Clarke v Police - [2015] NZHC 259

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000084

CRI-2014-485-000085 [2015] NZHC 259

BETWEEN
NEIL MARTIN CLARKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 February 2015

Counsel:

C L Hollingsworth for Appellant
I R Murray for Respondent

Judgment:

24 February 2015

JUDGMENT OF COLLINS J [Appeal against convictions and sentence]

Introduction

[1] This judgment explains why I am dismissing one appeal and allowing part of a second appeal brought by Mr Clarke in relation to decisions made by Judge Cameron in the Wellington District Court on 4 November 2014.

[2] In his first appeal Mr Clarke challenges a decision by Judge Cameron in which his Honour dismissed an application brought by Mr Clarke pursuant to s 147 of the Criminal Procedure Act 2011 (the Act). Mr Clarke applied to Judge Cameron to have two charges dismissed. The charges in question were:

(1) one charge of assaulting a constable;1 and

(2) one charge of assaulting a second constable.2

1 Crimes Act 1961, s 192(2). Maximum penalty is three years’ imprisonment.
2 Summary Offences Act 1981, s 10. Maximum penalty is six months’ imprisonment or a $4,000

CLARKE v NEW ZEALAND POLICE [2015] NZHC 259 [24 February 2015]

[3] Mr Clarke’s second appeal is against his convictions and a total sentence of

160 hours’ community work imposed by Judge Cameron in relation to the two

charges I have referred to in paragraph [2].

[4] At the commencement of the hearing Ms Hollingsworth, counsel for Mr Clarke, advised she had instructions to seek an adjournment. The basis of the adjournment was that I had apparently heard an appeal involving Mr Clarke in 2013 and that “further consequences might flow” from my decision. I could not recall Mr Clarke or his 2013 appeal until Ms Hollingsworth explained the circumstances of that case.

[5] Ms Hollingsworth’s instructions did not enable her to elaborate on why I should adjourn the appeal and/or recuse myself. I therefore proceeded to hear the appeal.

Background

[6] On 23 April 2014 Mr Clarke was at his home in Arlington Street, Wellington. He telephoned the police several times complaining about voices he could hear from a neighbouring property. Mr Clarke was told on several occasions by the Police Communications Centre (Police Communications) that the police would not be responding to his call. At approximately 6.20 pm he telephoned the police again, saying he had mixed up some chemicals and was going to blow something up.

[7] Understandably, this telephone call resulted in the police dispatching officers

to the scene. Mr Clarke’s address was searched but no bomb was found.

[8] Mr Clarke was taken into custody. He was charged with misusing a telephone3 and released on police bail. A condition of the police bail was that Mr Clarke was not to telephone emergency services except in case of a genuine
emergency.

fine.
3 Telecommunications Act 2001, s 112(2)(b). Maximum penalty is three months’ imprisonment or a $2,000 fine.

[9] On 6 and 7 June 2014 Mr Clarke called the…

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] NZHC 259
Decision Date: 24 February 2015

CaseChat Overview and Summary

In Clarke v Police, Collins J dismissed one appeal and allowed part of a second appeal brought by Mr Clarke against decisions made by Judge Cameron in the Wellington District Court. Mr Clarke appealed against the dismissal of his application to have two assault charges dismissed and against his convictions and sentence in relation to those charges. The first appeal related to the dismissal of Mr Clarke’s application under s 147 of the Criminal Procedure Act 2011 (the Act). Mr Clarke argued that Judge Cameron erred by not giving reasons for dismissing his application. However, there is no jurisdiction to appeal a decision declining an application under s 147 of the Act. Mr Clarke’s appeal against his convictions was governed by s 232 of the Act. There were three limbs to the appeal. The first was that Constables Crook and Pitchford were not acting in the course of their duties. The second was that Constable Pitchford used unreasonable force. The third was that Judge Cameron erred by not specifically finding Mr Clarke knew the constables were acting in the course of their duties. The appeal against the first two limbs failed. However, there was merit in the third limb because Judge Cameron did not specifically state that Mr Clarke knew the constables were acting in the course of their duties. The appeal against the conviction for assaulting Constable Crook was allowed and the sentence was quashed. The appeal against the conviction for assaulting Constable Pitchford failed. The sentence in relation to that conviction was upheld.

Orders