The Queen v Neil Martin Clarke

[2000] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND CA 357/00

THE QUEEN

V

NEIL MARTIN CLARKE

Hearing:	27 November 2000
Coram:	Thomas J Heron J Anderson J
Appearances:	Mr Clarke appears in person P K Feltham for Crown
Judgment:	27 November 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

1. The appellant, Mr Clarke, has applied for special leave to appeal against his conviction and sentence in the Wellington District Court on 30 March and 1 June 1999 respectively, in respect of a charge of excess blood alcohol. 

2. The matter has a lengthy history.  Mr Clarke was arrested on 2 November 1998 and charged with careless driving, being unlawfully in an enclosed yard, and excess blood alcohol.  He defended the charges which were heard before Moss DCJ on 31 March 1999 in the Wellington District Court.  In an oral judgment the Judge dismissed the charge of being unlawfully in an enclosed yard and convicted Mr Clarke on the remaining two charges of careless driving and excess blood alcohol. Moss DCJ then sentenced Mr Clarke to seven months periodic detention and two years disqualification on the excess blood alcohol charge, and six months disqualification on the careless driving charge. 

3. Mr Clarke appealed to the High Court.  The appeal against conviction and sentence was heard by Potter J on 8 October 1999.  In a reserved decision, Potter J dismissed the appeal against both conviction and sentence.  Mr Clarke applied for leave to appeal to this Court.  Fisher J dismissed this application on 12 November 1999 holding that there was no question of law involved. 

4. Mr Clarke next applied for special leave to appeal to this Court against his conviction and sentence.  In a reserved decision delivered on 4 April this year, this Court dismissed Mr Clarke’s application. 

5. On 25 July of this year, a Probation Officer applied for a review of the sentence of seven months periodic detention imposed on 1 June 1999.  This application was heard by Tuohy DCJ on 28 July.  The existing sentence of seven months periodic detention was cancelled along with Mr Clarke’s outstanding fines.  A total sentence of 12 months periodic detention was imposed instead. 

6. Mr Clarke appealed against his conviction and sentence on 28 July 2000.  His appeal was heard by McGechan J on 28 August.  The learned Judge held that he was unable to reopen the appeal against conviction in respect of the blood alcohol charge as that matter had already been dealt with by this Court.  He therefore treated the appeal as an appeal against the sentence imposed on review, and allowed the appeal.  He quashed the sentence of 12 months periodic detention and replaced it with a sentence of nine months period detention. 

7. On 12 September this year, Mr Clarke applied for leave to appeal to this Court against McGechan J’s decision.  The Judge dismissed the application holding that no question of law arose. 

8. Mr Clarke appeared in this Court today in person.  As discussion in this Court confirmed, Mr Clarke is still seeking to appeal against his original conviction and sentence on the charge of excess blood alcohol.  That appeal has already been heard and determined by this Court.  As the decision of this Court delivered on 9 April 2000 makes clear, the Court on that occasion considered all the issues and found that no question of law of general or public importance could be identified justifying the granting of special leave to appeal.  Accordingly, the appeal was dismissed. 

9. Section 144 (6) of the Summary Proceedings Act 1957 states: 

   The decision of the Court of Appeal on any application to that Court for leave to appeal shall be final.  (Emphasis added).

10. There is no jurisdiction for this Court to now reconsider Mr Clarke’s appeal against conviction and that appeal is therefore dismissed.  All that this Court has jurisdiction to consider is the application for special leave to appeal against McGechan J’s sentencing of Mr Clarke on 29 August 2000: the quashing of the original sentence of 12 months periodic detention and substitution of nine months periodic detention.  For this Court to grant special leave, however, an appellant must first identify a question of law before the Court can consider the appeal.  Mr Clarke cannot do that.  No question of law is involved and, however important it may be to Mr Clarke, nothing remotely suggests a question of general or public importance. 

11. The application for leave is refused and the appeal is dismissed.

Solicitors
Crown Solicitor, Wellington for Crown