Clark v Police - [2015] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-36 [2015] NZHC 2628

BETWEEN
NEIL MARTIN CLARK

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI-2015-485-38

BETWEEN NEIL MARTIN CLARKE Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing: On the papers

Counsel:

Appellant in person
A R T Garrick for Respondent

Judgment:

27 October 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
2 pm on the 27th day of October 2015

CLARK v NEW ZEALAND POLICE [2015] NZHC 2628 [27 October 2015]

[1] Mr Clarke has filed an application for leave to appeal to the Court of Appeal against my judgment delivered on 22 July 2015 on his appeal against sentence.1
This judgment needs to be read in conjunction with that one.

[2] The application was filed over a month out of time because (Mr Clarke says)

he was given the wrong forms.2

[3] Leave may be granted only:

(a) on a question of law, where

(b)the question of law involved is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4] By minute dated 1 October 2015 I asked Mr Clarke to identify:

(a) the question of law which Mr Clarke submits arises on his proposed appeal; and

(b) the reasons why that question is of general and public importance; or

(c) any other reason upon which he relies to support submission to the

Court of Appeal.

[5] He has now filed a memorandum in response. His response suggests that his principal proposed contention on appeal is that the (adverse) reference in my judgment to his completion of only three out of the 200 hours community work from his “Tauranga” sentence was wrong. The reason it was wrong (he says) is that I failed to take into account the fact that that sentence was suspended pending his
appeal.

1 Clarke v New Zealand Police [2015] NZHC 1692.
2 The application for leave is made pursuant to s 144 of the Summary Proceedings Act 1957 because the original proceeding commenced prior to 1 July 2013.

[6] I am prepared to accept that this alleged error might be capable of constituting a question of law, although it is difficult to see how it could be called a question of general or public importance. That additional requirement was not addressed at all by Mr Clarke in his response.

[7] But even if there is some wider importance in the question which is not presently apparent to me, there is another difficulty. That is because I said in my judgment:

[31] Mr Clarke was sentenced for the 2012 charges on 3 July 2012. By virtue of s 345 of the SA that sentence ceased to run from the date upon which his appeal was filed. The sentence resumed on the date upon which his appeal was dismissed. Mr Clarke’s sentence therefore began to run again from the date of Collins…

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: [2015] NZHC 2628
Decision Date: 27 October 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Neil Martin Clarke for leave to appeal against a decision made by the lower court. The lower court had ruled on an appeal against a sentence, and Clarke sought to challenge that ruling in the Court of Appeal. The appeal was filed after the time limit, with Clarke arguing that he had been given incorrect forms. The primary legal issue before the court was whether the alleged errors in the lower court’s judgment constituted a question of law that was of general or public importance and warranted review by the Court of Appeal.

Clarke's main contention was that the lower court incorrectly stated that he had only completed three out of 200 hours of community work from his Tauranga sentence. Clarke argued that the lower court failed to consider that the sentence was suspended pending his appeal. The court considered whether this alleged error constituted a question of law and whether it had general or public importance. However, the court found that the alleged error did not meet the criteria for an appeal as it did not present a question of law of general or public importance. The court also noted that there were arithmetical errors in the lower court’s judgment, but these did not assist Clarke's case.

The court declined to grant leave to appeal, finding that no genuine question of law of general or public importance had been identified. The court held that Clarke had not provided sufficient grounds for the Court of Appeal to review the lower court’s decision. The court's judgment emphasised that the points raised by Clarke did not constitute a valid basis for an appeal as they did not meet the necessary legal criteria.

Orders