Martin v Police

[2014] NZHC 95

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-30 [2014] NZHC 95

BETWEEN  KEVIN WILLIAM MARTIN Appellant

ANDPOLICE Respondent

Hearing:                   5 February 2014

Counsel:                  Appellant in person

R Guthrie for Respondent

Judgment:                10 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction and sentence)

[1]      Mr Martin was convicted of assaulting two constables and resisting arrest on

16 October 2013 by Judge Down.  He was sentenced to pay a total fine of $700 plus court costs of $132.  Representing himself, he appeals both conviction and sentence.

Background

[2]      An incident occurred at a law firm in Hastings, involving the appellant.  The police were called.  By then he had left.  Constables Chantry and Holden then drove on  to  the  appellant’s  address  in  order  speak  to  him.    They  first  spoke  to  the appellant’s step-daughter and wife.  The appellant then appeared.  He became very angry.  He told the constables that he hated the police and that they should get off his property.  Discussion with the constables failed to calm him down.

[3]      Next they had a discussion with the appellant’s step-daughter and wife.  At least one of them, the step-daughter, said she was frightened of the appellant and did

not want him to be there. As a result the constables decided that they needed to issue

MARTIN v POLICE [2014] NZHC 95 [10 February 2014]

a  police  safety  order  (PSO).    PSOs  were  introduced  in  2010  by  the  Domestic Violence Amendment Act 2009.  They provide a “cooling off measure” where police do not have grounds to arrest a party to a domestic relationship, but are concerned that domestic violence is likely to occur if the two parties remain in  the same location.

[4]      Only qualified constables (police officers holding the rank of sergeant or above) can issue a PSO.1   Neither of the attending constables met that requirement. They explained to the appellant the effect of a PSO.  They said that he was required to accompany them to Hastings police station to have the order issued.  It should be observed at this point that s 124I of the Domestic Violence Act 1995 would appear to permit such action by a non-qualified constable.

[5]      The appellant refused however to get out of his chair.   The appellant was warned that he would be physically restrained if he did not comply.  The constables then moved to arrest the appellant.  He resisted.  He picked up a plastic chair and brandished it at the constables.  Then he ran away.  Constable Chantry tackled him to the ground.   He continued to swing his arms, hitting both constables.   Constable Chantry received a bleeding nose.  He also pulled Constable Holden, who is female, to the ground during a protracted struggle.  Constable Holden then used pepper spray to subdue the appellant.  He was taken away to the station.

Appeal against conviction

[6]      The sole  ground stated  in the notice of appeal  is that the appellant was “convicted on the belief of a cop not on factual evidence”. Addressing me orally, the appellant made extensive submissions on the authority of the police, his medical condition (which he terms “legal abuse syndrome”), his history of dealings with the policy and court system, and his inability now to continue his former occupation as an entertainer due to his medical condition.  He produced a medical certificate from a general practitioner which indicated that he is suffering from severe emotional stress.  The appellant asked the Court to order that he be given medical assistance.

That  course  is  beyond  the  jurisdiction  of  this  Court  on  summary  appeal.    The

1      Domestic Violence Act 1995, s 124A, definition of “qualified constable” and s 124B.

appellant submitted that he had a “binding legal contract” with the High Court for the payment of $35 million dollars reparation.  At that point the Court’s tolerance reached its uttermost limit.  Further submissions on that proposition were prohibited.

[7]      While I sympathise with the appellant in his predicament, there is no doubt that the evidence of Constables Chantry and Holden was sufficient for the Judge to convict the appellant.

[8]      First, the appellant admitted that he resisted arrest, but said the Police had no right to arrest him and therefore his actions were justified.  The appellant concedes that he assaulted Constable Holden (in alleged self-defence), but not Constable Chantry.

[9]      Secondly, having read the Judge’s notes of evidence, I have no doubt that the Judge was justified in preferring the evidence of the constables to that of the appellant.  His assertions were far-fetched and largely consisted of vitriol directed (if that is the right word in the circumstances) towards the legal system at large.   I observe that the appellant’s submissions before me were generally appropriate.  But his conduct before the District Court Judge was deplorable.

[10]     Thirdly, I am satisfied the constables had the power to detain the appellant for the purposes of issuing a PSO.   The Judge reviewed the relevant sections of the Domestic Violence Act 1995.  He found that the constables exercised their powers lawfully.  I agree.  Under s 124I, any constable has the power to detain a person for up to two hours in order to obtain authorisation under s 124B(3) from a qualified constable, issue a PSO, and serve it upon the subject.   Section 124I(5) expressly authorises  removal  after  detention  to  a  police station.    The  whole  point  of  the provision is to enable removal.  The constables acted perfectly lawfully therefore in the execution of their duty.   I do not accept the appellant’s submission that the officers lacked authority in the absence of consent from him.   That proposition is entirely incorrect.

[11]     Finally, in these circumstances there can be no basis for self defence to exist. On no basis could the appellant’s actions have been characterised as reasonable use of force.

Conclusion

[12]     The appeal against conviction is dismissed.

Appeal against sentence

[13]     A fine of $100 on each count of resisting arrest and $250 on each count of assaulting  a  constable  is  clearly not  manifestly  excessive,  having  regard  to  the maximum penalties for each offence.   As Judge Down noted, they are restrained sentences that reflect the minimum necessary to reflect society’s condemnation of the appellant’s actions, without further fuelling his hatred of the legal system.

Conclusion

[14]     The appeal against sentence is dismissed.

Stephen Kós J

To: Appellant

Solicitor:

Crown Solicitor, Napier for Respondent