Clarke v The Queen - [2013] NZCA 603

IN THE COURT OF APPEAL OF NEW ZEALAND

CA531/2013
[2013] NZCA 603

BETWEEN	NEIL MARTIN CLARKE Applicant
AND	THE QUEEN Respondent

Court:

Randerson, Heath and Asher JJ

Counsel:

Applicant in Person
A R van Echten for Respondent

Judgment:

(On the papers)

6 December 2013 at 11:00 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Neil Clarke seeks special leave to appeal his conviction on one charge of trespassing, three charges of assaulting a constable with intent to obstruct in the execution of the constable’s duty, and one charge of causing wilful damage. He has been sentenced to nine months intensive supervision and 200 hours of community work.
On 18 June 2011, he was at his mother’s home where he had been drinking. An argument developed. Mrs Clarke claims that she was assaulted by her son and she asked him to leave the home. When he refused to do so, she served him with a trespass notice. When he still would not leave she called the police.
When the police arrived Mr Clarke became agitated and told the police to leave. He pushed a civilian who was observing the police and was arrested and taken to the police car. When he was in the police car, he kicked and broke part of the central console, kicked a police constable and spat at another after he had been punched in the face by one of the officers. While at the police station he also spat at another police officer.
In the District Court, Judge Wolff convicted Mr Clarke after a defended hearing. The Judge concluded that Mr Clarke was a trespasser and that the police were entitled to arrest him without warrant.[1] He was not justified in kicking and spitting at the police officers or damaging the central console of the car. Judge Wolff sentenced him to nine months intensive supervision and 200 hours of community work following a hearing in the District Court at Tauranga.[2]
[1]Police v Clarke DC Tauranga CRI-2012-070-1181, 29 February 2012.
[2]Police v Clarke DC Tauranga CRI-2012-070-1181, 3 July 2012.
Mr Clarke appealed Judge Wolff’s decision and sentencing to the High Court. The appeal was heard by Collins J and on 8 May 2013 the appeal was dismissed.[3] An application for leave to appeal to this Court was dismissed in the High Court on 10 July 2013 for want of prosecution.[4] Mr Clarke then filed an application in this Court seeking special leave to appeal.
[3]Clarke v Police [2013] NZHC 1014 (HC judgment).
[4]Clarke v Police [2013] NZHC 194.
The application was set down for hearing on 19 November 2013. Mr Clarke was notified of the fixture by letter dated 16 October 2013. There is no doubt he received the letter because he discussed its contents with a registry officer. On the morning of 18 November 2013 Mr Clarke emailed the court registry seeking an adjournment on 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: [2013] NZCA 603
Decision Date: 6 December 2013 at 11:00 am

CaseChat Overview and Summary

Neil Martin Clarke sought special leave to appeal his conviction and sentence on various charges, including trespassing, assaulting a police officer, and causing damage. The Court of Appeal of New Zealand considered the application on the basis of the written submissions, as Clarke did not appear at the scheduled hearing. Clarke had been at his mother's home, where an argument ensued, leading to her asking him to leave. After Clarke refused, she served him with a trespass notice and called the police. Upon the police's arrival, Clarke resisted arrest, damaged a police vehicle, and assaulted officers. The District Court found Clarke guilty of the charges, and the High Court dismissed his appeal, as did the Court of Appeal in July 2013. Clarke then applied for special leave to appeal to the Court of Appeal.

The Court of Appeal considered the three requirements for granting special leave to appeal under s 144 of the Summary Proceedings Act 1957. These include that the appeal must be on a question of law, the question must be of general or public importance or another compelling reason, and the Court must consider it appropriate to hear the appeal. Clarke argued that he was not a trespasser because his mother had not given him notice of termination of tenancy under s 66U of the Residential Tenancies Act 1986, which applies only to boarding houses. However, the Court of Appeal concluded that Clarke was a licensee, and his mother had the right to terminate his licence if he became a threat to her. The Court of Appeal found Clarke's argument without merit and dismissed his application for special leave to appeal.

The Court of Appeal also considered Clarke's argument that the sentence imposed on him was manifestly excessive. However, the Court of Appeal agreed with the District Court and the High Court that the sentence was generous, and no point of law arose in relation to the sentence. The Court of Appeal dismissed the application for special leave to appeal, and Clarke's conviction and sentence stand.

Orders