Clarke v Watts
[2014] NZHC 822
•17 April 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-5771 [2014] NZHC 822
IN THE MATTER OF the Harassment Act 1997 BETWEEN
NEIL MARTIN CLARKE Appellant
AND
COREY DANIEL WATTS Respondent
Hearing: 24 March 2014 Appearances:
C J Tennet for the appellant
M Anderson for the respondentJudgment:
17 April 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] On 19 August 2013, in the District Court at Hutt Valley, Judge Tuohy made a restraining order under the Harassment Act 1997 against the appellant, Neil Clarke, in favour of the respondent, Corey Watts.1 This is an appeal by Mr Clarke against that decision.
Facts
[2] The order made by Judge Tuohy on 19 August 2013 is the third such order made by the District Court under the Harassment Act against Mr Clarke and in favour of Mr Watts. The background to the first and second of those orders was set
out by Judge Broadmore when he made his decision making the second order:2
1 Watts v Clarke DC Hutt Valley CIV-2013-096-0065, 19 August 2013.
2 Watts v Clarke DC Wellington CIV-2007-085-001326, 29 February 2008 at [1]-[4].
CLARKE v WATTS [2014] NZHC 822 [16 April 2014]
On 17 October 2006 the applicant, Corey Daniel Watts, obtained a restraining order against the respondent, Neil Martin Clarke, restraining him from harassing Mr Watts. The order was made on the standard conditions set out in the Harassment Act.
The background of the application which resulted in the order was the evidence of a large number of abusive and arguably threatening phone calls made by Mr Clarke to Mr Watts covering a period of some two years at least. Those calls in turn originated from dealings between Mr Watts who was a police officer, and Mr Clarke.
The order made in October 2006 was for a term of 12 months. Shortly after it expired, Mr Watts received what, on his account, were two phone calls from Mr Clarke. According to Mr Watts these calls were in the form of voicemail messages left on his work telephone. On Mr Watts’ evidence they were made on the same day, one at 7.45 am and the other at 9.52 am. Those calls, if there were indeed two of them, were abusive and threatening. They picked up the tenor of earlier calls before the making of the order in October
2006. Indeed it appeared to Mr Watts that that was the intention of Mr Clarke in making the calls: in the first one, as Mr Watts said in oral evidence this morning, Mr Clarke said “this is your old friend Clarkey. It’s not all over, I’m going to get your warrant”. These words, if I accept Mr Watts’s evidence, clearly harked back to what had happened before the making of the earlier order.
Mr Watts’ reaction to these calls was that he became upset. The absence of any contact from Mr Clarke over the previous 12 months had been a welcome reprieve. These calls made him think that the whole business was going to start all over again. He immediately took legal advice. The consequence was the signing by Mr Watts on 15 November 2007 of an application for a restraining order. That date is less than two weeks after the phone calls of which he complained, although I notice that the application was not, in fact, filed until 22 November. Since the calls on 2 November, there have been no further calls from Mr Clarke.
[3] Based on Mr Watts’ 2006 affidavit, the dealings between him and Mr Clarke, when Mr Watts was a police officer, referred to by Judge Broadmore were:
(a) In February 2001 Mr Watts, then a uniformed constable, was called to an incident at a café in Wellington. As a result, Mr Clarke was charged with disorderly behaviour and convicted in the District Court. That conviction was quashed on appeal by the High Court.
(b)In December 2003 Mr Watts, with another police officer, attended an alleged assault involving the use of a baton at the Wellington Railway Station. Mr Clarke was found at the scene, unconscious, with a baton
in his lap. Mr Clarke was arrested for possession of the baton, and was charged with an offence. Mr Clarke was acquitted.
[4] Judge Broadmore’s order lasted for five years, expiring on 1 March 2013.
[5] Mr Watts resigned from the New Zealand Police in January 2013. On 5 and
7 February 2013 Mr Watts’ application to obtain a real estate salesperson’s licence was publically notified. On 21 February 2013 Mr Clarke filed a notice of objection to that application. In that notice he alleged that Mr Watts had been sacked from the police “for fraud and other things”. Mr Clarke also enclosed a copy of the High Court judgment upholding his appeal against his disorderly behaviour conviction.
[6] Mr Watts’ real estate application was, notwithstanding Mr Clarke’s objection, granted. Mr Watts commenced work at Tommy’s Real Estate Limited, responsible to one of that company’s directors, Mr David Platt.
[7] On 4 April 2013, Mr Clarke telephoned Mr Platt. In his affidavit, Mr Platt describes that telephone call in the following terms:
On the evening of Thursday, 4 April 2013, the Respondent telephoned me at work. The Respondent identified himself as Neil Clarke, and I confirmed with him that he was the person who objected to Corey’s application. The Respondent confirmed that indeed this was him.
Essentially, I would describe the Respondent as “ranting” over the phone. He tried to give me an overview of his dealings with Corey over the years. I told him that from my point of view it was in the past and we were only interested in the future. I told the Respondent that we would make a call ourselves on Corey’s suitability to be a real estate agent. The Respondent continued to try to discuss matters with me and I told him that I would not discuss it any further with him and hung up.
[8] Mr Platt told Mr Watts of Mr Clarke’s phone call the next day. Mr Watts decided to phone Mr Clarke. In his affidavit, Mr Watts described matters as follows:
The following day, 5 April 2013, Mr Platt advised me of his conversation with the Respondent the night before. Mr Platt was understandably concerned. I then decided to telephone the Respondent to see whether there was any prospect of discussing his issue and trying to achieve a resolution. It was immediately clear to me from the verbal assault I received from the Respondent that there was no prospect of achieving a resolution.
The Respondent shouted at me on the phone and told me that he was taking me back to the High Court. He also told me that I was not going to get my real estate licence and that he was going to “take me down”. During the conversation, the Respondent was abusive and constantly swore at me.
[9] That same day, Mr Platt also phoned Mr Clarke. Mr Platt describes that call as follows:
I understand that the next day the Respondent went to our Paremata branch and caused some difficulties for the staff there. As a result of receiving this information, I rang the Respondent back that same day. I told him to stay away from our offices. The Respondent responded by abusing me and saying that he would do what he could to ruin our business.
[10] Mr Watts applied for his third restraining order on 20 April 2013 on the basis of Mr Clarke’s objection to his real estate application and the subsequent phone calls, and two other matters to which I will return.
The Harassment Act 1997
[11] The object of the Harassment Act is set out in s 6 in the following terms:
(1) The object of this Act is to provide greater protection to victims of harassment by—
(a) recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
(b) ensuring that there is adequate legal protection for all victims of harassment.
(2) This Act aims to achieve its object by—
(a) making the most serious types of harassment criminal offences: (b) empowering the Court to make orders to protect victims of
harassment who are not covered by domestic violence legislation:
(c) providing effective sanctions for breaches of the criminal and civil law relating to harassment.
(3) Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).
[12] Harassment is defined in s 3:
(1) For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
[13] Specified acts are defined in s 4:
(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a) watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:
(b) following, stopping, or accosting that person:
(c) entering, or interfering with, property in that person's possession: (d) making contact with that person (whether by telephone,
correspondence, or in any other way):
(e) giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:
(f) acting in any other way—
(i) that causes that person (person A) to fear for his or her safety; and
(ii) that would cause a reasonable person in person A's particular circumstances to fear for his or her safety.
[14] The power for the Court to make a restraining order is provided by s 16. Section 16(1) provides:
(1) Subject to section 17, the Court may make a restraining order if it is satisfied that—
(a) the respondent has harassed, or is harassing, the applicant; and
(b) the following requirements are met:
(i) the behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; and
(ii) that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and
(iii) in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c) the making of an order is necessary to protect the applicant from further harassment.
[15] So, there are three preconditions to the Court making a restraining order under the Harassment Act:
(a) the respondent must have harassed, that is engaged in a pattern of behaviour that includes doing a specified act on at least two separate occasions within a period of 12 months;
(b)the behaviour in respect of which the application is made must meet the “distress” requirements of s 16(1)(b); and
(c) the making of the order must be necessary to protect the applicant from further harassment.
The challenged District Court decision
[16] Mr Watts’ August application before Judge Tuohy was based on two categories of behaviour. That behaviour comprised:
(a) First, the events that had led to the making of the first and second
orders, as recorded in Judge Broadmore’s decision;
(b) Second, the events subsequent to the publication of Mr Watt’s real
estate application, namely:
(i) Mr Clarke’s objection to the grant of a real estate agent’s
licence to Mr Watts;
(ii) the phone call that Mr Clarke made to Mr Platt on 4 April
2014;
(iii) the phone call Mr Watts made to Mr Clarke on 5 April; and
(iv) the phone call made the same day by Mr Platt to Mr Clarke, as set out in the unchallenged affidavits filed by Mr Watts and Mr Platt.
[17] The Judge ruled as inadmissible hearsay evidence contained in Mr Watts’ affidavit of what the respondent Mr Clarke had said in a phone call to a Police Constable Miller on 8 February, and evidence in Mr Platt’s affidavit of what had occurred during alleged visits Mr Clarke made to Tommy’s Paremata and Mana Real Estate branches. There was no challenge to that ruling before me.
[18] The Judge first reasoned:
(a) The precondition of there having been two specified acts within a period of 12 months was satisfied by the specified acts that had formed the basis for the first and second orders. The Judge relied on the authorities of Beadle v Allen and Wilson v Williams that, although the two specified acts must occur within a period of 12 months, they do not need to have occurred within the 12 months preceding the
filing of the application.3 Those authorities were not challenged
before me.
(b) The behaviour in respect of which Mr Watts’ application was made
did not include any specified acts.
[19] The issue for the Judge then became whether the making of an order was necessary, nevertheless, to protect Mr Watts from further harassment. The Judge put it this way:4
The issue, in my view, is whether the proven events of 2013 are such as to satisfy the Court that the making of an order is necessary to protect the applicant from further harassment; harassment being the continuation of specified acts, things like watching or loitering at a person’s place of business or employment, making contact with the person, threatening the safety of the person.
3 Beadle v Allen [2000] BCL 87; Wilson v Williams [2004] BCL 545.
4 Watts v Clarke, above n 1, at [26]-[29].
My view is that a continuation or a renewal of the order is so necessary. The reason I come to that conclusion is this. I have considered what Judge Broadmore’s decision conveys was taking place, first in 2006 or prior to the
2006 order and secondly, in the lead up to the 2008 order. I am conscious that during the existence of both those orders the respondent did cease
contact with the applicant and certainly ceased carrying out any further
harassment.
I consider that the actions of the respondent in 2013 show that he continues to hold, in a very strong way, a grudge which is now going on for a decade old, if not more, against the applicant and that he is still capable of acting in a way which is designed to damage the applicant, even if it does not amount to harassment in terms of the Act.
I consider that that background and the proven conduct that I have referred to this year, shows that an order remains necessary in order to protect from further harassment, that is the carrying out of further specified acts as part of a pattern of behaviour.
Case on appeal
[20] For Mr Clarke, Mr Tennet argued that the Judge had not found that Mr Clarke’s behaviour caused distress so as to justify the making of the order and, furthermore, the Judge was wrong to have concluded that the order was necessary to protect Mr Watts from further harassment. The specified acts were now many years old. Only one aspect of the behaviour relied on by the Judge was relevant: that was the one phone call Mr Clarke had made to Mr Platt. The Judge was wrong to have relied on Mr Clarke’s objection to Mr Watts’ application to obtain a real estate sales person’s licence. Mr Clarke was exercising his right to participate in the public licensing process. Calls Messrs Watts and Platt had made to Mr Clarke were not relevant conduct of Mr Clarke’s at all. He was simply answering a phone call. Mr Watts could not complain when the answers he received did not please him. There was, finally, no evidence that suggested there was a risk of further harassment.
[21] For Mr Watts, Mr Anderson effectively adopted Judge Tuohy’s reasoning.
Analysis and outcome
[22] The jurisdiction to appeal a decision of the District Court making a restraining order derives from s 34(1) of the Harassment Act. Appeals under s 34 are
conducted by way of rehearing.5 If the appellate court reaches a different conclusion to the Court appealed from, the decision under appeal is wrong.6
[23] Paraphrasing the terms of the Harassment Act itself, harassment is a pattern of behaviour which includes, but is not limited to, specified acts within a period of
12 months. Beyond comprising those necessary specified acts, the pattern of behaviour extends to actions which cause a person distress, or threaten to do so, where distress would be caused to a reasonable person in the applicant’s circumstances and the degree of distress caused or threatened justifies the making of an order. The order is made to protect the applicant from further harassment, that is further specified acts or a continuation of a pattern of behaviour causing distress.
[24] The standard conditions of restraining orders, found in s 19 of the Harassment Act, provide that the respondent must not do or threaten to do, or encourage any other person to do, a specified act to the person for whose protection the order is made. The Court may also impose conditions the purpose of which is to protect the person in question from further harassment by the respondent. In other words, the Court may restrain the performance of acts which, as part of the relevant pattern of behaviour, cause or threaten distress.
[25] Importantly, when considering applications under the Harassment Act judges must bear in mind that a restraining order curtails the respondent’s right to freedom of expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990. In determining whether to make an order the Court should ask “[w]hat is the degree of restraint that is reasonably justifiable to protect the applicant from harassment and to curtail as little as possible the right to freedom of expression to which the respondent
is entitled?”7
[26] Mr Watts’ notice of appeal contained three grounds:
5 District Courts Act 1947, s 72 and High Court Rules, r 20.18.
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13]- [18].
7 Beadle v Allen, above n 3, at [65].
(a) Mr Clarke had not harassed Mr Watts, and there were no relevant specified acts.
(b)The Judge erred in finding that two previous specified acts had occurred, in reliance on Judge Broadmore’s judgment.
(c) On the facts, and particularly given the length of time since the earlier specified acts, a restraining order could not have been necessary to prevent Mr Clarke from undertaking specified acts in the future. As Mr Clarke put it in his notice of appeal:
In any event, because of the length of time between actual specified acts, a restraining Order can not have been necessary to prevent me from undertaking specified acts. I had not and would not. I know the line.
[27] In his written submissions, and in argument, Mr Tennet accepted that ground two could not succeed. He was clearly correct to do so. Judge Broadmore’s judgment establishes the occurrence of two previous specified acts. The question was whether, as a matter of law and fact, the Judge was right to have made the restraining order that he did.
[28] It is not enough, as Mr Clarke would appear to think, that he now knows not to do any specified acts. That is not the test. The test here is whether the behaviour complained of, seen in effect as part of a pattern of behaviour dating back to 2005 – albeit interrupted by the earlier restraining orders – has or is likely to cause the degree of distress to Mr Watts sufficient to justify the making of a third restraining order. Such an order also has to be necessary to protect Mr Watts from further harassment.
[29] Mr Tennet based his argument that that test had not been met on the following propositions:
(a) The specified acts which formed the basis of the first and second orders had taken place a considerable time ago. As time passed, they became less relevant. That counted against an order now.
(b) Of the behaviour complained of, only Mr Clarke’s phone call to
Mr Platt was relevant.
(c) There simply was no evidence of distress or likely distress, and no finding by the Judge of distress as required by s 16(1)(b).
[30] I consider each of those propositions in turn.
[31] I do not think the fact that specified acts which form part of the pattern of behaviour of concern to Mr Watts occurred some time ago now is of great relevance. It is clear that Mr Clarke harbours a grudge against Mr Watts. The orders made in the past reflect that, as does the behaviour complained of before Judge Tuohy.
[32] I do accept that, when Mr Clarke objected to Mr Watts’ real estate licence application, he took an action that, as a member of the public, he was entitled to. I accept his objection, and its contents, may have been motivated by his grudge against Mr Watts. But I do not see participation in such a process, albeit so motivated, being the type of behaviour that may be taken into consideration under, or constrained by, the Harassment Act. There are, in my view, very real free speech issues here. Moreover, and as Mr Tennet submitted, those and similar processes have their own rules to protect against abuse of process.
[33] I think that Mr Clarke’s intemperate comments in response to phone calls from Mr Watts and Mr Platt are matters which, properly, can be taken into account. Although made in response to phone calls to Mr Clarke, and not by him, his comments nevertheless emphasise the ongoing grudge he holds against Mr Watts and his intention to pursue that grudge.
[34] I turn then to the question of whether the necessary degree of distress was occasioned or threatened in the circumstances.
[35] The Judge made no explicit finding of actual or threatened distress. That, in and of itself, is not conclusive. I am to make my own assessment.
[36] I accept that the events, and the behaviour of Mr Clarke they reflect, would – by themselves – be unlikely to cause to a reasonable person the degree of distress that justified the making of a restraining order. But here – and as Mr Watts’ evidence shows – his reaction was a result of the impact Mr Clarke’s previous pattern of behaviour had had on him. It is in those particular circumstances that the distress that was or might be caused to Mr Watts and that would or might be caused to a reasonable person is to be assessed. In the circumstances I find that Mr Watts was distressed, a reasonable person would have similarly been distressed, and the degree of distress is sufficient to warrant making an order.
[37] Moreover, an order is necessary to protect Mr Watts from further harassment. In many ways, Mr Clarke’s own notice of appeal evidences the nature of the ongoing grudge he has against Mr Watts. Implicit in the remark I refer to at [26](c) is, by my assessment, the likelihood that Mr Clarke will continue a pattern of behaviour, albeit that he will be careful to try and avoid specified acts.
[38] Mr Clarke has a grudge against Mr Watts that has lasted at least eight years. He complies with the restraining orders made against him but, upon lapse of those restraining orders has, in 2007 and again in 2013, demonstrated that neither his grudge nor his intention to harass Mr Watts has come to an end.
[39] I therefore conclude, as the Judge did, that the circumstances which occasioned Mr Watts’ application justified the grant of a restraining order and dismiss Mr Clarke’s appeal against Judge Tuohy’s decision.
[40] In these circumstances, I do not understand any question of costs to arise. If it does, brief memoranda may be filed.
“Clifford J”
Solicitors:
C J Tennet, Barrister, Wellington for the appellant.
Thomas Dewar Sziranyi Letts, Lower Hutt for the respondent.
3
1
0