The Queen v Neil Martin Clarke
[2000] NZCA 57
•22 May 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA76/00 |
THE QUEEN
V
NEIL MARTIN CLARKE
HEARING: 15 MAY 2000
CORAM: KEITH J
ROBERTSON J
BARAGWANATH J
APPEARANCES: J C PIKE FOR THE CROWN
APPLICANT IN PERSON
JUDGMENT: 22 MAY 2000
| JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J |
Mr Clarke seeks special leave to appeal to this Court
(1)from the refusal by the High Court for leave to appeal to this Court;
(2)on questions of law said to arise in his general appeal to that Court from his conviction and sentence by the District Court on a charge of breach of a temporary protection order made under s14 of the Domestic Violence Act 1995.
Under s144 of the Summary Proceedings Act 1957 there is no second appeal to this Court from a conviction, entered in the District Court except on a question of law and by leave. Leave is to be granted only if the question of law is one which by reason of its general or public importance or for any other reason ought to be submitted to this Court for decision.
We are satisfied that no question of law arises in relation to Mr Clarke’s conviction and accordingly decline leave to appeal to this Court. We are persuaded that there is substance in Mr Clarke’s challenge to his sentence. That is appropriately dealt with by our exercising jurisdiction as judges of the High Court to extend time for leave to appeal to that Court and, for the reasons contained in the contemporaneous judgment of that Court, to set aside the sentence of periodic detention and to convict and discharge Mr Clarke as the District Court originally contemplated.
Background
The protection order against Mr Clarke was made on 5 March 1999 by the Family Court at Wellington in relation to a Ms Z. It was a temporary order, defined by s2 as “an order of limited duration that is made on an application without notice”. By s19(2)(e) it was a condition of such order that he must not make any contact with her.
Section 49 provides:
Offence to contravene protection order- (1) Every person commits an offence who, without reasonable excuse,-
(a) Does any act in contravention of a protection order;… .
(emphasis added)
An obvious way for the prosecution to meet a defence of reasonable excuse is to prove service of the ex parte order. As to that, Rule 46 of the Domestic Violence Rules (SR 1996/148) permits personal service. Rule 50 provides.
Personal service – personal service of a document may be effected by leaving the document with the person to be served, or, if that person does not accept it, by putting it down in that person’s presence and bringing it to his or her notice.
On 31 August 1999 the staff of the Family Court became aware that Mr Clarke would be appearing in the District Court. An officer of the Family Court went to the District Court and handed the protection order to him in the foyer of the Court. After appearing to read the first page of the protection order Mr Clarke threw the documents to the floor. A subsequent attempt to hand him the documents in the courtroom itself was treated similarly.
Counsel then appearing for Mr Clarke in the District Court offered a tentative view to him that, because service had been effected in the precincts of the Court, it might be invalid. His evidence in the present case was
Q. Do you recall what your advice was?
A.Yes, my suggestion to him was that because the papers were served in the precincts of the courtroom, that the service of them could well be invalid.
Q.Did you indicate as to whether or not that would have any impact upon the validity of the order?
A.I did. I suggested that the matter may be invalid. What’s contained in the papers may have no validity because the service itself may in fact be irregular.
Q.Did Mr Clarke say anything to you about what he was going to do regarding the papers?
A.Yes, Mr Clarke suggested that he would go and discuss the matter with the Family Court Registry, and I suggested that would be a good idea.
Mr Clarke gave evidence that, on the basis of this evidence, he thought that the documents were “null and void”. He nevertheless went to the Family Court office and spoke to a member of staff. There was a conflict of evidence between Mr Clarke and the Court officer. He claimed that she agreed that the documents were “null and void” and retrieved them from him. She said that she would not have given him any such advice. Her recollection was that he had put the documents down on the counter and left. The Judge in this case said that he was “rather more inclined” to accept the officer’s evidence.
Mr Clarke almost immediately thereafter went to the complainant’s place of work. She was not there and he gave to a fellow worker a note to hand to her. The note read
Your protection order has been revoked due to various circumstances. You will now face a theft charge which will be declared to you by judgment order within two week. Regards Neil.
On 31 August 1999 Mr Clarke appeared in the District Court at Wellington on the present charge. The following exchange occurred between the Judge and Mr Clarke
Q.I’m looking at Exhibit 2 ... I’m told that that’s the document that was ... given to you in the foyer of the Court, is that right?
A. Yes Sir . . .
Q. It looks like an official document, doesn’t it? It’s got Court seal on it and all that sort of thing?
A. Mmm.
Q. You’d accept that?
A. I presume so Sir.
Q. And it’s headed up at the top in big thick prominent letters, “Temporary Protection Order”?
A. Yes, it’s got that.
Q. So, whether or not you thought that technically the service might be valid you knew perfectly well, didn’t you, that a Temporary Protection Order had been made in the Family Court, naming [the complainant] as the protected person, yes?
A. Yes, but Sir, I mean with the legal advice I was given –
Q. Well that’s a different issue.
The defence advanced in the District Court was of absence of mens rea. As the Judge observed, commission of an offence entails knowledge that the Protection Order is in force and intentionally engaging in conduct that infringes it. See A v Police [1999] 2 NZLR 501 at 505-6.
The Judge’s approach was correct in law. An order made ex parte can have no effect on the defendant until he knows it has been made. If he has such knowledge he is bound by the order whether or not it has been served upon him: De Montalk v Police [1994] NZFLR 149. Once he knows it has come into force he is guilty under s49(1)(a) if he does any act in contravention of it, unless there is reasonable excuse for doing so.
The submission to the District Court was that Mr Clarke believed that service was null and void and therefore there was no mens rea accompanying his subsequent action.
But Mr Clarke admitted knowing that a valid order had been made, whatever was his belief as to the validity of its service. There was no suggestion that the order itself had been invalidated by any deficiency in the service. Had that been advanced it would be unlikely to have constituted a reasonable excuse within s49(1)(a).
The Judge’s decision was plainly correct. We add that had the difference between the court official and Mr Clarke gone to an element of the offence of which there was no other evidence, such as whether he knew a valid order had been made, it would have been insufficient to determine the issue in favour of the Crown on the basis that the Judge was “rather more inclined” to that view. Cf Thomas v The Queen [1972] NZLR 34(CA).
On 29 February 2000 Mr Clarke appealed his conviction before Wild J, appearing by other counsel. There he advanced a different argument:
(1)that he had a reasonable excuse for his conduct in terms of s49(1)(a);
(2)that he was labouring under a mistake of fact as to whether he could leave a note.
In support of the first submission Mr Clarke relied on Dawson v The Police [1997] NZFLR 748. As noted by Wild J in distinguishing that decision, the point there was that there was reasonable doubt whether the appellant had breached the Protection Order at all. There was also reasonable excuse for his being on a particular part of the property. Wild J held that the circumstances of the present case did not provide Mr Clarke with reasonable excuse for going to the complainant’s work place and leaving a note for her. The critical circumstances were:
(a)The appellant’s determined refusal to accept the protection order when it was handed to him first in the foyer of the District Court, and subsequently in the courtroom itself.
(b)Despite that refusal, his knowledge that there was a protection order against him and that it prohibited him from going to her workplace. The note he left for Ms Z advances, as his justification for going to her workplace, the “revocation” of the protection order.
(c)His lawyer’s tentative advice to get proper advice as to the validity of service of the order, followed by his visit to the Family Court Registry where he got no further advice and left the papers on the counter. On the strength of these events, he went to Ms Z’s workplace and left the note for her.
15.Neither singly or in combination do those circumstances amount to reasonable excuse for the appellant to go to [Ms Z’s] workplace. At worst they amount to deliberate defiance of the order, at best they constitute the appellant taking a calculated risk that there might not be some defect in the service of the order upon him.
Wild J also rejected the alternative submission that Mr Clarke had made a mistake as to whether or not he could leave a note at the complainant’s workplace. Wild J rejected the argument that this was a mistake of fact, which might give rise to an excuse and held that it was one of law. Section 25 of the Crimes Act 1961 provides that
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
That provision applies in the present case by virtue of s3 Summary Proceedings Act 1957.
The appeal was dismissed.
On or about 3 March 2000 Mr Clarke sought to file in this Court a notice of appeal against his conviction and, in addition, against the sentence of six weeks periodic detention imposed by the District Court. On 6 March 2000 Wild J by minute notified the parties that he would treat the notice of appeal as an application to the High Court for leave to appeal. He nominated 10 March at 10 a.m. for the hearing of the application. Mr Clarke did not appear on that date and the application was dismissed.
Application for special leave to appeal
Mr Clarke, now acting in person, states that he did not receive advice of the hearing on 10 March until after the hearing was over. He seeks special leave to appeal from this Court.
He repeats the arguments rejected by the High Court:
(1) that he had reasonable excuse for his conduct;
(2) there was error of fact.
He seeks to advance additional grounds, including
(3) he did not contact the complainant;
(4) the penalty was excessive.
Discussion
We are satisfied that there is nothing in either of the points advanced before Wild J.
It was well open to Wild J to reject the submission that there was reasonable excuse deliberately to infringe an order, of the existence of which Mr Clarke was well aware, without solid basis for concluding that it had been discharged or was otherwise no longer of effect.
The second ground entails a dilemma for Mr Clarke. Either there was a mistake of fact, which entails repetition of the first point. Or there is a mistake of law which is no excuse.
Neither ground raises any question of law which could justify the grant of leave.
The third ground also cannot be made out. By s19(2)(e) it was a condition of the Protection Order that Mr Clarke must not
[M]ake any . . . contact with [Ms Z] (whether by telephone, correspondence, or otherwise) . . .
The evidence of Ms Z establishes that the letter left for her was received by her, as Mr Clarke had intended.
There is nothing in any of the other points raised by way of defence that could warrant the grant of special leave to appeal. Special leave to appeal against conviction is declined.
The question of penalty is considered in the contemporaneous judgment of the High Court.
SOLICITORS:
CROWN LAW OFFICE, WELLINGTON.
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
M No 337/99
BETWEENNEIL MARTIN CLARKE
Applicant
ANDNEW ZEALAND POLICE
Respondent
Hearing:15 May 2000
Coram:Keith J
Robertson J
Baragwanath J
Counsel:Applicant in person
J C Pike for Respondent
Judgment:22 May 2000
____________________________________________________________________
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
____________________________________________________________________
As indicated in the judgment of the Court of Appeal of today’s date we have exercised jurisdiction as Judges of this Court to extend time for leave to appeal from the decision of the District Court of 8 December 1999.
After conviction in the District Court on 3 August 1999 Mr Clarke was advised that he was to appear on 15 November 1999. However his attendance would be excused if c
(1)there is on file written confirmation that [Mr Clarke] has satisfactorily completed a non-violence programme as required by the Protection Order;
(2)he has made a donation of $250 to the Women’s Refuge”
and he would be convicted and discharged.
We are told by Mr Clarke that he duly completed a non-violence programme. He conceived himself unable to make the $250 donation to the Women’s Refuge because he was appealing his conviction and if successful he would be unable to recover it.
It does not appear that these matters were brought clearly to the District Court’s attention on 8 December 1999 when he was convicted and sentenced to periodic detention for a period of six weeks, the first reporting date to the Work Centre to be 11 December 1999.
Mr Clarke told us that he had instructed counsel to file an appeal against sentence, which should have come before the High Court. In his notice to the Court of Appeal of application for leave to appeal against conviction and sentence he set out his grounds; the dilemma as he saw it is recorded in paragraph [2] above.
As well as completing the anger management course Mr Clarke has, he tells us, performed one day of the sentence of periodic detention.
Infringement of a protection order will usually entail a stringent sentence, both because of disobedience to the direction of the Court and because of the potential consequences for the person protected by it.
In the present case however there has been a failure of due process. Had the sentencing Judge had drawn to his attention the dilemma faced by Mr Clarke as to payment of the $250 we do not doubt that a course other than the imposition of six weeks periodic detention would have been adopted.
Now that Mr Clarke’s infringement of the order has been made plain by the judgment of the High Court and the dismissal by the Court of Appeal of his further appeal against conviction his position is clear.
He has completed the anger management course and commenced the course of periodic detention. We are of the view that justice will now be served by our giving Mr Clarke leave to appeal out of time against sentence, setting aside the sentence of six weeks periodic detention and substituting the order that he be convicted and discharged as originally contemplated by the District Court Judge. We order accordingly.
Solicitors:
Crown Law Office, Wellington
0
0
0