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 after the incident, but he returned to Germany some time before the defended hearing on 26

October 2012.  The Crown applied pre-hearing for a ruling that his written statement be admitted under s 18 of the Evidence Act 2006.   Judge Roberts granted that application on 6 July 2012.   It was common ground that Mr Kraetzig could give evidence via videolink, but at a cost of $760-$870 per hour for the videolink and significant inconvenience to Mr Kraetzig; he would have to travel some distance, involving travel and accommodation costs, and give his evidence in “the middle of

the night”.   The Judge concluded without difficulty that Mr Kraetzig was unavailable, and reasoned that the circumstances relating to the statement provided reasonable assurance that it was true.  He accepted that loss of the ability to cross- examine was significant.  It would cause some prejudice.  However, he noted that other witnesses (Ms Drake and Mr Thomas) supported Mr Kraetzig’s account and thought there could be no reasonable expectation that Mr Kraetzig would not come up to brief.  He observed that the defence would be self-defence, and as a practical matter Mr Clout would have little alternative but to give evidence in the circumstances. Accordingly, he ruled the statement admissible.

[8]    The defended hearing was  held before Judge Bouchier.   In  evidence was Mr Kraetzig’s statement, in which he said that Mr Clout had a bad attitude, and had upset him enough to cause him to cry.   He remained in the carpark briefly to compose himself.  However, Mr Clout returned, walking up to him.  He was unsure what Mr Clout meant to do, so pushed him away by placing his hand on Mr Clout’s shoulder.  Mr Clout responded with a punch which caused him to stumble back into a parked car.

[9]    Ms  Drake  and  Mr  Thomas  were  watching  because  they  could  see  that Mr Kraetzig was upset.  Ms Drake described Mr Clout walking past the van and the two men exchanging words, though she could not hear what was said.  Mr Kraetzig put his hands up “to block something” and pushed away a little bit on the shoulder with open hands, then Mr Clout swiftly punched him in the face.   Mr Clout then “pretty much ran away” and left in his car.  There may have been other cars parked in front of the barbers shop, but she was adamant that she had a clear view.  She was familiar with Mr Clout doing his rounds of the carpark and could not exclude the possibility that when he returned to the van he was merely checking cars in his usual way.  She conceded that there had been some animosity between her and Mr Clout after he clamped a friend’s car and refused to waive the fee.

[10]  Mr Thomas described the initial part of the incident, deposing that Mr Kraetzig “sort of threw” the money at Mr Clout, who had to pick it up but then removed the clamps and left.  Mr Clout then returned a minute or so later, walking between the cars.   He ducked under a couple of trees “just so he could position himself so he

could walk past the tourist”, who was still standing in front of his van.  Mr Clout went to walk off, then turned around and “king hit” the tourist.  He accepted that his view was partially obscured.  Mr Thomas accepted that Mr Clout routinely walked about the carpark checking or marking cars, but said he was not doing it at the time; he walked straight back to the tourist.

[11]  Mr Clout explained that he had seen Mr Kraetzig park the van and leave the Centre, meaning that the van ought to have been clamped at once because parks are reserved  for  patrons.    However,  he  chose  not  to  do  that.    He  explained  that Mr Kraetzig returned just over 1.5 hours later, only to remove a bag from the van and depart again.  He then applied two wheel clamps and left.  Mr Kraetzig was very angry and upset when he called.  By contrast, Mr Clout had remained calm and professional.  Mr Kraetzig threw the money at him and declined a receipt, “nutting off” at Mr Clout “the whole time”.  He returned after taking the clamps to his own car,  but  only  because  he  was  checking  and  chalking  other  cars.    He  thought Mr Kraetzig would have left, but he saw the van was still there.  As he went past it Mr Kraetzig jumped out in front of him and threatened him.   Mr Clout turned to make a wide berth, but Mr Kraetzig followed him and hit him hard on the back. Feeling very threatened and fearing he would be hit again, Mr Clout turned and struck Mr Kraetzig. When Mr Kraetzig backed off Mr Clout went on his way.

[12]  The Judge reviewed the evidence, focusing on the circumstances as Mr Clout understood them to be.  She took into account the absence of cross-examination of Mr Kraetzig, and focused on the evidence of Ms Drake and Mr Thomas.  Their accounts were consistent with Mr Kraetzig’s, and they had not been shaken in cross- examination.   Both were credible witnesses who had a “reasonably uninterrupted” view.   She did not find Mr Clout credible.  He struck a false note by saying that Mr Kraetzig swore freely in New Zealand vernacular, and he had gilded the lily by suggesting Mr Kraetzig attacked him.   Having accepted the account given by the Police witnesses, the Judge concluded that Mr Clout did not act in self-defence, and further that the force he used was not reasonable.  Accordingly, the Police had negatived self-defence.

The conviction appeal

Submissions

[13]  On  appeal  Ms  Pascoe  contended  that  the  Judge  was  wrong  to  admit Mr Kraetzig’s statement as hearsay, for cross-examination was necessary given the need for credibility and reliability findings about what happened and the expense of a video link to Germany could not be considered undue.  I note in passing that it does not appear that Judge Bouchier was asked to revisit the pre-trial ruling, but both counsel approached the case on the assumption that the present appeal extends to it, and I will do likewise.  Counsel next argued that the Judge did not apply the onus of proof correctly, for she rejected Mr Clout’s account of how Mr Kraetzig spoke to him  yet  Mr  Clout’s  was  the  only evidence.    She  erred  in  fact  by finding  that Mr Clout was not merely doing his rounds but rather returned to Mr Kraetzig.

Discussion

[14]  Section 18 of the Evidence Act provides:

18       General admissibility of hearsay

(1)      A hearsay statement is admissible in any proceeding if—

(a)       the  circumstances  relating  to  the  statement  provide  reasonable assurance that the statement is reliable; and

(b)      either—

(i)       the maker of the statement is unavailable as a witness; or

(ii)      the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2)      This section is subject to sections 20 and 22.

[15]  A witness is unavailable when he or she:

16(2)   ...

(b)       is outside New Zealand and it is not reasonably practicable for him or her to be a witness;  or

(c)       is unfit to be a witness because of age or physical or mental condition; or

(d)      cannot with reasonable diligence be identified or found;  or

(e)      is not compellable to give evidence.

[16]  There is no doubt that the circumstances of the statement provide reasonable assurance of its reliability.1    It is a written statement, a narrative of the incident, provided to the Police not long after the incident.

[17]  Unavailability is more problematic.   Mr Kraetzig was overseas, but he was able to give evidence, and by videolink at that.   The question whether it was not reasonably practicable to call him in this case was partly one of expense and partly one  of  time  and  inconvenience; he  would  have  to  travel  what  seems  to  be  a

significant distance and give evidence at night.2   So far as expense is concerned, his

evidence might also be admitted (under s 18(1)(b)(ii)) if the Judge thought that undue expense would be caused by calling him.  That assessment must turn upon the nature and seriousness of the charge, the kind of evidence and its susceptibility to challenge through cross-examination or defence evidence, the potential impact of the evidence on the Court’s findings, and the expense of, in this case, a videolink and associated travel and accommodation.  When exercising the discretion to admit such evidence the Court must of course recognise that if it is admitted the opposing party will not be able to cross-examine.   That can create a substantial risk  of unfair

prejudice for purposes of s 8 of the Act.3

[18]  The charge here was not especially serious, and the expense and inconvenience of having Mr Kraetzig give evidence by videolink were moderate.  The decision turned on the likely impact of his evidence, as Judge Roberts recognised.  As to that, the  trial  issue  was  self-defence,  meaning  that  the  central  factual  question  was whether Mr Clout acted in self-defence in the circumstances as he understood them to be.  I agree with Judge Roberts that that meant he realistically must elect to give evidence.  Faced as he was with the eyewitnesses, he would have done so whether or

not Mr Kraetzig appeared.  However, I also accept what I take to be Ms Pascoe’s

1      Adams v R [2012] NZCA 386.

2      Other considerations may also arise when considering what is “reasonably practicable”;   see

generally R v M [1996] 2 NZLR 659.

3      Bishop  v  Police  HC  Gisborne  CRI-2008-416-3, 28  February 2008;     Clasen  v  Police  HC Auckland CRI-2011-404-108, 7 July 2011.

submission that findings about Mr Clout’s state of mind would be, and were, based

on what he and Mr Kraetzig did (and to some extent, said).

[19]  Were Mr Clout and Mr Kraetzig the only witnesses, it would be inescapable that Mr Kraetzig must give evidence.  The possibility could not be excluded that he would resile from his statement or present as an unreliable witness.  But in this case the trial Judge had two eyewitnesses, both of whom she found reliable.  Their accounts strongly corroborated Mr Kraetzig’s, except in one detail.  Ms Drake said that physical contact began with Mr Kraetzig pushing Mr Clout as the latter approached him, while an inference is available from Mr Thomas’s evidence that Mr Kraetzig pushed Mr Clout in the back, which would be more consistent with the subsequent punch being delivered in self-defence.   But it is most unlikely that Mr Kraetzig  would  have  resolved  this  question  in  Mr  Clout’s  favour.    He  was unequivocal in his statement that he placed his hand on Mr Clout’s shoulder and pushed because Mr Clout was coming at him.  The witnesses agreed that Mr Clout was the aggressor.

[20]  In these circumstances, the Court could be confident that Mr Kraetzig would not resile from what he had said.  Further, Judge Bouchier did not rely heavily on Mr Kraetzig’s statement, recognising that he had not been cross-examined.

[21]  In the circumstances, I am not persuaded that a miscarriage of justice may have resulted from the admission of Mr Kraetzig’s statement.   Far from it, I think it wholly unlikely that cross-examination could have advanced Mr Clout’s defence at all.  Mr Kraetzig’s absence was likely advantageous, since the Police case depended more heavily on the two eyewitnesses than it would have done had he been present. Cross-examination is a powerful tool, but I am unpersuaded that it would have made any difference here; it had no discernible impact on the eyewitnesses.

[22]  This ground of appeal fails.

[23]  The remaining grounds can be disposed of shortly.   It is not the case that a Judge must accept evidence where there is none to the contrary, and I am not persuaded that she was wrong to conclude that Mr Clout rather chose to walk back to

Mr Kraetzig and was not merely continuing on his rounds.  The eyewitness evidence permitted that inference.  It was open to her to accept the eyewitness evidence that Mr Kraetzig did no more than push Mr Clout to keep him at bay.   She reminded herself of the burden and standard of proof.

The sentence

[24]  Because Judge Bouchier is not resident in  New Plymouth, the baton was handed back to Judge Roberts at sentencing.  He may not have had the notes of evidence; at any rate, he relied on the Police summary of facts.  Ms Pascoe did not point to any material respect in which the summary differed from Judge Bouchier’s findings.

[25]  Judge Roberts accepted that Mr Clout had been the subject of publicity and adverse comment, that he had worked in this field for four years, and that he was the family breadwinner, his wife having not long given birth.  It appears that Mr Clout must have been working still at that time, but he was under financial pressure, and there was evidence that a conviction would result in carpark owners dispensing with his services.  The Judge also accepted that the work was difficult;  it had him in day to day contact with angry people.

[26]  Against that, the Judge found that Mr Clout ought to have the discipline and good sense to avoid the confrontation with Mr Kraetzig.  Instead he chose to return. Thus the offending was not at the lower end of the scale.  The Police argued that Mr Clout was acting as an unlicensed property guard, and the Judge accepted that he would have to apply for a licence should he continue working.  Conviction would not be an automatic bar, but the Police would likely oppose any such application.  If Mr Clout failed to get a licence, the Judge found, his ability to work in this field “may be compromised”.  The Judge appears to have accepted that such a discharge would mean the application would be made “without full disclosure”; that is, that the circumstances would not have to be disclosed to the relevant body, the Private Security Personnel Licensing Authority.

The sentence appeal

[27]  I have had the benefit of the trial record, so I am probably in a better position to assess the application for discharge without conviction than was Judge Roberts.  I also permitted some further evidence on appeal.   As will be seen, I also take a different view of some of the relevant considerations.  For these reasons I have approached the assessment afresh.

[28]  It is not necessary to rehearse the authorities.4

[29]  I begin with the consequences of conviction.  Mr Clout’s income supported his family, but he no longer works.  He is on a benefit.  He attributes this state of affairs to the conviction, which has had two consequences; it has exposed him to a high risk of violence from irate patrons, and it has resulted in carpark owners dispensing with his services.  The risk of violence was exacerbated by Police statements to the public that he was acting unlawfully, as an unlicensed property guard.  Indeed, Mr Clout has been attacked by people who claimed he had no right to clamp their cars.

[30]  I accept that since this incident Mr Clout ceased work, with resultant hardship for his family, and that the risk of violence is a primary cause of his decision. However, that risk arises substantially because of publicity, from the Police and through a television programme called Target, which has led the public to question the lawfulness of wheel clamping.

[31]  However, the Police do not accept that Mr Clout’s unemployment should be attributed to the conviction.  They insist that he was working as an unlicensed property guard contrary to the Private Security Personnel and Private Investigators Act 2010, so he was not permitted to carry on his business in any event.  Indeed, Mr Clout has now been charged with working without a licence.

[32]  Mr Clout denies that a licence is required.

[33]  I prefer not to determine whether Mr Clout must have a licence in law.  That issue  remains to  be  determined in  the  pending criminal proceeding.    Rather,  I

approach the appeal on the footing, which I find established, that the charge and

4      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; R v Blythe [2011] NZCA 190, [2011] 2

NZLR 620; H(CA680/2011) v R [2012] NZCA 198.

resulting conviction have made it practically impossible for Mr Clout to carry on his business.  Further, a licence would allow him to resume work.  Whatever the legal position a licence is  a  practical necessity for  him now.    Without one he is  at increased risk of attack and there is a substantial risk that carpark owners will not engage him.  With one, he ought to be able to satisfy any interested person that he is

lawfully able, conviction or not, to carry on business.  He is eligible for a licence,5

and for present purposes it is reasonable to assume that he may get one, conviction notwithstanding.  The Private Security Personnel Licensing Authority may take into account his character, circumstances and background.6   At the age of 30, he has no other convictions, and on the limited information before me he is otherwise of good character.

[34]  I part company with the Judge on his finding that unless convicted Mr Clout could avoid making full disclosure to the Authority.  It was not in dispute before me that the charge must be disclosed even if he is discharged.  In any event Mr Clout was charged, a fact of which the Authority will doubtless be aware.   No question arises, then, of the Authority being denied relevant information.

[35]  This analysis leads me to the conclusion that although this incident led to Mr Clout stopping work, he can return to it by the simple and practically essential expedient of getting a licence.   It is permissible to take that into account when assessing the consequences of conviction.   Further, the Authority will have all relevant information before it whether or not he is discharged, and I see no reason why the fact of a discharge should materially affect its decision.  After all, the consequences of conviction are not a relevant consideration for the Authority.  The part of the Court’s decision that presumably will weigh with the Authority is the assessment of the seriousness of the offence.

[36]  As to that, I have reached the same conclusion as did Judge Roberts.  Mr Clout was undoubtedly somewhat annoyed by Mr Kraetzig, who was upset and hostile

when he phoned, then tried to negotiate the fee by claiming implausibly that he had

5      The conviction is a disqualification under s 62 of the Act, but s 33(5) permits the Authority to grant a licence in its discretion:   Duncan v Police HC Napier CRI-2011-441-32, 28 October

2011.

6      Section 53.

lost his keys, then threw the money so that it ended up on the ground and Mr Clout had to pick it up.  But such behaviour must be routine in that line of work.  Licensed or not, Mr Clout was working as a car clamper.  He ought to have shown restraint. Initially he did walk away, to return the clamps to his own car.  He then chose to return,  knowing  that  Mr  Kraetzig’s  van  was  still  standing there.    On  his  own evidence Mr Kraetzig’s behaviour was unusual;  most people get in their cars and go as soon as they are released.  To approach in those circumstances was unwise, even if his initial purpose in returning had been lawful.  If he must pass by Mr Kraetzig’s van, he ought to have anticipated that words would be exchanged, and he ought not to have responded.  He also ought to have reacted calmly when pushed.  Security guards are expected to display some restraint when assaulted.  In this case a punch was clearly an unnecessary response to a shove.  Finally, Mr Clout was unwise to deny guilt; self-defence must fail because a person in his position ought to have appreciated that he could walk away, and a swift guilty plea and genuine remorse will affect a Judge’s assessment of the overall seriousness of the offence.

[37]  Accordingly, I have reached the view that the consequences of conviction, viewed broadly, are not severe, for it is within Mr Clout’s power to substantially eliminate them by getting a licence, and that having regard to Mr Clout’s position the offence was not minor.  It follows that the statutory test for a discharge has not been met.

Decision

[38]  The appeals as to conviction and sentence are dismissed.

Miller J

Solicitors:

Nicholsons, New Plymouth for Appellant

Crown Solicitor’s Office, New Plymouth for Respondent