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)

1. 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).

2. 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).

3. 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].

1. 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  The charge that Mr Prescott had obstructed the police was withdrawn on 4 October 2011. 

2. 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).

3. 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.

4. For completeness, we record Mr Prescott filed an appeal in this Court against the High Court’s judicial review decision.  However, that appeal was not pursued and deemed abandoned pursuant to r 43 of the Court of Appeal (Civil) Rules 2005.  Thus, we are only required to determine whether or not leave should be granted to appeal for a second time the decision of the District Court Judge.

The High Court judgment

1. The High Court Judge found:

   (a)At the time Mr Prescott was arrested, Constable Brown thought Mr Prescott was in breach of s 53 of the Land Transport Act 1998 and that he could be arrested for obstruction.  The High Court Judge found the constable was mistaken because s 53 is a fine-only offence and cannot justify an arrest.[5]

   (b)Nevertheless, the constable was justified in arresting Mr Prescott for obstruction under s 23 of the Summary Offences Act 1981, even though the constable did not have that provision in mind at the time Mr Prescott was arrested.[6] 

   [5]High Court judgment, above n 2, at [69] and [81].

   [6]At [82] and [89].

2. The Judge primarily relied upon Chapman v Director of Public Prosecutions,[7] in which Bingham LJ held that a police constable need not have in mind the specific statutory provision when arresting someone but must “reasonably suspect the existence of facts amounting to an arrestable offence”.[8]

   [7]Chapman v Director of Public Prosecutions (1989) 89 Cr App R 190 (QB).

   [8]At 197.

3. In declining Mr Prescott leave to appeal to this Court, Gault J acknowledged the proposed appeal raised a question of law that might be capable of bona fide and serious argument but, “the question of law raised by Mr Prescott [was] not sufficiently arguable and important to outweigh the cost and delay of a further appeal”.[9] 

Basis of proposed appeal

[9]Leave judgment, above n 3, at [14].

1. Mr Prescott argues it was unclear what he was being directed to do by Constable Brown.  He submits it therefore follows the constable did not have good cause to believe Mr Prescott was intentionally obstructing the police officer.  In these circumstances he says that it was not possible for him to have obstructed the constable.  Moreover, Mr Prescott argues that Constable Brown was responding to instructions from another constable when he arrested Mr Prescott and that by following those instructions, he did not form an independent view that there was a factual basis to arrest Mr Prescott.

Analysis

1. The evidence in the District Court established beyond any doubt the constable told Mr Prescott on more than one occasion he wished to see the warrant of fitness inside the car and that he needed to enter the car in order to do this.  It was therefore very apparent what Mr Prescott needed to do in order to avoid arrest.  However, Mr Prescott continuously refused to allow the constable to enter the car.

2. Mr Prescott appears to be arguing that Constable Brown should have gone further than he did by giving express directions to Mr Prescott about what offence would be committed unless he responded affirmatively to the constable’s direction.  However, that approach is inconsistent with Chapman v Director of Public Prosecutions, and we can see no basis upon which it could be argued Chapman does not reflect the law of New Zealand or is otherwise distinguishable.

3. The argument that Constable Brown was not exercising his own independent judgment would involve us revisiting factual findings made by the District and High Courts.  That is rarely a permissible course when trying to pursue a second appeal.

4. While important points of principle may arise in relation to the justifications for arrest, in the circumstances of this case we can see no basis for concluding the requirements of s 60(2) of the Senior Courts Act are satisfied.

5. In reaching this conclusion we note counsel for Mr Prescott has not formulated a proposed question of law that is capable of bona fide and serious argument.  In fact, counsel for Mr Prescott has not formulated a proposed question of law.  Instead, his submissions focus on the facts of the case and whether or not the High Court was correct in deciding that the test articulated in Chapman v Director of Public Prosecutions was met.

6. We are not satisfied that the public or private interests that may be engaged in this case outweigh the cost and delay of a further appeal.

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

Solicitors:
McKenna King, Hamilton for Applicant
Meredith Connell, Auckland for Respondent