Underhill v Police [2013] NZHC 97 (7 February 2013)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

Underhill v Police [2013] NZHC 97 (7 February 2013)

Last Updated: 15 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-376
CRI-2012-404-377

CRI-2012-404-380 [2013] NZHC 97

BETWEEN WAYNNE UNDERHILL

LOUISE SHIRLEY MOKARAKA KANE JOSEPH UNDERHILL Appellants

AND NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Counsel: Appellants in person

AR Longill for Respondent

Judgment: 7 February 2013

_{JUDGMENT OF RODNEY HANSEN J}

This judgment was delivered by me on 7 February 2013 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email: [e-mail] )

Copies to: Waynne Underhill, 18 Hunua Road, Hunua.

Louise Mokaraka, 18 Hunua Road, Hunua.

Kane Underhill, 18 Hunua Road, Hunua.

WAYNNE UNDERHILL V NEW ZEALAND POLICE HC AK CRI-2012-404-376 [7 February 2013]

Introduction

[1] On 19 October 2012, following a defended hearing in the Papakura District Court which took place on 29 May and 19 October 2012, Judge MacAuslan found the appellants guilty of the following charges:

(a) Waynne Underhill

Intentionally obstructing a constable acting in the execution of his duty, contrary to s 23(a) Summary Proceedings Act 1981.

(b) Louise Mokaraka

Resisting a constable acting in the execution of his duty and obstructing a constable acting in the execution of his duty, both contrary to s 23(a) Summary Proceedings Act 1981.

(c) Kane Underhill

Failing to stop for the police, contrary to s 52(1)(c) Land Transport Act 1998 and intentionally obstructing a constable acting in the execution of his duty, contrary to s 23(a) Summary Proceedings Act

1981.

[2] Ms Mokaraka was sentenced to 40 hours community work. Waynne and Kane Underhill were each sentenced to 50 hours community work on the obstruction charges and Kane Underhill was convicted and discharged on the driving charge.

[3] The appellants all appeal against both conviction and sentence. They claim that the hearing was unfair, that the convictions could not be supported by the evidence and that the Court did not, in any event, have jurisdiction to determine the charges as they are not subject to the law.

The evidence

[4] Kane Underhill is the son of Waynne Underhill and Ms Mokaraka. They represented themselves at the hearing in the District Court (and on appeal) with Waynne Underhill taking the lead at both hearings.

[5] The prosecution evidence was given on the first day of the hearing. Sergeant Chris McMillan said that on 4 February 2012 he followed a speeding vehicle driven by Kane Underhill on Dominion Road, Papakura. He activated his blue and red lights and pursued the vehicle. He said he saw the driver look in the rear vision mirror. He followed the vehicle until it pulled into the driveway of a house in

18 Hunua Road. Sergeant McMillan said when he advised Kane Underhill that he was under arrest, he thrashed his arms around. As he was taking him away, Ms Mokaraka came out of the house, swearing loudly, ran up to him and pulled at his arms. He asked other officers who were at the scene to arrest her. Sergeant McMillan said Waynne Underhill also emerged from the house in an aggressive manner, ignored requests to move back, and advanced towards the police patrol vehicle. He stepped forward after being warned to move back and being pushed back twice. Sergeant McMillan then asked one of the other police officers present, Constable Stewart, to arrest him.

[6] Constable Luke Kneebone, who went to the house to assist Sergeant McMillan, arrested Ms Mokaraka at his request. He said she responded by flaying her arms around, refusing to put her hands behind her back so she could be handcuffed.

[7] Another police officer who went to the address, Constable Rion Stewart, confirmed that when attempts were made to arrest Ms Mokaraka she was quite aggressive and resistant. He observed Waynne Underhill to be agitated and aggressive. Constable Stewart said that Waynne Underhill stepped forward despite being pushed back twice and told numerous times to go back inside. He was then arrested for obstruction.

[8] The defence case was presented at the adjourned hearing on 19 October. All defendants gave evidence. Waynne Underhill gave oral evidence and was cross- examined in the usual way. With the leave of the Judge, Kane Underhill gave his evidence-in-chief by way of a written statement. The statement was read by the Judge and the witness cross-examined until Waynne Underhill intervened and said he would not allow any further cross-examination. The Judge explained that a refusal to answer further questions would be taken into account when she came to decide whether or not to accept the witness’ evidence. Kane Underhill said he understood the position but did not want to answer any further questions. Ms Mokaraka also gave evidence by way of a written statement which was read by the Judge. She refused to answer any questions by the prosecutor. She also confirmed that she understood this would affect the Judge’s assessment of her credibility. The final witness for the defence was Melissa Poki, the daughter-in-law of Waynne Underhill and Ms Mokaraka, who also gave her evidence by way of a written statement and declined to be cross-examined.

[9] In his evidence Kane Underhill accepted that he saw the police vehicle behind him with its lights flashing. He said he did not stop because he did not feel safe. He said at the house the police officer was agitated and he felt threatened. He said he was punched and tried to get away from the police officer. He said Sergeant McMillan was abusive to his parents when they sought to intervene and struck his father.

[10] Waynne Underhill agreed that the sergeant had told him to “get back”. He said he told his son to lie down. He said his concern was to protect his son from the police officer who was aggressive and swearing. He accepted that Sergeant McMillan had pushed him back but was adamant that he had not moved forward.

[11] Ms Mokaraka confirmed that Waynne Underhill had told their son to lie down on the ground. She said the officer was agitated and confused. When the additional police arrived, they were told to arrest her for obstruction. She said they bent her over the bonnet of a car and would not allow her to pull up her pants which were falling down.

[12] Ms Poki said she and her four-year-old son were travelling in the car with Kane Underhill. She said the police officer had no reason to stop Kane Underhill but turned on his indicators and siren nonetheless. At the house, she said Sergeant McMillan used excessive force in attempting to arrest Kane Underhill and that when Waynne Underhill and Ms Mokaraka sought to intervene, they were man-handled.

Judge’s decision

[13] Judge MacAuslan found that on his own admission Kane Underhill knew the police were following him and that he did not stop. She said that although he claimed that was because of concerns about his safety, the fact remained that he had not complied with a lawful requirement to stop for the enforcement officer. Judge MacAuslan said that it was apparent from the whole tenor of Kane Underhill’s evidence that he had no intention of complying with any requirements of the police and that included physically resisting arrest.

[14] She accepted the evidence of Constable Kneebone that Ms Mokaraka struggled and struck him in an endeavour to avoid arrest. She found that Ms Mokaraka was aggressive, agitated and swearing. She rejected her evidence where it differed from that of prosecution witnesses.

[15] The Judge rejected Waynne Underhill’s claim that he was actually trying to assist the police with the arrest of his son. She accepted Sergeant McMillan’s evidence that Waynne Underhill came forward towards him and that refused to move backwards. She found that he intentionally obstructed Sergeant McMillan in order to prevent his son from being arrested and taken away.

Grounds of appeal

[16] Waynne Underhill complained that aspects of the hearing were unfair. He submitted that Sergeant McMillan should have been present on the second day of the hearing so that he could cross-examine him further. However, there is nothing to indicate that he had any basis for such an expectation. At the hearing on 29 May, Judge MacAuslan carefully explained the procedure the appellants should follow in

cross-examining prosecution witnesses. Sergeant McMillan was the first witness. He was cross-examined at length by Waynne Underhill and also questioned by Kane Underhill and Ms Mokaraka. At the conclusion of his evidence he was excused. At no stage was there any application to recall him, nor was I given any indication of grounds for such an application.

[17] Both Waynne and Kane Underhill complained about Kane being subjected to cross-examination on what he said in the first part of his statement but not in relation to the balance of his evidence-in-chief. Kane Underhill said he did not want to be cross-examined; he wanted his “statement to do the talking”. He suggested that the prosecutor’s questioning led him to incorrectly acknowledge that he knew he was being pursued by the police.

[18] I am satisfied there was nothing unfair in the way in which the defence case was presented. They were granted an indulgence by the Judge in being permitted to give their evidence-in-chief by way of written statements. They were very clearly warned of the consequences of their refusing to answer questions. Kane Underhill made an informed decision to, first of all, answer questions and then to bring cross- examination to an end.

[19] It was submitted that the evidence did not support the convictions. Kane Underhill continued to assert that he did not know that the police were chasing him. Waynne Underhill argued that there was no proper basis for findings that the appellants obstructed the police. On the contrary, he contended that the police action was excessive and unwarranted.

[20] I am satisfied that there was a solid foundation for the convictions in the evidence accepted by the Judge. As I have said, Kane Underhill acknowledged that he knew he was being pursued by the police. The Judge’s findings on the charges of obstruction and resisting arrested turned on whose version of events she accepted. She was clear that she preferred the evidence of the police officers. As Ms Longdill submitted, this involved a credibility contest between the police witnesses and the appellants which was resolved against the appellants. There is no basis on which I could interfere with her factual findings.

[21] Waynne Underhill submitted that the District Court had no jurisdiction over the appellants because they are tangata whenua. He relied on well-rehearsed legal arguments which included reference to the Constitution Act 1852. He has previously advanced the same arguments in this Court and the Court of Appeal in relation to other charges.[1] For reasons articulated in those judgments and also by the Supreme

Court in Wallace v R,[2] those arguments cannot succeed.

[22] I heard nothing to indicate that the sentences imposed on the appellants were excessive.

Result

_{[23] The appeals are dismissed.}

.

---

[1] _{Underhill v New Zealand Police [2012] NZHC 3363; Underhill v R [2011] NZCA 301.}
[2] Wallace v R [2011] NZSC 10