Underhill v Police
[2013] NZHC 1213
•27 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-404-000067 [2013] NZHC 1213
BETWEEN WAYNE UNDERHILL Appellant
ANDNEW ZEALAND POLICE Respondent
CRI 2013-404-000065
CRI 2013-404-000066
BETWEEN WAYNE UNDERHILL Appellant
ANDAUCKLAND TRANSPORT Respondent
Hearing: 21 May 2013
Appearances: Appellant in Person
J B Hamlin for Respondent, New Zealand Police
L M Van for Respondent, Auckland Transport
Judgment: 27 May 2013
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 27 May 2013 at 4:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
UNDERHILL v NZ POLICE [2013] NZHC 1213 [27 May 2013]
Introduction
[1] On 13 February 2013, following a defended hearing held before Justices of the Peace in the Papakura District Court, two charges brought by the Police against Mr Wayne Underhill of making an unsafe lane change and failing to display a current registration label on his car were found proved. Fines of $150 and $200 respectively were imposed on Mr Underhill together with costs of $30.67.
[2] On the same day, following a separate defended hearing, two charges brought by Auckland Transport against Mr Underhill of parking his car in excess of the time limit and failing to display a current registration label on his car were also found proved. Fines of $12 and $200 respectively were imposed on Mr Underhill together with costs of $30.67.
[3] He now appeals against the imposition of the fines.
Facts
[4] At about 0610 hours on 10 May 2012, Constable Butler-Jones was riding his Police motorcycle northbound on State Highway 1. He was passing the Papakura on ramp in the outside lane. A vehicle joined the motorway from the on ramp. It initially entered the inside lane and then without any indication changed into the outside lane about two feet in front of Constable Butler-Jones’ motorcycle. Constable Butler-Jones undertook an emergency braking manoeuvre in order to prevent a collision between his motorcycle and the vehicle. He then pulled over the vehicle. It was a white 1995 Nissan Sentra, registration number TS8299, and was being driven by Mr Underhill. Constable Butler-Jones inspected the vehicle and observed that the vehicle’s registration had expired more than 28 days previously so he issued infringement notices to Mr Underhill for both the unsafe lane change and failing to display a current registration label.
[5] During the course of the defended hearing, Mr Underhill accepted the evidence of Constable Butler-Jones. He said, however, that he did apologise to the Constable and explained that his mirrors were fogged up.
[6] Two and a half weeks later, at about 1100 hours on 29 May 2012, a parking warden employed by Auckland Transport, Officer Nuku Nuku, was outside the Papakura Courthouse. There she observed a white 1995 Nissan Sentra motor vehicle, registration number TS8299, parked in a P60 parking area. She chalked the front left tyre with the time. She also observed that the car’s registration had expired. She therefore issued an infringement notice for failing to display a current registration label and placed it under the wiper of the vehicle and took a photograph.
[7] After chalking the vehicle she continued on patrol and returned at approximately 1234 hours and noted that the car was still where she saw it one and a half hours before. The chalk mark on the type was still clearly visible. She also observed that the P60 parking signs were in good order. The front sign was approximately one metre away from the vehicle and the rear sign was approximately
15 metres away from the vehicle. She then issued another infringement notice for parking in excess of the time limit.
[8] Mr Underhill asked no questions of Officer Nuku Nuku and, in evidence, accepted that he had parked his car right outside the Court but said he considered that he could park freely as long as he liked.
Grounds of appeal
[9] The notice of appeal states:
The Justices of the Peace said that the “Exhibits” are very interesting [CA
417/2011 Wallace v R, Prof. Peter Spiller, STATUTE LAW REVIEW Volume 16 Number 3 1995]
The Solicitor-General has indirectly consented to the bringing of this appeal
at CA417/2011 Wallace v R.
Re: Warren v Police (AP133/99 HC Hamilton 9 February 2000 @
paragraphs [24], [39](f) Anderson J at p.196.
Anderson J, Penlington J, Fisher J, Williams J are all wrong.
The Justices said: They are bound by their “Process of Law” to continue with their proceeding and the constitutional debate is for another venue. To reiterate there is no discussion or debate of or about Sovereignty or Maori Sovereignty at issue. Strictly the Constitution or the absence of the Constitution.
[10] In support of his appeal, Mr Underhill faxed the following material to Court:
(a) A three page memorandum entitled “Memorandum of Understanding
For The Record
[Constitution Act 1986] is, not valid therefore, having no force of law. The New Zealand Constitution Act 1952. Statute of Limitation of 1852?”
(b)Five pages of extracts from the Statute Law Review (Volume 16) Oxford University Press 1995.
(c) The two page New Zealand Constitution Amendment Act 1973 with a
handwritten notation “Not Valid!” on the first page.
(d) A one page memorandum entitled “Re: Warren v Police (AP133/99
HC Hamilton 9 February 2000), paras [24, 39(f)]
The relevant law, that is in fact the wrong law and constitution”.
(e) Four pages of extracts from the case of Warren v Police.
(f) A one page memorandum beginning “The purported validity of current law, as of 1998 would read as follows”.
(g) Two pages of extracts from the Constitution Act 1986. (h) Two pages of extracts apparently from a law dictionary.
[11] On the day of the hearing, Mr Underhill also provided me a two page memorandum stating that the case of Berkett v Tauranga District Court is wrong.
[12] It was difficult to follow Mr Underhill’s arguments. In essence, however, he submitted that the appeals should be allowed because the New Zealand Government was in some way invalidly constituted and any legislation passed by it, including the Land Transport Act 1998 and its associated regulations or rules, including the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, and the Land Transport (Road User) Rules 2004 is invalid.
[13] Mr Underhill referred to a number of imperial and New Zealand statutes and submitted that each in turn was in some way flawed. For instance, one of his major submissions was that the New Zealand Constitution Act 1852 (UK) has been “gravely misconceived and is untrue” because of the requirement at the time for electors to hold property. Because it was passed before universal suffrage, Mr Underhill referred the Act as a “representative constitution fairytale”.
[14] Mr Underhill also appears to rely on an obvious typographical error in an article published in the Statute Law Review when reference is made to the New Zealand Constitution Act 1952 (rather than 1852). He appears to believe that the UK Parliament did pass another New Zealand Constitution Act in 1952, 100 years after the 1852 Act and advised me that he is making enquiries in the UK to obtain a copy.
[15] As a further example, Mr Underhill also submitted that the New Zealand Boundaries Act 1863 (UK) did not receive the royal assent from Queen Victoria because she went into mourning for 40 years following the death of her husband, Prince Albert, in 1861, and refused to honour the obligations of her office as Queen of the British Empire.
[16] The closest Mr Underhill came to addressing the legislation under which he was fined was in the following passage from his written material:
The purported validity of current law, as of 1998 would read as follows:
Quote:
The constitutional validity of the Land Transport Act 1998 at the time it was passed lay in the Constitution Act 1986 (NZ) and in particular s 15 thereof which was in these terms ...” Untrue, unquote.
Previous cases
[17] Mr Underhill has raised similar issues in a number of other cases. I need only refer to the most recent – Underhill v NZ Police.[1]In that case, Mr Underhill appealed against findings made by Justices of Peace in the Auckland District Court
[1] Underhill v NZ Police [2012] NZHC 3363.
on 24 July 2012 that the offending alleged in various infringement notices issued
under the Land Transport Act 1998 had been proven. These infringement notices were as follows:
(a) Operating a vehicle with tyre tread less than 1.5 millimetres, contrary to s 40 of the Land Transport Act;
(b)Operating a vehicle without current evidence of vehicle inspection, contrary to s 34(1)(b) of the Land Transport Act; and
(c) Operating an unlicensed vehicle, contrary to reg 77(1)(a) of the Land
Transport (Motor Vehicle Registration and Licensing) Regulations.
The infringement notices were issued to Mr Underhill when he was stopped by a police constable in the Manukau area on 6 March 2012.
[18] In his judgment, Wylie J stated:
[8] Mr Underhill’s submissions are legally flawed.
[9] First, it is obvious that the entry of a plea of not guilty does not mean that the offender is not guilty of the offence. Here, the Justices heard evidence from a Constable Williams in relation to the offending. There is no reason to believe that Constable Williams was an unreliable witness. Mr Underhill did not call any witness to raise any reasonable doubt. He did not cross-examine Constable Williams. Having read the transcript of the hearing, it is clear that the offending was proven beyond reasonable doubt.
[10] The Land Transport Act 1998 is an Act of Parliament. The Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 were passed pursuant to the provisions of the Land Transport Act. Parliament is empowered to make legislation,[2] and the Courts must seek to apply Acts of Parliament in the terms in which they have been enacted.[3]
[2] Warren v Police HC Hamilton AP 133/99, 9 February 2000.
[3] Kohu v Police (1989) 5 CRNZ 194.
Subject to express provisions to the contrary, acts of Parliament are binding on all persons within the territory of New Zealand, both Pākehā and Māori.[4]
[4] Warren v Police, above n 1; Barrett v Police HC Hamilton CRI 2003-419-64, 14 June 2004.
[11] Mr Underhill is clearly subject to the Land Transport Act, and to the
Land Transport (Motor Vehicle Registration and Licensing) Regulations
2011. Any argument to the contrary is untenable.
[12] The appeal was frivolous and vexatious. It is dismissed.
[13] I note that Mr Underhill has advanced the same argument, or a variation of the argument, previously in the Courts. I refer to Underhill v R,[5] and Underhill v Chief Executive of the Department of Corrections.[6] The argument has consistently been dismissed.
[5] Underhill v R [2011] NZCA 301.
[6] Underhill v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-
4016, 11 July 2011.
[14] It is an abuse of process for Mr Underhill to continue making the same argument in the certain knowledge that it must fail.
[15] It is appropriate to award costs against Mr Underhill in favour of the respondent under the Costs in Criminal Cases Act 1967. The appropriate sum fixed under the Costs in Criminal Cases Regulations 1987 is $226. I award costs in favour of the respondent in that amount.
[19] Mr Underhill sought leave to appeal to the Court of Appeal on a question of law. The question which Mr Underhill sought leave to take to the Court of Appeal was as follows:
Do you, the sworn agents of the New Zealand Incorporated aka the New
Zealand Government aka [NZ Govt.] established by the Constitution Act
1986 that FAILED, insist that the STATUTE LAW REVIEW Volume 16
Number 3 1995 published in accordance with English Statute [GULIELMI IV.REGIS.-9 September 1835.] BY THE OXFORD UNIVERSITY PRESS IN ASSOCIATION WITH THE STATUTE LAW SOCIETY is also an apparent misprint, a total of “FIVE” individual entries in four publications. The STATUTE LAW REIVEW is therefore a legal document having the force of law.
[20] Wylie J commented:
[3] As I understand Mr Underhill’s argument, he is asserting that the Land Transport Act, and the regulations made pursuant to that Act are invalid, and of no force and effect, because they were passed by a Parliament, which itself is invalid. Mr Under[hill] acknowledges the Constitution Act 1986, but says that it failed to repeal an Act he says exists called the New Zealand Constitution Act 1952. When I asked him whether or not there was a Constitution Act 1952, Mr Underhill replied in effect that “there must be, because it is referred to in Butterworths Law Dictionary, and in the Statute Law Review”. He told me that he is endeavouring to obtain a copy of the
1952 Act from sources in the United Kindom.
[4] I have checked to see whether or not there was a New Zealand Constitution Act 1952. I have been unable to find any such Act. My research clerk likewise has been unable to find it; nor can the librarian at the Auckland High Court Library. There was a New Zealand Constitution Act
1852. It was repealed by the Constitution Act 1986. I suspect that any references to a 1952 Act in Butterworths Law Directory or in the Statute Law
Review are in error.
[21] I need do no more in dismissing the appeals than respectfully adopt the finding of Wylie J that the Land Transport Act and its associated regulations or rules, including the Land Transport (Motor Vehicle Registration and Licensing) Regulations and the Land Transport (Road User) Rules, are binding on Mr Underhill. It may be that Mr Underhill genuinely believes that the New Zealand Parliament is in some way operating outside of the constitution, although he did advise me at one stage that, “None of us know what happened here. I don’t pretend to but I’m looking into it”. Mr Underhill needs to understand however that if he continues to advance the same argument in future cases when they have been roundly rejected by the Courts, he is liable to be ordered to pay costs.
[22] In all the circumstances, therefore, the appeals are dismissed and Mr Underhill is ordered to pay $226 under the costs in Criminal Cases Act to both the New Zealand Police and Auckland Transport, both of whom had counsel appearing before me.
……………………………….
Woolford J
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