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

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].
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].
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.
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.

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.
Mr Wayne Underhill made submissions on behalf of all the applicants. His argument that the Constitution Act is invalid was based on…

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.

Continue reading Underhill v R

Details

AGLC: Underhill v R [2014] NZCA 228
Case: [2014] NZCA 228
Decision Date: 9 June 2014 at 3.00 pm

CaseChat Overview and Summary

The applicants, Kane Joseph Underhill, Wayne Underhill, Louise Shirley Mokaraka, and Larelle Pita Underhill, sought special leave to appeal their convictions and sentences imposed by the Papakura District Court in 2012. They were convicted of charges including intentionally obstructing a constable and resisting a constable. Judge MacAuslan had imposed sentences of community work, and Rodney Hansen J dismissed their appeals in 2013. Now, the applicants seek special leave from the Court of Appeal under s 144(3) of the Summary Proceedings Act 1957 to bring a second appeal.

The central legal issue before the Court was whether the prerequisites for special leave were met, specifically if there was a question of law of general or public importance. The applicants argued that the Constitution Act 1986 is invalid, contending that it does not effectively repeal the New Zealand Constitution Act 1852 (Imp), and thus, the courts lack jurisdiction over them. They based this argument on typographical errors in private publications, which the Court deemed insufficient to challenge the validity of the Constitution Act 1986. The Court reiterated that obvious typographical errors in private publications do not undermine the validity of Acts of Parliament.

The Court dismissed the application for special leave, stating that the argument had been previously considered and rejected. It highlighted that such arguments, known to be unsuccessful, constitute an abuse of the court process and a waste of court resources. Consequently, the Crown was awarded costs of $226 under the Costs in Criminal Cases Act 1967.

Orders