Underhill v R

[2014] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA422/2013
[2014] NZCA 228

BETWEEN	KANE JOSEPH UNDERHILL Applicant
AND	THE QUEEN Respondent

CA423/2013
AND BETWEEN	WAYNE UNDERHILL Applicant
AND	THE QUEEN Respondent

CA424/2013
AND BETWEEN	LOUISE SHIRLEY MOKARAKA Applicant
AND	THE QUEEN Respondent

CA434/2013
AND BETWEEN	LARELLE PITA UNDERHILL Applicant
AND	THE QUEEN Respondent

Hearing:	28 May 2014
Court:	Stevens, Courtney and Lang JJ
Counsel:	Applicants in person P D Marshall for Respondent
Judgment:	9 June 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe applications for special leave to appeal are dismissed.

BThere is an order for costs against Wayne Underhill in the sum of $226.00.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

1. Following a defended hearing in the Papakura District Court in 2012, the applicants were convicted on charges of: intentionally obstructing a constable acting in the execution of his duty (Wayne Underhill), resisting a constable acting in the execution of his duty and obstructing a constable acting in the execution of his duty (Louise Mokaraka) and failing to stop for the Police and intentionally obstructing a constable acting in the execution of his duty (Kane Underhill).[1] Judge MacAuslan imposed sentences of community work.[2]

   [1]New Zealand Police v Mokoraka DC Papakura CRI 2012-055-322, 19 October 2012 (Oral Judgment of Judge MacAuslan) at [28]–[32].

   [2]New Zealand Police v Mokoraka DC Papakura CRI 2012-055-322, 19 October 2012 (Notes of Judge MacAuslan on Sentencing) at [3].

2. In February 2013, Rodney Hansen J dismissed appeals against all the convictions and, in a subsequent decision, declined leave to appeal his previous decision.[3]  The applicants now seek special leave from this Court under s 144(3) of the Summary Proceedings Act 1957 to bring a second appeal.

   [3]Underhill v New Zealand Police [2013] NZHC 97 at [23]; Underhill v New Zealand Police [2013] NZHC 1034 at [9].

3. The prerequisites for special leave under s 144(3) are that:

   (a)there must be a question of law;

   (b)the question must be one that ought to be submitted to the Court of Appeal by reason of its general or public importance or for some other reason; and

   (c)the Court must be of the opinion that the question ought to be submitted.

4. Any proposed question of law must arise out of, or relate to, the charges in question.  This Court has previously made clear the importance of strict application of the statutory test in determining a leave application.[4]

Are the prerequisites for leave met?

[4]R v Slater [1997] 1 NZLR 211 (CA) at 215.

1. The proposed question of law is whether the Constitution Act 1986 is valid. The applicants contend that it is not and, in particular, is not effective to repeal the New Zealand Constitution Act 1852 (Imp), with the result that none of the District Court, the High Court nor, indeed, the Court of Appeal has jurisdiction over the applicants.

2. Mr Wayne Underhill made submissions on behalf of all the applicants.  His argument that the Constitution Act is invalid was based on errors that he had identified in certain private publications.  The first of such errors appeared in the Butterworths New Zealand Law Dictionary by Peter Spiller.  The 4th, 5th and 6th editions contained a statement to the effect that the Constitution Act 1986 repealed the “New Zealand Constitution Act 1952”.  There is no such act as the New Zealand Constitution Act 1952.  Mr Underhill advised us that he had raised this error with Mr Spiller in 2012 and Mr Spiller acknowledged it.  Regrettably, the error was not corrected until the 7th edition, but we are advised that the dictionary now refers, correctly, to the Constitution Act 1852.

3. The second publication was an article by Professor Joseph in the Canterbury Law Review, which also referred to the New Zealand Constitution Act 1952.[5]  However, Mr Marshall, for the Crown, pointed out that the reference to the New Zealand Constitution Act 1952 appeared only once in the article and the correct reference to the Constitution Act 1852 appears at least twice.

   [5]P A Joseph “Foundations of the Constitution” (1989) 4 Canta LR 58 at 59 and 71.

4. Obvious typographical errors in private publications cannot form the basis for any challenge to the validity of the Constitution Act 1986.  Challenges of this kind to the validity of Acts of Parliament or parliamentary sovereignty are answered by the previous statement of this Court in R v Mitchell:[6]

   This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it.  Our courts are bound to accept the validity of Acts of Parliament.

   [6]R v Mitchell CA68/04, 23 August 2004.  See also Wallace v R [2011] NZSC 10 at [2].

5. Mr Underhill also submitted that the decisions Morunga v New Zealand Police and R v Pairama, which considered challenges to the jurisdiction of the courts, were wrongly decided.[7]  There is no basis in the context of this case to mount a challenge to these decisions.  This outcome is supported by the Supreme Court’s decision declining leave on similar issues in Wallace v R.[8]

   [7]Morunga v Police HC Auckland CRI-2004-404-8, 16 March 2004; R v Pairama (1995) 13 CRNZ 496 (HC).

   [8]Wallace v R [2011] NZSC 10.

6. The application for leave is dismissed.

Costs

1. The Crown seeks to recover costs from the applicants, under the Costs in Criminal Cases Act 1967. The basis of this claim is that Mr Underhill has unsuccessfully advanced the same argument as he has advanced before other courts in at least two previous cases.[9]  Furthermore, Wylie J awarded the Police costs in 2012, noting that Mr Underhill had previously advanced the same argument “in the certain knowledge that it must fail”, which the Judge considered to be an abuse of process.[10]  Last year, Mr Underhill advanced an argument based on a typographical error in an article in the Statute Law Review referring to the New Zealand Constitution Act 1952 rather than 1852, and on entries in a law dictionary.  Woolford J awarded costs against him for the same reasons given by Wylie J.[11]

   [9]Underhill v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-4016, 11 July 2011 and Underhill v R [2011] NZCA 301.

   [10]Underhill v Police [2012] NZHC 3363 at [14].

   [11]Underhill v Police [2013] NZHC 1213 at [21].

2. Although Mr Underhill may very well be sincere in his beliefs and genuine in his efforts to address what he considers to be an important issue, he has now taken up court resources to advance an argument that has been considered and rejected at least twice before.  Arguments such as this, which Mr Underhill knows will fail, are an abuse of the court process and a waste of court resources.

3. We consider that costs are properly awarded under s 8(5) of the Costs in Criminal Cases Act. Costs on applications for leave to appeal are subject to reg 3 sch 1 of the Costs in Criminal Cases Regulations 1987. These provisions set costs in circumstances such as these at $226. Costs are to be awarded at that figure in this case.

Solicitors:

Crown Law Office, Wellington for Respondent