime offences. If Parliament had considered that the
approach in R v Hinde was erroneous, there has been ample opportunity for the
legislation to be amended.67
[57]
65
66
67
We have considered the views of the commentators mentioned by
R v Chilton [2006] 2 NZLR 341 (CA) at [83].
Dahya v Dahya [1991] 2 NZLR 150 (CA) at 156.
See below at [70].
Woolford J, but do not consider that they warrant a different approach. First, the
commentators accept that whether such provisions were intended to have merely
venue consequences or to confer extraterritorial jurisdiction for offences was unclear.
Second, they recognise that, as the House of Lords has held, similar provisions are
capable of conferring extraterritorial jurisdiction.68 Third, their views were not
directed specifically at s 413 of the MTA or other relevant New Zealand factors.
[58]
Accordingly, in our view, based on the decision in R v Hinde, s 413 does
expressly confer extraterritorial jurisdiction on a New Zealand Court in respect of
offences under s 65. Alternatively, adopting the language of the Supreme Court in
Poynter, we consider that the extraterritorial effect of s 413 flows 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
s 413 therefore arises by necessary implication.
[59]
This conclusion is reinforced by the following further factors.
International obligations
[60]
First, it is consistent with New Zealand’s international obligations under
UNCLOS which are recognised by s 5(b) of the MTA as one of the objectives of the
legislation. The relevant provisions of UNCLOS are:
Article 92
Status of ships
1.
Ships shall sail under the flag of one State only and ... shall be
subject to its exclusive jurisdiction on the high seas ...
…
Article 94:
Duties of the flag State
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:
...
68
R v Kelly [1982] AC 665 (HL).
(b)
3.
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.
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.
…
Article 97
Penal jurisdiction in matters of collision or any other incident of navigation
[61]
1.
In the event of a collision or any other incident of navigation
concerning a ship on the high seas, involving the penal or
disciplinary responsibility of the master or of any other person in the
service of the ship, no penal or disciplinary proceedings may be
instituted against such person except before the judicial or
administrative authorities either of the flag State or of the State of
which such person is a national.
2.
In disciplinary matters, the State which has issued a master's
certificate or a certificate of competence or licence shall alone be
competent, after due legal process, to pronounce the withdrawal of
such certificates, even if the holder is not a national of the State
which issued them.
3.
No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than those of
the flag State.
These provisions reflect well-established principles of international law,
which extend beyond a nation’s territorial sea.
In Sellers v Maritime Safety
Inspector Keith J, delivering the judgment of this Court, said:69
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.
[62]
The enactment of s 65 of the MTA complies with the obligation under art 94
for New Zealand to take measures that are necessary to ensure safety at sea with
regard to the prevention of collisions. The retention of s 413 of the MTA confirms
69
Sellers v Maritime Safety Inspector, above n 19, at 46–47.
compliance with the exclusive jurisdiction obligation in respect of New Zealand
ships, such as Mr Teddy’s San Pietro, when on the high seas.
[63]
The need to comply with these obligations of international law confirms that
extraterritorial jurisdiction is a necessary implication of these provisions when read
together.
The scheme of the Maritime Transport Act 1994
[64]
Second, the conclusion is consistent with the scheme of the MTA which
contains other provisions that have or recognise extraterritorial application, namely:
(a)
Section 223, in providing expressly for the application of maritime
protection provisions to New Zealand warships beyond the territorial
sea, recognises that vessels other than warships are already subject to
the MTA;
(b)
Section 224, in requiring the Attorney-General’s consent for the
prosecution of persons other than New Zealand citizens or residents
for actions beyond the territorial sea, recognises that, in not requiring
consent for the prosecution of New Zealand citizens or residents, the
MTA has extraterritorial application;
(c)
Section 415 which provides for the taking into custody and return to
New Zealand for prosecution of:
(i)
any person who is employed as a seafarer on any New Zealand
ship who has committed an offence against property or persons
at any place outside New Zealand, whether on shore or afloat;
and
(ii)
any seafarer belonging to a New Zealand ship who has
committed an offence on the high seas;
(d)
Section 451 which provides that maritime rules made under the MTA
can apply to all or part of New Zealand territorial waters, the
exclusive economic zone (200 nautical miles from the coast) or the
outer continental shelf and, significantly, “in respect of New Zealand
ships, wherever they may be”.
[65]
As Mr Mansfield submits, there are a range of other provisions in the MTA
that do deal with extraterritorial jurisdiction in particular ways.70 But we agree with
Mr Keith that these provisions relate to particular aspects of offshore regulation
where international law makes some specific provision for jurisdiction, often
including jurisdiction over foreign flagged vessels, thereby indicating that
New Zealand vessels are already generally subject to them. Consequently, we do not
accept Mr Mansfield’s submission that these provisions alter the view we have
reached about the scheme of the Act.
[66]
Nor do we agree with Judge Treston that the heading of pt 6 of the MTA –
“Powers and duties of Director of Maritime New Zealand in relation to maritime
activity” – and the inclusion in pt 6 of provisions relating to pilots and pilotage
means that s 65, when read with s 413, does not relate to offences committed outside
New Zealand’s territorial sea. The expression “maritime activity” is not in itself
limited in that way. The inclusion of provisions relating specifically to pilots and
pilotage does not mean that other provisions in pt 6 may not have wider application.
Slavish adherence to “rules” of interpretation such as “the mention of one excludes
the other” is not required, especially where such an interpretation would clash with
the context and purpose of a provision.71
Legislative history
[67]
Third, the conclusion is consistent with the legislative history of ss 65 and
413 of the MTA. In this respect we have been materially assisted by the further
submissions provided by counsel, particularly counsel for the New Zealand Police.
70
71
Sections 244(2) and 267 (penalties in respect of discharge or escape of harmful substances),
258 (dumping radioactive matter), 261 and 264 (dumping and incineration of waste or other
matter), 345 and 352 (liability of shipowners for pollution damage), 363–367 (mandatory
insurance for certain ships and offshore installations), 368(2) (admiralty jurisdiction) and
379(1) (jurisdiction in respect of claims against International Oil Pollution Fund).
Burrows and Carter, above n 44, at 213–214.
[68]
As far as s 413 is concerned, it is clear that it has been re-enacted several
times with only minor drafting changes since 1850.72
There is therefore no
legislative reason for not continuing to interpret s 413 in accordance with this
Court’s decision in R v Hinde.
[69]
As far as s 65 is concerned, it is clear that it is a new provision that was
enacted for the first time in the MTA. It replaced substantially similar, though more
narrowly drafted, general offences of unsafe navigation in maritime legislation. 73 It
also followed the Civil Aviation Act 1990 model of enacting general offences of
unsafe operation.74
[70]
There is nothing in the legislative history of s 65 to suggest that, with the
assistance of s 413, it should not apply to offences committed on New Zealand ships
outside New Zealand’s territorial sea. Other legislation to which we were referred
does not suggest otherwise. On the contrary, the Offences at Sea Act 1953, which
excluded maritime offences, was consistent with the distinct jurisdictional regime
governing those offences under the MTA. And the fact that the jurisdictional
provision in s 56(1) of the Shipping and Seamen Amendment Act 1909 was not
re-enacted confirms reliance on s 413 and R v Hinde.
[71]
For all of these reasons, we answer the first question of law “yes” – s 65 of
the MTA should be applied extraterritorially by necessary implication (at least in
respect of New Zealand ships).
Other legislation
[72]
Finally, the conclusion we have reached is consistent with s 8(7) of the
Crimes Act which expressly recognises that the Court may have separate jurisdiction
in respect of offences under the MTA.
72
73
74
Shipping and Seamen Act 1952, s 483; Shipping and Seamen Act 1908, s 333; Shipping and
Seamen Act 1903, s 332; Merchant Shipping Act 1894 (UK), s 684; Shipping and Seamen’s Act
1877, s 290; Merchant Shipping Act 1854 (UK), s 520; and Mercantile Marine Act 1850, s 108.
Shipping and Seamen Act 1952, s 163; Shipping and Seamen Act 1908, s 130; Shipping and
Seamen Act 1903, s 130; Merchant Shipping Act 1894 (UK), s 220; Shipping and Seamen’s Act
1877, s 117, and Merchant Shipping Act 1854 (UK) s 239.
Civil Aviation Act 1990, s 44.
[73]
We do not accept Mr Mansfield’s submission that the inclusion of express
extraterritorial statements in the Maritime Crimes Act, the Health and Safety in
Employment Act, the Continental Shelf Act and the Policing Act should lead to a
different conclusion. We agree with Mr Keith that none of these statutes should
affect the interpretation of s 65 and 413 of the MTA because:
(a)
The jurisdiction provisions of the Maritime Crimes Act, which
implements the Rome Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation, an international
agreement dealing with grave acts of maritime terrorism, extend over
foreign vessels.75
(b)
The Health and Safety in Employment Act applies to working
conditions on board New Zealand vessels, wherever located, and on
board foreign-flagged vessels when engaged in New Zealand coastal
trading or New Zealand continental shelf activities.76
(c)
The Continental Shelf Act provisions for the general application of all
New Zealand law on and about installations and devices used for
continental shelf activities reflects the specific jurisdiction conferred
by arts 60(2) and 80 of UNCLOS.77
(d)
The Policing Act, which is concerned with general powers and also
with overseas deployment of police personnel, does not alter the
application of police powers of arrest under the Crimes Act in respect
of offences that apply beyond New Zealand and its territorial sea.78
[74]
We have considered the comparative legislation to which Mr Mansfield
referred, but we do not consider that it assists in the interpretation of the statutory
provisions at issue in this case.
75
76
77
78
Maritime Crimes Act 1999, ss 8–10.
Health and Safety in Employment Act 1992, s 3B.
Continental Shelf Act 1964, s 7.
Policing Act 2008, s 88.
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]
Mr Mansfield accepts that if there is jurisdiction to enforce an offence
provision extraterritorially, and to arrest an offender extraterritorially, then the
offence of resisting arrest must also apply extraterritorially by necessary implication.
[76]
We agree with Mr Mansfield. As Woolford J held, by virtue of s 5(1) of the
Crimes Act, the police were able to arrest Mr Teddy without a warrant pursuant to
ss 31, 315 and 317 of that Act.79 Again, as Woolford J held, a necessary corollary of
the extraterritorial application of the power to arrest is that the offence of resisting
arrest under s 23(a) of the SOA must also apply extraterritorially.80
[77]
We therefore answer the second question of law “yes” – the arrest powers
provided by the Crimes Act empower the New Zealand Police to stop and board
vessels and to arrest offenders extraterritorially (at least in respect of New Zealand
ships).
Result
[78]
The questions of law raised in this appeal are answered as follows:
(a)
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).
(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?
Answer: Yes (at least in respect of offences involving New Zealand ships).
79
80
High Court decision, above n 2, at [31]–[41].
At [42].
[79]
As we have answered both questions of law “yes”, the appeal is dismissed.
The case is remitted to the District Court for the resumption of the defended hearing
in accordance with the direction of the High Court.
Solicitors:
Crown Law Office, Wellington for Respondent