Clarke v Police - [2017] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND

CA480/2016
[2017] NZCA 198

BETWEEN	NEIL MARTIN CLARKE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Kós P, Courtney and Williams JJ

Counsel:

Applicant in person
C J Hurd for Respondent

Judgment:

(On the papers)

23 May 2017 at 3.00 pm

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Neil Clarke was convicted in the District Court on four charges arising from an incident in Tennyson St in Wellington on 23 November 2014.[1] His convictions for assaulting an officer in the execution of duty and resisting arrest were quashed on appeal. However, his appeal against conviction for failing to remain and refusing to give a blood sample was dismissed.[2] Mr Clarke applied for leave to bring a second appeal.[3]
[1]New Zealand Police v Clarke DC Wellington, 17 March 2016.
[2]Clarke v New Zealand Police [2016] NZHC 2168.
[3]The application has been dealt with on the papers in accordance with Winkelmann J’s minute dated 31 October 2016.
Under s 237(2) of the Criminal Procedure Act 2011 this Court must not grant leave for a second appeal unless it is satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.
Mr Clarke, who is unrepresented, has filed two documents that take the form of submissions. In the first he identifies nine grounds of appeal. Grounds one to four and six to eight are all directed towards findings of fact made by the Judge Tompkins. The fifth ground of appeal relates to the issue of self-defence. The ninth ground of appeal asserts that Mr Clarke’s arrest was false so that from the time of his arrest he was also falsely imprisoned. The second document raises as a ground of appeal the contents of the notice of police bail.

The case in the District Court

Following an altercation between Mr Clarke and another motorist on the afternoon of 23 November 2014, Mr Clarke drove his scooter to Tennyson Street. Police arrived shortly afterwards, having been called by both a passing motorist and Mr Clarke himself. Conflicting accounts were given by the police officer and Mr Clarke as to what happened.
Mr Clarke’s account was that he was on the phone when the officer arrived. He denied being asked by the officer to remain. He said that he told the officer he was leaving and as he walked off he was tackled from behind. He took this to be an unlawful arrest.
On the police officer’s account Mr Clarke appeared to have been drinking and was directed to remain until another police unit could attend to administer a roadside breath screening test. Mr Clarke was abusive and threatened to leave. The officer again told him to remain but Mr Clarke began walking away. The officer tried unsuccessfully to detain him…

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: [2017] NZCA 198
Decision Date: 23 May 2017 at 3.00 pm

CaseChat Overview and Summary

Neil Martin Clarke applied for leave to bring a second appeal against his convictions for failing to remain at a police officer's direction and refusing to provide a blood sample, following an incident in Wellington on 23 November 2014. Clarke's earlier appeal against conviction had been dismissed by the High Court. The Court of Appeal considered whether Clarke's application satisfied the statutory requirements for leave to bring a second appeal, which include demonstrating that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Clarke's grounds for appeal were primarily directed towards findings of fact made by the District Court Judge, including credibility assessments, which are not amenable to challenge on a second appeal. Clarke also sought to argue that self-defence could have been a defence to the charge of failing to remain, but this was rejected as the District Court Judge had already found that Clarke had heard the direction to remain. The Court concluded that there was no risk of a miscarriage of justice if leave for a second appeal was not granted and declined Clarke's application for leave to bring a second appeal.

The Court of Appeal found that none of Clarke's grounds for appeal involved a matter of general or public importance, nor did they demonstrate a risk of miscarriage of justice. The Court noted that the High Court had already comprehensively considered the factual findings of the District Court Judge, particularly the credibility assessments, and that there was no basis to challenge those findings on a second appeal. The Court also rejected Clarke's argument that self-defence could have been a defence to the charge of failing to remain, as the District Court Judge had already found that Clarke had heard the direction to remain. The Court concluded that there was no basis for a second appeal and declined Clarke's application for leave to bring a second appeal.

Orders