Clarke v Police
[2016] NZHC 2168
•14 September 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2016-485-42 [2016] NZHC 2168
BETWEEN NEIL MARTIN CLARKE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 September 2016 Counsel:
C Sheat for Appellant
R Georgiou for RespondentJudgment:
14 September 2016
JUDGMENT OF SIMON FRANCE J
[1] Mr Clarke was involved in a traffic altercation. His conduct concerned a member of the public who had intervened. When Mr Clarke rode off on his scooter, the member of the public followed and alerted the Police. Mr Clarke stopped in a central city street and himself rang the Police to report the driving incident. While doing so, the Police (having been alerted by the member of the public as to Mr Clarke’s whereabouts) arrived.
[2] The Police suspected Mr Clarke to be under the influence of alcohol. It is said Mr Clarke was required to undertake an evidential breath test, but he walked off. He was restrained and a scuffle ensued. Eventually Mr Clarke was arrested and taken to the police station where he was asked to undergo the standard breath and
blood alcohol procedures, which he declined.
CLARKE v NZ POLICE [2016] NZHC 2168 [14 September 2016]
[3] Mr Clarke was charged with:
(a) failing to remain stopped;1
(b) assaulting an officer in the execution of duty;2 (c) resisting an officer in the execution of duty;3 (d) refusing to permit a blood specimen.4
[4] Mr Clarke was convicted on all charges,5 and appeals all of his convictions. It is convenient to set out the respective versions of what happened and the Judge’s decision before addressing the various grounds of appeal.
Competing versions
The roadside scene
[5] There was considerable evidence and dispute around the driving incident and how Mr Clarke conducted himself. It is not essential to the case. It is sufficient to observe Mr Clarke disputed the member of the public’s evidence as to how he was acting. He agreed, however, he was angry. The member of the public described him as loud, aggressive and obviously drunk.
[6] Moving to the key incident, the officer who arrived on the scene recalled Mr Clarke getting off his bike and removing his helmet. Mr Clarke contended the officer was in error, since he was already making the call to Police, and could not do so wearing his full helmet. The officer said Mr Clarke gave a pronounced stagger when he got off the bike. This made the officer consider Mr Clarke was affected by alcohol. The officer could be heard in the background of Mr Clarke’s 111 call,
asking Mr Clarke if he was drunk, and observing he was staggering.
1 Land Transport Act 1998, s 52(1)(aa).
2 Crimes Act 1961, s 192(2).
3 Summary Offences Act 1981, s 23.
4 Land Transport Act 1998, s 60.
5 NZ Police v Clarke DC Wellington CRI-2014-085-013988, 17 March 2016.
[7] The officer said he told Mr Clarke he would need to remain as another police unit was coming to administer a roadside breath screening test. The officer said his request to remain was met with abuse. Mr Clarke said he was walking off. This exchange was repeated a second time with the same results, only this time Mr Clarke actually started to leave. In response, the officer repeated his warning that “if he did not remain he was going to be arrested”. The officer placed his hand on Mr Clarke’s shoulder but was brushed off with more swearing.
[8] The officer applied a form of bear hug from behind but Mr Clarke kept walking so the officer took him to the ground. Once on the ground Mr Clarke flipped onto his back and kicked the officer twice. Eventually he was restrained, initially with the help of a different member of the public and then when the other officers arrived.
[9] Mr Clarke’s version is that he was standing on the footpath by the time the officer arrived. He was on the phone and the officer arrived in the middle of the call. Mr Clarke said he told the officer he was leaving and walked off only to be tackled from behind. Once he realised who was tackling him, Mr Clarke said he started to resist as he believed it was a false arrest. He was acting in self-defence.
[10] Concerning the request to remain, Mr Clarke denied being asked three times and responding with abuse. Mr Clarke introduced medical records to say he had issues with his knees that caused unsteadiness and this accounted for the gait the officers observed.
[11] The third witness was the member of the public who had originally followed Mr Clarke from the driving incident. He parked in the road near where Mr Clarke stopped. He said he saw the officer talking to Mr Clarke while Mr Clarke was on his phone. This is consistent with the audio of Mr Clarke’s call. This witness recalled the officer trying to breath test Mr Clarke who walked away. He recalled the officer saying “Don’t walk away from me, I am trying to breath…”. The member of the public retreated from the scene at that point. He, however, saw the officer grab Mr Clarke on the shoulder and say “Don’t, you can’t walk away from me, I have to breathalyse you” and then they got into a fight.
The police station scene
[12] Mr Clarke was arrested and taken to the police station. He was required to undergo an evidential breath test and upon refusing, to undergo an evidential blood test. This was also refused. The trial and appeal issue concerns whether the correct procedures were followed.
[13] Mr Clarke was given his BORA rights when first arrested at the roadside scene. The officer testified that Mr Clarke responded by saying “I know my rights, you can get f…”. At the station the officer followed the procedure set out in a form designed for the purpose “Blood and Alcohol Procedure Sheet”.
[14] The form begins the process with a direction to the officer to provide the detainee with suite of advice which primarily consists of the BORA rights placed in context. The detainee is advised of:
(a) the purpose of the detention, which is for blood and breath alcohol testing;
(b) the right to silence;
(c) the right to speak to a lawyer without delay and in private, and that there is available a list of lawyers the detainee may speak to free of charge;
(d) the fact that these rights continue throughout the procedure;
(e) the fact that speaking to a lawyer will be by telephone with a reasonable time allowed to consult and instruct.
[15] The detainee is then asked if they wish to speak to a lawyer. It is noted, and not disputed, that Mr Clarke availed himself of this opportunity. Following the phone call when he spoke to a lawyer for about three minutes, Mr Clarke refused to sign the form. It was recorded at the time – “Told not to sign by lawyer”. Mr Clarke then refused an evidential breath test.
[16] The next step in such circumstances is taking a blood specimen. If a positive breath testing result has occurred, a detainee has 10 minutes to consider whether he or she chooses a blood test. Before that period begins, the Police repeat the BORA rights. However, where, as here, there has been a refusal to do an evidential breath test, the Police may immediately require a blood test.
[17] The evidence is slightly unclear but it appears the BORA rights were not at this point read out again. However, the officer asked Mr Clarke if he wanted to speak to a lawyer and he replied “No. Not signing. Already spoken to a lawyer”. The officer then moved to a different process and form, namely the “Blood Specimen Form”. He read out the narration which advises a detainee he or she is required to give blood and that refusal will be an offence. Mr Clarke declined.
[18] Mr Clarke said, subsequent to the refusal to give a breath test, he was not told of his right to again consult a lawyer. He says he was asked if he would undergo a blood test, said no, and then was taken down to the cells. He says he did not know he was allowed to speak to a lawyer again, and thought he had had his one call.
Judgment under appeal
[19] The Judge preferred the evidence of the prosecution and expressly disbelieved Mr Clarke. He said his evidence appeared to be a reconstruction designed to fit his own view of events. The Judge found Mr Clarke was angry and aggressive throughout. Essentially the Judge considered Mr Clarke’s evidence tailored to undermine some aspect of each of the charges.
Appeal
Did Mr Clarke hear the requirement to remain?
[20] The claim here is that Mr Clarke either was not told to remain or did not hear the officer telling him. The latter would mean he did not knowingly refuse to remain. It is submitted the Court erred in rejecting Mr Clarke’s evidence in such an absolute fashion. There were aspects of the first police officer’s evidence shown to be incorrect, and the Court hearing was some 18 months after the event. Outside of
his notes there is no reason to consider the police officer could recall things so accurately and it was unfair to globally prefer one witness over the other.
[21] The difficulties of tackling credibility assessments on appeal are well known. However, I do not consider it necessary to have regard to that. The evidence of the independent witness is important. Although that evidence does not accord exactly with that of the officer, the key aspects are the witness’s recollection of breath testing being talked about by the officer, and the officer placing his hand on Mr Clarke’s shoulder. These events are consistent with the officer’s and contrary to Mr Clarke’s, evidence. They are consistent with how a police officer who suspected Mr Clarke had been drinking and driving would act.
[22] Another aspect is that in reality Mr Clarke’s evidence is incredible. On his evidence the Police allowed him to walk off though suspecting him of drink driving, and then out of the blue ran across the road after him and tackled him without warning.
[23] There are other matters that support the Judge’s conclusion. Mr Clarke’s evidence about the driving incident plainly minimises his own conduct. It conflicts with that of the independent witness. The common ground that does exist between them such as Mr Clarke’s anger, his language and his hitting the other witness’s car, lays a foundation that makes the evidence of the member of the public as to what happened much more credible, and casts doubt on the credibility of Mr Clarke.
[24] Further, the officer said that each time he asked Mr Clarke to remain, the response was a torrent of abuse. This theme of abuse was a common thread between all the witnesses who obviously all recalled its nature.
[25] For these reasons I reject the challenge to the Judge’s credibility findings. It follows that the elements of the offence of failing to remain were proved to the appropriate standard.
Failing to deal with self-defence, and Mr Clarke’s belief that the police officer when arresting him was not acting in execution of duty
[26] Mr Clarke said in evidence he resisted the arrest because he believed it was a false arrest. Further, when he kicked at the officer, he was acting in self-defence. I accept the appellant’s submission that the Judge did not address these defences. Further, there are aspects of the decision that appear to confuse the (proven) legality of the arrest with the separate mens rea inquiry required when considering Mr Clarke’s defence. The experienced Judge of course understands the difference, but I can only address what is said in the judgment. There are no findings or discussion as to the force used in alleged self-defence, whether it was done in defence, and if so whether it was excessive or reasonable. Likewise, there is no analysis of whether, in his probably drunken state, Mr Clarke unreasonably formed the view the officer was acting unlawfully.
[27] The respondent submits I can nevertheless dismiss this aspect of the appeal on the basis that the rejection of Mr Clarke’s credibility necessarily means that no factual basis exists for these defences. On reflection I do not consider that is possible. The key matter is whether Mr Clarke believed, however unreasonably, he was the victim of an unlawful arrest. If so, then there would be a reasonable doubt as to mens rea, and a reasonable possibility of self-defence.
[28] The law is clear that such a state of mind, even if unreasonable, negates the mens rea required for offences where “acting in the execution of duty” are an element.6 A consistent theme throughout the evidence is Mr Clarke’s assertion of a false arrest: the police station officer confirmed he could still recall Mr Clarke alleging it in the car travelling back to the station from the roadside scene. I have no difficulty with the proposition that there was no basis for Mr Clarke to think this, and I of course recognise that the absence of any proper basis tells against the likelihood
of such a belief being held. But (despite what he says) Mr Clarke was probably intoxicated, and he was definitely angry and wound up. The false arrest claim is not an afterthought. Mr Clarke was alleging it from early on, and the issue of whether
Mr Clarke had the necessary mens rea needed to be addressed. In the absence of a
6 See, for example, Mackley v Police (1994) 11 CRNZ 497.
finding on the point by the District Court, I do not consider I can do so on the facts of this appeal.
Delay in giving a BORA warning at roadside scene
[29] The said period of delay is between Mr Clarke being tackled to the ground, and being given his rights once under control and handcuffed. The somewhat optimistic submission is that Mr Clarke jeopardised his position by refusing to undertake a breath screening test. Given Mr Clarke’s subsequent refusals to give a breath test it is hard to see how the delay, if there was a delay, was causative of any harm to Mr Clarke’s position. The proposition Mr Clarke would have taken a breath screening test is not credible on the facts. Further, he is not charged in relation to this stage of the process, and said nothing during the period of alleged delay. The point does not merit further consideration.
Inadequate BORA advice at police station
[30] Ms Sheat submits that a second BORA warning should have been given after the breath refusal and before the request for blood. The blood request was Mr Clarke’s real time of jeopardy. He should have been told he could speak again to a lawyer, and it should have been made clear he might be charged if he refused a blood test.
[31] The difficulty here is that on the facts as they are currently found to be, Mr Clarke was told these things. His assertion otherwise in the face of clear evidence to the contrary, reinforces the conclusion that his evidence lacked credibility. Concerning the lawyer point, the form records him being told of that right, and him declining because he had already spoken to his lawyer. There is no reason to reject this contemporaneous file entry.
[32] As for the warning about committing an offence, the officer said he read out what was on the form. It is what the form is for. It is the only available thing to read out. The form makes it clear what is to happen and what the risks are to a detainee if he or she refuses. The officer has signed the relevant part of the form, and recorded that Mr Clarke declined to sign, again consistent with what had occurred up to now.
[33] I have no doubt that Mr Clarke was told of his right to a lawyer and declined, and was told of his jeopardy if he refused to give a blood specimen. These being the specific deficits alleged, it is unnecessary to address the wider argument as to whether the full set of rights need to be repeated in these circumstances. The Crown relies on the initial advice that the rights are continuing; Ms Sheat submits in the circumstances that is insufficient.
Conclusion
[34] The appeal in relation to assaulting a constable in the execution of duty, and resisting a constable in the execution of duty are allowed and the convictions quashed. Given the nature of the charges, I direct a retrial. It will be a matter for the prosecution whether to proceed.
[35] The appeal against the convictions for refusing to remain and refusing to provide a blood sample are dismissed.
Simon France J