Clarke v Police - [2016] NZHC 2168

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 Respondent

Judgment:

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…

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: [2016] NZHC 2168
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Neil Martin Clarke appealed his convictions for failing to remain stopped, assaulting an officer in the execution of duty, resisting an officer in the execution of duty, and refusing to permit a blood specimen. The appeal arose from an incident in which Clarke was suspected of driving under the influence of alcohol, and subsequently resisted a police officer who attempted to administer a breath test. Clarke was arrested and taken to the police station, where he refused to undergo evidential breath and blood alcohol procedures. The District Court convicted Clarke on all charges, and he appealed.

The appeal raised several legal issues, including whether Clarke had been properly advised of his rights under the Breath and Oral Readings Act 1987 (BORA) at the roadside and police station scenes, and whether the District Court erred in finding Clarke's evidence incredible. The appeal also challenged the sufficiency of the evidence to support the charges of assaulting and resisting an officer in the execution of duty, and whether the District Court properly considered Clarke's defence of self-defence.

The High Court found that the District Court did not err in finding Clarke's evidence incredible, as it was contradicted by an independent witness and inconsistent with the officer's evidence. The Court found that the evidence supported the charges of failing to remain stopped and refusing to provide a blood sample. However, the Court allowed the appeal in relation to the charges of assaulting and resisting an officer in the execution of duty, finding that the District Court did not properly consider Clarke's defence of self-defence, which was based on his belief that the arrest was unlawful. The Court quashed the convictions for these charges and directed a retrial.

The final orders of the Court were that the appeal in relation to the charges of assaulting and resisting an officer in the execution of duty were allowed and the convictions quashed. The appeal against the convictions for refusing to remain and refusing to provide a blood sample were dismissed. The Court directed a retrial for the charges of assaulting and resisting an officer in the execution of duty, leaving it to the prosecution whether to proceed.

Orders