Prescott v Police
[2019] NZHC 3376
•18 December 2019
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 his return, the constable said:
I have come back to give you one more opportunity to let me have a look at that registration tag …
If you decline my opportunity you are obstructing me you will be arrested.
[7] Mr Prescott refused to allow the constable to come into his vehicle but offered to read out the number again. He was arrested for obstruction at 3:16 pm. He was read his rights, including the right to speak to a lawyer.
[8] At 3:26 pm they arrived at the North Shore Police Station and the initial booking process was carried out. Mr Prescott was placed in a cell at 4:03 pm, while the booking and charging process continued. He was bailed at 5:12 pm and released at 5:17 pm, having been charged with obstruction.
[9] In fact, the WOF was current. The police mobile data terminal had not been updated in relation to Mr Prescott’s vehicle, which had passed a WOF inspection in January 2011. Police ascertained the WOF was current while Mr Prescott was still in custody.
[10]The prosecution was ultimately withdrawn on 4 October 2011.
[11] Mr Prescott commenced civil proceedings against the Police in the High Court alleging numerous breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and the commission of various torts. The claim was transferred to the District Court. The claim went to trial on 5 and 6 April 2016 on an amended statement of claim.2 The live allegations were breaches of Mr Prescott’s right not to be arbitrarily arrested or detained (s 22 of NZBORA) and of his right to consult and instruct a lawyer (s 23(1)(b) of NZBORA).
2 This no longer contained allegations of breach of ss 21 (unreasonable search or seizure) or 23(5) (everyone deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person) of NZBORA.
District Court judgment
[12] Before Judge Cunningham, Mr Prescott argued that the arrest was unlawful because the constable only requested to look at the WOF, rather than giving a direction or order for him to get out of the car or otherwise. He also argued that the constable had no power to arrest him for obstruction, because obstruction under s 53 of the Land Transport Act 1998 (LTA) is a fine only offence, so is not a basis for arrest without a warrant under s 315 of the Crimes Act 1961, which the Judge impliedly accepted.
[13] Judge Cunningham concluded, however, that Mr Prescott was lawfully arrested on the basis that the constable was making it quite clear that Mr Prescott needed to get out of the vehicle, and Mr Prescott must have realised it was an order at the point at which the constable said that if Mr Prescott did not get out of the vehicle he would be arrested for obstruction. The Judge held that s 116 of the LTA made it quite clear that the Police are able to arrest without a warrant: s 116 authorises an “enforcement officer” to arrest without warrant a person whom the officer has good cause to suspect has failed to comply with a direction under s 113, which authorises a constable to examine a WOF. The Judge did not accept that the constable was making a request of Mr Prescott.
[14] In relation to Mr Prescott’s detention at the Police Station, the Judge did not consider that one hour and 51 minutes was an unreasonable amount of time to be processed and for a decision about the charges and bail to be made. Accordingly, the Judge did not accept that Mr Prescott was arbitrarily detained.
[15] In relation to the right to consult a lawyer, the Judge said that Mr Prescott had not satisfied the Court on the balance of probabilities that he was denied his right to consult and instruct a solicitor, because:
(a)Mr Prescott acknowledged having verbally been given this right to consult a lawyer at the time of arrest;
(b)he acknowledged he did not say that he wanted to consult a lawyer; and
(c)he signed the notice to person in custody form which has the right written on it.
Scope of appeal and review
[16] Mr Prescott filed a revised application for judicial review dated 9 October 2018 and an amended notice of appeal on 11 October 2018. Although the respondents objected to some amendments, Ms Todd indicated at the commencement of the hearing that they largely did not oppose leave to amend being granted and were prepared to deal with the substance of the allegations on the following basis, which Mr Prescott confirmed:
(a)Tampering with the Court record – Mr Prescott’s allegations of tampering with the record of closing submissions in the District Court (pleaded in his revised application for judicial review) are not treated as separate standalone claims but as particulars of alleged bias.
(b)Fraud – Mr Prescott’s allegations of fraud are also not treated as standalone claims but can be addressed as part of what happened.
(c)Malicious prosecution – Mr Prescott pursues his allegations concerning the arbitrariness of his arrest and in relation to the Judge’s approach to s 116 but not as a separate ground that the 2011 prosecution was a malicious prosecution.
[17]Mr Prescott also confirmed that his claims do not extend to individuals.
[18] I grant leave to amend Mr Prescott’s notice of appeal and application for judicial review subject to those agreed limitations.
[19] Mr Prescott filed an overly lengthy written submission.3 At the hearing he worked from a further submission in the form of a summary which he handed up,4 but said he still relied on the written submission. Unfortunately, the length and scope
3 193 pages.
4 41 pages.
of his submissions masked the best points. Counsel assisting helpfully attempted to distil Mr Prescott’s arguments.
[20] It is convenient to deal with the appeal before the application for judicial review.
Appeal
[21] This Court’s approach on a general appeal is settled following the Supreme Court’s decisions in Austin, Nichols & Co Inc v Stichting Lodestar and Kacem v Bashir.5 The appellate court has the responsibility of considering the merits of the case afresh.6 The appellate court must be persuaded that the decision is wrong,7 but the weight it gives to the reasoning of the court below is a matter for the appellate court’s assessment.8 Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.9
[22]This appeal may be dealt with in four parts:
(a)Lawfulness of the arrest – Mr Prescott says his arrest had no lawful basis because there is no power of arrest for obstruction under s 53 of the LTA, and the arrest cannot be justified after the fact in reliance on s 116, so his right under s 22 of NZBORA was breached.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16]; and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].
6 Kacem v Bashir at [31].
7 Austin, Nichols at [13].
8 Kacem v Bashir at [31]. No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important.
9 Austin, Nichols at [16] and Kacem v Bashir at [32].
(b)Reasons for the arrest – Mr Prescott claims there was a breach of his rights under s 23(1)(a) of NZBORA because he was not properly informed of the reasons for his arrest. While this is an expanded ground of appeal, the first respondent does not oppose this ground being raised.
(c)Arbitrariness of the detention – Mr Prescott claims he was arbitrarily detained because of the length of the period he was kept in the police station.
(d)Right to consult a lawyer – Mr Prescott claims that his right to access a lawyer under s 23(1)(b) of NZBORA was breached.
Appeal part I: lawfulness of the arrest
[23] Section 22 of NZBORA provides for the right not to be “arbitrarily” arrested or detained. Arbitrariness here depends on the nature and extent of any departure from the substantive and the procedural standards involved: an arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle or without following proper procedures.10 In this case the focus, and the primary issue on appeal, is whether Mr Prescott’s arrest was lawful.
Submissions
[24] Mr Prescott’s two main submissions are that there was no clear direction or order by the constable for him to get out of the car, and that the constable had no statutory basis to arrest him.
[25] Mr Prescott says that he was not ordered to get out of the car. He was objecting to the constable putting his head through the driver’s window and his face close to Mr Prescott’s. He did not think the constable wanted him to exit the car.
10 Neilsen v Attorney-General [2001] 3 NZLR 433 (CA) at [34].
[26] Mr Prescott acknowledges the constable’s good faith attempts to follow procedure and check the conflicting WOF details. However, a section of his submissions alleges the constable acted in a corrupt way, failing to properly investigate the veracity of the WOF prior to arrest,11 and that a second constable (whom Mr Prescott had come across before) obstructed the arresting officer by not letting him check the WOF number that had been given to him by Mr Prescott. Another section of his submissions alleges that the Police deliberately lost or destroyed a photograph taken of the inside face of the WOF.
[27] Mr Prescott claims that he was not arrested and/or charged under s 53 of the LTA but for a breach of s 22 of the Summary Offences Act 1981 as indicated in his bail bond. These are fine only offences not giving rise to a power of arrest.12
[28] Mr Prescott claims that an alternative power of arrest such as that under s 116 of the LTA cannot be invoked subsequently to justify the arrest, as Judge Cunningham did in the District Court. This latter argument merges into Mr Prescott’s procedural fair trial complaints:
(a)The Judge relied without notice on s 116 and without Mr Prescott having been charged with a criminal offence arising from s 116.
(b)A criminal charge under s 116 is outside the limitation period and therefore unavailable to the Police in the civil proceeding.
(c)The Judge erroneously relied on a criminal charge in the civil proceeding (which informs the allegation of bias in the judicial review).
(d)There has been tampering with the court record.
[29] Mr Prescott also claims that reliance on s 116 breached his right to be presumed innocent until proven guilty contrary to s 25(c) of NZBORA.
11 A failure to make proper enquiries as to the alleged offence may be relevant to the existence of good cause to suspect, but not here since the relevant offence for the purposes of arrest did not concern the WOF’s currency.
12 Crimes Act 1961, s 315.
[30] One part of these complaints can be disposed of briefly here: while s 116 does authorise an arrest without warrant for failure to comply with a direction, it does not create an offence and a person cannot be charged under it.
[31] Mr Pilditch followed Mr Prescott’s submissions to assist the Court. He submitted that:
(a)There is no power to arrest for obstruction under s 53 of the LTA as that is a fine only offence.
(b)The Judge failed to explicitly consider the basis for arrest. The Judge seemed to assume that the constable had lawfully invoked s 116. If the constable had erroneously relied on s 53 in executing the arrest, there may be difficulties with attempting to justify it, after the event, in reliance on a different provision of the LTA.
(c)Section 113 of the LTA gave the constable power to enter the vehicle to inspect the WOF. This included the power to direct Mr Prescott to leave his own vehicle for that purpose. But it is not clear whether that implied power to direct would nevertheless justify an arrest under s 116.
(d)Some of these difficulties may be avoided if, instead of relying on s 116, the Police relied on s 23 of the Summary Offences Act (resisting or intentionally obstructing a constable).
(e)Finally, if these provisions could be relied on, Mr Prescott raises valid evidential arguments as to why he had established that no direction was in fact given. A lawful direction must include unambiguous language on the part of the officer, and a corresponding comprehension on the part of the person directed. There was an equivocality about the language used by the constable that makes this a live issue in the appeal.
[32] Ms Todd submitted that the constable had lawful authority to arrest Mr Prescott under s 116 for failure to comply with a direction and/or under s 315(2) of the Crimes
Act 1961 for obstructing the officer (under the Summary Offences Act) in the execution of his duties under the LTA. The key question is whether objectively there is a lawful basis for the arrest. She submitted the stated basis is not material where an alternative power exists, and relevant procedural requirements were complied with.13 Ms Todd accepted that an alternative power must be exercisable on the facts – that is, the constable turned his mind to the relevant factors.
The issues
[33] It is common ground that Mr Prescott was arrested for obstruction, although Mr Prescott says it was under s 22 of the Summary Offences Act and not s 53 of the LTA as the constable said at trial. Section 22 is not applicable as it concerns obstructing a public way. In any event, there is no power to arrest for obstruction in relation to either s 53 of the LTA or s 22 of the Summary Offences Act as they are fine only offences.
[34] Section 315(2) of the Crimes Act provides a power of arrest where a constable has good cause to suspect a person has committed an offence punishable by imprisonment.
[35] This requires that a constable have an actual suspicion that the person has committed, or is committing, an offence punishable by imprisonment, and have “good cause” to hold that suspicion. The first part is subjective. The state of mind required was described by Neazor J in R v Thompson:14
… the word ‘suspect’ requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not.
[36] The second part, “good cause to hold that suspicion”, is objective, and is a question for the Court.15
13 Citing Campbell v Police [1994] 3 NZLR 260 (CA) where the Court of Appeal considered the lawfulness of a search. Ms Todd also relies on Caie v Attorney-General [2005] NZAR 703 (HC) where Fisher J took the same approach in an arrest context.
14 R v Thompson (1995) 13 CRNZ 546 (HC) at 557.
15 Police v Anderson [1972] NZLR 233 (CA) at 247-248 per Turner J; and R v Thompson at 557, citing Duffy v Attorney General (1985) 1 CRNZ 599 (HC) at 602.
[37] At the time of arrest the constable referred to “obstruction” without being specific as to the offence provision or power of arrest he had in mind. The respondent acknowledged that the constable may not have been entirely clear in his own mind as to the precise statutory source of the power to arrest.
[38] The Judge stated that s 116 of the LTA made it quite clear that the Police are able to arrest without a warrant. Section 116 provides:
An enforcement officer may arrest without warrant a person whom the officer has good cause to suspect has failed to comply with a direction given under section 113 or section 115.
[39]As Mr Pilditch submitted, that raises several questions, including:
(a)Can an arrest be justified, after the event, in reliance on a provision that was not invoked?
(b)Does the power in s 113 include the power to give directions, breach of which would give rise to the power of arrest in s 116?
(c)Could s 116 be relied on to justify the arrest?
(d)Could s 23 of the Summary Offences Act be relied on instead?
[40]I address these in turn.
Alternative justification for arrest
[41] As I have said, Ms Todd submits that as long as a power and reasonable basis to arrest exists, that is sufficient to justify an arrest even if that was not the constable’s reason at the time, although the constable must have turned his or her mind to the elements necessary for the exercise of the alternative power.
[42] Two decisions were cited to me. Ms Todd relies on Campbell v Police.16 That case involved a search by prison officers outside a prison of a vehicle used by a person
16 Campbell v Police [1994] 3 NZLR 260 (CA).
returning to the prison from leave. The Court of Appeal differed from the lower Courts and found there was no power of search available under the Penal Institutions Regulations 1961, which was the authority invoked, as the appellant was not an inmate at the relevant time. But the Court upheld the lawfulness of the search on the basis that another power was available under the Misuse of Drugs Act 1975.
[43] I consider that case is distinguishable, for two reasons. First, in that case exercise of the alternative power of search involved consideration of essentially the same matters.17 Indeed, there appeared to be no doubt that the Misuse of Drugs Act power applied.18 Rather, the issue was whether the statutory obligation on the officers to identify themselves and their authority for the search was triggered.
[44] Here, the matters relevant to forming good cause to suspect an offence of obstruction and a failure to comply with a direction are not necessarily the same. This makes it more difficult to be satisfied after the event that the alternative power was in fact available. The power requires assessment by the constable of the essential elements necessary for the exercise of the power, which is inherently problematic when they were not considered. Moreover, the offence of obstruction, at least under s 53 of the LTA, could never have justified an arrest.
[45] Secondly, while search and seizure is an intrusive intervention on the part of the state and subject to NZBORA protection like arrest and detention, the applicable considerations are somewhat different. For example, an unlawful search can more substantively be remedied by exclusion of evidence. Mr Pilditch submitted the Court should be cautious about applying Campbell v Police in the arrest context. Justifying an erroneous arrest after the event based on another power that was not invoked at the time but could have been available seems inconsistent with the fundamental right protected by ss 18 and 22 of NZBORA. There is some force in this submission.
17 Campbell v Police at 263-264 per Cooke P.
18 See, for example, at 267 per Richardson J.
[46] Ms Todd also relies on Caie v Attorney-General.19 In that case, Mr Caie was arrested after he had been behaving in an erratic and threatening manner and the Police were concerned he was on his way to retrieve firearms. When he asked what he was being arrested for, the constable said: “I’m not sure yet.” Mr Caie was unsuccessfully prosecuted for unlawful possession of a firearm and sued Police. Fisher J found the arrest was lawful, but that Mr Caie was not given an adequate explanation of the offence for which he was arrested at any stage between his arrest and arriving at Court the following day. This breached s 23(1)(a) of NZBORA and Mr Caie was awarded damages.
[47] In relation to the lawfulness of the arrest, Fisher J concluded that the Police had good cause to suspect that a breach of s 45(1)(a) of the Arms Act 1983 had been committed and that they were therefore justified in arresting Mr Caie in terms of s 315(2)(b) of the Crimes Act.20 This case makes it clear that it is not fatal to the lawfulness of the arrest if the specific offence provision is not referred to at the time of arrest.
[48]Ms Todd relies on this paragraph of the judgment:21
That makes it unnecessary to find any other ground for arrest. However, s 315(2)(a) also justifies the arrest of a person found “disturbing the public peace”. That phrase includes conduct revealing the likelihood of harm to a person in the future (see R v Howell [1981] 3 All ER 383, 389; Minto v Police [1987] 1 NZLR 374). Had it been necessary to do so I would have found alternative justification for arrest under that heading.
[49] Fisher J was clearly satisfied that this alternative justification for arrest was made out on the facts.
[50] That case, however, did not involve a situation like this case where it is not clear the constable considered the elements of the alternative charge. If the constable did not consider the elements of the alternative charge, I do not consider the arrest could be justified on the alternative basis, even if in hindsight those elements were made out. I do not take Ms Todd to be suggesting otherwise.
19 Caie v Attorney-General [2005] NZAR 703 (HC).
20 At [101].
21 At [102].
[51] My conclusion in this respect is reinforced by Bingham LJ’s judgment in the Divisional Court of the Queen’s Bench in Chapman v Director of Public Prosecutions.22 In that case, a constable was called to assist another constable who had been assaulted by six youths. One of the youths whom the constable suspected of being involved in the assault was seen to enter a flat. The constable went to the door of the flat and demanded entry. The defendant, the youth’s father who answered the door, resisted the constable’s entry. The constable arrested the defendant for obstructing a constable in the execution of his duty. The only ground the constable had to enter the premises was to arrest a person who had committed an arrestable offence, i.e. the youth. The problem was that although the constable had been told the other constable had been assaulted, common assault was not an arrestable offence at that time. Assault occasioning actual bodily harm was, but the Court did not consider there was evidence the constable suspected the assault had caused actual bodily harm, as he was not told so and he had not seen the other constable assaulted.
[52] The question was whether the arrest could be justified because the youth may have committed the offence of violent disorder, which required unlawful violence, used or threatened, which would cause a reasonable person to fear for their safety, and which was an arrestable offence. Bingham LJ stated:23
What is however, in my view, inescapable and fatal to this conviction is that the justices have not found as a fact that Constable Sneller reasonably suspected this, or any other arrestable offence, to have been committed, or any facts amounting to an arrestable offence to have occurred. Such a reasonable suspicion is the source from which all a police constable’s powers of summary arrest flow …
It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. Unless he can do that he cannot comply with section 28(3) of the Act by informing the suspect of grounds which justify the arrest.
22 Chapman v Director of Public Prosecutions (1989) 89 Cr App R 190 (DC).
23 At 197.
[53] Although this decision is of course not binding in New Zealand, I consider this to be a compelling explanation of the law, and it reinforces my conclusion in paragraph [50].
[54] So, I will examine whether the arrest here can be justified on the basis of either s 116 and then the further alternative of s 23 of the Summary Offences Act raised only on appeal.
[55] But first, there is the preliminary issue as to the scope of a constable’s powers under s 113 to give a direction. This issue is relevant to both Ms Todd’s arguments on s 116 and s 23.
Section 113 powers
[56]Section 113 relevantly states:
113 Enforcement officers may enforce transport legislation
(1)An enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer may enforce the provisions of—
(a)the Local Government Act 1974, the Local Government Act 2002, the Road User Charges Act 2012, the Government Roading Powers Act 1989, the Railways Act 2005, the Land Transport Management Act 2003, and this Act:
(b)regulations and rules and bylaws in force under any Acts mentioned in paragraph (a).
(2)Without limiting any other powers conferred on an enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsection (1), may at any time—
(a)direct a person on a road (whether or not in charge of a vehicle) to give the person’s full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify, and give any other particulars required as to the person’s identity, and (unless the person is for the time being detained or under arrest under any enactment) give such information as is within the person’s knowledge and as may lead to the identification of the driver or person in charge of a vehicle:
(b)inspect, test, and examine—
(i)the brakes or any other part of a vehicle on a road or any associated equipment; or
(ii)a land transport document, or a document resembling a land transport document, displayed or carried on the vehicle:
(c)if the enforcement officer believes on reasonable grounds that a vehicle on a road causes an obstruction in the road or to a vehicle entrance to any property or that the removal of the vehicle is desirable in the interests of road safety or for the convenience or in the interests of the public,—
(i)enter, or authorise another person to enter, the vehicle for the purpose of moving it or preparing it for movement; and
(ii)move, or authorise another person to move, the vehicle to a place where it does not constitute a traffic hazard:
(d)direct the driver or person in charge of a vehicle on a road to remove the vehicle from the road or a specified part of a road, if the officer believes on reasonable grounds that it causes an obstruction in the road or to a vehicle entrance to any property or its removal is desirable in the interests of road safety or for the convenience or in the interests of the public:
(e)forbid an unlicensed driver to drive a motor vehicle:
(f)forbid a person who is operating a transport service without a licence to operate that transport service.
(3)An enforcement officer in uniform or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, who is for the time being engaged in the regulation of traffic on a road, may—
(a)direct a person using a vehicle or riding or driving an animal on the road to stop the vehicle or animal, as the case may be, or to cause it to proceed in or keep to a particular line of traffic or direction:
(b)direct a pedestrian not to proceed across the road in contravention of a direction to stop given by the enforcement officer (whether given to pedestrians or to pedestrians and other traffic).
…
[57] There is no doubt that under s 113 the constable could enforce the relevant land transport rules dealing with WOFs.24 This included the power to inspect a land transport document, including Mr Prescott's WOF.
[58] I consider the scope of this power extends to entering a vehicle to inspect the back of the WOF. In Hill v Attorney-General Eichelbaum J considered that s 68B(1)(b), the predecessor to s 113, empowered a traffic officer to enter a taxicab for the purpose of inspecting a taxi authority.25
[59] I consider the scope of this power also extends to requiring a person to get out of a vehicle so that the constable could inspect a WOF. That accords with the purpose of the section. In Barton v Police Williams J considered that s 113(2)(b)(i) empowered a constable to require a person to get out of a truck so that the constable could inspect the odometer.26 He also held that s 113(1)(a) conferred a more general power to require the person to leave the truck to enable the constable to inspect the odometer.
[60] Of course, such powers should be exercised in good faith for the purpose for which they were given and to meet the relevant policy goals of ensuring road safety.27
[61] The next question is whether lawfully requiring a person to get out of a vehicle in order to inspect a land transport document pursuant to s 113 amounts to a “direction given under section 113” for the purposes of the power of arrest in s 116. This issue did not arise in Barton v Police.
[62] Interpreting the s 116 phrase “direction given under section 113” in a manner consistent with a restrictive approach to powers of arrest, it may apply only to a failure to comply with a “direction” explicitly referred to in s 113 and not to a failure to comply with the exercise of an implied power such as that requiring a person to get out of a vehicle in order to inspect a WOF. Mr Pilditch submitted this would be consistent with the absence of a power to arrest for the s 53 offence of obstruction,
24 Land Transport Rules: Vehicle Standards Compliance 2002.
25 Hill v Attorney-General HC Wellington A55/82, 9 December 1988 at 14-15, appeal allowed in part in Hill v Attorney-General (1990) 6 CRNZ 219 (CA) but on another ground.
26 Barton v Police [2013] NZHC 1481.
27 Police v Duff [2010] NZAR 71 (HC).
which is the relevant offence if a person fails to comply with a direction under s 113 (s 116 not being an offence provision).
[63] Ms Todd submitted this would be an overly restrictive interpretation of s 116 which is inconsistent with the scheme and purpose of s 113. Section 113 sets out a number of powers conferred on an enforcement officer in the execution of his or her enforcement duties under transport legislation. While some of the powers in s 113 are explicitly characterised as powers to “direct”, Ms Todd submitted this does not reflect a difference in the nature of these powers, all of which facilitate the performance of those enforcement duties. She submitted that whether the power to give a direction is express or implied should have no bearing on the legal nature of the direction issued, and the arrest power must be available in both circumstances.
[64] I accept Ms Todd’s submission. I consider that the power to arrest in s 116 is available whether the relevant direction is one explicitly referred to in s 113 or given pursuant to another power in that section.
[65] I turn now to consider whether the respondent can rely on s 116 to justify the arrest.
Alternative justification for arrest – s 116 LTA
[66] The Judge did not specifically address the basis for arrest under s 116, that is, whether the constable had good cause to suspect Mr Prescott had failed to comply with a direction under s 113 (s 115 is inapplicable). She found that Mr Prescott must have realised that if he did not get out of the vehicle he would be arrested for obstruction, and that s 116 makes it quite clear that the Police are able to arrest without a warrant. It is not clear whether this conclusion is an “implied” acceptance that the constable had good cause to suspect a failure to comply with a direction under s 116 (as Ms Todd submitted) or merely that it was sufficient that Police have such a power.
[67] The evidence on which the Judge might have concluded that the constable had good cause to suspect under s 116 was not particularly satisfactory. The constable made no reference to a “direction”, s 113 nor s 116 at the time of arrest. In his brief of evidence, he said only that he believed he had good grounds to arrest Mr Prescott
in accordance with the LTA, but was not more specific. He was not cross-examined on the issue. In re-examination, he was asked about the decision to arrest and what power he thought he was exercising at that time. He said he believed he was acting under the LTA at the time for a land transport obstruction, which could also have been a reference to s 53. He then added:
I believe that s 113 allows me the power to inspect documents such as WOFs and registrations and that alongside that there is a power of arrest for failing to comply.
[68] Mr Prescott could have objected to the question on the basis that it did not arise out of cross-examination. In any event, the constable’s answer in relation to s 113 referred to a power to inspect but not to giving a direction. Further, the answer was expressed as a present belief. It is not clear on the evidence whether the constable believed this at the time of the arrest.
[69] The constable’s reference to “obstruction” at the time of arrest and his general reference to the LTA in his evidence in chief indicate he more likely had s 53 in mind rather than the s 116 power of arrest where there is good cause to suspect a person has “failed to comply with a direction”.
[70] In these circumstances, I do not consider that the Judge found, or that the evidence supports a finding, that the constable actually suspected that Mr Prescott failed to comply with a direction under s 113 and invoked the power of arrest in s 116 of the LTA. The constable was focused on obstruction, not failure to comply with a direction. Good cause to suspect requires an actual suspicion and good cause to hold that suspicion.28 I do not consider the first subjective element is made out. Even if it were, I also do not consider there was good cause, which requires an objective determination by the Court.29
[71] It is clear from the transcript that Mr Prescott had declined to give the constable consent to enter his vehicle. What is less clear is whether the constable made clear he wanted Mr Prescott to get out of the vehicle. As Mr Pilditch submitted, there was some element of miscue between the constable and Mr Prescott. The constable’s
28 See above at [34]-[36].
29 See above at [36].
evidence was that he did not want Mr Prescott to get out of the car, and that he did not want to lean through the window. At trial, this may have been masked to some extent by the argument as to whether the constable’s words were a “request” rather than a “direction” or an “order”. The constable is to be commended for remaining polite with Mr Prescott, and I agree that his politeness did not mean he was merely making a request.30 But I consider that the evidence does not support the findings that the constable was making it quite clear that Mr Prescott needed to get out of the vehicle, or that Mr Prescott must have realised it was an order at the point at which the constable said that if Mr Prescott did not get out of the vehicle he would be arrested for obstruction. The constable did not say that if Mr Prescott did not get out of the vehicle he would be arrested for obstruction. The constable said:
Alright Peter so I have come back to give you one more opportunity to let me have a look at that registration tag.
…
If you decline my opportunity you are obstructing me you will be arrested.
…
You can let me see it or you will be arrested for obstruction. I am not going to warn you again. One warning.
[72] The context was that Mr Prescott was repeatedly making it clear that he declined to give the constable consent to enter his vehicle. If the constable wanted Mr Prescott to get out of the vehicle, rather than merely allow the constable to put his head in through the window, he could have been more explicit. In circumstances where Mr Prescott was familiar with police not wanting drivers to get out of their vehicles at traffic stops for safety reasons, Mr Prescott could reasonably have understood the constable to be requiring him to allow the constable to lean in through the window. The constable could have lawfully required Mr Prescott to allow him to lean in through the window. Accepting the constable was concerned that Mr Prescott was too close, the constable could also have lawfully required Mr Prescott to move or lean away so the constable could lean in without interference. Alternatively, the constable could have lawfully required Mr Prescott to get out of the vehicle. If he had s 113 in mind, he could have said something like “I direct you to get out of the vehicle
30 See, for example, Ghent v Police [2014] NZHC 3282 at [22].
so I can inspect the inside of the WOF”. Mr Prescott would have had to comply. However, the constable did not give Mr Prescott a clear direction under s 113. I note that Mr Prescott might have avoided the escalation if he asked the constable what he was required to do to let the constable see the WOF, but I accept it was not clear to Mr Prescott that the constable was requiring him to get out of the vehicle, contrary to what the Judge found. It might have been open to the Judge to conclude instead that Mr Prescott was being told to let the constable into the vehicle, but that – without more
– left Mr Prescott unclear as to what he was being directed to do.
[73] I conclude that there was not a clear direction to, and understood by, Mr Prescott to get out of the vehicle.
[74] In this case, therefore, the essential elements for a power of arrest under s 116 are not made out. I have found the constable was focused on obstruction, not failure to comply with a direction. There was no evidence that he suspected Mr Prescott failed to comply with a direction or had that offence in mind, and even if he did, I consider that objectively there were not grounds to have such a suspicion.
[75] Having reached this conclusion regarding s 116, it is unnecessary to say much about Mr Prescott’s fair trial arguments relating to s 116 except that I do not consider the Judge’s reliance on s 116 raises fair trial issues. It is immaterial that there was no prior criminal proceeding alleging breach of s 116. Indeed, as I have said, s 116 is not an offence provision at all. Mr Prescott put the lawfulness of his arrest in issue in the civil proceeding and the Police were entitled to argue that the arrest was lawful. The Judge was addressing that issue, not deciding whether Mr Prescott was guilty of a criminal offence. As to procedural fairness, s 116 was relied on in the statement of defence. It was not a surprise to Mr Prescott at trial. Also, s 25 of NZBORA concerning the right to be presumed innocent has no application as Mr Prescott was not charged. Likewise, criminal limitation periods are irrelevant.
Alternative justification for arrest – s 23 Summary Offences Act
[76] As indicated, the further alternative justification for arrest based on s 23 of the Summary Offences Act arose only on appeal.
[77]Section 23 is in these terms:
23 Resisting Police, prison, or traffic officer
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct,—
(a) any constable or any authorised officer, or any prison officer, or any traffic officer, acting in the execution of his duty;
…
[78]For comparison, I also set out the offence of obstruction under s 53 of the LTA:
53 Obstruction of enforcement officer or dangerous goods enforcement officer
(1)A person commits an offence if the person, without reasonable excuse, obstructs or hinders, or incites any other person to obstruct or hinder, an enforcement officer or dangerous goods enforcement officer in the execution of his or her functions or powers under this Act.
(2)The maximum penalty on conviction for an offence against subsection
(1) is a fine not exceeding $10,000.
[79] As can be seen, the essential elements of the two obstruction offences are similar, but the more serious s 23 requires intention.
[80] The offence of obstruction under s 23 is punishable by imprisonment and, in conjunction with s 315(2)(a) of the Crimes Act, could have been relied on to arrest Mr Prescott if the constable had good cause to suspect Mr Prescott was intentionally obstructing him in the execution of his duty.
[81] I have found that the constable had in mind obstruction under s 53 of the LTA. He did not consider s 23 of the Summary Offences Act. The Judge appreciated s 53 did not provide a basis for arrest and focused on s 116. Given the constable’s erroneous focus and the fact that s 23 was only raised in this Court, the evidence at trial was not directed to whether, in accordance with s 315(2)(a) of the Crimes Act, the constable had actually suspected, and had good cause to suspect that Mr Prescott was intentionally obstructing him in the execution of his duty in terms of s 23.
[82] I do not consider the fact the constable had in mind s 53 rather than s 23 is determinative. I consider Bingham LJ’s statement of the law in Chapman v Director of Public Prosecutions is correct: it is not necessary for a constable to have in mind the specific statutory provision justifying the arrest, only that he must suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind.31
[83] Here, the constable knew he had a power of arrest for obstruction. He knew what constituted obstruction. This was the kind of offence he had in mind. He was simply mistaken about the specific statutory provision that contained the offence. Adopting the statement of law in Chapman, that is not fatal. So, even though the constable may have had s 53 in mind rather than s 23, that is still sufficient as long as he suspected the elements of s 23 were met.
[84] That raises the question, however, whether on the evidence the constable had good cause to suspect that Mr Prescot was intentionally obstructing him in the course of his duty.
[85] In the context of s 23, “obstruction” encompasses a wide variety of conduct. Courts often cite Lord Goddard CJ in Hinchliffe v Sheldon for the proposition that “obstruction” means “making it more difficult for the police to carry out their duties”.32 It is not confined to physical interference. It includes giving false information to the police,33 and failing to act in a way a constable lawfully requires the defendant to act.34 For example, it was found to be obstruction for a person under arrest in a police car to refuse to move his feet when requested to by a constable.35
[86] Here, although I have found there was no clear direction to Mr Prescott to get out of the car, I consider that on the evidence the constable actually suspected or believed he was being obstructed and, objectively, the constable had good cause to suspect Mr Prescott was obstructing him.36 Constable Brown told Mr Prescott a
31 Chapman v Director of Public Prosecutions (1989) 89 Cr App R 190 (DC) at 197.
32 Hinchliffe v Sheldon [1955] 1 WLR 1207 (DC) at 1210. See for example Steele v Kingsbeer [1957] NZLR 552 (SC); Urlich v Police (1989) 4 CRNZ 144 (HC) at 146; and Goldsmith v Police (1993) 10 CRNZ 106 (HC) at 107.
33 Mathews v Dwan [1949] NZLR 1037 (SC).
34 Burton v Power [1940] NZLR 305 (CA); and McKay v Minto (1984) 1 CRNZ 338 (CA).
35 Oosterman v Police [2007] NZAR 147 (HC) at [49]-[55].
36 There is no suggestion the constable was not acting in the course of his duty.
number of times that he wished to see the WOF. Mr Prescott made it clear he would not allow the constable into the vehicle, which would have been necessary to see the WOF, whether by poking his head in the window while Mr Prescott remained in the car or making Mr Prescott get out of the car so the constable could get in. Of course, the constable did not tell Mr Prescott exactly how he was proposing to look at the WOF, i.e. whether he wanted Mr Prescott to get out of the car. But I consider a reasonable person would consider Mr Prescott was not allowing the constable to see the WOF.
[87] It must be remembered that it is not necessary, and I am certainly not finding, that Mr Prescott was actually hindering the constable such that he would be guilty of obstruction. I am concluding only that the constable had good cause to suspect Mr Prescott was obstructing him.
[88] That leaves only whether the constable suspected and had good cause to suspect that Mr Prescott was intentionally doing so. This was not put to the constable in the District Court – understandably given the different focus. This has caused me some difficulty. Even so, while there is obviously some difference between “obstruction” and “intentional obstruction”, reflected in the differing maximum sentences of the two offences, at least for the purposes of arrest in the particular circumstances of this case, I see little practical difference between good cause to suspect an intentional and unintentional obstruction.
[89] On the facts of this case, I consider the constable must have suspected Mr Prescott was intentionally obstructing him. Mr Prescott knew the constable wanted to see the WOF and would not allow him to do so. Whether objectively the constable had good cause for that suspicion in the circumstances must also take into account the miscue I have referred to above.37 But, on balance, even though it was not clear to Mr Prescott exactly what the constable wanted him to do to enable inspection, I consider that the constable had good cause to suspect that Mr Prescott was intentionally obstructing him. That was sufficient for an arrest. Even though it was unfortunately not addressed in the District Court, I consider it justifies the arrest and
37 Above at [71].
on balance Mr Prescott has not made out in his civil claim that the arrest was unlawful. Again, I stress that I am not finding that Mr Prescott was actually hindering the constable such that he would be guilty of obstruction.
Appeal part II: reason for arrest
[90] Section 23(1)(a) of NZBORA provides that everyone who is arrested shall be informed at the time of the arrest of the reason for it. Section 316(1) of the Crimes Act is to similar effect. Compliance requires the person should be informed of the act or omission for which he or she is being arrested and the broad legal requirement which he or she has breached by that act or omission.38 The act or omission need not be stated in technical or precise language and may be stated in any words sufficient to give that person notice of the true reason for his arrest. As Fisher J said in Caie v Attorney-General, normally this would involve identifying the date, place and act in question unless these were obvious from the context.39
[91] Here, Mr Prescott was informed that he was being arrested for “obstruction”, and he was given the reason for his arrest. While the constable may have had the wrong provision in mind, he did not communicate that provision to Mr Prescott.
[92]For these reasons, I do not consider there was a breach of s 23 of NZBORA.
Appeal part III: arbitrariness of the detention
[93] In addition to breach of section 22 of NZBORA, Mr Prescott claims that his rights under s 24(b) were breached because there was no just cause for his continued detention after he was initially processed at North Shore Police Station. It is not clear whether he maintains that there was also a breach of s 23(2) (the right to be promptly charged following arrest).
[94] The claims can be dealt with briefly. I agree with the Judge that the length of time Mr Prescott was detained after arrest was not unreasonable in the circumstances.
38 R v Timutimu HC Auckland CRI-2004-092-14159, 6 March 2006 at [21] and [26] per Winkelmann J.
39 Caie v Attorney-General [2005] NZAR 703 (HC) at [104].
At most it was two hours and one minute, including driving to the police station, processing, charging and bail.
Appeal part IV: right to consult a lawyer
[95] Mr Prescott also claims that his right to access a lawyer at the police station, under s 23(1)(b) of NZBORA, was breached. I can also deal with this briefly. The content of the right to consult a lawyer was brought home to Mr Prescott as required,40 at the very least in the patrol car. That was sufficient, whether or not the right was repeated orally to Mr Prescott at the station – which it likely was – or he read the “notice to person in custody” form that he signed. I agree with the Judge that this claim fails.
Appeal: miscellaneous
[96] Mr Prescott’s appeal included various other miscellaneous arguments, including criticism of the Judge based on media reports of previous cases, alleged corrupt actions of police and counsel, barratry, malicious prosecution, fraud and evidence tampering. None of those arguments has merit. Those concerning alleged bias are dealt with below in relation to the judicial review. The allegations of police and counsel corruption are not substantiated. The allegations relating to loss or destruction of evidence are also not made out and lack any real nexus with the primary events in issue.
Judicial review
[97] The revised application for judicial review pleads twelve counts of actual or apparent bias, together with a conclusion. At the hearing, Mr Prescott withdrew the allegations of actual bias and re-characterised his claim as one of apprehension of bias. The allegations, some of which are not limited to allegations of bias,41 largely relate to the Judge’s assessment of the evidence and her application of the law to the facts,
40 R v Mallinson [1993] 1 NZLR 528 (CA); and Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [119].
41 Mr Prescott alleges breach of natural justice/procedural fairness, as well as not acting independently and impartially, due to the Judge’s treatment of the factual and legal issues in the case; inadequacy of reasons and that the Judge exceeded jurisdiction by considering and relying upon s 116.
for example her reliance on s 116. To that extent, I have already addressed them in relation to the appeal. It is unnecessary to say more about them except to observe that Mr Prescott’s claims conflate legitimate arguments on appeal and alleged bias.
Bias
[98]The allegations of bias are also said to be evidenced by:
(a)The Judge’s question to Mr Prescott during his closing submissions: “Well if they didn’t arrest you how were they going to serve you the documentation?” Mr Prescott alleges this question was removed from the Court record.
(b)The Judge’s question to Mr Prescott also during closing submissions regarding the constable’s words and whether there was a direction: “But surely Mr Prescott he was just being nice?” Mr Prescott alleges this was also removed from the Court record.
(c)The Judge refusing to release a transcript of the closing submissions.42
[99] As indicated, Mr Prescott’s written submissions also contain a section with criticism of the Judge based on prior media reports, which are not referenced to the grounds of review but can only be relevant to the bias claim.
Legal principles
[100] Of course, in the determination of rights and liabilities everyone is entitled to a fair hearing by an impartial tribunal. Where actual bias is shown or effectively presumed, the judge is disqualified.43
[101] Where the focus is on the appearance of bias, the principle is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required
42 Minute dated 11 May 2016, while her decision was reserved.
43 Collier v Attorney-General [2002] NZAR 257 (CA) at [21].
to decide”.44 That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. Unless the judicial system is seen as independent and impartial the public will not have confidence in it and the judiciary who serve in it. The question is one of possibility (“real and not remote”), not probability. The Court is also warned against any attempt to predict or inquire into the actual thought processes of the Judge. Two steps are required:
(a)first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[102] The fair minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision.45
[103] While the test is one of possibility, it is for the person who asserts a situation giving rise to a reasonable apprehension of bias to establish that is the case.46
Discussion
[104] The District Court record does not include the two questions alleged by Mr Prescott to have been asked by the Judge during closing submissions. But the written transcript of the closing submissions in the District Court does indicate a question similar to the first question.47 When Mr Prescott was submitting that because
44 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3]-[4] per Blanchard J, citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (HCA) at [6]-[8].
45 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [5] per Blanchard J, citing Johnson v Johnson (2000) 201 CLR 488 (HCA) at [33]; and Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at [2].
46 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [94] per McGrath J.
47 See above at [98](a).
s 53 is a fineable only offence, he should have been fined, the Judge asked him: “So how was he going to get all those charges to you?” The exchange continued with the Judge explaining the difference between a charging document for an offence under s 53 and an infringement notice.
[105] Insofar as Mr Prescott’s recollection of the Judge’s questions differs from the District Court record, absent contrary evidence the Court will rely on the record as reflected in the briefs and notes of evidence, bundle of documents and the Court’s decision. Mr Prescott relies on a diary note. Given his position as to what was said, leave was given by Peters J in this Court for Mr Prescott to listen to the audio recording of the District Court submissions. No further evidence was adduced. In submissions, Mr Prescott claimed the audio quality was terrible so he could not identify any tampering.48
[106] Whether the Judge asked the first question in the terms alleged by Mr Prescott, rather than as indicated in the transcript, I do not consider that a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case. It was an exchange during closing submissions. The Judge was exploring the argument. Whether or not the implication in the question had a good legal foundation, it did not indicate a closed mind.
[107] There is no indication in the transcript that the Judge asked the second question alleged by Mr Prescott.49 But even if she did, again I do not consider that a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case. The question was relevant to the issue of whether the constable was making a request or giving a direction referred to above.50
[108] There is no real basis for the allegation that parts of the transcript were improperly removed. Further, the Judge’s minute declining to release a transcript does not indicate bias – again I do not consider that a fair-minded lay observer might
48 Mr Prescott submitted – without any basis – that the Judge in this Court knew that would be the case and denied his request to make the recording available for analysis, proving bias and collusion to pervert the course of justice. These allegations were unpleaded, misconceived and irrelevant.
49 Above at [98](b).
50 Above at [71]-[73].
reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case. Transcripts of submissions (as opposed to evidence) are regularly declined, often for cost reasons.
[109] Mr Prescott’s submissions include other allegations said to be relevant to bias. None add anything to the bias allegations already addressed. The section dealing with criticism of the Judge based on media reports of previous cases is particularly misconceived. The allegations of loss or destruction of evidence by police are not substantiated and do not indicate any judicial bias.
[110]Mr Prescott’s application for judicial review cannot succeed.
Result
[111]The appeal is dismissed.
[112]The application for judicial review is dismissed.
Costs
[113] Costs ordinarily follow the result. The respondents have succeeded but, at least in relation to the arrest appeal, on grounds not raised in the District Court. Also, the Courts have acknowledged that it may not always be appropriate to allow costs to follow the event in cases involving the application of NZBORA because the normal costs rules may discourage litigants from bringing NZBORA claims.51 It is unlikely that costs will be awarded against an unsuccessful plaintiff if a NZBORA claim is bona fide and is found to have had 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.52 I record my view that the lawfulness of the arrest issue did have merit.
51 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224].
52 At [186]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].
[114] If costs cannot be agreed, the respondents are to file and serve a memorandum not exceeding three pages within 15 working days and Mr Prescott is to file a serve a memorandum not exceeding three pages within 10 working days thereafter. I will deal with costs on the papers.
Gault J
Parties / Solicitors:
The Applicant
Ms A F Todd, Crown Law, Wellington Mr F Pilditch, Barrister, Auckland
8
9
1