Prescott v Police

[2012] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-22 [2012] NZHC 599

BETWEEN  PETER RICHARD PRESCOTT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 March 2012

Counsel:         Appellant in person

NMH Whittington for Respondent

Judgment:      30 March 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 30 March 2012 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Meredith Connell (Auckland) for Respondent

(Copy to Appellant in person)

PRESCOTT V POLICE HC AK CRI-2012-404-22 [30 March 2012]

Introduction

[1]      On 15 August 2011 in the District Court at North Shore, Judge LH Moore found proved against the appellant nine out of 11 infringement offences.   They related to the appellant operating an unlicensed motor vehicle and similar matters.

[2]      By a document intituled “Notice of application for leave under s 20.3(8) of the HCR to appeal the determination of LH Moore dated the 15th  August 2011”, Mr Prescott seeks leave to appeal the determinations of the District Court Judge. This document was filed in the District Court at North Shore on 19 January 2012.

[3]     Appeals against determinations of a District Court Judge in relation to infringement offences are subject to the Summary Proceedings Act 1957.   Section

115 gives Mr Prescott a general right of appeal to this Court.  However, pursuant to s 116, an appeal must be made within 28 days after the determination by notice in the prescribed form.  In this case Mr Prescott’s notice of application was filed well out of time and is not in the prescribed form.  However, I do have the power under s 123 to extend the 28 days period.  The issue here is whether I should (I will not put any significance on the form of Mr Prescott’s notice).

Matters to be considered

[4]      There are two matters which I have to consider.  The first is the reason why the appeal is being brought out of time and the second is the merits of the appeal.

[5]      As to the first matter, Mr Prescott was not present in the District Court when the Judge heard formal proof of the infringement offences and then gave his judgment.  He was overseas.  Mr Prescott, who at all times has represented himself, had applied to adjourn the fixture but Judge McNaughton, on 13 July 2011, declined to do so.  Mr Prescott nevertheless chose neither to appear nor be represented.  In his notice of application for leave, Mr Prescott advises, in effect, that when he returned to New Zealand he made enquiries as to how he should bring an appeal and for a time thought that he should appeal the decision of Judge McNaughton to decline his request for an adjournment.   He filed a notice of appeal seeking to do that in the

District Court at North Shore on 13 October 2011.  The matter came before me on

9 December 2011 and I held that there was no jurisdiction to hear an appeal against Judge McNaughton’s decision given that the proceeding had gone ahead and been determined.  I issued a Minute to that effect on 9 December 2011.

[6]      This  morning,  Mr  Prescott  asked  me  to  take into  account  that  he  never accepted the decision of Judge LH Moore and that if he had known that he should have appealed against it directly rather than being sidetracked by Judge McNaughton’s decision then the appeal would have been brought much sooner; presumably by 13 October 2011, the date that the appeal against the decision of Judge McNaughton was filed.  That, of course, was still outside the period allowed for by the Summary Proceedings Act.

[7]      However, if this ground were the only one that I had to consider then I would extend  the  time  for  Mr Prescott  to  bring  his  appeal.    That  is  because  I  find Mr Prescott to be sincere in his reasons for not bringing the appeal earlier.  He is a lay person who was unaware of the 28 days rule.  This is evidenced by his attempt to use r 20.3(8) of the High Court Rules as the foundation for his appeal.  I am satisfied that Mr Prescott at all material times wished to challenge Judge LH Moore’s findings but took some time to work out how to do that.

[8]      The problem for Mr Prescott is that his appeal would have no merit.  The oral judgment of Judge LH Moore sets out the circumstances of Mr Prescott’s case in detail.    Put  simply,  Mr Prescott  has  ideas  about  the  applicability  of  the  laws regulating the operation of motor vehicles which are wrong.  I will say more about that later.  At this point I note that his grounds for leave to appeal have nothing to do with the merits of the infringement proceedings.  They are twofold:

(a)      That Judge McNaughton was wrong not to grant him his adjournment because he has a right to present his defence.   This is correct to a point.   A defendant wishing to oppose liability under infringement notices does have a right to present his defence.   But it is not an unqualified right.  It does not extend to requiring an adjournment of the scheduled hearing to accommodate an overseas trip.  Of course, if

an examination of the merits of Mr Prescott’s case showed it was arguable, that it was not put before the District Court Judge and that as a result a miscarriage of justice may have occurred, then this Court would grant leave to appeal.  But that is not the case here.

(b)That his absence from New Zealand at the time of the substantive hearing meant that the District Court Judge had no jurisdiction to hear the case.  That is simply not the law.  There was no requirement for Mr Prescott to be present at the hearing because it was a fines only matter.  The District Court Judge had the jurisdiction to proceed by way of formal proof, and he did.

Decision

[9]      At the hearing before me I asked Mr Prescott for the basis of his defence to the infringement offences which the District Court Judge had to consider.  His reply was entirely consistent with the arguments divined by the District Court Judge from the written materials which Mr Prescott had filed in the District Court.  In short, the argument is that Mr Prescott is a natural person.  As a result of that status, he does not have to register his motor vehicle and none of the laws regulating road transport apply to him.  Or, indeed, to any person who is a natural person.  In Mr Prescott’s submission, a natural person has an inalienable right to use the public roads as he sees  fit,  subject  only  to  what  he  terms  the  common  law  and  the  obligations thereunder not to cause harm or damage to others.   This, in outline, is the case Mr Prescott would urge a Judge to accept if I were to grant him leave to pursue his appeal out of time.

[10]     It is clear to me that it would be a waste of Mr Prescott’s time and a waste of

the Court’s resources were I to allow the appeal to proceed.  It could not succeed.

[11]     Mr Prescott’s application for leave to appeal out of time is declined.

Brewer J