Prescott v Police
[2020] NZHC 1304
•11 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2259
[2020] NZHC 1304
BETWEEN PETER RICHARD PRESCOTT
Appellant
AND
NEW ZEALAND POLICE
First Respondent
DISTRICT COURT AT AUCKLAND
Second Respondent
Hearing: 10 June 2020 Appearances:
Appellant in person
C Paterson (via VMR) for the Respondents
Judgment:
11 June 2020
JUDGMENT OF GAULT J
(Leave to appeal)
This judgment was delivered by me on 11 June 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Applicant
Mr M Hodge and Ms C Paterson, Meredith Connell, Auckland
PRESCOTT v POLICE [2020] NZHC 1304 [11 June 2020]
[1] Mr Prescott seeks leave to appeal against my judgment dated 18 December 2019.1 Leave to appeal to the Court of Appeal is required under s 60 of the Senior Courts Act 2016 because my decision was an appeal from a District Court decision dismissing Mr Prescott’s civil claim for unlawful arrest and detention and denial of the right to consult a lawyer.2
[2]The respondent opposes leave.3
[3] Mr Prescott requested a hearing. While the respondent was content for the application to be determined on the papers, a hearing was allocated for 6 April 2020. Given the COVID-19 lockdown, that hearing was vacated. The hearing was rescheduled following the lockdown.
[4] Mr Prescott has also filed a brief memorandum seeking, in the alternative, recall of my judgment.
Recall
[5] Dealing first with recall, Mr Prescott did not give any particular reason for this alternative, merely indicating he was open to it as a way to alter the judgment before it went on to the Court of Appeal.
[6] There are three recognised categories of cases in which a judgment not perfected may be recalled:4
…first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
1 Prescott v NZ Police [2019] NZHC 3376 [the judgment].
2 Prescott v NZ Police [2016] NZDC 14357.
3 Insofar as the application was made out of time, the respondent does not oppose an extension of time.
4 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
[7] There is no suggestion that either of the first two categories applies. The third category is intended to be narrow and cases appropriate for recall on that basis are likely to be rare.5 Recall is not a substitute for an appeal. No good reason for it has been suggested and I decline to recall the judgment.
Test for leave for a second appeal
[8]It is well established that to obtain leave to bring a second appeal:6
…[t]he appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
[9] I am conscious that I am being asked to review the correctness of my own decision. In such circumstances, particularly when there are many grounds, the easier course might be to accept one or more alleged errors are capable of argument, but that would not be the correct approach. I must assess whether the alleged errors are capable of bona fide and serious argument and of sufficient importance in the sense outlined. In doing so, I am conscious that, if I decline leave and leave is sought from the Court of Appeal, that Court may wish to have my reasons for considering whether a further appeal is warranted.
Grounds of appeal
[10] Mr Prescott claims that the judgment contains a number of errors of law and fact. He recast his filed written submission in a further 23 page submission that he handed up at the hearing. I mention each alleged error briefly below for completeness but, helpfully, during the hearing Mr Prescott narrowed the real issues to whether the Court was wrong:
5 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23] and [34].
6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at [22]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [30]-[31].
(a)to apply the law in Chapman v Director of Public Prosecutions7 and find that the arrest was justified because the constable suspected, and had good cause to suspect, that Mr Prescott was intentionally obstructing him (an arrestable offence) even though the constable had the wrong obstruction provision in mind; and
(b)to find that informing Mr Prescott that he was being arrested for “obstruction” was sufficient reason in terms of s 23(1)(a) of the New Zealand Bill of Rights Act 1990 (NZBORA).
[11] The first issue concerning the lawfulness of the arrest involves both a legal and factual component. The legal question is whether the law as to alternative justifications for arrest stated in Chapman v Director of Public Prosecutions applies in New Zealand.8 The factual question is whether I was wrong to find that the constable suspected, and had good cause to suspect, that Mr Prescott was intentionally obstructing him.9 Mr Prescott’s argument focused on challenging the factual finding, and it is convenient to deal with that first.
[12] I accept the submission of Ms Paterson, for the respondent, that the factual challenge does not meet the test for leave. Even if the factual question is capable of bona fide and serious argument – and she submitted it is not – I consider it is clearly confined to the unusual facts of this case and does not involve an interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
[13] I acknowledge that Mr Prescott did not abandon the legal question and in reply he submitted that Chapman v Director of Public Prosecutions was overridden by NZBORA. Ms Paterson acknowledged, and I accept, that the legal question is capable of bona fide and serious argument. There is little New Zealand authority on the issue and I applied the law as stated by Bingham LJ in the English case of Chapman. In that sense, Ms Paterson acknowledged that the question may benefit from the Court of Appeal’s consideration. I note that I did not accept the respondent’s submissions
7 Chapman v Director of Public Prosecutions (1989) 89 Cr App R 190 (QB).
8 At [51]-[53] and [82] of the judgment.
9 At [89] of the judgment.
proposing a more expansive or permissive approach to alternative justifications for arrest.10 That is not the subject of the proposed appeal. The issue raised by Mr Prescott is essentially that there should be no justification for arrest on any ground not articulated at the time. That appears inconsistent with Caie v Attorney-General,11 as well as Chapman v Director of Public Prosecutions, albeit not the subject of higher New Zealand authority at least given my view that Campbell v Police is distinguishable.12 Ms Paterson also acknowledged, and I also accept, that there is some public interest in the law relating to alternative justifications for arrest.
[14] Notwithstanding her acknowledgements, I accept Ms Paterson’s submission that on balance this particular case does not meet the test for leave to appeal. I consider the question of law raised by Mr Prescott is not sufficiently arguable and important to outweigh the cost and delay of a further appeal. Any public interest in higher appellate consideration of the question of law raised by Mr Prescott is outweighed by the unusual facts, dating back to 2011, and the unusual progress of this civil proceeding, which was dismissed at first instance and on appeal, albeit for different reasons. In those circumstances, considerations of finality and the cost and delay of a further appeal weigh more. Related to this, I accept Ms Paterson’s submission that there would be little overlap between the second appeal and the separate appeal against dismissal of Mr Prescott’s application for judicial review of the District Court’s decision (largely on bias grounds) which I heard at the same time as the appeal.
[15] Turning to the second issue concerning the reason given for the arrest, Mr Prescott submitted that informing him that he was being arrested for “obstruction” was insufficient in terms of s 23(1)(a) of NZBORA.13 He submitted that the act or omission that gave rise to the claim of obstruction, and the enactment relied upon, had to be explained to him at the time of the arrest.
10 At [41]-[50] of the judgment.
11 Caie v Attorney-General [2005] NZAR 703 (HC) at [103]-[105].
12 Campbell v Police [1994] 3 NZLR 260 (CA); distinguished at [42]-[45] of the judgment.
13 At [90]-[92] of the judgment.
[16] I do not consider there is a serious question that informing Mr Prescott that he was being arrested for “obstruction” was insufficient and in breach of s 23(1)(a) of NZBORA. In any event, this issue is also confined to the unusual facts of this case and does not involve an interest of sufficient importance to meet the test for leave to bring a second appeal.
[17] For completeness, I briefly address each of the alleged errors (following the numbering in Mr Prescott’s written submission):
(a)Error of law – breach of procedural due process, failure to apply HCR
20.16 (error 1): Reliance on r 20.16 of the High Court Rules 2016 is misconceived. It confuses evidence and legal submission. Further evidence was not adduced on appeal. There is no separate question justifying leave here.
(b)Justification for the arrest after the event (error 2): This raises the central question as to whether the arrest was justified, dealt with above.
(c)Error of fact and law – elements of obstruction never defined or established (error 3): I agree with the respondent that Mr Prescott’s argument on this point appears to conflate the requirement for the officer to have good cause to suspect him of committing an offence with the question of whether he was guilty of that offence. Otherwise, it raises the same central question as to whether the arrest was justified.
(d)Error of fact and law at paragraphs 33 and 81 of the judgment (error 4): I do not understand paragraphs 33 and 81 of the judgment to give rise to any error. Mr Prescott appears to confuse the arrest power for obstruction with the power to inspect documents under s 113 of the Land Transport Act 1998. Again, this reduces to the same central question as to whether the arrest was justified.
(e)Error of fact at paragraph 9 of the judgment (error 5): This statement in the factual background that the police mobile data terminal had not been updated was open on the evidence, was consistent with a similar statement in the District Court (thus giving rise to concurrent findings) and, in any event, was immaterial to whether the arrest was justified given the other findings as to the constable’s state of mind. Following the District Court decision and the scope of the appeal in the High Court, the claim that the police knew the warrant of fitness was valid and the traffic stop and arrest were a malicious ruse and act of retribution (and the related allegation of destruction of evidence) is not capable of serious argument justifying a further appeal.
(f)Error of fact and law – failure to apply s 24(a) of NZBORA and the adverse impact it had on the right to consult a lawyer under s 24(c) of NZBORA (error 6): The s 24(a) right to details of a charge (as opposed to the reasons for arrest, already addressed) was not in issue in the High Court appeal. Nor was the s 24(c) right to access a lawyer. Mr Prescott’s claim in relation to his right to access a lawyer was brought under s 23(1)(b). In any event, I consider that Mr Prescott’s claim that his right to access a lawyer at the police station was breached is not seriously arguable. Mr Prescott had already been told of this right as required.14
(g)The mandatory requirements of ss 23(1)(a) and (b) of NZBORA (error 7): Section 23(1)(a) concerns the second main issue dealt with above – whether the reason given for the arrest was sufficient. I have also addressed the s 23(1)(b) claim.
(h)Error of fact – appeal successful (error 8): Again, this raises the same central question as to whether the arrest was justified.
14 At [95] of the judgment.
Result
[18]The application for leave to appeal is dismissed.
[19] On the appeal I made no order as to costs given the NZBORA context. If the respondent considers that costs on this application should follow the event, and they cannot be agreed, I will receive memoranda not exceeding two pages and determine costs on the papers.
Gault J
4
1