PRESCOTT v POLICE [2020] NZHC 1304

PRESCOTT v POLICE [2020] NZHC 1304 [11 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2259[2020] NZHC 1304BETWEEN PETER RICHARD PRESCOTTAppellantAND NEW ZEALAND POLICEFirst RespondentDISTRICT COURT AT AUCKLANDSecond RespondentHearing: 10 June 2020Appearances: Appellant in personC Paterson (via VMR) for the RespondentsJudgment: 11 June 2020JUDGMENT OF GAULT J(Leave to appeal)This judgment was delivered by me on 11 June 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarParties / Solicitors:The ApplicantMr M Hodge and Ms C Paterson, Meredith Connell, Auckland[1] Mr Prescott seeks leave to appeal against my judgment dated 18 December2019.1 Leave to appeal to the Court of Appeal is required under s 60 of the SeniorCourts Act 2016 because my decision was an appeal from a District Court decisiondismissing Mr Prescott's civil claim for unlawful arrest and detention and denial ofthe right to consult a lawyer.2[2] The respondent opposes leave.3[3] Mr Prescott requested a hearing. While the respondent was content for theapplication to be determined on the papers, a hearing was allocated for 6 April 2020.Given the COVID-19 lockdown, that hearing was vacated. The hearing wasrescheduled following the lockdown.[4] Mr Prescott has also filed a brief memorandum seeking, in the alternative,recall of my judgment.Recall[5] Dealing first with recall, Mr Prescott did not give any particular reason for thisalternative, merely indicating he was open to it as a way to alter the judgment beforeit went on to the Court of Appeal.[6] There are three recognised categories of cases in which a judgment notperfected may be recalled:4first, where since the hearing there has been an amendment to a relevantstatute or regulation or a new judicial decision of relevance and high authority;secondly, where counsel have failed to direct the Court's attention to alegislative provision or authoritative decision of plain relevance; and thirdly,where for some other very special reason justice requires that the judgment berecalled.1 Prescott v NZ Police [2019] NZHC 3376 [the judgment].2 Prescott v NZ Police [2016] NZDC 14357.3 Insofar as the application was made out of time, the respondent does not oppose an extension oftime.4 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v WoolBoard Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].[7] There is no suggestion that either of the first two categories applies. The thirdcategory is intended to be narrow and cases appropriate for recall on that basis arelikely to be rare.5 Recall is not a substitute for an appeal. No good reason for it hasbeen suggested and I decline to recall the judgment.Test for leave for a second appeal[8] It is well established that to obtain leave to bring a second appeal:6[t]he appeal must raise some question of law or fact capable of bona fideand serious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of the further appeal.[9] I am conscious that I am being asked to review the correctness of my owndecision. In such circumstances, particularly when there are many grounds, the easiercourse might be to accept one or more alleged errors are capable of argument, but thatwould not be the correct approach. I must assess whether the alleged errors arecapable of bona fide and serious argument and of sufficient importance in the senseoutlined. In doing so, I am conscious that, if I decline leave and leave is sought fromthe Court of Appeal, that Court may wish to have my reasons for considering whethera further appeal is warranted.Grounds of appeal[10] Mr Prescott claims that the judgment contains a number of errors of law andfact. He recast his filed written submission in a further 23 page submission that hehanded up at the hearing. I mention each alleged error briefly below for completenessbut, helpfully, during the hearing Mr Prescott narrowed the real issues to whether theCourt was wrong:5 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23] and [34].6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at [22];and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355,[2008] 2 NZLR 591 at [30]-[31].(a) to apply the law in Chapman v Director of Public Prosecutions7 andfind that the arrest was justified because the constable suspected, andhad good cause to suspect, that Mr Prescott was intentionallyobstructing him (an arrestable offence) even though the constable hadthe wrong obstruction provision in mind; and(b) to find that informing Mr Prescott that he was being arrested for"obstruction" was sufficient reason in terms of s 23(1)(a) of theNew Zealand Bill of Rights Act 1990 (NZBORA).[11] The first issue concerning the lawfulness of the arrest involves both a legal andfactual component. The legal question is whether the law as to alternativejustifications for arrest stated in Chapman v Director of Public Prosecutions appliesin New Zealand.8 The factual question is whether I was wrong to find that theconstable suspected, and had good cause to suspect, that Mr Prescott was intentionallyobstructing him.9 Mr Prescott's argument focused on challenging the factual finding,and it is convenient to deal with that first.[12] I accept the submission of Ms Paterson, for the respondent, that the factualchallenge does not meet the test for leave. Even if the factual question is capable ofbona fide and serious argument – and she submitted it is not – I consider it is clearlyconfined to the unusual facts of this case and does not involve an interest, public orprivate, of sufficient importance to outweigh the cost and delay of the further appeal.[13] I acknowledge that Mr Prescott did not abandon the legal question and in replyhe submitted that Chapman v Director of Public Prosecutions was overridden byNZBORA. Ms Paterson acknowledged, and I accept, that the legal question is capableof bona fide and serious argument. There is little New Zealand authority on the issueand I applied the law as stated by Bingham LJ in the English case of Chapman. In thatsense, Ms Paterson acknowledged that the question may benefit from the Court ofAppeal's consideration. I note that I did not accept the respondent's submissions7 Chapman v Director of Public Prosecutions (1989) 89 Cr App R 190 (QB).8 At [51]-[53] and [82] of the judgment.9 At [89] of the judgment.proposing a more expansive or permissive approach to alternative justifications forarrest.10 That is not the subject of the proposed appeal. The issue raised byMr Prescott is essentially that there should be no justification for arrest on any groundnot articulated at the time. That appears inconsistent with Caie v Attorney-General,11as well as Chapman v Director of Public Prosecutions, albeit not the subject of higherNew Zealand authority at least given my view that Campbell v Police isdistinguishable.12 Ms Paterson also acknowledged, and I also accept, that there issome public interest in the law relating to alternative justifications for arrest.[14] Notwithstanding her acknowledgements, I accept Ms Paterson's submissionthat on balance this particular case does not meet the test for leave to appeal. I considerthe question of law raised by Mr Prescott is not sufficiently arguable and important tooutweigh the cost and delay of a further appeal. Any public interest in higher appellateconsideration of the question of law raised by Mr Prescott is outweighed by theunusual facts, dating back to 2011, and the unusual progress of this civil proceeding,which was dismissed at first instance and on appeal, albeit for different reasons.In those circumstances, considerations of finality and the cost and delay of a furtherappeal weigh more. Related to this, I accept Ms Paterson's submission that therewould be little overlap between the second appeal and the separate appeal againstdismissal of Mr Prescott's application for judicial review of the District Court'sdecision (largely on bias grounds) which I heard at the same time as the appeal.[15] Turning to the second issue concerning the reason given for the arrest,Mr Prescott submitted that informing him that he was being arrested for "obstruction"was insufficient in terms of s 23(1)(a) of NZBORA.13 He submitted that the act oromission that gave rise to the claim of obstruction, and the enactment relied upon,had to be explained to him at the time of the arrest.10 At [41]-[50] of the judgment.11 Caie v Attorney-General [2005] NZAR 703 (HC) at [103]-[105].12 Campbell v Police [1994] 3 NZLR 260 (CA); distinguished at [42]-[45] of the judgment.13 At [90]-[92] of the judgment.[16] I do not consider there is a serious question that informing Mr Prescott that hewas being arrested for "obstruction" was insufficient and in breach of s 23(1)(a) ofNZBORA. In any event, this issue is also confined to the unusual facts of this caseand does not involve an interest of sufficient importance to meet the test for leave tobring a second appeal.[17] For completeness, I briefly address each of the alleged errors (following thenumbering in Mr Prescott's written submission):(a) Error of law – breach of procedural due process, failure to apply HCR20.16 (error 1): Reliance on r 20.16 of the High Court Rules 2016 ismisconceived. It confuses evidence and legal submission. Furtherevidence was not adduced on appeal. There is no separate questionjustifying leave here.(b) Justification for the arrest after the event (error 2): This raises thecentral question as to whether the arrest was justified, dealt with above.(c) Error of fact and law – elements of obstruction never defined orestablished (error 3): I agree with the respondent that Mr Prescott'sargument on this point appears to conflate the requirement for theofficer to have good cause to suspect him of committing an offence withthe question of whether he was guilty of that offence. Otherwise, itraises the same central question as to whether the arrest was justified.(d) Error of fact and law at paragraphs 33 and 81 of the judgment(error 4): I do not understand paragraphs 33 and 81 of the judgment togive rise to any error. Mr Prescott appears to confuse the arrest powerfor obstruction with the power to inspect documents under s 113 of theLand Transport Act 1998. Again, this reduces to the same centralquestion as to whether the arrest was justified.(e) Error of fact at paragraph 9 of the judgment (error 5): This statementin the factual background that the police mobile data terminal had notbeen updated was open on the evidence, was consistent with a similarstatement in the District Court (thus giving rise to concurrent findings)and, in any event, was immaterial to whether the arrest was justifiedgiven the other findings as to the constable's state of mind. Followingthe District Court decision and the scope of the appeal in theHigh Court, the claim that the police knew the warrant of fitness wasvalid and the traffic stop and arrest were a malicious ruse and act ofretribution (and the related allegation of destruction of evidence) is notcapable of serious argument justifying a further appeal.(f) Error of fact and law – failure to apply s 24(a) of NZBORA and theadverse impact it had on the right to consult a lawyer under s 24(c) ofNZBORA (error 6): The s 24(a) right to details of a charge (as opposedto the reasons for arrest, already addressed) was not in issue in theHigh Court appeal. Nor was the s 24(c) right to access a lawyer.Mr Prescott's claim in relation to his right to access a lawyer wasbrought under s 23(1)(b). In any event, I consider that Mr Prescott'sclaim that his right to access a lawyer at the police station was breachedis not seriously arguable. Mr Prescott had already been told of this rightas required.14(g) The mandatory requirements of ss 23(1)(a) and (b) of NZBORA(error 7): Section 23(1)(a) concerns the second main issue dealt withabove – whether the reason given for the arrest was sufficient. I havealso addressed the s 23(1)(b) claim.(h) Error of fact – appeal successful (error 8): Again, this raises the samecentral question as to whether the arrest was justified.14 At [95] of the judgment.Result[18] The application for leave to appeal is dismissed.[19] On the appeal I made no order as to costs given the NZBORA context. If therespondent considers that costs on this application should follow the event, and theycannot be agreed, I will receive memoranda not exceeding two pages and determinecosts on the papers.________________________________Gault J