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Prescott v Police

Prescott v Police

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Case Copied 18 December 2019 44 min read

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2164

[2019] NZHC 3376

BETWEEN
PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

First Respondent

DISTRICT COURT AT AUCKLAND

Second Respondent

CIV-2016-404-2259

IN THE MATTER

of the unlawful arrest and violation of the Applicant’s rights

BETWEEN

PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 July 2019

Appearances:

Applicant in person in both proceedings

A F Todd for the Respondents in both proceedings F Pilditch, counsel assisting the Court

Judgment:

18 December 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 18 December 2019 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

PRESCOTT v POLICE [2019] NZHC 3376 [18 December 2019]

Introduction

[1] Mr Prescott appeals against, and seeks judicial review of, a decision of Judge P A Cunningham in the District Court on 10 August 2016 dismissing his civil claim for unlawful arrest and detention and denial of the right to consult a lawyer.1

[2] The appeal and judicial review application were scheduled for a one day hearing on 14 August 2018. At that hearing, Duffy J considered that the appeal and judicial review raised issues of sufficient legal complexity that counsel assisting should be appointed and were of importance to the respondent such that the matter should be adjourned.

[3] Issues arose concerning proposed amendments to Mr Prescott’s pleadings, and on 24 October 2018 Duffy J directed that the matter be set down for a three day hearing commencing on 8 July 2019 to address the scope of the appeal and judicial review pleadings as well as the substantive proceedings.

[4] With the help of counsel assisting, Mr Pilditch, the parties were largely able to resolve their dispute as to the scope of the pleadings. The residual issues were resolved by consent at the outset of the hearing.

Factual background

[5] On 18 May 2011 at 2:58 pm Mr Prescott was parked in his vehicle in Glenfield when police carried out a vehicle check. That indicated that Mr Prescott had a lapsed warrant of fitness (WOF) and registration. Constable Brown approached Mr Prescott and informed him of this but recognised that the outside of the WOF sticker on Mr Prescott’s car showed the WOF was current until July 2011. Mr Prescott was immediately suspicious that he was being harassed and commenced recording the interaction. The constable said he would like to see the number on the WOF so he could do a cross-reference. Mr Prescott provided the WOF number.

1 Prescott v NZ Police [2016] NZDC 14357.

[6] After returning to his police car to consult with a colleague, the constable asked Mr Prescott about the lapsed registration and then asked to have a look at the WOF sticker to confirm the number. Mr Prescott said several times he did not want the constable in his vehicle and the constable went back to his police car. On…

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: [2019] NZHC 3376
Decision Date: 18 December 2019

CaseChat Overview and Summary

Mr Prescott appeals against, and seeks judicial review of, a decision of Judge P A Cunningham in the District Court on 10 August 2016 dismissing his civil claim for unlawful arrest and detention and denial of the right to consult a lawyer. The appeal and judicial review raise complex legal issues, including whether the arrest was lawful, whether Mr Prescott was properly informed of the reasons for his arrest, whether he was arbitrarily detained, and whether his right to consult a lawyer was breached.

The Court found that the arrest was lawful. The constable had the authority to direct Mr Prescott to get out of his vehicle to inspect the WOF, but there was no clear direction or order for Mr Prescott to get out of the car. The Court concluded that the constable was focused on obstruction, not failure to comply with a direction. Even though the constable had a power of arrest for obstruction under s 23 of the Summary Offences Act, the Court found that the constable had good cause to suspect that Mr Prescott was intentionally obstructing him. The Court also found that Mr Prescott was properly informed of the reason for his arrest, that the length of his detention was not unreasonable, and that his right to consult a lawyer was not breached.

The Court dismissed the appeal and the application for judicial review. The Court found that the allegations of bias were not substantiated and did not indicate any judicial bias. The Court also found that the miscellaneous arguments raised in the appeal, including criticism of the Judge, alleged corrupt actions of police and counsel, barratry, malicious prosecution, fraud, and evidence tampering, had no merit. The Court concluded that the respondents were entitled to costs, but it is unlikely that costs will be awarded against an unsuccessful plaintiff if a NZBORA claim is bona fide and is found to have some merit even though unsuccessful, especially if the plaintiff sought no more than a vindication of rights, and the conduct of the case did not warrant an adverse costs order. The Court recorded its view that the lawfulness of the arrest issue did have merit.

Orders