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: (09) 336-7629 – W Fotherby / L Mills

Copy to: P R Prescott, C/- 1/14A Target Road, Totara Vale, Auckland 0629
Email: libertynz@hotmail.co.nz

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…

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: [2012] NZHC 2567
Decision Date: 4 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Courtney presided over the appeal by Peter Richard Prescott against his convictions for three traffic infringement offences. The appellant, Mr. Prescott, was convicted by Judge Moore in the North Shore District Court on charges of failing to produce a driver’s licence and not having a current Warrant of Fitness. He appealed these convictions, arguing that he was not present at the hearing and that evidence used in the conviction was obtained illegally. The court was tasked with determining whether the appellant's absence from the hearing or the alleged illegality of the evidence was sufficient grounds to overturn the convictions.

The court examined the grounds for the appeal, noting that Mr. Prescott had not objected to his absence from the hearing being considered as a miscarriage of justice. Instead, he argued that the evidence presented was inadmissible due to its alleged illegality. The court analysed the evidence provided by various police officers, focusing on the legality and admissibility of the evidence gathered during the traffic stop. The court found that the police officers were acting within their legal rights and that the evidence was obtained properly, thus rendering the argument of inadmissibility invalid.

In its reasoning, the court concluded that Mr. Prescott's absence from the hearing did not constitute grounds for reversing the conviction, as he had not appealed the refusal of the adjournment. The court also found that the evidence presented was admissible and that there was no illegality in its collection. Therefore, the court dismissed the appeal, upholding the convictions made by Judge Moore in the North Shore District Court.

Orders