Prescott v Police - [2021] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA360/2020
[2021] NZCA 315

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Miller and Collins JJ
Counsel:	W C Pyke for Applicant M J Hodge and A-R C Davies for Respondent
Judgment: (On the papers)	13 July 2021 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Mr Prescott applies under s 60(2) of the Senior Courts Act 2016 for leave to bring a second appeal from a decision delivered by the District Court on 10 August 2016.[1] An appeal from and an application to judicially review the District Court judgment was dismissed by the High Court on 18 December 2019.[2]
[1]Prescott v New Zealand Police [2016] NZDC 14357 (District Court judgment).
[2]Prescott v New Zealand Police [2019] NZHC 3376 (High Court judgment).
Mr Prescott’s application for leave to appeal to this Court was dismissed by the High Court on 11 June 2020.[3]
[3]Prescott v New Zealand Police [2020] NZHC 1304 (Leave judgment).
The criteria for leave to pursue a second appeal requires the proposed appeal to:[4]
… raise some question of law … capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

Background

[4]Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].

On 18 May 2011, Mr Prescott was parked in his vehicle in Glenfield when he was approached by Constable Brown, who thought the car’s warrant of fitness and registration had lapsed. The constable asked to see the number on the warrant of fitness sticker from inside Mr Prescott’s car. Mr Prescott read the number out loud but refused to allow the constable to look inside the car for himself. This led to the constable warning Mr Prescott he was obstructing a police officer in the execution of his duty. When Mr Prescott failed to comply with the constable’s requirements he was arrested. It transpired the warrant of fitness for Mr Prescott’s car was valid. The charge that Mr Prescott had obstructed the police was withdrawn on 4 October 2011.
Mr Prescott filed a civil claim against the police, claiming they had breached his right not to be arbitrarily arrested or detained and his right to consult and instruct a lawyer under ss 22 and 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the NZBORA).
As we have previously noted at [1], in August 2016 the District Court dismissed both causes of action. Mr Prescott then filed an appeal in the High Court and sought to judicially review the District Court decision. Both the appeal and judicial review application were dismissed by Gault J.
For completeness, we record Mr Prescott filed an appeal in this Court against…

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: [2021] NZCA 315
Decision Date: 13 July 2021 at 9.30 am

CaseChat Overview and Summary

In Prescott v Police, the Court of Appeal of New Zealand declined an application for leave to bring a second appeal against a District Court decision that dismissed Mr Prescott's claims that his rights under the New Zealand Bill of Rights Act 1990 were breached when he was arrested for allegedly obstructing a police officer. The High Court had previously dismissed an appeal from the District Court decision and an application to judicially review that decision. The Court of Appeal considered the application on the papers, and the judgment was delivered by Collins J. The key issue before the Court of Appeal was whether the proposed appeal raised a question of law capable of bona fide and serious argument that would justify the cost and delay of a further appeal. The Court of Appeal found that the proposed appeal did not meet the criteria for leave to pursue a second appeal.

The Court of Appeal noted that the District Court had dismissed Mr Prescott's claims that his rights under the New Zealand Bill of Rights Act 1990 were breached when he was arrested for allegedly obstructing a police officer. The High Court had also dismissed an appeal from the District Court decision and an application to judicially review that decision. The Court of Appeal was asked to determine whether Mr Prescott should be granted leave to bring a second appeal against the District Court decision. The Court of Appeal considered whether the proposed appeal raised a question of law capable of bona fide and serious argument that would justify the cost and delay of a further appeal.

The Court of Appeal found that the proposed appeal did not meet the criteria for leave to pursue a second appeal. The Court of Appeal noted that the High Court had found that the police officer who arrested Mr Prescott had reasonable grounds to believe that Mr Prescott was obstructing a police officer in the execution of his duty. The Court of Appeal found that the proposed appeal did not raise a question of law that was capable of bona fide and serious argument. The Court of Appeal also noted that the proposed appeal would involve revisiting factual findings made by the District and High Courts, which is rarely a permissible course when trying to pursue a second appeal. The Court of Appeal found that the public or private interests that may be engaged in this case did not outweigh the cost and delay of a further appeal. The application for leave to bring a second appeal was declined.

The Court of Appeal declined Mr Prescott's application for leave to bring a second appeal against the District Court decision that dismissed his claims that his rights under the New Zealand Bill of Rights Act 1990 were breached when he was arrested for allegedly obstructing a police officer. The Court of Appeal found that the proposed appeal did not raise a question of law that was capable of bona fide and serious argument. The Court of Appeal also noted that the proposed appeal would involve revisiting factual findings made by the District and High Courts, which is rarely a permissible course when trying to pursue a second appeal. The Court of Appeal found that the public or private interests that may be engaged in this case did not outweigh the cost and delay of a further appeal. The application for leave to bring a second appeal was declined.

Orders