Underhill v Police - [2013] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-376
CRI-2012-404-377

CRI-2012-404-380 [2013] NZHC 97

BETWEEN WAYNNE UNDERHILL
LOUISE SHIRLEY MOKARAKA KANE JOSEPH UNDERHILL Appellants

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Counsel: Appellants in person
AR Longill for Respondent

Judgment: 7 February 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 7 February 2013 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140 for Respondent
(Email: anna.longdill@meredithconnell.co.nz )

Copies to: Waynne Underhill, 18 Hunua Road, Hunua.
Louise Mokaraka, 18 Hunua Road, Hunua.
Kane Underhill, 18 Hunua Road, Hunua.

WAYNNE UNDERHILL V NEW ZEALAND POLICE HC AK CRI-2012-404-376 [7 February 2013]

Introduction

[1] On 19 October 2012, following a defended hearing in the Papakura District Court which took place on 29 May and 19 October 2012, Judge MacAuslan found the appellants guilty of the following charges:

(a) Waynne Underhill

Intentionally obstructing a constable acting in the execution of his duty, contrary to s 23(a) Summary Proceedings Act 1981.

(b) Louise Mokaraka

Resisting a constable acting in the execution of his duty and obstructing a constable acting in the execution of his duty, both contrary to s 23(a) Summary Proceedings Act 1981.

(c) Kane Underhill

Failing to stop for the police, contrary to s 52(1)(c) Land Transport Act 1998 and intentionally obstructing a constable acting in the execution of his duty, contrary to s 23(a) Summary Proceedings Act
1981.

[2] Ms Mokaraka was sentenced to 40 hours community work. Waynne and Kane Underhill were each sentenced to 50 hours community work on the obstruction charges and Kane Underhill was convicted and discharged on the driving charge.

[3] The appellants all appeal against both conviction and sentence. They claim that the hearing was unfair, that the convictions could not be supported by the evidence and that the Court did not, in any event, have jurisdiction to determine the charges as they are not subject to the law.

The evidence

[4] Kane Underhill is the son of Waynne Underhill and Ms Mokaraka. They represented themselves at the hearing in the District Court (and on appeal) with Waynne Underhill taking the lead at both hearings.

[5] The prosecution evidence was given on the first day of the hearing. Sergeant Chris McMillan said that on 4 February 2012 he followed a speeding vehicle driven by Kane Underhill on Dominion Road, Papakura. He activated his blue and red lights and pursued the vehicle. He said he saw the driver look in the rear vision mirror. He followed the vehicle until it pulled into the driveway of a house in
18 Hunua Road. Sergeant McMillan said when he advised Kane Underhill that he was under arrest, he thrashed his arms around. As he was taking him away, Ms Mokaraka came out of the house, swearing loudly, ran up to him and pulled at his arms. He asked other officers who were at the scene to arrest…

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.

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Details

Case: [2013] NZHC 97
Decision Date: 7 February 2013

CaseChat Overview and Summary

The appellants, Wayne Underhill, Louise Mokaraka, and Kane Joseph Underhill, appealed against their convictions and sentences following a hearing in the Papakura District Court. The appellants were found guilty of various charges, including obstructing and resisting police officers and failing to stop for police. The appellants argued that the hearing was unfair, that the convictions could not be supported by the evidence, and that the Court did not have jurisdiction to determine the charges as they are tangata whenua. The court considered the evidence presented by both the prosecution and the defence and accepted the evidence of the police officers. The court found that the appellants intentionally obstructed and resisted the police officers in the execution of their duty. The court dismissed the argument that the District Court lacked jurisdiction over the appellants due to their status as tangata whenua. The court also found that the sentences imposed on the appellants were not excessive.

The appeals were dismissed, and the convictions and sentences of the appellants were upheld. The court found that there was a solid foundation for the convictions in the evidence accepted by the Judge and that the appellants' arguments could not succeed. The court found no basis on which it could interfere with the Judge's factual findings. The court also found that the sentences imposed on the appellants were not excessive.

Orders