Underhill v Police - [2023] NZHC 1517

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000169

[2023] NZHC 1517

BETWEEN
WAYNE UNDERHILL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 June 2023

Appearances:

Appellant in person

N D Ward for Respondent

Judgment:

16 June 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 16 June 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker, Manukau

UNDERHILL v POLICE [2023] NZHC 1517 [16 June 2023]

[1] Mr Underhill has filed a notice of appeal seeking to appeal a review determined by the Manukau District Court under s 106F of the Summary Proceedings Act 1957 (the Act).

[2] He relies, amongst other things, on s 237 of the Criminal Procedure Act 2011, s 124 of the District Court Act 2016 and the Pacific Islanders Protection Act 1875.

[3] The respondent submits that this Court has no jurisdiction to hear an appeal against a review determined under s 106F of the Act.

Background

[4] Mr Underhill filed an application under s 78B of the Act to correct alleged irregularities in proceedings relating to infringement offences. The offences were:

(a)exceeding 60 km per hour in a posted speed limit area; and

(b)driver or occupant not wearing a seat belt.

[5] Section 78B of the Act gives a District Court Judge or Registrar power to correct irregularities in proceedings for infringement notices.

[6] Mr Underhill’s application under s 78B was declined by the Registrar at the Manukau District Court.

[7] Section 106F of the Act provides that any person affected by an order or decision made by a Registrar under ss 78B or 78C of the Act, may apply to a District Court Judge for a review of the order or decision. On 23 March 2023, the District Court advised Mr Underhill that his application for review of the original s 78B decision was declined, noting:

After reviewing your application, a Judge at Manukau District Court has decided that the decision to decline your original Section 78B application was correct.

[8] Mr Underhill now seeks to appeal the District Court Judge’s decision reviewing the Registrar’s decision.

Jurisdiction for appeal

[9] The respondent submits that this Court has no jurisdiction to hear an appeal against a review of a Registrar’s decision made under s 106F of the Act.

[10] Appeals against decisions of the District Court are governed by statute. There is no separate common law right of appeal.1

[11] In Underhill v Police, a previous appeal brought by Mr Underhill’s son, Simon France J said:2

There is considerable authority confirming that a review decision of this sort is neither appealable under the general conviction appeal provisions (s 155 of the Summary Proceedings Act 1957), nor under s 72 of the District Courts Act 1947 (which is limited to civil matters).

[12] This was upheld by the Court of Appeal when refusing leave to bring a second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Underhill v Police

Details

AGLC: Underhill v Police [2023] NZHC 1517
Case: [2023] NZHC 1517
Decision Date: 16 June 2023

CaseChat Overview and Summary

Wayne Underhill sought to appeal a decision by the Manukau District Court which reviewed a decision by a Registrar to decline his application for correction of alleged irregularities in proceedings relating to infringement offences. The respondent, New Zealand Police, argued that the High Court had no jurisdiction to hear the appeal against the review decision under s 106F of the Summary Proceedings Act 1957. The court found that the statutory framework governing appeals from District Court decisions did not provide for an appeal from a review decision under s 106F. The court held that Underhill's reliance on s 124 of the District Court Act 2016 and s 237 of the Criminal Procedure Act 2011 was misplaced as neither section applied to the circumstances of this case. The court also rejected Underhill's argument that the District Court lacked jurisdiction on the basis of Māori sovereignty as legally unsound.

The court held that Underhill's argument that the District Court had no jurisdiction over him on Māori sovereignty grounds must be rejected as legally unsound given the judgment of the Supreme Court in Wallace v R. The court found that there was no justification for the appeal and it was dismissed for want of jurisdiction. The court noted that Underhill had advanced similar appeals on related grounds 16 times previously, all of which had been unsuccessful. The court considered this to be an abuse of process and a waste of court resources, and ordered that the file be referred to the Executive Judge and the Appeals List Judge with a view to further action being taken to avoid ongoing time wastage by the courts.

Orders