Clout v Police - [2013] NZHC 1364

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000013 [2013] NZHC 1364

BETWEEN DANIEL SHAUN CLOUT Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 May 2013

Counsel:

K Pascoe for Appellant
S Law for Respondent

Judgment:

12 June 2013

JUDGMENT OF MILLER J

Introduction

[1] Mr Clout appeals his conviction for assault, saying that the District Court wrongly admitted the hearsay statement of the complainant, a German tourist who had left New Zealand before the defended hearing, and his sentence (a fine), saying that the Court ought to have discharged him without conviction.

The background

[2] Mr Clout appears to have carried on business as Egmont Security, albeit not as a registered security or property guard. He confined himself to policing carparks, among them the Richmond Centre in central New Plymouth. He would clamp cars that overstayed the carpark owner’s posted limits, removing the wheelclamps on payment of a fee.

[3] At about 2 pm on 9 March 2012 the complainant, Stefan Kraetzig, parked his van in the Richmond Centre, which permits casual parkers to remain for 1.5 hours

CLOUT v N Z POLICE [2013] NZHC 1364 [12 June 2013]

and warns them via a sign at the entrance that overstaying cars will be clamped. He returned at about 3.30 pm, but only to take a bag from the van and walk out of the carpark. Mr Clout was watching because he had had been about to clamp the van. He had done so by 4 pm, when Mr Kraetzig finally returned. Mr Clout had departed, leaving a notice. It invited Mr Kraetzig to call Egmont Security, and advised that the clamps would be removed on payment of a fee of $120.

[4] Mr Kraetzig called Mr Clout about 4.17 pm. He had already had a bad day, so he was upset. He was told that the fee must be paid in cash before the clamps would be removed. He went to a bank machine and got the cash. Mr Clout drove to the Centre, and the two men met at the van. Naturally the meeting was not cordial. Mr Kraetzig tried to negotiate by claiming that he had lost his keys. Having seen him enter the van and take a bag from it at about 3.30, Mr Clout did not believe that. He insisted on payment.

[5] It is common ground that Mr Clout was paid, removed the clamps and left, only to return to the vicinity of the van, where Mr Kraetzig had remained, and that there Mr Kraetzig pushed Mr Clout, who responded with a punch to the head. The trial issue was whether Mr Clout acted in self-defence.

The District Court hearing

[6] The incident was witnessed by two people, Amy Drake and Gavin Thomas, both of whom work at a barber’s shop, Dads and Lads, at the Centre. They were prosecution witnesses. Mr Clout was the only defence witness.

[7] Mr Kraetzig had made and signed a statement to the Police the day…

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] NZHC 1364
Decision Date: 12 June 2013

CaseChat Overview and Summary

The case of Clout v Police involved an appeal against a conviction for assault and the associated sentence. The appellant, Daniel Shaun Clout, was a carpark attendant who clamped the complainant's vehicle for overstaying the allotted parking time. The complainant, Stefan Kraetzig, a German tourist, returned to remove a bag from his van before the clamps were applied. Clout returned to the van after removing the clamps, which led to an altercation where Clout punched Kraetzig. The trial issue was whether Clout acted in self-defence.

The legal issues in this case centered around the admissibility of Kraetzig's statement as hearsay and the correctness of the sentence imposed. The court had to determine whether the hearsay statement was admissible under the Evidence Act 2006 and whether the sentence was appropriate given the circumstances. The reasoning of the court was that the circumstances provided reasonable assurance that Kraetzig's statement was reliable, and it was not reasonably practicable for him to give evidence via videolink due to the associated costs and inconvenience. The court found that Clout did not act in self-defence and that the force used was not reasonable.

The court dismissed both the conviction and sentence appeals. In relation to the conviction, the court found that the admission of Kraetzig's statement did not result in a miscarriage of justice, as the two eyewitnesses' accounts strongly corroborated Kraetzig's version of events. As for the sentence, the court held that the consequences of conviction were not severe, as Clout could mitigate the impact by obtaining a license to continue his work as a carpark attendant. The court concluded that the statutory test for a discharge without conviction had not been met.

Orders