Underhill v Police

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0085 [2013] NZHC 1410

BETWEEN LARELLE PITA UNDERHILL Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing: (On the papers)

Counsel: Self-represented Applicant
W N Fotherby for Respondent

Judgment: 13 June 2013

JUDGMENT OF PETERS J

UNDERHILL v POLICE [2013] NZHC 1410 [13 June 2013]

Introduction

[1] Mr Underhill seeks leave to appeal to the Court of Appeal against a decision that I gave on 30 April 2013, dismissing his appeal against conviction and sentence for driving with excess breath alcohol.1 The sentence imposed on Mr Underhill was a fine of $700 and disqualification from driving for six months.2

[2] Mr Underhill’s appeal raised issues of Maori sovereignty, the jurisdiction of the District Court over Maori and the application of the Land Transport Act 1998 (“Act”) to Maori. I considered that the appeal had no merit and dismissed it accordingly.

Approach

[3] To obtain leave to appeal, Mr Underhill’s application must raise a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.3 That is a high standard, of which the Court of Appeal in Nottingham v T said:4

[13] It is well settled that s 144 is not intended to provide a second-tier of appeal from decisions of the District Court. The stringent requirements of s
144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted. …

(footnotes omitted)

Discussion

[4] Mr Underhill alleges that I erred in dismissing his appeal. He submits that I

did not read his submissions, which set out why he considered the Constitution Act

1986 is invalid and, by inference, why he is not subject to the law of this country.

[5] As it stands, Mr Underhill’s application for leave to appeal does not raise a

question of law. It may, however, be reframed so that the question is whether he, as

1 Underhill v New Zealand Police [2013] NZHC 920.
2 Police v Underhill DC Manukau CRI-2012-092-10891, 6 March 2013.
3 Summary Proceedings Act 1957, s 144.
4 Nottingham v T CA216/00, 26 March 2001.

a Maori, is subject to the provisions of the Act and to the jurisdiction of the District

Court.

[6] Similar challenges to the Courts’ jurisdiction over Maori have been considered and dismissed by the High Court,5 the Court of Appeal6 and the Supreme Court.7 In Chapman v R, the Court of Appeal dismissed an application for special leave to appeal against a High Court decision, stating:8

[7] ... This Maori sovereignty argument has been addressed previously by this Court and rejected, as it has by the Supreme Court. There is also an interesting discussion of the issue in Heath J’s recent judgment in R v Mason. As the authorities make clear, the argument is misconceived.

(footnotes omitted)

[7] In Underhill v R,9 leave was sought to appeal to the Court of Appeal against a pre-trial ruling dismissing a challenge to the jurisdiction of the District Court. The Court dismissed the application for leave:10

[7] The Supreme Court has recently rejected an application for leave in similar terms to the present application seeking to challenge the jurisdiction of the High Court on Maori sovereignty grounds. The Court concluded that such arguments are “plainly unsound legally”.

[8] The same reasoning applies to the challenge to the jurisdiction of the District Court to hear criminal charges against the applicant under the Crimes Act. The Court is a creature of statute established by Parliament with jurisdiction to hear the charges brought against the applicant. …

[8] I am satisfied that Mr Underhill’s application does not meet the criteria stipulated by s 144 Summary Proceedings Act 1957. That is because the issues raised have been considered and dismissed on many previous occasions. No purpose
would be served by the Court of Appeal considering the issues again.

5 For example Wiki v New Zealand Police [2012] NZHC 2474 and Gregory v New Zealand Police HC Auckland CRI-2006-404-29, 30 August 2006.
6 For example Chapman v R [2012] NZCA 312 and Underhill v R [2011] NZCA 301.
7 For example Wallace v R [2011] NZSC 10.
8 Chapman v R [2012] NZCA 312.
9 Underhill v R [2011] NZCA 301.
10 At [7] – [8].

Result

[9] The application is dismissed.

..................................................................

M Peters J

The case of Underhill v Police involved a challenge by Mr. Underhill against a decision dismissing his appeal against a conviction and sentence for driving with excess breath alcohol. The original decision imposed a fine of $700 and disqualified him from driving for six months. Mr. Underhill sought leave to appeal this decision to the Court of Appeal, arguing issues of Māori sovereignty, the jurisdiction of the District Court over Māori, and the applicability of the Land Transport Act 1998 to Māori. The High Court had previously dismissed Mr. Underhill’s appeal on the basis that it lacked merit. Mr. Underhill contended that the Court had failed to consider his submissions regarding the invalidity of the Constitution Act 1986 and his non-subjection to New Zealand law.

The legal issues before the Court were whether Mr. Underhill’s application for leave to appeal raised a question of law that was of general or public importance, as required by the Summary Proceedings Act 1957. The Court needed to determine if Mr. Underhill's claims could be reframed in a way that would meet the stringent requirements of section 144 of the Act, which governs appeals from the District Court to the High Court. The Court considered whether Mr. Underhill's argument about Māori sovereignty and jurisdiction could constitute a valid question of law suitable for appeal. The Court also assessed whether the issue had been sufficiently addressed and rejected by previous judgments from higher courts, indicating that the matter was not a fresh or novel point of law.

In its judgment, the Court found that Mr. Underhill’s application did not meet the criteria for leave to appeal. The Court noted that similar challenges to the jurisdiction of the courts over Māori had been previously considered and dismissed by higher courts. The Court cited precedents from the High Court, Court of Appeal, and Supreme Court which had rejected arguments based on Māori sovereignty and the jurisdiction of the District Court. The Court concluded that the issues raised by Mr. Underhill were not only of no merit but also had been thoroughly addressed in prior decisions. Therefore, the Court was satisfied that the application did not warrant the Court of Appeal's consideration, and dismissed the application for leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established