The Queen v Clarke [2008] NZCA 400 (30 September 2008)

Last Updated: 13 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA130/2008

[2008] NZCA 400

THE QUEEN

v

NEIL MARTIN CLARKE

Hearing: 25 September 2008

Court: Glazebrook, Rodney Hansen and Ronald Young JJ

Counsel: Appellant in person
N P Chisnall for Respondent

Judgment: 30 September 2008 at 3.00 pm

JUDGMENT OF THE COURT

Application for special leave to appeal is refused.
____________________________________________________________________

REASONS OF THE COURT
(Given by Rodney Hansen J)

[1] On 25 August 2005 Mr Clarke pleaded guilty in the Wellington District Court to charges under the Summary Offences Act 1981 of threatening behaviour, assaulting a police constable, resisting arrest and assaulting a train conductor. On 8 September 2005 he was sentenced by Judge B M Mackintosh to nine months supervision.
[2] An appeal against conviction and sentence was dismissed for want of prosecution on 21 March 2006. An application, filed on 22 November 2007, for leave to appeal to this Court, was dismissed by Dobson J on 26 March 2008. Mr Clarke now seeks special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal to this Court.

Further background

[3] Three of the four charges, to which Mr Clarke pleaded guilty, arose from a series of incidents which occurred on 27 July 2003. Mr Clarke was found lying in Dixon Street in central Wellington. He was taken to the Accident and Emergency Clinic at Wellington Hospital. After a short time he began to shout abuse at members of the public using the hospital facilities. He swore aggressively at the grandfather of a child who had irritated him. He lunged at and threatened a nurse. The police were called and Mr Clarke was arrested. While being transported to the Wellington Central Police Station he was abusive, used threatening language and struggled violently with police officers.
[4] Mr Clarke faced a total of twelve charges as a result of these incidents. He says that over the two year period before he pleaded guilty to a reduced number of charges (and the rest were withdrawn), he appeared in the Wellington District Court no less than 23 times. He decided to plead guilty after consultation with counsel. At the same time, he pleaded guilty to the further charge of assault which related to an incident that had occurred only the week before he entered the guilty pleas.
[5] In sentencing Mr Clarke, Judge Mackintosh referred to reports which disclosed that Mr Clarke had major problems with alcohol. She accepted the probation officer’s recommendation that an existing sentence of supervision should be extended with special conditions that Mr Clarke undertake such counselling and treatment as directed by the probation officer. The Judge also remitted $10,000 of a total of $17,000 of outstanding fines on the basis that Mr Clarke would serve 100 hours of community work. He has completed the term of nine months supervision but has not served the sentence of community work.

Leave to appeal

[6] Before Dobson J and in his submissions to us, Mr Clarke explained that his underlying grievance related to the delay in having the original charges heard. He accepts that the incidents at the hospital and following his arrest took place, although he attributes his admission to hospital to an epileptic fit rather than the effects of alcohol. His fundamental complaint, however, is that there was a breach of his right to be tried without undue delay, in breach of s 25(b) of the New Zealand Bill of Rights Act 1990.
[7] In his judgment refusing leave to appeal, Dobson J noted that the issue of delay was not raised as a ground of appeal; it was introduced for the first time in support of the application for leave to appeal to this Court. Dobson J also observed that the delay in applying for leave to appeal was only partly explained by a delay in obtaining documentation from the District Court. No explanation was provided for the last eleven months of the delay.
[8] Dobson J concluded that it would be entirely inappropriate to grant an extension of time to apply for leave to appeal but noted that, in any event, the course the proceedings had taken does not give rise to a question of law of sufficient importance to warrant the grant of leave.

Special leave to appeal

[9] In advancing his case for special leave to appeal, Mr Clarke again faces the threshold requirement of identifying a question of law which, by reason of its general and public importance or for any another reason, ought to be submitted to this Court. He has been unable to identify such a question.
[10] As Mr Chisnall observed, in order to advance an appeal, Mr Clarke would also have had to seek leave to vacate his guilty pleas under s 169 of the Summary Proceedings Act. In order to do that he would have had to show that a miscarriage of justice would occur if his convictions were not overturned: R v Le Page [2005] 2 NZLR 845 (CA). On the information before us, that also would pose an insuperable barrier to the grant of leave.
[11] We have sympathy for the delays Mr Clarke experienced at first instance but his remedy would have been an application for stay. Such an application should have been made before trial. It is not an issue which can be belatedly introduced as a ground of appeal.
[12] Mr Clarke also complained about the extra administrative fees added to fines imposed for unspecified offences. That is not an issue that we are able to entertain in the context of this application.

Result

[13] For these reasons, the application for special leave to appeal is refused.

Solicitors:
Crown Law, Wellington