Clarke v Police
[2015] NZCA 570
•26 November 2015
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA89/2015 [2015] NZCA 570 |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | NEW ZEALAND POLICE |
| CA410/2015 | |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | MINISTRY OF SOCIAL DEVELOPMENT |
| CA514/2015 | |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | MINISTRY OF SOCIAL DEVELOPMENT |
| Hearing: | 3 November 2015 |
Court: | Stevens, Fogarty and Mallon JJ |
Counsel: | Applicant in person |
Judgment: | 26 November 2015 at 10.00 am |
JUDGMENT OF THE COURT
The applications for leave to appeal are declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Leave to pursue second appeals
Mr Clarke seeks leave from this Court to pursue three second appeals. Mr Clarke is pursuing these applications for leave without having had the benefit of legal advice. The Criminal Procedure Act 2011 requires that in order to obtain leave to pursue a second appeal, this Court must be satisfied that the appeal involves a matter of general or public importance (that is beyond the concerns of Mr Clarke personally) or that a miscarriage of justice has occurred or may occur unless the appeal is heard.[1] We are satisfied in each of these three applications these criteria are not met. We give our reasons.
CA89/2015 — Conviction and sentence for assaulting a police officer
[1]See Criminal Procedure Act 2011, ss 223(3), 237(2), 253(3), 276(2), 287(2) and 303(2), standardising the test for leave to appeal across these provisions. The relevant leave provision in respect of each appeal will be addressed in turn.
The police arrested Mr Clarke for breaching bail. While in the police car he kicked one of the officers who arrested him, Constable Crook. While being processed at the police station, he spat in the face of another officer, Constable Pitchford. He was convicted on two charges of assault in the Wellington District Court by Judge Cameron.[2]
[2]New Zealand Police v Clarke DC Wellington CRI-2014-085-6673, 4 November 2014.
On appeal to the High Court, Collins J allowed his appeal in respect of the first charge of assault (the kick). He dismissed the appeal for spitting and so assaulting Constable Pitchford.[3]
[3]Clarke v New Zealand Police [2015] NZHC 259.
Collins J allowed the appeal in respect of the first assault because the District Court Judge had not determined whether there was a reasonable possibility that Mr Clarke believed Constable Crook had no authority to arrest him because he was not breaching his bail.[4] Collins J dismissed the appeal in respect of the second assault because:[5]
[46] By the time of the incident in the police station matters had moved well beyond issues concerning the lawfulness of the arrest of Mr Clarke for breaching the terms of his bail. Mr Clarke knew he was in the police station and that he was being restrained by police officers. Mr Clarke spat at Constable Pitchford when police officers, including Constable Pitchford, were trying to restrain him.
[47] Mr Clarke’s decision to spit at Constable Pitchford when he was being restrained was quite separate in place and time from the incident involving Constable Crook. Mr Clarke’s reasons for believing he could resist his arrest by Constable Crook did not apply to the incident in the police station when Mr Clarke spat at Constable Pitchford. There was no basis for Mr Clarke to believe Constable Pitchford was not acting in the course of his duty when Mr Clarke spat at Constable Pitchford.
[4]Relying on Clarke v New Zealand Police HC Wellington CRI 2003-485-28, 18 November 2003 at [57].
[5]Clarke v New Zealand Police, above n 3.
That was a factual determination open to the Court, just as it was open to the District Court to determine that Constable Pitchford had not punched Mr Clarke prior to being spat at as Mr Clarke had contended in that Court.[6] There is no compelling basis for this Court to interfere with those factual determinations.
[6]New Zealand Police v Clarke, above n 2, at [6].
On this application for leave Mr Clarke seeks to put the matter differently.[7] He contends that because his conviction on the first assault was dismissed he was falsely imprisoned throughout. He says that he was entitled to use all reasonable force to escape from that imprisonment and that therefore he was justified in spitting at Constable Pitchford. In advancing that submission, Mr Clarke relies on an earlier High Court decision in which he successfully appealed a conviction for disorderly behaviour.[8] It was found that Mr Clarke had been falsely imprisoned by a café manager and waiter (who prevented him from leaving a restaurant until the police arrived) and that he was justified in raising a chair and abusing the manager and waiter (the disorderly behaviour) because those actions were directed at the unlawful imprisonment and were proportionate to the unlawfulness.[9]
[7]Mr Clarke advances his appeal under s 237(2) of the Criminal Procedure Act.
[8]Clarke v Police HC Wellington AP109/02, 4 July 2002.
[9]At [15].
It can be seen that the case Mr Clarke relies on is quite different from the present. The police officers were lawfully entitled to arrest him on the first assault even if the assault charge was later dismissed. The circumstances in which an individual is liable for assaulting a police officer are well-settled.[10] We are satisfied that Mr Clarke’s appeal does not involve a matter of general or public importance. Neither do we consider a miscarriage of justice has occurred or would occur unless the appeal is heard. Leave to pursue a second appeal is refused.
CA410/2015 — Sentence for benefit fraud
[10]See Waaka v Police [1987] 1 NZLR 754 (CA) at 759.
Mr Clarke pleaded guilty to six charges of offending related to benefit fraud. He was sentenced by Judge Tuohy in the Wellington District Court to nine months’ home detention.[11] In the High Court, Ellis J dismissed the appeal against sentence.[12] In so doing, the Judge applied settled law to the sentencing task involved.[13] Ellis J’s task did not involve any significant points of law.
[11]Ministry of Social Development v Clarke [2015] NZDC 10867.
[12]Clarke v New Zealand Police [2015] NZHC 1692.
[13]At [21]–[29].
Mr Clarke now seeks leave to bring a second appeal against sentence.[14] Mr Clarke seeks to challenge the sentencing on the basis the sentence is manifestly excessive. However, as decisions of this Court in circumstances of comparable offending illustrate, the sentence imposed on Mr Clarke was within the available range.[15]
[14]Criminal Procedure Act, s 253(3).
[15]Heta v R [2012] NZCA 267 at [37]. See also Whitelaw v R [2012] NZCA 438 at [9].
This is not an appeal that involves a matter of general or public importance. Nor is there any risk of a miscarriage of justice. Leave to appeal is refused.
CA514/2015 — Appeal against refusal to discharge
Mr Clarke separately seeks leave to bring a second appeal against an aspect of the offending in the above proceeding CA410/2015, to which he pleaded guilty.[16]
[16]The appeal is purportedly brought under s 213(3) of the Criminal Procedure Act.
Prior to pleading guilty, Mr Clarke had made an application for the charges to be dismissed under s 147 of the Criminal Procedure Act. An application under this Act can only succeed before the defendant enters a plea of guilty. This is because of subs (1) of s 147, which provides:
147 Dismissal of charge
(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(Emphasis added)
Ellis J in the High Court held there was nothing against which Mr Clarke could appeal.[17] This was first, because there had been no application under s 147 to the District Court Judge against which Mr Clarke could appeal:
[10] As far as the question of leave is concerned, I acknowledge that the question posed in the application for leave might be capable of constituting a question of law. The difficulty remains, however, that the District Court’s “failure” to deal with the s 147 application means that there is, in fact, no decision that can be appealed. The right to apply for leave to appeal under s 296 is expressly predicated on the existence of a “ruling” against which the appeal is sought to be brought. The section does not appear to me to contemplate an appeal against the absence of a ruling.[18]
[17]Clarke v Ministry of Social Development [2015] NZHC 1868.
[18]It is not even as if Judge Tuohy refused to deal with the s 147 application; it does not appear to have even been brought to his attention.
Even if this were wrong, however, Ellis J held no appeal could have been grounded on s 147, as the applicant’s guilty plea had overtaken the circumstances in which the section could apply.[19]
[19]At [11]–[13].
We agree. The words in s 147(1) are clear. Once he entered his guilty plea his s 147 application was no longer extant. Accordingly, the appeal does not involve a matter of general or public importance and there is no risk of a miscarriage. Leave to appeal is refused.
Conclusion
All three applications for leave to appeal are refused.
Current position of sentences
In CA89/2015, the result of the partially successful appeal in the High Court meant that the 80 hours of community work for assaulting Constable Cook was quashed, but left the sentence of 80 hours community work in relation to the conviction for assaulting Constable Pitchford.[20]
[20]New Zealand Police v Clarke, above n 2, at [61]–[63].
In respect of CA410/2015, Ellis J in the High Court dismissed the appeal against the sentence imposed by Judge Tuohy in the District Court. The end result was that there was a sentence of 10 months’ home detention.[21]
[21]Clarke v Ministry of Social Development, above n 12, at [36]. This sentence comprised nine months’ home detention on the benefit fraud charges, as well as an addition one month’s home detention for unrelated charges of wilful trespass, wilful damage and assaulting a police officer. These charges were not the subject of these applications for leave: at [2].
Mr Clarke has advised us that he commenced his sentence of home detention on 11 June 2015 and is continuing to serve that sentence but, pending this appeal, his 80 hours community work sentence has been deferred. As his application for leave to appeal has been dismissed it is now for the Probation Office to determine when the community work sentence is to commence.
Result
The applications for leave to appeal are declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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