Clarke v Police - [2013] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-470-000026 [2013] NZHC 1014

BETWEEN NEIL MARTIN CLARKE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 May 2013

Counsel: R Vigor-Brown for Appellant
B A Tompkins for Respondent

Judgment: 8 May 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.15 pm on the 8th day of May 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] Mr Clarke was convicted by Judge Wolff in the District Court in Tauranga in relation to the following offences:

(1) One charge of trespassing after being warned to leave his mother’s

property;[1]
[1] Trespass Act 1980, s 3(1).

(2)Three charges of assaulting constables with intent to obstruct them in the execution of their duties;[2] and
[2] Crimes Act 1961, s 192(2).

CLARKE V NEW ZEALAND POLICE HC WN CRI-2012-470-000026 [8 May 2013]

(3) One charge of causing wilful damage.[3]

He was sentenced to nine months’ intensive supervision and 200 hours community

work.

[3] Summary Offences Act 1981, s 11(1)(a).

[2] Mr Clarke appeals his convictions and sentence.

[3] I have decided to dismiss the appeal. In explaining why I have reached this conclusion I will:

(1) explain the background to the charges; (2) summarise Judge Wolff’s decision;
(3) explain the grounds of appeal;

(4)explain the principles which govern how I should determine the appeal;

(5) analyse the merits of the appeal; and

(6) explain my conclusions.

Background

[4] Mr Clarke boarded at his mother’s home. He paid her $120 in advance each week to cover the costs of his food.

[5] Mr Clarke and his mother had a fraught relationship. When sentencing Mr Clarke Judge Wolff provided some insight into the nature of Mr Clarke’s relationship with his mother when he said:[4]
[4] Police v Clarke DC Tauranga CRI-2012-070-1181, 3 July 2012 at [1].

Your mother had had enough of your drinking to excess and wanted you to leave the home in which you were staying. You resisted that. You ignored

her and when the police arrived your culmination of intoxication and sense of right and propensity to violence resulted in a series of assaults on police officers and generally very bad conduct indeed.

[6] On the afternoon of 18 November 2011 Mr Clarke was at his mother’s home. He had been drinking. An argument developed between Mr Clarke and his mother. There is evidence Mrs Clarke was assaulted by her son. Mrs Clarke told Mr Clarke to leave her home. When Mr Clarke refused to go Mrs Clarke served him with a trespass notice. This occurred at 4.40 pm. Mrs Clarke also called the police who arrived at approximately 6.00 pm.

[7] When Mr Clarke saw the police in the lounge of his mother’s home he became agitated. He told the police to leave. He pushed a civilian who was observing the police (in his capacity as a potential police recruit). Mr Clarke was arrested and taken to the police car.

[8] When he was…

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.

Keep reading for free

Create a free CaseChat account to read Clarke v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 1014
Decision Date: 8 May 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Neil Martin Clarke against his convictions and sentence, imposed by Judge Wolff in the District Court in Tauranga. Clarke was convicted of trespassing, assaulting constables, and wilful damage. He was sentenced to nine months’ intensive supervision and 200 hours of community work. Clarke's primary argument was that he had a licence to occupy his mother's home, which she could not revoke without providing reasonable notice. He also argued that he was not lawfully arrested for trespassing, and therefore he was entitled to use reasonable force to resist the arrest. The court dismissed Clarke's appeal, holding that his mother had the right to terminate his licence due to his aggressive and abusive behaviour, and that he was a trespasser by the time the police arrived. Furthermore, the court found that Clarke's use of force against the police was unwarranted.

The court's reasoning was based on the legal principles governing the revocation of a licence to occupy property and the use of force against law enforcement officers. The court held that Clarke's mother had the right to revoke his licence due to his disorderly behaviour, and that a reasonable period of time was given for him to vacate the premises. The court also found that Clarke was a trespasser by the time the police arrived and that his use of force against the officers was not justified. The appeal against the sentence was also dismissed, as the court considered the sentence to be reasonable and generous. The court emphasised that it was time for Clarke to serve the sentence imposed by Judge Wolff.

Orders