Prescott v Police

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].

CaseChat Overview and Summary

In the case of Prescott v Police, the applicant, Peter Richard Prescott, sought to recall a previous judgment made by Jagose J on 15 February 2019. This earlier judgment had dismissed Prescott's application for judicial review of a decision by the District Court. The District Court had dismissed Prescott's appeal against two Justices of the Peace who had fined him for a speeding infringement. The hearing for the recall application was conducted on the papers, with Prescott appearing in person and G M Taylor appearing for the respondent, New Zealand Police. The judgment was delivered by Jagose J on 12 March 2021.

The primary legal issue before the court was whether the earlier judgment dismissing Prescott's application for judicial review could be recalled in light of Prescott's subsequent success in a second appeal. This second appeal had been upheld by the High Court, which found that there was no evidence to support the prosecution's claim that Prescott was the owner of the vehicle photographed by the speed camera. This finding led to the conclusion that Prescott's conviction was a miscarriage of justice. Prescott argued that because his conviction had been found to be unjust, the earlier dismissal of his judicial review application should be reconsidered, as the District Court Judge had acted unlawfully, unreasonably, and unfairly in dismissing his appeal.

Jagose J dismissed Prescott's application to recall the earlier judgment. The court held that the dismissal of Prescott's judicial review application had been correct as it was an improper collateral attack on his conviction. The court further noted that the appeal against the earlier decision had been declined as without merit and that leave for further appeal to the Supreme Court had been refused. Additionally, the Court of Appeal and the Supreme Court had both previously denied similar applications by Prescott to set aside their respective decisions declining extensions of time to appeal the earlier judgment. The court concluded that Prescott's subsequent success in his criminal appeal did not entitle him to seek to set aside orders made by the court in its civil jurisdiction. The court maintained that the decision declining an extension of time to file an appeal was valid and remained so despite the success of the criminal appeal.

No further orders were made in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established