Police v Underhill [2017] NZDC 22646 (4 October 2017)

Last Updated: 30 April 2018

IN THE DISTRICT COURT AT PAPAKURA

CRI-2016-055-000489

[2017] NZDC 22646

NEW ZEALAND POLICE Prosecutor

v

WAYNE UNDERHILL Defendant

Hearing:	4 October 2017
Appearances:	S Sheffield for the Prosecutor Defendant appears in Person
Judgment:	4 October 2017

ORAL JUDGMENT OF JUDGE G F HIKAKA

[1] Mr Underhill has filed an appeal against the findings of two Justices of the Peace on 24 February 2016, in relation to four charges from 11 November 2015.

[2] They are all offences under Land Transport Act 1988 regulations and rules for not producing a licence, not wearing a seat belt, driving a car with an expired warrant of fitness and driving a car with expired registration. Respectively, the appellant was fined:

$55 with no Court costs

$150 with $30 Court costs

$100 with no Court costs

$200 with no Court costs.

NEW ZEALAND POLICE v WAYNE UNDERHILL [2017] NZDC 22646 [4 October 2017]

All those charges were proven after evidence was heard.

[3] The appeal was filed on 29 February 2016 and on 31 August 2017 it was allocated to be heard today, 4 October 2017. At the time of the hearing and during the course of submissions in support of and against the appeal, the appellant argues that the Court does not have jurisdiction. That is based on the Declaration of Independence 1835.

[4] The appellant’s basic position is, first, he takes no issue with the process, findings and penalties imposed on 24 February 2016.

[5] Second, those matters do not apply to him because the Declaration of Independence is both correct and lawful and that is what he is subject to. His basic position is, that the declaration is lawful and correct it has basically gone nowhere in terms of the governance and laws of New Zealand. Further, and accordingly, the appellant submitted that everything the Government has done since the Declaration is a lie.

[6] He submitted that the Court cases are based on post-Declaration matters, including the Treaty of Waitangi, and they are simply wrong. He submitted that the Waitangi Tribunal had confirmed that Rangitira did not concede sovereignty in February 1840. That all Court cases – the appellant referred to R v McKinnon1 – that the Judges in all the cases referred to, including McKinnon, were unaware of a particular point with respect to the Declaration. Which means, according to the submissions, that the declaration still applies.

[7] On that, paragraph 25 of Williams J decision in McKinnon:

In light of all those matters, there was no possible basis for Mr McKinnon, the Confederation of the United Sovereign Tribes of Aotearoa or anyone else continuing to assert that based on the Declaration of Independence 1835 the Courts of New Zealand have no jurisdiction to try any persons in this country for criminal offences. Continued attempts to advance that submission are therefore likely to be regarded as baseless and completely devoid of legal foundation.

1 R v McKinnon (2004) 20 CRNZ 709

[8] In reference to the words “no possible basis” the appellant says there is in fact a basis. The basis is a reference he has sourced from British Parliamentary papers regarding the Declaration of Independence of New Zealand. He has provided me with a document which appears to refer to a quote from those papers:

That King William IV made the most public, solemn and authentic declaration which it was possible to make, that New Zealand was (always) a substantive and independent state and, in the British statute book, in three distinct enactments of; 1817, 1823, 1828, declared that New Zealand is not part of His Majesty’s dominions or the latter, British dominions.

[9] On that basis the appellant is of the view he is on a long track of undoing everything that Colonial and European law has put in place or, indeed, imposed on society in this country and that Colonial and European law will come to an end.

[10] The respondent’s response was to refer to the cases which state this is not a matter for the Courts but, rather, for Parliament which makes the laws which the Courts are to uphold. The respondent’s submissions were that the Declaration was subsumed by the Treaty of Waitangi and the Court has no power to respectively grant the appeal as the decision with respect to the offences charged was valid and the penalties appropriate.

[11] The appellant responded to those submissions of the respondent, by saying that the Treaty of Waitangi itself was contrary to law as it stood at that time, because of the statement made by King William IV. That all those who observed what happened in February 1840, both Hobson and the Rangitira, would have been unaware of King William’s statement. Further, the appellant indicated the Declaration is the only thing protecting Māori people, and again indicated that in his view the New Zealand Government such as it is at the moment will come to an end in time.

[12] That might sound a particularly challenging statement but it has been delivered in a courteous and thoughtful manner. It appeared to me that the appellant is not seeking to be confrontational or totally at odds with overall due process of the Courts

- having obviously come to Court to state his case and having done so following some thought.

[13] The appellant acknowledged that he has been happy to make use of all the benefits enjoyed as a result of the Government Acts, including the importation of the motor vehicle that formed the basis of the offences that he has been charged with in the first instance.

[14] Referring to the McKinnon decision at paragraph 19 page 8 there is a quote from Berkett v Tauranga District Court2:

It does not appear to be disputed that if one were to start with an assumption of Imperial sovereignty dating from the mid-nineteenth century there would be an unbroken chain of constitutional authority for all the legislation that followed.

In fact, the Appellant does challenge that assumption by way of reference to a statement he says is attributable to King William IV.

[15] My position, having heard this appeal however is one that is clear. I must obey what Parliament and the Court superior to me have established. The superior Courts have not accepted the claim that the Declaration of Independence means Māori are not bound by the statutes of New Zealand, in this case, the Land Transport Act 1998.

[16] Only Parliament is able to make the laws. Parliament does not derive its authority from the Declaration of Independence. The Acts of Parliament, that is, the laws Parliament put in place are binding on all persons within the geographical territory of New Zealand, whether Māori or non-Māori. The Courts of New Zealand must uphold all the Acts of Parliament as enacted regardless of challenges to assumption or procedures which might have led to their enactment. The Land Transport Act is one such Act of Parliament. The Courts have power to deal with all actions that amount to offences, in this country, under that Act and all New Zealanders are subject to the one national Courts system. The Courts are not a forum for a fundamental challenge to the entire constitutional structure of New Zealand or for political campaigns.

[17] The appellant, Mr Underhill, seems to accept that by way of his submissions with respect to his perspective of the correctness and lawfulness of the

2 Berkett v Tauranga District Court [1992] 3 NZLR 206

Declaration of Independence, and has thus, challenged the foundation of the current system.

[18] The assertion of the standing of the Declaration of Independence and sovereignty for individual Māori as a result of that Declaration, does not raise justiciable question. It cannot succeed in the general Courts of New Zealand. There is High Court authority for that which Mr Underhill is aware of in Creeks v R3.

[19] For these reasons, Mr Underhill, the challenge fails and your appeal is dismissed.

G F Hikaka

District Court Judge

3 Creeks v R HC Auckland A138/00, 6 November 2000