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 and Mr Prescott clearly refused.

(b)Constable  Brown  told  Mr  Prescott,  after  giving  Mr  Prescott  a reasonable opportunity to agree to Constable Brown’s inspecting the warrant from the inside, that if Mr Prescott continued to refuse he would be obstructing Constable Brown in the execution of his duty and would be arrested for obstruction.  The discussion in that regard was, in context, reasonably extended.   Mr Prescott had ample opportunity to reconsider what I judge, from the recording of the conversation made by Mr Prescott, to be an obdurate attitude to a simple and reasonable request from a police officer.

[6]      Mr Prescott continued to decline and he was arrested.  He was taken to North Shore police station for processing.  Mr Prescott complained about the length of time the processing took before he was released, and particular aspects of the way he was dealt with.  Mr Prescott was at the police station for 1 hour and 51 minutes.  The evidence for New Zealand Police was that this was an average period of time, and that does not appear to have been challenged.   There was a dispute between Mr Prescott and the processing officer as to whether one or the other had been unreasonable in various ways.   It is unnecessary to go into that.   The seemingly unchallenged evidence of the processing sergeant was that it took him approximately double the length of time it normally takes to process a person.  Following that Mr Prescott was put in the cell while necessary matters were attended to by the custody sergeant, including assessments of risk and bail.  The custody sergeant explained, in unchallenged evidence (his brief was admitted by consent), that people are put in a cell  essentially  to  keep  them  safe  until  information  is  checked  and  necessary decisions have been made.

[7]      On the claim  founded on  the right  to  consult and  instruct  a lawyer,  Mr Prescott was informed of his rights on the way to the police station.  Mr Prescott’s complaint was that he was not informed of his rights again when he was at the police station.  The processing sergeant said that he had no actual memory of informing Mr Prescott of his rights once he was at the police station, but said that he does this as a matter of course during the booking process.

[8]      Mr Prescott signed a form entitled “notice to person in custody” which says,

amongst other things:

·    You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.

·    Police have a list of lawyers you may speak to for free.

[9]      Mr Prescott said that he did not read this.

The District Court judgment

[10]     On the question of arrest, Judge Cunningham held that Constable Brown was entitled to go into the car to inspect the warrant of fitness.   She cited authority.2

Those decisions were directed to the powers under s 113 of the Land Transport Act

1998.  The Judge further held that, pursuant to s 116 of the Land Transport Act 1998, Constable Brown had power to arrest Mr Prescott without a warrant on the basis that Constable Brown had good cause to suspect that Mr Prescott had failed to comply with a direction under s 113.  The claim founded on wrongful or arbitrary arrest was therefore dismissed.

[11]     On the claim of arbitrary detention, the Judge concluded, in essence on the facts, that the detention was not arbitrary.  This was based in considerable measure on the largely uncontested evidence for New Zealand Police that the total processing time was an average period of time and that the period involved in direct dealings with Mr Prescott at the beginning of the process was double the normal time.  It is at least implicit in the Judge’s reasons that she accepted the evidence of the processing

sergeant,  which  conflicted  with  that  of  Mr  Prescott,  that  Mr  Prescott  was

2      R v Pickery CA92/02, 26 June 2002 at [13]; Hill v Attorney-General HC Wellington A55/82, 9

immediately disruptive and argumentative and that Mr Prescott deliberately slowed down the booking process by nitpicking.

[12]     On the third element of the claim – the right to consult and instruct a lawyer – the Judge held that Mr Prescott was adequately informed of his rights and that Mr Prescott, as he acknowledged, did not say that he wanted to consult a lawyer.  This claim was also dismissed.

[13]     As a result of these conclusions on liability the Judge did not address the relief sought: damages of $10,000 for arbitrary arrest and detention and $5,000 for breach of the right to consult a lawyer.

Waiving security for costs: principles

[14]     Mr Prescott made his application in reliance on s 51G of the Judicature Act

1908.  That provision says that costs are at the discretion of the Court where any Act confers jurisdiction on the High Court without expressly conferring jurisdiction to award or otherwise deal with costs.  It does not have application on the appeal.  The relevant provision is r 20.13(2) of the High Court Rules.  Under that rule the Judge must fix security for costs at the case management conference unless the Judge considers that in the interests of justice no security is required.

[15]     Both Mr Prescott and Ms Todd, for the respondent, cited the Supreme Court’s decision in Reekie v Attorney-General for applicable principles.3    That decision is directed to r 35 of the Court of Appeal (Civil) Rules 2005, relating to security for costs on appeals to the Court of Appeal.   Rule 35 provides that security may be dispensed with if the Registrar of the Court of Appeal is satisfied that the circumstances warrant it.  Although the wording is different, I am satisfied that the

general principles stated by the Supreme Court in Reekie are appropriately applied for the purpose of an application under r 20.13(2), directed to the interests of justice.

[16]     The general principle was stated as follows:

3      Reekie  v  Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737, (2014) 21 PRNZ 776

[35]      … we consider that the discretion to dispense with security should be exercised so as to:

(a)       preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and

(b)       prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.

[17]     The Supreme Court also said:

[39]     Protecting  respondents  from  vexatious  appeals  is  a  legitimate purpose of the security for costs regime. ... An appeal, or its conduct, may be vexatious   even   though   it   raises   some   issues   which   are   arguable. Vexatiousness might be manifested, for instance, by the unreasonable and tendentious conduct of litigation, extreme claims made against other people involved in the case or perhaps a history of unsuccessful proceedings and unmet costs orders.4

…

[42]      Those seeking dispensation from the requirement to provide security often proceed on the basis that waiver of fees granted by the Registrar is conclusive evidence of impecuniosity. This is incorrect. A waiver of fees granted by the Registrar may be indicative of impecuniosity but is not conclusive, as security for costs is an inter parties issue.

[43]      An appellant without liquid assets may be required to borrow money to provide security.5   It  might be appropriate to investigate whether it is reasonable  for  another  party  (such  as  a  related  family  trust  or  a  close relative) to provide funding. If a trust associated with the appellant or a close relative has the resources but is unwilling to provide security, it may suggest that dispensation is inappropriate. Proof that security cannot be provided may require full disclosure of financial circumstances and the sources of funding relied on by the appellant to support his or her general lifestyle.

4      See for instance the remarks of Applegarth J in Mbuzi v Hall [2010] QSC 359 at [70].

5      As in Hills v Public Trust [2010] NZCA 401, (2010) 20 PRNZ 707.

Evaluation

[18]     Mr Prescott advanced a number of grounds for his application, but there was a substantial degree of overlap between numbers of submissions.   There are, in essence, two grounds:

(a)       The appeal raises issues of substantial public and personal interest.

Central to this ground is a contention that Judge Cunningham was biased.   Mr Prescott made clear that he is alleging actual bias, as opposed to apparent bias.  Mr Prescott also submitted that the issues under the Act raise matters of, as he put it, “high public interest”.

(b)      Mr Prescott’s second ground is that he is impecunious.

[19]   I will deal with impecuniosity first.   Mr Prescott submitted that his impecuniosity is established by the fact that the Registrar waived the normal requirement to pay a filing fee.  It is not established by that fact.  As the Supreme Court stated, in one of the passages quoted above, waiver of fees may be indicative of impecuniosity, but it is not conclusive.  The following observations at [43] explain why.  There is no adequate proof from Mr Prescott.  In any event, one matter central to the Supreme Court’s analysis, leading to its statement of general principles, is that if a person is without sufficient means, they can apply for legal aid, and it is through such an application that unmeritorious claims will, generally, be sifted out.   Mr Prescott has not applied for legal aid but wants to advance an appeal without any prior vetting of the real merit of the appeal.  I am not persuaded that the reliance on impecuniosity materially advances Mr Prescott’s application for waiver of security.

[20]     I come back to the first ground.   As noted above, the matter given most emphasis  by Mr Prescott  is  his  allegation  that  Judge Cunningham  was  actually biased.  In his written submissions Mr Prescott made a number of related allegations of a serious nature.  I do not intend to record them because he has not provided any proper foundation for the allegations he has made.   What he has put forward is a series of contentions which can be summarised as amounting to an argument that the Judge plainly was biased because of findings of fact and law which are against Mr Prescott.  Allegations presented in this way do not provide any basis for waiver of

security.  In addition, allegations of bias, and related allegations of impropriety on the part of the Judge, cannot be the subject of an appeal.   Mr Prescott has also brought an application for judicial review of the District Court decision. Allegations of this nature should be dealt with in the Judicial Review proceeding.

[21]     The other element of the first ground of appeal was that the contentions relating to the Act are matters of high public importance.  I do not agree.  I am not saying  that  the  matters  are  not  of  any importance,  but  they are  not  matters  of sufficient public, or private, significance to warrant waiver of security.

[22]     A further consideration is the merit of the appeal.   An assessment of the prospects of success on the appeal can only be provisional.  At this point it is based only on reading Judge Cunningham’s decision.   My provisional assessment is that Mr Prescott’s prospects of succeeding on an appeal against the specific conclusions of the Judge are not good.  But if Mr Prescott can establish that the Judge was in error, on one or more of her specific findings,  Mr Prescott would still have to establish that he was entitled to recover the damages he sought.   Again, any assessment of his prospects in that regard must be provisional.  But with that caveat my assessment is that his prospects of recovering damages are not at all good.  On the basis of the information presently available to me, including the conversation Mr Prescott himself recorded of what he said to Constable Brown, I consider that in substantial measure he was the author of his own alleged misfortune.  If there was a breach of one or more of his rights there is a real possibility that the only relief he would  get  would  be  a  declaration  to  that  effect.    If  there  is  substance  in  that admittedly provisional assessment of merit, it brings the application for dispensation of security back to the statement of general principles by the Supreme Court in Reekie: a reasonable and solvent litigant would not, in my judgment, proceed with an appeal.

[23]     For these reasons Mr Prescott’s application for dispensation from paying

security for costs is dismissed.

Further directions

[24]     In accordance with the High Court Rules Mr Prescott is to pay security for costs in a sum of $1,115 no later than 21 October 2016.

[25]     Because the appeal is one under the District Courts Act 1947, if Mr Prescott fails to pay security by that date, under s 74(2) of the District Courts Act 1947, the appeal must be treated as having been abandoned and it will be dismissed without

any further call before the Court.

Woodhouse J