Prescott v Police

[2021] NZHC 483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0936

[2021] NZHC 483

BETWEEN

PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

G M Taylor for the respondent

Judgment:

12 March 2021

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 12 March 2021 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Crown Law, Wellington

Copy to:
Applicant

PRESCOTT v NEW ZEALAND POLICE [2021] NZHC 483 [12 March 2021]

[1]        Mr Prescott applies to recall my 15 February 2019 judgment,1 striking out his application for judicial review of the District Court’s dismissal of his appeal against the decision of two Justices of the Peace he pay a fine of $80 and court costs of $30 in relation to a speeding infringement.2

[2]        The recall application relies on the success of Mr Prescott’s second appeal, which this Court upheld on the new ground there was no evidence of how the prosecution discharged its onus to prove beyond reasonable doubt he was the owner of the vehicle photographed by the speed camera, making his conviction a miscarriage of justice.3 In detailed written submissions, Mr Prescott reasserts the District Court Judge therefore acted unlawfully, unreasonably and unfairly in dismissing his appeal, but also contends my judgment is to be understood as having “evaporated” in the face of his entitlement to “be restored to the position” in which he should have been from the outset.

[3]        Mr Prescott misses the point his judicial review application was dismissed as an improper collateral attack on his conviction.4 His proposed appeal against my decision was declined as being without merit.5 He was refused leave for further appeal to the Supreme Court.6

[4]        Mr Prescott, in reliance on his subsequent success in this Court, then applied to set aside the Court of Appeal’s decision declining to grant him an extension of time to appeal against my strike-out judgment. This application was denied, the Court explaining:7

We do not accept that the fact that Mr Prescott was ultimately successful with a criminal appeal entitles him to seek to set aside orders of this Court made in its civil jurisdiction. As Ms Taylor for the respondent submits this Court’s decision declining an extension of time to file an appeal was made on the basis that judicial review was not an appropriate remedy and that Mr Prescott should have brought his challenge to the District Court decision by way of a second criminal appeal. An order for costs was appropriate in the circumstances. This Court’s decision remains valid despite the fact that the second criminal appeal brought was ultimately successful.

1      Prescott v New Zealand Police [2019] NZHC 175.

2      Prescott v New Zealand Police [2018] NZDC 5372.

3      Prescott v New Zealand Police [2020] NZHC 2191 at [26].

4      Prescott v New Zealand Police [2019] NZHC 175 at [6].

5      Prescott v New Zealand Police [2019] NZCA 380 at [19]–[20].

6      Prescott v New Zealand Police [2019] NZSC 133.

7      Prescott v New Zealand Police [2021] NZCA 24 at [6].

[5]        Mr Prescott’s similarly sought recall of the Supreme Court’s refusal of leave to appeal the Court of Appeal’s original decision also was dismissed, the Supreme Court explaining:8

The fact that the applicant was ultimately successful on his appeal to the High Court does not  provide  a  basis  for  recall  of  this  Court’s  judgment  of  22 November 2019, which dealt with the procedural difficulties faced by the applicant as a result of his erroneous choice to challenge the District Court decision by way of judicial review instead of by appeal. Nothing in the decision of Lang J alters the fact that the case dealt with in this Court arose from the inappropriate use of the judicial review procedure by the applicant, which led to his judicial review claim being struck out and his subsequent application for an extension of time to appeal to the Court of Appeal being dismissed.

[6]For all the same reasons, Mr Prescott’s application to recall my judgment is dismissed.

—Jagose J

8      Prescott v New Zealand Police [2021] NZSC 18 at [8].