CLARKE v R [2004] NZCA 231 (20 September 2004)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

CLARKE v R [2004] NZCA 231 (20 September 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA206/04

THE QUEEN



v



NEIL MARTIN CLARKE

Hearing: 20 September 2004

Coram: Anderson P
McGrath J
Glazebrook J

Appearances: N J Sainsbury for Applicant
M F Laracy for Crown

Judgment: 20 September 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]	This is an application for special leave to appeal to this Court pursuant to s 144(3) of the Summary Proceedings Act 1957 which provides as follows:

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[2]	The applicant was convicted on summary trial on one count of trespass. The case proceeded on the basis that he was in breach of the trespass notice which the complainant had caused to be served on the applicant by a member of the New Zealand Police. There was an evidential basis, however, as William Young J held, when he dealt with the appeal from the summary conviction, for liability to be founded on the basis of refusing to leave after oral warnings at the time the incident in question occurred.
[3]	We have asked counsel how he would posit the question of law for determination and after some considerable interaction between counsel and the bench he framed it to this effect. "Does the Police oath of office prevent a member of the Police from serving a trespass notice unless there is an immediate anticipation of a breach of the peace avoidable only by service by a member of the Police, and as a matter of principle does this affect the validity of the trespass notice?"
[4]	It is elementary that this Court would not grant leave to appeal on a question the answer to which would not affect the outcome of the appeal. That is the position the applicant finds himself in this case. We say this because, first, there is an evidential basis to support the view that a breach of the peace was likely to occur if the occupier had himself served the notice or had service effected by someone other than a person with the authority of the constable. There was a history of ill-feeling and conflict which preceded the delivery of the notice raising at least a reasonable apprehension of a breach of the peace.
[5]	Second, as we mentioned earlier, there was an evidential basis for the proposition that the applicant was guilty of trespass irrespective of the validity of the notice by reason of the oral warnings given to him at the time of the incident.
[6]	In the result, there is no proper basis for granting special and the application is dismissed.

Solicitors:
Crown Law Office, Wellington