Clarke v Police - [2015] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND

CA89/2015
[2015] NZCA 570

BETWEEN	NEIL MARTIN CLARKE Applicant
AND	NEW ZEALAND POLICE Respondent

CA410/2015
BETWEEN	NEIL MARTIN CLARKE Applicant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

CA514/2015
BETWEEN	NEIL MARTIN CLARKE Applicant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	3 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	Applicant in person P D Marshall for Respondent
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…

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] NZCA 570
Decision Date: 26 November 2015

CaseChat Overview and Summary

Neil Martin Clarke, the applicant, sought leave to pursue three appeals against his conviction and sentence in the Wellington District Court. The first appeal related to the conviction and sentence for assaulting two police officers. The second and third appeals related to the sentence for benefit fraud. The Court of Appeal declined the applications for leave to appeal.

The court was required to determine whether Mr Clarke's appeals involved a matter of general or public importance or whether there was a risk of a miscarriage of justice if the appeals were not heard. The court found that neither of these criteria were met.

In the first appeal, the court found that Mr Clarke's arguments did not differ significantly from the arguments made in the previous appeal, and that the circumstances of the assault on Constable Pitchford were well-settled. In the second appeal, the court found that the sentence imposed on Mr Clarke was within the available range and did not involve any significant points of law. In the third appeal, the court found that Mr Clarke's appeal was not grounded in any decision of the District Court, and that his guilty plea had overtaken the circumstances in which the appeal could apply.

The applications for leave to appeal are declined.

Orders