PETER-RICHARD PRESCOTT AND NORTH SHORE DISTRICT COURT RHONA STACE and MORGAN LOUISE FORAN Proposed s
[2024] NZHC 2362
•22 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002008
[2024] NZHC 2362
UNDER The Judicial Review Procedure Act 2016 BETWEEN
PETER-RICHARD PRESCOTT
Applicant
AND
NORTH SHORE DISTRICT COURT
Respondent
RHONA STACE and MORGAN LOUISE FORAN
Proposed Respondents
Hearing: 14 May 2024 Appearances:
Plaintiff in Person
S P Jerebine counsel assisting
Judgment:
22 August 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 22 August 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………
PRESCOTT v NORTH SHORE DISTRICT COURT & OR [2024] NZHC 2362 [22 August 2024]
Introduction
[1] Mr Prescott challenges by way of judicial review a decision of the District Court not to accept for filing a private prosecution under s 26 of the Criminal Procedure Act 2011 (the Act).
[2] Mr Prescott was charged with driving without a Warrant of Fitness (WOF). He chose not to appear at the defended hearing of that charge and was found to have committed a traffic infringement. He was ordered to pay a $200 fine and a $30 court fee. However, he held documents to establish that he was lawfully driving on a trade plate, in place of holding a warrant. He subsequently appealed to the District Court, and the infringement and the orders were overturned by consent.
[3] Mr Prescott then attempted to bring a private prosecution, against two police officers, alleging that they had caused him loss by deception under s 240 of the Crimes Act 1961. The constable, as witness, had incorrectly told the Court it is an offence to use a trade plate without a warrant and the prosecuting sergeant did not correct this (a trade plate can be used if the vehicle has relevant documents, including a conditional permit, in place of a warrant). Mr Prescott claims the officers wilfully, intentionally and maliciously misled the Court to cause him loss.
[4] In rejecting the private prosecution for filing, under s 26 of the Act, the District Court Judge held that there was insufficient evidence of both loss and intent to deceive.
[5] The critical issue I must determine is whether the decision of the District Court Judge is based on a material error of law: was her conclusion that there was insufficient evidence both of loss and intent to defraud arbitrary, unreasonable and irrational (as alleged)?
Factual background
[6] On 25 November 2017, Mr Prescott was stopped by Constable Foran when travelling by car through Silverdale, and was charged with driving without a WOF.
[7] Mr Prescott says he was doing “nothing illegal” to justify being stopped or detained, and recorded the conversation with Constable Foran at the time his car was stopped. Mr Prescott says he did not need a WOF as the vehicle was “on a trade plate and operating on a conditional permit that included a vehicle inspection”. Mr Prescott says this meant the vehicle did not require a WOF.
[8] Mr Prescott did not show the conditional permit to Constable Foran at the time he was given an infringement notice for driving without a WOF. He says this was because he was not asked to do so by the officer.
[9] On 17 April 2018, the charge was heard before Justices of the Peace. Mr Prescott filed submissions but did not appear in person. Sergeant Stace appeared for the prosecutor and Constable Foran gave evidence. Evidence was led that there was no WOF sticker on the vehicle and it was Constable Foran’s evidence that Mr Prescott confirmed that the vehicle did not have a WOF. The Court noted that the defendant did not appear and was not able to offer any evidence to the contrary. The Court found the charge proven by way of formal proof and Mr Prescott was ordered to pay a fine of $200 together with court costs of $30.
[10]Mr Prescott appealed the decision to the District Court.
[11] On 20 August 2020, the matter was called before Judge Fraser. After detailed discussion between the Judge, Mr Prescott and the prosecuting sergeant, the sergeant stated:
I think your Honour should just dismiss the information. I certainly don’t want to waste any more time.
[12]Following that exchange the Judge stated:
…I’m going to dismiss the infringement, police have indicated that there’s evidential insufficiency now to prove the infringement. So I am going to dismiss the infringement, which brings everything here to an end for you Mr Prescott.
[13] Mr Prescott subsequently complained to the Independent Police Conduct Authority (IPCA). On 23 April 2021, the IPCA wrote to Mr Prescott stating it agreed with the Police that they would “apologise for the service you received”. However,
on 30 April 2021, it appears that Mr Prescott wrote to the IPCA rejecting the Police apology.
[14] On 25 May 2021, the Police wrote to Mr Prescott confirming that they had reviewed the concerns raised in his complaint and that they believed the officer acted in good faith. Police noted that they had also previously raised Mr Prescott’s concerns with Constable Foran and they are now confident she understands how she could have handled the traffic stop and the subsequent infringement proceedings differently.
[15] On 30 September 2021, Mr Prescott filed a charging document at the District Court against Constable Foran and Sergeant Stace proposing a charge against both officers under s 240 of the Crimes Act 1961.
[16] On 22 October 2021, the District Court directed Mr Prescott to file formal statements, sworn or affirmed, and exhibits. Mr Prescott subsequently did so.
[17]On 27 January 2022, the IPCA wrote to Mr Prescott concluding:
While we have found the officer did mislead the court in the terms described above, this is not misconduct or neglect of duty on the part of the officer involved that requires any further action over and above that already taken by Police.
[18] In a ruling of 3 July 2023, the District Court Judge addressed the proposed prosecution by Mr Prescott. Her Honour Judge Fitzgibbon dismissed the proposed prosecution under s 26(3)(a) of the Act because:
(a)Mr Prescott had not shown that he has sustained a form of loss pursuant to s 240(1) because of the officers’ actions; and
(b)Mr Prescott had not provided any evidence that the officers had intended to deceive under s 240(2).
[19] It is the decision of Judge Fitzgibbon that is under challenge in these judicial review proceedings.
The statutory scheme
[20] Section 26 of the Act establishes the procedure for private prosecutions. That section provides:
Private prosecutions
(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2) The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3) A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)The proposed prosecution is otherwise an abuse of process.
(4) If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
[21] Section 26 is designed to act as “an initial or preliminary screening mechanism” for proposed private prosecutions.1
[22] In S (SC 58/2019) v Vector Ltd,2 O’Regan and Ellen France JJ endorsed the following approach, for the exercise of the discretion under s 26(3):
1 S (SC 58/2019) v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1 at [2].
2 S (SC 58/2019) v Vector Ltd, above n 1, at [78], [85], and [117].
(a)whether the proposed charge is in respect of an offence recognised by New Zealand law;
(b)whether the essential ingredients of the proposed charge are prima facie charged by the formal statements and exhibits filed by the proposed prosecutor;
(c)whether the Court has jurisdiction to hear the charge;
(d)whether the proposed prosecutor has the necessary authority to prosecute.
[23]All members of the Court agreed that:3
… the threshold for determining evidential sufficiency is whether, on a prima facie basis, the evidence is sufficient to prove the elements of the charge to the required standard.
[24]Section 240(1) of the Crimes Act 1961 reads:
Obtaining by deception or causing loss by deception
(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b)in incurring any debt or liability, obtains credit; or
(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d)causes loss to any other person.
Mr Prescott’s pleadings and submissions
[25]Mr Prescott makes three principal claims, that:
(a)the decision of the District Court Judge to reject the prosecution for filing on the basis that there was insufficient evidence of loss (s 240(1) of the Crimes Act 1961) was unreasonable and arbitrary because it was not supported by the formal statements in the evidence exhibits before her;
3 S (SC 58/2019) v Vector Ltd, above n 1, at [6].
(b)her Honour’s decision concluding that there was insufficient evidence of the necessary intention to deceive was also unreasonable and arbitrary because again such finding was not supported by the formal statements in the evidence exhibits before her; and
(c)the Judge failed to provide the diligence required by her statutory obligations and in accordance with her judicial oath and acted in breach of natural justice in the circumstances giving rise to a reasonable apprehension of bias by her.
[26] The allegations Mr Prescott makes are very serious. He contends that there was a conspiracy between Constable Foran and the prosecuting sergeant, Sergeant Stace, who strove and achieved a conviction against Mr Prescott knowing that there was no proper legal basis for it. He says the sheer amount of the “false statements” made on oath by Constable Foran and her deliberate making up of evidence in circumstances where she had no honest recall of the events, provides clear evidence of the necessary mental element of an intention to deceive.
Analysis and decision
Issue (a) – Was the Judge’s determination that there was no prima facie evidence of loss for the purposes of s 240(1) irrational, arbitrary and/or unreasonable?
[27] Mr Prescott says that the Judge erred in the assessment of loss. He says the loss was caused by the deception in the following way:
(a)He was required to pay a fine of $200, together with court costs of $30 as a direct result of the officers’ actions. This information was before the Judge in one of the exhibits;
(b)Appeals cost money and time, and this was a result of the proposed defendants’ fraud. “Every Judge” would know this. This loss comprises: expenses for materials, postage, paper, inks, etc. and travel to and from the Court; and, at 70 years old, the most valuable expense lost, was the loss of time;
(c)Loss of the statutorily affirmed constitutional right to a fair and unbiased hearing under ss 25 and 27 of the New Zealand Bill of Rights Act 1990 as a direct result of the officers’ actions.
[28] The element of loss is a critical element of a charge under s 240(1)(d). The requirements of that section have been considered by both the Court of Appeal and the Supreme Court. In R v Morley, the Court of Appeal held:4
(a)Section 240(1)(d) requires a direct, rather than indirect loss, noting the absence of the words “directly or indirectly” from s 240(1)(d) as compared to s 240(1)(a). Indirect loss is too remote; a loss caused by deception must be in the nature of a direct loss.5
(b)The loss must be by deception, and therefore the loss must be a consequence. In other words, “the loss alleged by the victim must have been induced by, or caused in reliance upon, the deception.”6 This reflects the “conventional and settled approach to the assessments of cause and effect in the context of a false representation.”7
(c)Diminution or impairment of the complainant’s position is expressed in relation to s 240(1)(a) and (b) and implied in (c), and the rules of statutory interpretation suggest (d) is likely to concern a similar form of diminution or impairment to that criminalised by (a)–(c).8
[29] In Zheng v R,9 the Court of Appeal cited s 240(1)(d) commentary from Adams on Criminal Law:
The requirement that the defendant must obtain a benefit does not require proof of any corresponding detriment to another person: Li v R … at [28]. By contrast, there is no requirement of the conferment of any benefit in subs (1)(d) offences, but the victim must suffer loss. There is no definition of the nature of the kinds of loss required.
[30] The onus was on Mr Prescott to provide prima facie evidence of the essential ingredient of loss. I find that there was no error in the approach of the District Court Judge in concluding that there was no prima facie evidence of loss for two reasons:
4 R v Morley [2009] NZCA 618, [2010] 2 NZLR 608.
5 R v Morley, above n 4, at [32]–[34].
6 R v Morley, above n 4, at [34].
7 R v Morley, above n 4, at [34]. See also [36], where the Court held that a loss of bargain or an expectation loss is not a loss of the kind criminalised by the section.
8 R v Morley, above n 4, at [37]–[39].
9 Zheng v R [2023] NZCA 551 at [99], citing Mathew Downs (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA240.01].
(a)There is no evidence that Mr Prescott paid the fine of $200 or the court fee of $30. As the Court held in Zheng v R,10 the victim must actually suffer loss. Here there was no loss suffered but rather, an order made which was not paid. That order was later overturned; and
(b)The loss was not a “direct” result of the evidence given by Constable Foran and Sergeant Stace. “Direct loss” is a requirement of a charge under s 240(1)(d).11 The order imposing a fine and the court fee was made after the defended hearing at which Mr Prescott did not attend or appear. The order was subsequently overturned by the appellate court when Mr Prescott provided evidence to defend the charge. The fine was a result of a defended hearing, at which Mr Prescott did not appear.
[31] I also reject Mr Prescott’s submission that his claims for “expenses” and “loss of time”, which he says would be obvious to any Judge, constitute loss for the purposes of s 240(1)(d). These claims of loss were not articulated with sufficient clarity, or at all, before the Judge. In R v Morley, the Court of Appeal held that evidence as to loss should be clear and supported by evidence.12 In that case, the Court noted that the evidence of actual expenditure was “vague” with the complainant saying they were “probably out of pocket by $1,000”.13
[32] Mr Prescott’s claims as to loss of his statutorily affirmed constitutional rights under the New Zealand Bill of Rights Act is equally flawed for two main reasons:
(a)Mr Prescott did not “lose” his right to a fair hearing under s 25(a), nor his right to natural justice under s 27 of the New Zealand Bill of Rights Act. These rights remain, and are addressed under a separate civil regime. In addition, alleged breach of the New Zealand Bill of Rights Act is not criminalised under s 240(1)(d). As the Court of Appeal noted
10 Zheng v R, above n 9.
11 R v Morley, above n 4, at [33].
12 R v Morley, above n 4, at [71]–[73].
13 R v Morley, above n 4, at [69].
in R v Morley, where other legal rights exist to address the alleged harm, that can speak against criminalising that loss;14
(b)In any event, there does not appear to have been a breach of those rights in the hearing at first instance, as claimed. Mr Prescott chose not to appear at the defended hearing. He was not denied a right to a fair hearing or any opportunity to be heard. Had of course he had appeared at the hearing, the charge may well have been dismissed.
[33] In a memorandum dated 12 March 2024, Mr Prescott seeks to introduce into evidence a “loss schedule” setting out in some detail the loss (time and expense) he says he incurred as a result of the deception. In that schedule, he says that he suffered a loss of 12 hours “that could have been spent doing mechanical work for which my charge out rate is still a low $60 per hour. A loss of $720”.
[34] That evidence was not of course before the District Court Judge. The issue of the admissibility of additional evidence in judicial review proceedings was addressed by Gordon J in Green v The New Zealand Parole Board ,citing the Court of Appeal in WK v Refugee and Protection Officer:15
The standard for the admission of additional evidence in judicial review proceedings is high. Because of the nature of judicial review, which is to assess the lawfulness of the decision-making process rather than the merits of the decision, the task of the reviewing court is to assess whether a decision was reasonably available to the maker on the basis of the evidence before them.
…
The attempted introduction of material after the event, especially for the purpose of casting doubt on the substantive reasonableness of the decision in question, is generally inappropriate. Judicial review should not be seen as a further opportunity to present or supplement evidence.
[35] I find that the high standard for the admission of additional evidence has not been met in this case. I therefore reject the evidence. I would note, however, that in
14 R v Morley, above n 4, at [37], [40] and [46]. I note that the Court of Appeal and Supreme Court have not yet addressed whether or not the loss must be pecuniary: R v Morley, at [50].
15 Green v The New Zealand Parole Board [2022] NZHC 693 at [84] citing WK v Refugee and Protection Officer [2018] NZCA 258; [2019] 2 NZLR 223 at [66]–[67] (footnotes omitted).
any event, it does not cure the problem that Mr Prescott faces, namely an absence of evidence of direct loss. Indirect loss is too remote. At best, the evidence of loss contained in the loss schedule of March 2024 is indirect.
[36] I accept that the District Court Judge may have been in error in concluding that the loss at issue must be “a sustained form of pecuniary loss”.16 However, that was not a material error of law. There was insufficient evidence of direct loss as the Judge correctly concluded.
[37] In submissions before me Mr Prescott claimed that there was a prima facie case for a charge under s 240(1)(b) – namely, deception in incurring a debt or liability. However, the problem with that submission is that there is no live debt or liability. I do not need to decide the point, but I doubt that s 240(1)(d) contemplates that an order for a fine and a finding of infringement constitutes a debt or liability in circumstances where, in accordance with the appeal process properly invoked, those orders and findings were set aside.
[38] I also reject Mr Prescott’s submission that the Judge ought to have known of the loss that he suffered in the sense of costs associated with an appeal. It is for Mr Prescott to establish and provide prima facie evidence of loss, and such loss must be a direct loss as a result of the deception.
[39] I find that the Judge was not in error in concluding that Mr Prescott had not shown that he had sustained a form of loss as required by s 240(1)(d) of the Crimes Act 1961.
Issue (b) – Intention to deceive
[40] Mr Prescott claims that the Judge’s conclusion that there was insufficient evidence of the necessary intention to deceive was unreasonable and arbitrary, claiming that there was thus a material error of law.
[41]Mr Prescott claims that the Judge erred in the following ways:
16 Prescott v Stace DC North Shore, 3 July 2023 (ruling of Judge A M Fitzgibbon), at [19].
(a)He is not required to prove intention. His role is to provide the evidence the officers misled or deceived the Court, which he says he did, and determination of deliberate “intention” is for trial; and
(b)It is a material fact that the proposed defendants deceived and misled the Court. That fact is not in dispute. The evidence is sufficient to warrant a trial that will determine whether the act was deliberate or not.
[42] Furthermore, and in any event, Mr Prescott says that he had proved an intention to deceive:
(a)With respect to Constable Foran, he says:
(i)the transcript of what happened at the scene and the transcript of the decision at first instance established conclusively that Constable Foran lied under oath. The prosecution was built on deliberate lies and the wilful misleading of the Court on 15 separate occasions by Constable Foran while giving evidence under oath proves that the misconduct was intentional and warranted a trial;
(ii)if the officer under oath had made one error then perhaps that could be regarded as an unintentional act. However, 15 acts of deception and the deliberate withholding of critical information from the Court so as to mislead the Court, while under oath, is deliberate.
(b)With respect to Sergeant Stace, Mr Prescott says:
(i)Sergeant Stace knew there was no case against him and that Mr Prescott was innocent of the charge. Sergeant Stace was trained by the Police prosecution service on the interpretation of the law and the mandatory requirement to prove the Crown’s case beyond reasonable doubt. Sergeant Stace knew there was no
case to answer but intentionally subverted justice by allowing Constable Foran to lie. He conspired with Constable Foran by remaining silent and withholding critical information from the Court when he had a statutory and moral duty to speak up;
(ii)Judge Doherty of the IPCA found that the prosecutor ought to have understood that a driver does not need to display a WOF on his/her vehicle if they are legitimately using trade plates. It was Sergeant Stace’s duty and job to know of this and he must have known of that fact as soon as he addressed the elements of the offence that the prosecution was required to prove.
[43] With respect to both officers, Mr Prescott says that Constable Foran was the trained expert under the guidance of an experienced police officer, Sergeant Stace. They were professionals and carrying out their full-time day job. Mr Prescott contends that they knew that the case against him had no foundation in law. He says that the only way they could have won with such an unfounded, malicious case was to lie, tamper with evidence and mislead the Court.
[44] Mr Prescott further contends that the Judge relied on wrong material in concluding that there was insufficient evidence. He argues that the letter from Judge Doherty of the IPCA is opinion only and should not have been relied upon, asserting that the complaint before the IPCA and Judge Doherty was that of perjury. He also argues that the Judge failed to diligently consider the material and information before her. That included the formal statement in relation to Sergeant Stace where it was made clear that Mr Prescott was innocent and was found guilty at first instance because of withholding of critical evidence from the Court. Mr Prescott also says that in his formal statement in relation to Constable Foran it was made clear that there was manipulation of evidence and that both officers were party to a malicious prosecution.
[45] It is clear that proof of an intent to deceive is an essential ingredient of a charge under s 240(1)(d).17 As the Court of Appeal held in R v Morley, an intention to deceive
17 R v Morley, above n 4, at [53]. See also Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [486].
requires the deception is practiced in order to have deceived the affected party: “Purposeful intent is necessary and must exist at the time of the deception”.18
[46] Mr Prescott’s claim that he needed only to show that the proposed defendants had misled the Court and that it is for the Judge at trial to determine whether or not the act was deliberate is wrong in law. As the Supreme Court held in S (SC 58/2019) v Vector Ltd,19 the s 26 screening process requires prima facie evidence to support each element of the offence. Intention is a key element of the s 240 offence; intention to deceive must be established.20
[47] Mr Prescott’s claim of 15 misleading and deceptive statements is, in my view, substantially exaggerated and overstated. In substance, many of the inaccuracies are simply a re-statement or a re-casting of essentially the same allegations. More importantly, they all have the same fatal flaw, namely that at best they demonstrate a lack of knowledge and intent by the officers rather than, as required, a specific knowledge and intention to mislead. These findings are consistent with the conclusions of the IPCA, namely that the conduct complained of by Mr Prescott reflected “a lack of knowledge” rather than “an intention to deceive”. I note also that there was a delay between the incident when Mr Prescott was first stopped and the constable creating the subsequent written record – it may have influenced her memory.
[48] Mr Prescott appeared in the District Court on 8 November 2021, before Judge Fraser. At that time, the order against him was dismissed. Sergeant Hagan appeared for the Police. In my view, the discussion at that hearing provides useful insight into the reasons why the Police considered a case against Mr Prescott to have been arguable (and not, therefore, one based on deceit or fraud). In particular, I note the following:
(a)Sergeant Hagan noted that a trade plate, without a WOF, can only lawfully be used if a conditional permit is also in the vehicle which includes a vehicle safety inspection report (the relevant documents);
18 R v Morley, above n 4, at [53].
19 S (SC 58/2019) v Vector Ltd, above n 1.
20 Ortmann v United States of America, above n 18, at [486].
(b)The sergeant was of the view that Mr Prescott ought to have shown Constable Foran the relevant documents when asked about the trade plate and whether he had a WOF. If he had done so, the officer would not have charged him for driving without a WOF, as he would have been shown another permit in place of a WOF; and
(c)The sergeant ultimately put the charge down to a miscommunication and misunderstanding between the officer and Mr Prescott. The sergeant noted it was “quite obvious that Mr Prescott did not want to cooperate with the officer” and provide the information required.
[49] The Judge, correctly, did not accept that Mr Prescott had to show the relevant documents to the officer absent a direct request. He did, however, note that in any event, Mr Prescott had brought the relevant documents to the Court that day.
[50] Sergeant Hagan then accepted, having seen the relevant documents, that the case could properly be dismissed.
[51] In the course of the hearing, the Judge noted that if Mr Prescott had appeared at the defended hearing, and shown the relevant documentation, the matter would have been resolved then. The Judge further noted that the purpose of the defended hearing was for the Police to provide evidence in support of the charge, and Mr Prescott to provide evidence to defend the charge. When the Judge asked him why he did not attend the defended hearing, Mr Prescott ultimately replied “the officer, you know she was warned, she couldn’t get past the issue of a warrant of fitness and I’d just had enough of it all to be honest.”
[52] At that hearing, Mr Prescott described the content of Constable Foran’s first statement as follows:
Now the officer, could not get past the point in her mind that I needed a warrant of fitness, I didn’t, I was on a trade plate, I had a conditional permit from NZTA. But the whole thing was just, “You need a warrant of fitness, you’ve got to have a warrant of fitness,” the whole time all the way through. And she says, this is my infringement, “No evidence of a warrant of fitness,” well that’s not technically correct under the law anyway. But you know that was her
problem, she couldn’t get past that point. Now it’s not up to me to advise the Police on the law or how they build their case at the side of the road.
[53]And:
Exactly, once I’m directed or ordered to produce that document [by the officer, to show the trade place is being lawfully used], I have to produce it, if I’ve got it, that is correct. But we come back to the issue, she didn’t want to see it. Her problem was I didn’t have a warrant of fitness, but if she knew a little bitabout the law then she’d know that if I was on a trade plate there would be corresponding documentation and obligations.
[54] I agree with the submissions of Ms Jerebine, counsel assisting, that the above discussion helps in determining whether or not the officers’ intended to deceive the Justices of the Peace at the hearing of first instance. As Ms Jerebine submitted, Mr Prescott appears to accept that the statement made by Constable Foran was one of mistake; that she did not know the law and was not intentionally seeking to deceive. It also appears that Mr Prescott knew of the mistake by the officer at the time he was stopped, but did not consider it to be his role to correct the mistake.
[55] In reviewing all the material, I conclude that there is an absence of probative evidence to establish that the officers had knowledge of the material particulars which rendered their representations false. As Mr Prescott acknowledged in the District Court, if Constable Foran knew the law she would have known the error. However, and this seems abundantly clear, she did not know what the law was. As noted above, that finding is supported by the conclusions of the IPCA.
[56]I agree with the following conclusion advanced by Ms Jerebine:
No crime has been committed; a case was presented, undefended, and was overturned by the appellate court. As provided for in R v Morley in a similar context, it is not (in some instances) appropriate to criminalise behaviour where other forms of redress exist. In this case, at least two alternatives at law existed, appearing at a defending hearing, or seeking to appeal a decision on the basis the hearing of first-instance being wrong at law and without all relevant evidence.
Issue (c) – Unreasonableness and bias
[57] Mr Prescott claims that the refusal to accept his private prosecution for filing was unreasonable and arbitrary.
[58] For the reasons I have set out above, I find that the Judge’s ruling was not unreasonable or arbitrary. It was available to her at law.
[59] I further find that there is no validity to the claim of bias. I acknowledge that there was some significant delay in dealing with the application, but the claims of a lack of judicial diligence and irrationality are without foundation.
Conclusion and result
[60] Mr Prescott has not established any material error of law. The District Court Judge’s conclusion that there was insufficient evidence both of loss and intention to defraud was not arbitrary, unreasonable or irrational.
[61]The claim for judicial review is accordingly dismissed.
[62] As to costs, I make an order under s 178(2)(a) of the Senior Courts Act 2016 that Mr Prescott is to pay costs and disbursements on a 2B basis.
[63] I find that to do so is the just outcome in this case. The claims advanced by Mr Prescott lacked merit and did not raise substantial issues of public importance. The general principle that costs follow the event should be applied and costs should be paid by Mr Prescott, rather than from the public fund.
Andrew J
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