Prescott v Police

[2012] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000022 [2012] NZHC 2567

BETWEEN  PETER RICHARD PRESCOTT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 September 2012

Appearances: Appellant in person

W N Fotherby and L Mills for Respondent

Judgment:      4 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 October 2012 at 2:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – W Fotherby / L Mills

Copy to:             P R Prescott, C/- 1/14A Target Road, Totara Vale, Auckland 0629

Email: [email protected]

PRESCOTT V NZ POLICE HC AK CRI-2012-404-000022 [4 October 2012]

[1]      On 15 August 2011 Judge L H Moore convicted the appellant, Peter Richard Prescott, in the North Shore District Court on nine infringement offences of which two were for failing to produce a driver’s licence[1]  and one was for not having a current Warrant of Fitness.[2]   Judge Moore fined Mr Prescott $55 on each charge of failing to produce a driver’s licence and $400 on the charge of failing to display a

current Warrant of Fitness and ordered him to pay court costs. Mr Prescott appeals those three convictions.

[1] Land Transport Act 1998, s 31(1).

[2] Land Transport Act 1998 s 34(1)(b).

[2]      The grounds of appeal advanced by Mr Prescott before me were that:

(a)       He was not present at the hearing (I took this to be an assertion of miscarriage of justice); and

(b)The Judge made his findings on the basis of evidence that had been obtained illegally.

[3]      Mr Prescott also raised a third ground relating to his allegedly unauthorised licence plate, relying on a decision of Allan J in relation to a similar appeal on a different  set  of  charges.[3]     However,  after  discussion,  Mr  Prescott  accepted  that Allan J’s decision was of no direct assistance to him in this case and I do not deal with that ground further.

[3] Prescott v Police [2012] NZHC 834.

[4]      The  grounds  advanced  before  me  are  substantially  different  from  those

initially signalled by Mr Prescott.   At Toogood J’s direction of 24 August 2012

Mr Prescott  filed  an  amended  application  for  leave  to  appeal  which  identified grounds relating to the admissibility of various pieces of evidence.  It did not identify the first ground advanced before me, namely Mr Prescott’s absence from the hearing.

However, no objection was taken to this and I heard Mr Prescott on it.

Not present at hearing

[5]      Mr  Prescott  told  me  that  he  had  been  notified  of  the  hearing  date  of

15 August 2011 early in the year and advised the Court more than two months beforehand that he would not be available.   He did not, however, make a formal application for adjournment until 7 July 2011.   His reason for the application for adjournment  was  that  his  partner  had  purchased  tickets  for  a  surprise  overseas holiday for them.  The Police objected on the basis that no evidence of the airline tickets had been provided.   Mr Prescott subsequently did provide the tickets. However, on 13 July 2011 Judge McNaughton refused the application for adjournment.

[6]      Mr Prescott did not leave on his holiday until early August 2011 and was aware of Judge McNaughton’s decision but took no steps to appeal against it until after he returned.  Notwithstanding this fact, Brewer J allowed Mr Prescott to appeal Judge Moore’s decision out of time.[4]     However, Mr Prescott’s absence from the hearing cannot itself amount to basis for reversing the Judge’s decision; there was no error by the Judge in proceeding, given the fact that Mr Prescott had not appealed the refusal of the adjournment application.

Inadmissibility of evidence

[4] Minute of Brewer J dated 20 July 2012.

[7]      The only substantive ground that Mr Prescott was able to advance was that certain of the evidence relied on by Judge Moore was inadmissible.   The relevant evidence had been adduced through the following witnesses reading their briefs of evidence with some limited supplementary questions.  In order to ensure that I fully understood Mr Prescott’s arguments I went through all the notes of evidence and briefs of evidence which formed the Police case before Judge Moore.

[8]      Constable  Blair  Atkinson  –  Mr  Prescott  did  not  object  to  evidence  of Constable Atkinson stopping him or obtaining his driver’s licence or deposing to the lack  of  a  licence  label  being  displayed.     He  objected  only  to  the  officer

photographing the registration plate, the notice in front of the windscreen and the driver of the vehicle on the basis that he had not consented to the photographs being taken.  This is not a ground on which the evidence could be excluded because the officer did not require consent to take the photograph.  But in any event, Mr Prescott agreed that the officer was still free to describe in evidence what he had seen.

[9]      Constable Lisa Humm – Mr Prescott objected to the evidence that when asked about the correct registration of his vehicle he had stated that it was “DDance” on the ground that this inquiry was outside the scope of s 114 of the Land Transport Act 1998.   All other aspects of Constable Humm’s brief of evidence were unchallenged.  This evidence was, however, not relevant to the charges that are the subject of the appeal.

[10]     Constable Sarah Paviour – There was a broad objection raised, namely that the officer was not entitled to arrest him because s 114 only authorised her to stop and  ask  for  certain  details,  being  identifying  details  and  details  of  ownership. Mr Prescott had initially refused to provide those details until told he would be arrested if he did not.  He was subsequently asked if he had a driver’s licence.  He responded that he did not carry one but that he did hold one.   Mr Prescott was subsequently taken back to the police station on an unrelated matter and released later in the day.

[11]     Mr Prescott submitted that Constable Paviour had no right to arrest him and that,  once  she  did  so,  all  of  the  evidence  that  had  preceded  the  arrest  was inadmissible.  This is not a sustainable argument.  Under s 30(5)(a) of the Evidence Act 2006 improperly obtained evidence is evidence obtained “in consequence of a breach of any enactment or rule of law”. Absent a causative link between the breach and the evidence subsequently relied on there would be no basis for exclusion.[5]

Even if Mr Prescott were right and the arrest was unjustified, the evidence that was

relevant to the finding on the infringement notice had already been properly obtained prior to that point.

[5] R v Hennessey [2009] NZCA 363 at [28].

[12]     Constable Ildiko Elliott – There was no objection to any of this officer’s

evidence.

[13]     Constable Pieter Schutter – There was only one challenge to this officer’s evidence which was the fact that he had taken photographs of Mr Prescott’s vehicle. I have already considered this objection in relation to Constable Atkinson’s evidence.

Result

[14]     There is no basis on which to conclude that the Judge made an error, either in proceeding with  the hearing or in  making a decision  on  the evidence  that  was

adduced. The appeal is dismissed.

P Courtney J