Underhill v Auckland Transport

[2015] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000286 [2015] NZHC 2946

BETWEEN

WAYNNE UNDERHILL

Appellant

AND

AUCKLAND TRANSPORT Respondent

Hearing:	23 November 2015
Appearances:	Appellant in person K England for Respondent
Judgment:	24 November 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 24 November 2015 at 3.00pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………………..

Counsel:
K England, Auckland Transport

Copy to: W Underhill

UNDERHILL v AUCKLAND TRANSPORT [2015] NZHC 2946 [24 November 2015]

Introduction

[1]      Mr Underhill seeks leave to appeal against two decisions of the District

Court, one given by Judge D Sharp in the District Court at Manukau on 24 August

2015, and the other given by Judge C Ryan in the District Court at Auckland on 28

August 2015.

Factual background

[2]      In 2009 and 2010 the Manukau City Council issued five infringement notices against Mr Underhill, three for not displaying a current warrant of fitness, and two for not displaying a current certificate of registration, all on a motor vehicle.

[3]      These infringement notices were prosecuted by the Manukau City Council.  It seems that Mr Underhill did not take part.  He says he was in custody at the time.

[4]      On some date, which is unknown, Mr Underhill made an application under s

78B of the Summary Proceedings Act 1957 to have the matters re-heard.   On 31

March 2014 this application was granted, and  the previous orders made by the

District Court were cancelled.

[5]      By 2014, the respondent, Auckland Transport, had come into existence.   It became the prosecutor.

[6]      In April 2014 the infringement notice process was effectively started afresh. Mr Underhill denied responsibility and requested a hearing.  That hearing was held before Justices of the Peace on 19 September 2014. They found that all infringement notices were proven.

[7]      On 25 September 2014 Mr Underhill appealed to the District Court.   His appeal was heard before Judge Sharp on 17 August 2015 and on 24 August 2015, Judge Sharp issued a reserved decision delivering the same.

[8]      Mr Underhill now seeks leave to appeal that decision to this Court.

[9]      The hearing before Judge Ryan related to two infringement notices.  The first was issued on 15 August 2014.

[10]     It alleged that Mr Underhill had operated a private vehicle on a road when the vehicle was not displaying evidence of a current vehicle inspection.

[11]     On 13 October 2014 another infringement notice was issued.  It alleged that Mr Underhill had parked a motor vehicle on an area which was reserved and signposted as a loading zone.

[12]     Unchallenged  evidence  of  the  offending  was  given  by  parking  wardens before Justices of the Peace at a hearing on 18 February 2015.  The Justices of the Peace found the offences proven.  Mr Underhill appealed and Judge Ryan declined the appeal.  Mr Underhill seeks leave to appeal her decision as well.

[13]     Mr Underhill, both before the Justices, and before Judges Sharp and Ryan, argued that the New Zealand Constitution Act 1852 (an act of Parliament in the United Kingdom) is unlawful, because it conflicts with previous Acts of Parliament in that country.  He extended his argument to assert that the Constitution Act 1986 (an act of the New Zealand Parliament) is invalid and that the Land Transport Act

1998 is without effect, as Parliament in this country does not have the ability to pass laws.  Both Judges dismissed the appeals.  Both held that the Court could not accept Mr Underhill’s arguments, or ignore the legislative provisions.

Submissions

[14]     Mr Underhill argued that there has been a miscarriage of justice, particularly in relation to the matters which started in 2009 and 2010.  He said that he was denied a hearing then because he was in custody.   Further, he essentially repeated, albeit briefly, the submissions which he made before the two District Court Judges, namely that  the  jurisdiction  given  to  the  courts  in  New  Zealand  breaches  various  UK statutes, and that there is no jurisdiction in this Court or in the other courts of New Zealand, because the courts were not properly constituted in the first place.  It is Mr Underhill’s argument that the Land Transport Act must be ignored, because it is

inconsistent   with   early   English   legislation   and   because   the   New   Zealand

Constitution Act (UK) 1852 is unlawful, as is the Constitution Act 1986.

[15]     Ms England for the respondent sought to clarify the history of the 2009/2010 proceedings.  She noted that in 2014 Mr Underhill received a re-hearing in relation to these matters.  In relation to the jurisdictional arguments, she argued that the law is settled, there is no matter of general or public importance raised.

Analysis

[16]     Mr Underhill has already appealed the decisions made by the Justices of the Peace to the District Court.  He was unsuccessful and he now wants to go further. He requires leave for a second appeal.

[17]     Section 237 of the Criminal Procedure Act provides as follows:

237 Right of appeal against determination of first appeal court

(1)       A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)       The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)      the appeal involves a matter of general or public importance;

or

(b)      a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[18]     Mr Underhill argued that there had been a miscarriage of justice, because the infringement notices issued in 2009 and 2010 had already gone to hearing.

[19]     With respect to Mr Underhill, that ignores what happened subsequently.  He applied under s 79B of the Summary Proceedings Act to have his convictions in relation to those earlier decisions set aside.  By letter dated 31 March 2014 he was advised that that application had been granted, and that the orders made to fine him and require him to pay costs had been cancelled.   Written advice was sent in this regard to Mr Underhill by the Wellington District Court.  It was accepted that there had been a procedural error.

[20]     The hearings held in April 2014 were complete re-hearings.   Mr Underhill had an opportunity to present his arguments afresh, to cross-examine witnesses and to raise any defence which he thought he had.  It seems from the Justice’s decision that Mr Underhill did not take full advantage of those opportunities.   He did not cross-examine any witnesses.   He chose not to give evidence himself.   Rather he made legal submissions to the Justices.  They did not accept those submissions and they found the charges proved.

[21]     When I asked him whether or not he had had a re-hearing, Mr Underhill confirmed that he had.

[22]     In the circumstances, I cannot see that there is any miscarriage of justice.  Mr Underhill  had  a  full  and  complete  re-hearing  before  the  Justices  of  the  Peace. Further he had a full hearing on appeal before Judge Sharp in relation to the 2009 and 2010 offending. That appeal was by way of re-hearing.

[23]     Moreover the assertion that there was a miscarriage of justice cannot apply to the offending the subject of the appeal to Judge Ryan.   It was fresh and separate offending.

[24]     Nor do the jurisdictional issues raised by Mr Underhill involve a matter of general or public importance.  They have already been considered by this Court, and by the Court of Appeal, on a number of  occasions, and in cases involving Mr Underhill.1    They have been authoritatively and repeatedly determined.  Repetition of a flawed argument does not make it right.

[25]     Most recently when dealing with one of Mr Underhill’s appeals, the Court of

Appeal observed as follows:2

This challenge to the sovereignty of the New Zealand Parliament, as Mr Underhill was told in each of the Courts below, and has been told many times before, cannot possibly succeed.  As he was most recently told by this Court when it declined him special leave to appeal last year, “our Courts are bound to accept the validity of acts of Parliament”.

1      See, e.g. Underhill v Police [2013] NZHC 416 on appeal, Underhill v R [2013] NZCA 466;

Underhill v R [2014] NZCA 228; Underhill v R [2015] NZCA 156.

2      Underhill v R [2015] NZCA 156 at [5].

[26]     The courts have said, and on more on one occasion, that Mr Underhill’s repeated challenges to the validity of the laws of New Zealand have become an abuse of the court’s process.

[27]     No question of general or public importance arises.

[28]     The application for leave for second appeals is declined.

[29] The respondent seeks costs under the Costs in Criminal Cases Act 1967. It has been made abundantly clear to Mr Underhill on previous occasions that his persistence in running his argument has become an abuse of the court’s process. In my view it is appropriate to order costs against him. Mr Underhill is ordered to pay costs to the respondent in the sum of $226. That is the maximum amount I can order pursuant to the Costs in Criminal Cases Act, and Regulation 3, Schedule 1, of the Costs in Criminal Cases Regulations 1987. I record my view that this legislation is

overdue for amendment.

Wylie J

CORRIGENDUM (2) OF WYLIE J

[1]      Ms England for Auckland Transport has brought my attention to the fact that the reference in paragraph [19] to s 79B of the Summary Proceedings Act 1957 is in error. The reference should be to s 78B.

[2]      This is a typographical error and I direct that the same is to be amended pursuant to r 11.10 of the High Court Rules.

Wylie J