Clarke v The Queen
[2013] NZCA 603
•6 December 2013 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA531/2013 [2013] NZCA 603 |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | THE QUEEN |
| Court: | Randerson, Heath and Asher JJ |
Counsel: | Applicant in Person |
Judgment: (On the papers) | 6 December 2013 at 11:00 am |
JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
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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 basis of work commitments.
To assist Mr Clarke, the fixture was deferred until 2.15 pm on Thursday, 21 November 2013. Mr Clarke advised that he needed a further adjournment. A telephone conference was arranged for 5.00 pm on 19 November 2013 before Randerson J. In that conference Mr Clarke said he had other proceedings on foot and needed more time to prepare. He referred to some High Court proceedings, but there was no clash of fixtures. The fixture in this Court was confirmed for 2.15 pm on Thursday, 21 November 2013. Email confirmation of the fixture was sent to Mr Clarke.
At approximately 10.20 am on 21 November 2013 Mr Clarke telephoned the registry advising he could not get cover for work and that he would not be at the hearing. He said he could attend a hearing the next day or next week. A registry officer contacted Mr Clarke. He said that the case could be heard on the papers, but he also said that he had information to pass on to the judges. For some reason, the telephone call was terminated. An email was sent to him advising that the matter would proceed on 21 November 2013 at 2.15 pm.
Mr Clarke did not appear when the matter was called. Mr Clarke has not put forward any sound reason why he cannot attend the hearing. We therefore proceed to deal with the appeal on the papers.
Leave to appeal
There are three requirements that must be met before this Court will grant special leave for an appeal to be heard under s 144 of the Summary Proceedings Act 1957: first, the intended appeal can only be on a question of law; secondly, the question of law must be one that ought to be submitted to the Court of Appeal by reason of its general or public importance or for some other reason; and thirdly, the Court must be of the opinion that it ought to be so submitted.[5]
Points of law
[5]R v Slater [1997] 1 NZLR 211 (CA) at 215.
Mr Clarke has filed six and a half pages of submissions. Mr Clarke emailed further submissions to the Court on 1 December 2013. These have also been considered. He argues that he was boarding with his mother, and that before he could become a trespasser she had to give him notice of termination of tenancy under s 66U of the Residential Tenancies Act 1986.
Section 66U applies only to boarding houses and boarding house tenancies. These are defined in s 66B as residential premises containing one or more boarding rooms with facilities for communal use by the tenants, as well as being “… occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time[.]” Mrs Clarke was living in her home and there is nothing to suggest it was occupied by six tenants. Indeed, she gave evidence that no one else was living in the house.
Mr Clarke’s evidence was that he had moved into the house to live with his mother because she was being pursued by a stalker. We agree with the analysis of Collins J that Mr Clarke was a licensee and Mrs Clarke as owner had a right to terminate his licence if he became aggressive and a threat to her.[6] The trespass notice was served at 4.40 pm. The police arrived at approximately 6.00 pm. By that time, Mr Clarke was a trespasser and susceptible to conviction under ss 3(1) and 11(2)(a) of the Trespass Act 1980. Mr Clarke was also plainly guilty of the assault and intentional damage counts.
[6]HC judgment at [13]–[19].
Mr Clarke placed extensive reliance on the case of Clarke v Police[7] and another decision concerning him.[8] Both of those cases have different facts from the present and contain no propositions of law that assist him.
[7]Clarke v Police HC Wellington CRI-2003-485-28, 18 November 2003.
[8]Clarke v Police HC Wellington AP109/02, 4 July 2002.
No question of law arises that has any general or public importance. Moreover, Mr Clarke’s argument is without merit.
Mr Clarke also argued in his written submissions that the sentence imposed on him was manifestly excessive. We agree with the observations of both Judge Wolff and Collins J that the sentence was generous to Mr Clarke in all the circumstances. No point of law arises in relation to the sentence.
Mr Clarke made other complaints about earlier sentences and orders not connected to the conviction in question in this application. These must be disregarded in this leave application. As this Court stated in R v Prasad, an applicant cannot use the application for special leave as a tangential way of attacking other matters about which he feels a sense of grievance.[9]
Result
[9]R v Prasad [2009] NZCA 525 at [12].
The application for special leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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