Underhill v Police

[2012] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000276 [2012] NZHC 3363

BETWEEN  WAYNE UNDERHILL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 December 2012

Counsel:         Appellant in Person

K Mills for the Respondent

Judgment:      12 December 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 12 December 2012 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

W Underhill: 18 Hunua Road, Papakura

K Mills: [email protected]

UNDERHILL V POLICE HC AK CRI 2012-404-000276 [12 December 2012]

[1]      Mr Underhill appeals against findings made by Justices of the Peace sitting in the Auckland District Court on 24 July 2012, that the offending alleged in various infringement notices issued under the Land Transport Act 1998 had been proven. Details of the infringement notices and the fines imposed are as follows:

(a)       Operating a vehicle with tyre tread less than 1.5 millimetres, contrary to s 40 of the Land Transport Act – fine of $150;

(b)Operating a vehicle without current evidence of vehicle inspection, contrary to s 34(1)(B) of the Land Transport Act – fine of $200; and

(c)       Operating an unlicensed vehicle, contrary to reg 77(1)(a) of the Land

Transport  (Motor  Vehicle  Registration  and  Licensing)  Regulations

2011 – fine $100 and Court costs of $132.89.

Background Facts

[2]      On   6   March   2012   at   3.30   pm,   Mr   Underhill   was   stopped   by   a police constable in the Manukau area.  Mr Underhill identified himself as being the driver.   The officer checked the motor vehicle.   It did not have a current valid warrant  of  fitness.    The  expiry  date  on  the  warrant  on  the  windscreen  was

22 September  2011.    Nor  was  the  vehicle  registered.    The  expiry  date  on  the registration sticker on the vehicle was 8 September 2011.  Further, the officer found that  the  front-left  tyre  on  the  motor  vehicle  was  completely  bald.    When  the constable drew these matters to the attention of Mr Underhill, he invited the officer to give him a ticket.  Mr Underhill said that he would not pay any fine as it was not his car.

[3]      The Justices of the Peace hearing the matter issued an oral judgment on

24 July 2012.  They referred to submissions made by Mr Underhill that they had no jurisdiction.    They  noted  relevant  case  law  and  observed  that  all  New Zealand residents and visitors to New Zealand are subject to the laws enacted by Parliament in this country, and that the Courts must proceed on this basis.  The Justices noted that the police constable was a credible witness, and that there was no evidence to

contradict these assertions.  The Justices of the Peace found that the various charges against Mr Underhill were proven. They imposed the fines noted above.

The Notice of Appeal

[4]      The notice of appeal was filed by Mr Underhill personally.  It records that he entered a plea of not guilty in writing, and asserts that neither the Justices of the Peace, nor the police as informant, conclusively proved the allegations against him. He also asserted as follows:

The crucial evidence was circumvented as the Court is of inferior status with limited jurisdiction.

A Court of inherent jurisdiction to proceed shall suffice.

Submissions

[5]      Mr Underhill raised various issues in relation to Parliamentary sovereignty. As I understood it, he was arguing that the provisions of the Land Transport Act are null  and  void  because  it  has  no  “constitutional  underpinning”.     In  essence, Mr Underhill was asserting that the Justices of the Peace had no jurisdiction over him because he is tangata whenua.  He referred to a number of statutory provisions, including  the  various  Constitution  Acts  of  1846,  1852  and  1986,  and  the New Zealand Settlements Act 1863.

[6]      Mr Underhill relied on an apparent misprint in a legal dictionary, which was repeated on two occasions.  I struggled to see what relevance those misprints had to the issues on the appeal.

[7] Ms Mills for the respondent noted that Mr Underhill has previously raised sovereignty arguments on a number of occasions, and that they have been roundly rejected by the Courts in the past. She submitted that the appeal should be dismissed, and that Mr Underhill should be directed to pay costs to the Crown under the Costs in Criminal Cases Act 1967.

Analysis

[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,[1]  and the Courts must seek to apply Acts of Parliament in the terms in which they have been enacted.[2]   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.[3]

[1] Warren v Police HC Hamilton AP 133/99, 9 February 2000.

[2] Kohu v Police (1989) 5 CRNZ 194.

[3] 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,[4]  and Underhill v Chief Executive of the Department of Corrections.[5]    The argument has consistently

[4] Underhill v R [2011] NZCA 301.

[5] Underhill v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-

4016, 11 July 2011.

been dismissed.

[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.

Wylie J