Prescott v Police

[2021] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA173/2019
 [2021] NZCA 24

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Brown, Clifford and Collins JJ
Counsel:	Applicant in person G M Taylor for Respondent
Judgment: (On the papers)	24 February 2021 at 3.30 pm

JUDGMENT OF THE COURT

The application is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

1. Mr Prescott was fined by Justices of the Peace in respect of a speeding infringement.  His appeal to the District Court was dismissed.[1]  His application for judicial review of that decision was struck out in the High Court.[2]  On 22 August 2019 this Court declined to grant him an extension of time to appeal against the judgment of the High Court.[3]  He was ordered to pay one set of costs on a band A basis with usual disbursements.

   [1]Police v Prescott [2018] NZDC 5372.

   [2]Prescott v Police [2019] NZHC 175.

   [3]Prescott v Police [2019] NZCA 380.

2. This Court’s judgment explained that it was an abuse of process for Mr Prescott to attempt to circumvent the requirements of a second criminal appeal by bringing an application for judicial review without first exhausting the appeal pathways in the Criminal Procedure Act 2011.  Leave to appeal to the Supreme Court was refused.[4]

   [4]Prescott v Police [2019] NZSC 133.

3. Subsequently with the leave of the High Court Mr Prescott commenced a second criminal appeal in the High Court under s 237(1) of the Criminal Procedure Act.  The High Court allowed the appeal.  The Court did so on the basis of a submission made for the first time in that appeal:  that is, there was no evidence adduced to establish how the prosecution had proved the offence beyond reasonable doubt.[5]

   [5]Prescott v Police [2020] NZHC 2191.

4. Mr Prescott has now filed in this Court a document described as an “application as a matter of right to have orders set aside under the doctrine of ex debito justitiae”.

5. Citing a passage from Lord Denning’s publication The Discipline of Law[6] to the effect that although a void order has no legal effect from the outset it may sometimes be necessary to have it set aside, Mr Prescott applies to set aside this Court’s judgment of 22 August 2019.  We infer that the primary objective of the application is to quash the order for costs in the sum of $5,798.00.

   [6]Lord Denning The Discipline of Law (Butterworths, London, 1979) at 77.

6. We do not accept that the fact that Mr Prescott was ultimately successful with a criminal appeal entitles him to seek to set aside orders of this Court made in its civil jurisdiction.  As Ms Taylor for the respondent submits this Court’s decision declining an extension of time to file an appeal was made on the basis that judicial review was not an appropriate remedy and that Mr Prescott should have brought his challenge to the District Court decision by way of a second criminal appeal.  An order for costs was appropriate in the circumstances.  This Court’s decision remains valid despite the fact that the second criminal appeal brought was ultimately successful.

1. Consequently Mr Prescott’s current application is declined.

Solicitors:
Crown Law Office, Wellington for Respondent