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 in the police car Mr Clarke kicked and broke part of the central console of the police vehicle. This gave rise to the charge of wilful damage.  He then kicked a police constable and spat at another constable after he was punched in the face by one of the officers.  When Mr Clarke was in the police station he spat at another police officer.  The three instances of kicking and spitting at police officers gave rise to the charges of assaulting a constable with intent to obstruct them in the execution of their duty.

District Court judgment

[9]      In his decision Judge Wolff concluded Mr Clarke was a trespasser and that the police were entitled to arrest him without a warrant.   Judge Wolff reasoned Mr Clarke was not justified in kicking or spitting at the police officers.  Nor was he justified  in  damaging  the  central  console  of  the  police  car.    Judge  Wolff  said Mr Clarke was drunk and difficult and not acting within his rights when the events he complains of occurred.

Grounds of appeal

[10]   In his helpful submissions, Mr Vigor-Brown advanced the following propositions:

(1)       Mr Clarke had a licence to occupy his mother’s home;

(2)       Mrs Clarke’s purported revocation of Mr Clarke’s licence was not

valid because:

(a)    the terms of his licence entitled him to occupy the premises for the balance of the week for which he had paid board;

Alternatively,

(b)the terms of his licence enabled him to continue to occupy the premises   for   a   reasonable   time,   namely   until   he   found alternative accommodation.

(3)      Because Mr Clarke was not lawfully arrested for trespassing at his

mother’s home he could resist the arrest using reasonable force.

[11]     Mr Vigor-Brown informed me his instructions were that Mr Clarke believes he used reasonable force to resist his unlawful arrest.

Appeal jurisdiction

[12]     Mr Clarke’s appeal is a general appeal from a decision of the District Court under s 115 of the Summary Proceedings Act 1957.  It is therefore conducted as a “rehearing”[5] and that I should proceed on the basis explained by the Supreme Court

[5] Summary Proceedings Act 1957, s 119(1).

in Austin, Nichols & Co v Stichting Lodestar.[6]  This means that:

[6] Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

(1)       I am required to come to my own view of the merits of the appeal;

(2)       Mr  Clarke  bears  the  onus  of  satisfying  me  that  Judge  Wolff’s

judgment was wrong;

(3)If I disagree with the conclusion reached by Judge Wolff I should allow the appeal;

(4)       I  may  not  necessarily  find  Judge  Wolff’s  reasoning  persuasive.

Nevertheless, I may reach the same conclusion as Judge Wolff but for different reasons.   It is the correctness of the decision reached by Judge  Wolff  rather  than  the  reasoning  he  followed  to  reach  his decision which is of paramount importance;  and

(5)When questions of credibility arise Judge Wolff may have had an advantage when assessing witnesses.  That advantage may justify me hesitating to overturn a finding based upon an assessment of a witness’s credibility.

Merits of the appeal

[13]     Regardless of whether Mr Clarke enjoyed a contractual or bare licence to remain at Mrs Clarke’s house, she had the right to terminate his licence if he became aggressive and a threat to her.  A bare licence would have been revocable at will by Mrs  Clarke,  with  a  reasonable  period  of  time  to  vacate  the  premises.[7]    If  a contractual licence did exist through the payment of board, an implied term of that contract was that Mr Clarke behaved in an orderly manner, and if that term was breached the licence could be revoked.

[7] Wood v Leadbitter (1845) M & W 838, 153 ER 351 and Robson v Hallett [1967] 2 QB 93.

[14]     The idea of a well behaved licensee is derived from “ticket” cases, where Courts have construed the implied terms of a contractual licence as allowing a purchaser of a ticket to a theatre to enter the theatre and if he behaves, to remain on

the  premises  until  the event  is  over.[8]      Once  the  licensee  breaches  that  implied

contractual term through his disorderly behaviour, the licence is revocable, and the licensee is afforded a reasonable opportunity to depart.[9]

[8] Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 at 189 and

Duffield v Police [1971] NZLR 381 (SC).

[9] At 193.

[15]     In this case there is overwhelming evidence that Mr Clarke was not a “well behaved licensee”.  The evidence establishes Mr Clarke had been drinking, that he was aggressive and that he assaulted his mother on the afternoon of 18 November

2011, thereby breaching the implied terms of his licence.

[16]     The length of time a licensee should reasonably be given to vacate premises hinges entirely upon the facts and the purpose of the period of time given to vacate the premises.[10]   Until that period of time has elapsed, the licensee cannot be treated as a trespasser.

[10] At 204.

[17]     I agree entirely with Mr Tompkins when he submitted on behalf of the Crown that Mr Clarke was allowed a reasonable period of time to vacate his mother’s home after the licence was revoked on the afternoon of 18 November 2011, and before the police arrived.   In this respect I reject Mr Vigor-Brown’s contention Mr Clarke should have been given either:

(1)       the balance of the week for which he had paid board;  or

(2)       sufficient time to find alternative accommodation

before he needed to vacate his mother’s home.

[18]     My reason for rejecting Mr Vigor-Brown’s contentions summarised in [17](1) and (2) above are that the lengthy period he says was required to provide Mr Clarke with an opportunity to vacate is not justified for a licensee who behaves in the aggressive, abusive and violent manner demonstrated by Mr Clarke on the afternoon of 18 November 2011.  When a licensee is told to leave because they are abusive and violent  they must  do  so  promptly.    It  does  not  matter  they have  no  long-term alternative accommodation.  Their duty is to leave.  In the circumstances of this case

it was reasonable to expect Mr Clarke to have vacated his mother’s home before the

police arrived, even if that involved him having to return on another occasion to retrieve his furniture and other possessions.

[19]     I accordingly hold that Mr Clarke was a trespasser at his mother’s home by

the time the police arrived at approximately 6.00 pm.

[20]     When the police arrested Mr Clarke for trespassing they did so pursuant to s 315(2)(b) of the Crimes Act 1961.  Mr Clarke was not entitled to use the force he used when he:

(1)       assaulted a police constable by kicking him;

(2)       assaulted two other police officers by spitting at them;  and

(3)       intentionally breaking the central console of the patrol car.

[21]     Mr Vigor-Brown, who did all he professionally could to advance Mr Clarke’s

interests, recognised that the force used by Mr Clarke was not warranted.

[22]     For  these  reasons,  Mr  Clarke’s  appeal  against  his  convictions  must  be

dismissed.

[23]     Mr Clarke has also appealed against his sentence.

[24]     In  my  assessment,  the  sentence  imposed  upon  Mr  Clarke  was  very reasonable.  Indeed, it could be described as being generous to Mr Clarke.

[25]     Mr Clarke spoke to me from the body of the Court and asked me to adjourn his sentencing appeal so that he could complete the Bridge Programme, which he is undertaking to address his alcohol issues.

[26]     I am delighted that Mr Clarke is taking real steps towards addressing his alcohol problems.  The fact that Mr Clarke is attending the Bridge Programme is an indication  that  he  may  have  taken  aboard  the  remarks  contained  in  the  final paragraph  of  Judge  Wolff’s  sentencing  decision,  in  which  Judge  Wolff  warned

Mr Clarke that he was heading to prison unless he curbed his attitude and his abuse of alcohol.

[27]     However, Mr Clarke was sentenced on 3 July 2012.   There have been a number of delays in having Mr Clarke’s appeal against conviction and sentence heard.  In my assessment, it is now time for Mr Clarke to serve the sentence imposed by Judge Wolff.

[28]     Finally, I record for the benefit of Mr Clarke that I have located one of the two judgments involving him that he has referred to.  It has not been of assistance in

determining this appeal.

D B Collins J

Solicitors:

R Vigor-Brown & Co, Rotorua for Appellant
Crown Solicitor, Wellington for Respondent