Prescott v Police - [2016] NZHC 2366

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2259 [2016] NZHC 2366

IN THE MATTER
of the unlawful arrest and violation of the

Appellant's rights

BETWEEN

PETER RICHARD PRESCOTT Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 October 2016

Appearances:

Appellant in person
A Todd for the Respondent

Judgment:

5 October 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 5 October 2016 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Parties: Appellant
Ms A Todd, Crown Law, Wellington

PRESCOTT v POLICE [2016] NZHC 2366 [5 October 2016]

[1] Mr Prescott has appealed against a decision of Judge P A Cunningham dismissing a claim by Mr Prescott against New Zealand Police.1 He claimed that he had been arbitrarily arrested and detained in breach of s 22 of the New Zealand Bill of Rights Act (the Act) and that his right to consult and instruct a lawyer had been breached contrary to s 23(1)(b) of the Act.

[2] Mr Prescott has applied for an order that the requirement that he provide security for costs for the appeal be waived. This judgment addresses that application.

Background

[3] Mr Prescott’s claim arose out of an incident on 18 May 2011. He was in his car parked on the side of the road. Two police officers on patrol saw the car. Because of its particular location one of the officers, Constable Arrow, ran a check on the car and received advice that there was a lapsed warrant of fitness and lapsed vehicle licence. The other police officer, Constable Brown, inspected the warrant of fitness through the windscreen and it appeared to be current. Constable Brown told Mr Prescott that police information indicated that the warrant had expired. Mr Prescott said that the police information was wrong. Mr Prescott provided some further detail from the warrant of fitness. This was followed by a telephone or radio discussion between Constable Arrow and a sergeant, in which Constable Arrow sought advice as to how to establish if the warrant of fitness was genuine. This enquiry appears to have been made because the police data recorded that the car was most likely to be one driven by Mr Prescott and that Mr Prescott had numerous traffic tickets. As it happened Constable Arrow had also previously dealt with Mr Prescott.

[4] This led to Constable Brown telling Mr Prescott that he wanted to inspect the warrant of fitness from the inside of the car. Mr Prescott said that he did not want
Constable Brown in “my vehicle”.

1 Prescott v Police [2016] NZDC 14357.

[5] Mr Prescott recorded the conversation with Constable Brown. The Judge reproduced part of a transcript of this conversation. Two things are apparent:

(a) Contrary to a contention Mr Prescott appears to have made in the District Court, he was clearly told by Constable Brown that the constable wanted to inspect the warrant of fitness from the inside of the car…

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: [2016] NZHC 2366
Decision Date: 5 October 2016

CaseChat Overview and Summary

The case of Prescott v Police involved Mr. Peter Richard Prescott appealing a decision by Judge P A Cunningham, who dismissed his claim against the New Zealand Police. Mr. Prescott alleged that he was unlawfully arrested and detained, and his rights under the New Zealand Bill of Rights Act were breached. Specifically, he claimed his right to consult and instruct a lawyer was violated. The appeal was heard by Justice Woodhouse on 4 October 2016, with Mr. Prescott appearing in person and Ms. A Todd representing the respondent.

The legal issues the court needed to decide included whether the police had the lawful authority to arrest Mr. Prescott and if his rights under the New Zealand Bill of Rights Act were indeed violated. The District Court had already ruled against Mr. Prescott, finding that the police had the authority to inspect the vehicle and subsequently arrest him for obstruction. It also found that his right to consult and instruct a lawyer was not breached as he was adequately informed of his rights during the process.

Justice Woodhouse dismissed Mr. Prescott's application for the waiver of security for costs for the appeal. The court considered the principles set out by the Supreme Court in Reekie v Attorney-General, which emphasized the importance of preserving access to the Court of Appeal for impecunious appellants while preventing the use of impecuniosity to secure an advantage in frivolous appeals. Despite Mr. Prescott's claims of public interest and alleged bias against the original judge, the court found no sufficient grounds for waiving security for costs. The provisional assessment of the appeal's merit indicated that Mr. Prescott's chances of success were slim, aligning with the principle that a reasonable and solvent litigant would not proceed with an appeal of such low prospects.

The final orders required Mr. Prescott to pay security for costs in the sum of $1,115 by 21 October 2016. Failure to do so would result in the appeal being treated as abandoned and dismissed without further proceedings.

Orders