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: kate.mills@meredithconnell.co.nz

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…

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: [2012] NZHC 3363
Decision Date: 12 December 2012

CaseChat Overview and Summary

Mr Wayne Underhill appeals against findings made by Justices of the Peace in the Auckland District Court that the alleged offences under the Land Transport Act 1998 had been proven. The charges related to operating a vehicle with inadequate tyre tread, operating without a current warrant of fitness, and operating an unlicensed vehicle. The Justices of the Peace found that the various charges against Mr Underhill were proven and imposed the relevant fines. Mr Underhill argues that neither the Justices of the Peace, nor the police as informant, conclusively proved the allegations against him and that the court lacked jurisdiction over him. He also argues that the relevant legislation lacks constitutional underpinning. The Court of Appeal found that Mr Underhill's submissions were legally flawed, as the Land Transport Act 1998 is an Act of Parliament and the Courts must apply Acts of Parliament in the terms in which they have been enacted. Mr Underhill is clearly subject to the Land Transport Act and the related Regulations. The Court found the appeal to be frivolous and vexatious and dismissed it. The Court also found it an abuse of process for Mr Underhill to continue making the same argument in the knowledge that it must fail. The Court awarded 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 was $226. The Court awarded costs in favour of the respondent in that amount.
The court found that Mr Underhill's arguments were legally flawed and that the Land Transport Act 1998 is an Act of Parliament. The Court found that Mr Underhill was clearly subject to the Act and the related Regulations. The Court also found that it was an abuse of process for Mr Underhill to continue making the same argument in the knowledge that it must fail. The Court awarded 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 was $226. The Court awarded costs in favour of the respondent in that amount.

Orders