Underhill v Police

[2017] NZHC 2148

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000008 [2017] NZHC 2148

BETWEEN

WAYNE UNDERHILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Counsel:	Appellant in person S F Gilbert for Respondent
Judgment:	6 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 6 September 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Solicitor, Hamilton

UNDERHILL v POLICE [2017] NZHC 2148 [6 September 2017]

[1]      Mr Underhill seeks leave to bring a second appeal against judgment on an infringement notice for failing to stop at a stop sign.1   It is agreed that the matter can be determined on the papers.

[2]      Before granting leave, s 237 of the Criminal Procedure Act 2011 states I must be satisfied:2

(a)      the appeal involves a matter of general and public importance; or

(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[3]      In the notice of appeal, Mr Underhill raises three grounds: (a) his evidence was not taken into account; and

(b)      he gave evidence that it was a form of entrapment by the Police; and

(c)      If if his evidence is not accepted, no statutory discretionary power is

available to the Court because Māori sovereignty has not been ceded.

[4]      The last of these grounds cannot possibly succeed.3

[5]      Mr Underhill does not specifically identify the evidence that was not taken into account. Rather, Mr Underhill identifies the following purported errors in his written submissions:

[2]       A paragraph 5 – The Judge wrote; He pointed out that “King William IV, made the most public, solemn, and authentic declaration, which was possible  to  make,  that  New Zealand  was a  substantive  and independent State”.   [verbatim.]Firstly, I never made or pointed out any such claim. Judge Wilson read that statement from a page of the, 7th  November 1839; Memorandum, ‘House of Commons Parliamentary Papers’.  Secondly, Judge Wilson made that statement, “James Busby was a man of war without guns”.

1      He was charged pursuant to s 40 of the Land Transport Act 1998, and r 4.1(1)(a) of the Land

Transport (Road User) Rules 2004.

2      Section 237(2), Criminal Proceedings Act.

3      Refer Wallace v R [2011] NZSC 10; R v Mitchell CA68/04, 23 August 2004 at [14]; Brooker v R

[2014] NZCA 436 at [4]; Morunga v Police [2016] NZCA 599.

I  did  clearly  state  that  James  Busy  was  in  effect  a  Bailiff,  who  was authorised to serve and execute warrants to arrest, under the direct orders and authority of the Ship’s Masters, period.

[6]      Accepting, for present  purposes, that the Judge was in error about these matters,  they  are  hardly  material  to  the  substance  of  the  charge  faced  by Mr Underhill.

[7]      Finally, in relation to the alleged issue of entrapment, Mr Underhill did not specify in his submissions, or even address, how the alleged entrapment arose or the Court’s error.  Judge D M Wilson QC in fact found:4

[3]       There really is no issue of fact at all.  [Mr Underhill] acknowledges that he did, as it were, creep through the stop sign and if the unmarked patrol car had been a marked patrol car he would have stopped, so there is no issue of fact here.

[8]      The issue arising is simply one of fact upon which the Judge has adjudicated. If the allegation is that he was entrapped because the patrol car was unmarked, it also has no prospect of success. In any event, there being no particularisation as to the error, leave is declined in respect of this aspect as well.

Outcome

[9]      The s 237 thresholds for leave to appeal are not met.  Overall, leave to bring a second appeal is declined.

4      Police v Underhill [2016] NZDC 582 at [3].