Prescott v Police - [2020] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000163

[2020] NZHC 2191

BETWEEN
PETER PRESCOTT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
20 June 2020 (further submissions received on 14 and 22 July and

7 August 2020

Appearances:

Appellant in person

K Fitzgibbon for Respondent

Judgment:

27 August 2020

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by me on 27 August 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2191 [27 August 2020]

[1] Mr Prescott was charged with exceeding the speed limit after a motor vehicle registered in his name was captured by a speed camera travelling above the posted speed limit on 20 July 2016.

[2] Mr Prescott denied the charge and the matter was set down for hearing before Justices of the Peace on 27 October 2016. Mr Prescott failed to appear at that hearing and the Justices of the Peace found the charge proved in his absence. They ordered Mr Prescott to pay a fine of $80 and court costs of $30.

[3] Mr Prescott appealed against the decision, but in a decision delivered on 21 March 2018 Judge Tremewan dismissed the appeal.1

[4] Mr Prescott appeals against the Judge’s decision. Leave to appeal out of time was granted by Whata J on 5 June 2020.

Leave to bring a second appeal

[5] Leave is also required because this would be a second appeal.2 Justice Whata did not address this issue in his decision granting leave to appeal out of time so I am required to determine whether leave should be granted. Leave to bring a second appeal may only be granted where the proposed appeal raises an issue of general or public importance or where there is a risk a miscarriage of justice may have occurred (or may occur) if leave is not granted.3

Background

[6] A speed camera captured a vehicle registered in Mr Prescott’s name travelling along Triangle Road in West Auckland at a speed of 64 kilometres per hour on 20 July 2016. The posted speed limit in that area is 50 kilometres per hour.

[7] The police issued an infringement notice against Mr Prescott and served it on him on 2 August 2016. Mr Prescott contested the infringement notice and requested

1      Police v Prescott [2018] NZDC 5372.
2      Criminal Procedure Act 2011, s 237(1).
3      Section 237(2).

a hearing. As previously recorded, he failed to appear at the hearing so the prosecution obtained a conviction in his absence.

The proposed appeal

Jurisdiction

[8] In the District Court Mr Prescott contended neither the Justices of the Peace nor the Judge had jurisdiction to deal with the infringement. He advanced an array of arguments under this head, contending that the police failed to establish the jurisdiction of the Court and that the District Court acted without jurisdiction. Mr Prescott did not advance this argument in support of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2191
Decision Date: 27 August 2020

CaseChat Overview and Summary

Mr Prescott was convicted in the District Court of exceeding the speed limit, contrary to section 133 of the Land Transport Act 1998. The conviction followed Mr Prescott's non-appearance at a hearing before Justices of the Peace. Mr Prescott appealed against the conviction but the appeal was dismissed. Mr Prescott now appeals against the dismissal of his appeal, arguing the appeal court erred in dismissing his appeal. Leave was required to bring the second appeal, and it was granted. The grounds of appeal advanced by Mr Prescott were that the District Court did not have jurisdiction, the infringement notice was fatally flawed, the prosecution failed to prove he was the driver, and the manner in which the prosecution proved the offence was flawed. The court found that the grounds of appeal lacked merit except for the last ground, which was that the manner in which the prosecution proved the offence was flawed. The court found that the Justices' decision did not confirm the evidence provided by the prosecution was in admissible form, and the absence of any evidence left the court unable to be sure how or whether the prosecution proved the charge. The conviction in those circumstances would amount to a miscarriage of justice. Mr Prescott has therefore established the necessary basis on which to bring a second appeal. Leave to bring a second appeal was granted and the appeal against conviction was allowed. The sentence and costs order imposed by the District Court were quashed.

Orders