Clarke v Police [2015] NZHC 259 (24 February 2015)

Last Updated: 27 February 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000084

CRI-2014-485-000085 [2015] NZHC 259

BETWEEN	NEIL MARTIN CLARKE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 February 2015
Counsel:	C L Hollingsworth for Appellant I R Murray for Respondent
Judgment:	24 February 2015

JUDGMENT OF COLLINS J [Appeal against convictions and sentence]

Introduction

[1] This judgment explains why I am dismissing one appeal and allowing part of a second appeal brought by Mr Clarke in relation to decisions made by Judge Cameron in the Wellington District Court on 4 November 2014.

[2] In his first appeal Mr Clarke challenges a decision by Judge Cameron in which his Honour dismissed an application brought by Mr Clarke pursuant to s 147 of the Criminal Procedure Act 2011 (the Act). Mr Clarke applied to Judge Cameron to have two charges dismissed. The charges in question were:

(1) one charge of assaulting a constable;¹ and

_{(2) one charge of assaulting a second constable.}²

¹ _{Crimes Act 1961, s 192(2). Maximum penalty is three years’ imprisonment.}

² _{Summary Offences Act 1981, s 10. Maximum penalty is six months’ imprisonment or a $4,000}

CLARKE v NEW ZEALAND POLICE [2015] NZHC 259 [24 February 2015]

[3] Mr Clarke’s second appeal is against his convictions and a total sentence of

160 hours’ community work imposed by Judge Cameron in relation to the two

charges I have referred to in paragraph [2].

[4] At the commencement of the hearing Ms Hollingsworth, counsel for Mr Clarke, advised she had instructions to seek an adjournment. The basis of the adjournment was that I had apparently heard an appeal involving Mr Clarke in 2013 and that “further consequences might flow” from my decision. I could not recall Mr Clarke or his 2013 appeal until Ms Hollingsworth explained the circumstances of that case.

[5] Ms Hollingsworth’s instructions did not enable her to elaborate on why I should adjourn the appeal and/or recuse myself. I therefore proceeded to hear the appeal.

Background

[6] On 23 April 2014 Mr Clarke was at his home in Arlington Street, Wellington. He telephoned the police several times complaining about voices he could hear from a neighbouring property. Mr Clarke was told on several occasions by the Police Communications Centre (Police Communications) that the police would not be responding to his call. At approximately 6.20 pm he telephoned the police again, saying he had mixed up some chemicals and was going to blow something up.

[7] Understandably, this telephone call resulted in the police dispatching officers

to the scene. Mr Clarke’s address was searched but no bomb was found.

[8] Mr Clarke was taken into custody. He was charged with misusing a telephone³ and released on police bail. A condition of the police bail was that Mr Clarke was not to telephone emergency services except in case of a genuine

_emergency.

_fine.

3. Telecommunications Act 2001, s 112(2)(b). Maximum penalty is three months’ imprisonment or a $2,000 fine.

[9] On 6 and 7 June 2014 Mr Clarke called the Police Communications eight times. None of the calls concerned an emergency. Mr Clarke was repeatedly told not to call Police Communications. After the eighth call the police went to Mr Clarke’s address and arrested him. According to police evidence Mr Clarke was heavily intoxicated.

[10] The police case against Mr Clarke in relation to the first charge concerned the time Mr Clarke was being transported to the Wellington Central Police Station. The police evidence was Mr Clarke became threatening and abusive in the police car and kicked Constable Crook in the side of her face. Constable Crook did not receive any injuries.

[11] The second charge relates to an incident in the cell block processing area at the police station. The police say Mr Clarke continued to be aggressive and had to be restrained by a number of officers, including Constable Pitchford, who said that Mr Clarke spat at him in his face.

[12] Mr Clarke was also charged with two offences under the Telecommunications

Act 2001.

Judge Cameron’s decision

[13] During the defended hearing Mr Clarke sought a discharge pursuant to s 147 of the Act on the grounds that he had telephoned the Police Communications telephone number and not the 111 emergency number. Mr Clarke said there was therefore no basis for the police to arrest him.

[14] Judge Cameron gave no reasons for dismissing Mr Clarke’s application under

s 147 of the Act.

[15] Judge Cameron concluded that Mr Clarke knew it was a condition of his bail that he not telephone police emergency services except in a genuine emergency and that he knew the police were arresting him for breaching the terms of his bail. Judge Cameron decided the prosecution had proven beyond doubt that Constables Crook and Pitchford were acting in the course of their duties as police officers and

that they were deliberately assaulted by Mr Clarke. Judge Cameron found Mr Clarke guilty of the two assault charges but not guilty of the two charges under the Telecommunications Act 2001.

[16] No sentencing notes are available. It is accepted Judge Cameron sentenced Mr Clarke to 80 hours’ community work on each charge. The sentences are cumulative.

The s 147 Criminal Procedure Act 2011 appeal

[17] It is accepted by the Crown that Judge Cameron gave no reasons for dismissing the application brought by Mr Clarke under s 147 of the Act.

[18] Mr Clarke submits that Judge Cameron’s failure to give reasons for dismissing his application under s 147 of the Act constituted an error of law and that he is entitled to appeal questions of law under s 296 of the Act. I explain s 296 of the Act in paragraph [21].

[19] It would have been desirable for Judge Cameron to have given brief reasons

for dismissing Mr Clarke’s application.

[20] There is, however, a jurisdictional impediment to Mr Clarke’s appeal from the decision under s 147 of the Act. That impediment arises because there is no jurisdiction to appeal, on a question of law, a decision declining an application under s 147 of the Act.

[21] Section 296 of the Criminal Procedure Act 2011 governs appeals on questions of law. That section provides:

296 Right of appeal

...

(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3) The question of law in a first appeal under this subpart must arise—

(a) in proceedings that relate to or follow the determination of the charge; or

(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

...

[22] The plain intention of s 296 of the Act is that appeals on questions of law may be pursued where applications under s 147 of the Act have been granted, that is to say, when a charge has been determined under s 147 of the Act. There is not, however, jurisdiction to appeal a decision declining an application under s 147 of the Act, because such decisions do not determine a charge. This mirrors the position that applied before the passing of the Act. There was no jurisdiction to appeal a

decision declining an application under s 347 of the Crimes Act 1961.⁴

[23] In any event, there is a broad scope for defendants to appeal on questions of law as part of an appeal against conviction under s 232 of the Act. I explain that section in paragraph [27].

[24] In the present case Mr Clarke has appealed against his convictions. His complaint that Judge Cameron did not properly deal with his application under s 147 of the Act is therefore subsumed by his appeal against his convictions.

[25] Mr Clarke’s first appeal must therefore be dismissed.

Appeal against convictions

[26] There are three limbs to Mr Clarke’s appeal against his convictions:

(1) First, Mr Clarke maintains Constables Crook and Pitchford were not acting in the course of their duties.

(2) Second, Constable Pitchford used unreasonable force when dealing with Mr Clarke in the police station. In particular, Mr Clarke says

_{Constable Pitchford punched him in his left knee when he was in the}

⁴ See for example, R v Harrison [2007] NZCA 588 at [12].

police station and that he only spat at Constable Pitchford in retaliation.

(3) Third, Judge Cameron erred when he convicted Mr Clarke because he did not specifically find Mr Clarke knew the constables were acting in the course of their duties.

[27] Mr Clarke’s appeal against his convictions is governed by s 232 of the Act

which provides:

232 First appeal court to determine appeal

...

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

...

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

...

[28] The first limb of Mr Clarke’s appeal against his convictions is premised on the proposition that Mr Clarke did not telephone the 111 emergency telephone number. The evidence is that he telephoned a *555 number, which resulted in him being connected directly to Police Communications.

[29] Judge Cameron was not impressed with this aspect of Mr Clarke’s case.

Judge Cameron held that the clear intention of the bail condition was that Mr Clarke

was not to waste police time and resources by telephoning them in circumstances where it was obvious that there was no emergency. Judge Cameron construed the term “emergency services” widely to include all calls directed to Police Communications.

[30] This aspect of Mr Clarke’s case also included the point that on 5 August 2014

Ronald Young J quashed the bail condition that Mr Clarke not contact emergency services except in a genuine emergency.

[31] However, as Judge Cameron correctly found, as at 7 June 2014 it was a condition of Mr Clarke’s bail that he not contact police emergency services except in the case of a genuine emergency. I agree with Judge Cameron’s assessment that Mr Clarke’s persistent telephoning of Police Communications on 7 June 2014 breached the terms of his bail which were in force at that time.

[32] The second limb to Mr Clarke’s appeal was dealt with by Judge Cameron

making specific factual findings.

[33] Judge Cameron found that Constable Pitchford did not use unreasonable force when restraining Mr Clarke. Judge Cameron recorded in his judgment:⁵

... Constable Pitchford flatly denied punching the defendant in the left knee and for similar reasons I accept the evidence of the police and reject the defendant’s evidence and in particular I reject his evidence that Constable Pitchford punched him in the knee.

... I also accept that the prosecution have established that no excessive force was used in the circumstances with this highly agitated individual and that only reasonable force was used both at the time of his arrest and subsequently.

[34] The transcript of evidence also records that Mr Clarke claimed that he had never kicked Constable Crook at all.⁶ However, it is clear from Judge Cameron’s decision that he preferred the evidence of the police witnesses on that point.

[35] There is no basis upon which I could find that Judge Cameron erred in his factual findings.

⁵ _{New Zealand Police v Clarke DC Wellington CRI-2014-085-6673, 4 November 2014 at [6]-[7].}

⁶ Notes of Evidence, at 37, line 18.

[36] There is more merit in the third limb of Mr Clarke’s appeal against his convictions because Judge Cameron did not specifically state that Mr Clarke knew the constables were acting in the course of their duties. The essence of this part of Mr Clarke’s appeal is that Judge Cameron erred by not addressing the mens rea element of the offences.

[37] Support for this part of Mr Clarke’s case is derived from another case

involving Mr Clarke, namely a 2003 decision of William Young J.⁷

[38] The case before William Young J involved an appeal from charges that arose from two incidents of Mr Clarke trespassing and a charge arising from an incident in which the police alleged Mr Clarke resisted a constable acting in the execution of his duty when trying to arrest Mr Clarke in relation to the trespass incidents.⁸ After reviewing relevant authorities William Young J held that if, in the District Court, the prosecution failed to negate the reasonable possibility Mr Clarke believed the arresting constable was not acting in the execution of his duty, Mr Clarke was entitled to have had the charge of resisting a constable acting in the course of his duty dismissed.⁹

[39] William Young J thought the mens rea requirement in cases alleging offending against a police officer in the execution of his or her duty might need to be reconsidered. He said:¹⁰

... A person who is told by a police officer that he or she is under arrest should comply with the requirements of the police officer and leave any arguments about the reasonableness or otherwise of the police officer’s actions for later debate. Treating a thoroughly unreasonable although genuine belief that a constable is not acting in the execution of his duty as a defence to a resisting charge has a tendency to promote physical violence ...

[40] Of concern to William Young J was that while the issue of mens rea had been raised before the District Court Judge, the issue was not addressed in the District

_{Court Judge’s decision. Ultimately, William Young J believed he had no option other}

⁷ _{Clarke v Police HC Wellington CRI-2003-485-28, 18 November 2003.}

⁸ _{Summary Offences Act 1981, s 23(a).}

⁹ Citing R v Thomas [1991] NZCA 10; [1991] 3 NZLR 141 (CA); Mackley v Police (1994) 11 CRNZ 497 (HC);

Ross v Police (2002) 6 HRNZ 734 (HC) and ITW v Police HC Christchurch CRI-2003-409-35,

_{11 September 2003.}

¹⁰ Clarke v Police, above n 7, at [57].

than to allow the appeal against Mr Clarke’s conviction for resisting a police officer

acting in the course of his duty.

[41] I find myself in the same position as William Young J in relation to the charge of Mr Clarke assaulting Constable Crook.

[42] Mr Clarke probably genuinely believed that he had not breached the terms of his bail and that Constable Crook had no authority to arrest him. It appears he lashed out when he was in the police car and that the kick to the face of Constable Crook occurred when Mr Clarke was resisting arrest because he believed Constable Crook had no authority to arrest him.

[43] Some insight into Mr Clarke’s belief and behaviour can be found in Judge Cameron’s judgment in which he described Mr Clarke as having “a history of delusional behaviour”. In her helpful submissions, Ms Hollingsworth also referred to Mr Clarke’s unpredictable reaction to medication. Whatever the cause of Mr Clarke’s “delusional behaviour”, the fact remains Judge Cameron did not determine the police had negated the reasonable possibility Mr Clarke believed Constable Crook had no authority to arrest him because he believed he was not breaching the terms of his bail. Judge Cameron’s judgment is silent on this point. The lacuna in this very unusual case cannot be filled at this juncture.

[44] I accordingly must allow the appeal against Mr Clarke’s conviction for assaulting Constable Crook in the execution of her duty. The sentence imposed in relation to that conviction is quashed.

[45] Different circumstances apply in relation to the charge of assault against Constable Pitchford. That assault occurred in the cell block processing area in the police station when Mr Clarke was being restrained. Mr Clarke said he spat at Constable Pitchford in retaliation for a punch he believed Constable Pitchford had delivered to Mr Clarke’s left knee. Judge Cameron found Constable Pitchford did not punch Mr Clarke. There is no basis upon which I can reverse that factual finding.

[46] By the time of the incident in the police station matters had moved well beyond issues concerning the lawfulness of the arrest of Mr Clarke for breaching the terms of his bail. Mr Clarke knew he was in the police station and that he was being restrained by police officers. Mr Clarke spat at Constable Pitchford when police officers, including Constable Pitchford, were trying to restrain him.

[47] Mr Clarke’s decision to spit at Constable Pitchford when he was being restrained was quite separate in place and time from the incident involving Constable Crook. Mr Clarke’s reasons for believing he could resist his arrest by Constable Crook did not apply to the incident in the police station when Mr Clarke spat at Constable Pitchford. There was no basis for Mr Clarke to believe Constable Pitchford was not acting in the course of his duty when Mr Clarke spat at Constable Pitchford.

[48] Mr Clarke’s appeal against his conviction for assaulting Constable Pitchford

is dismissed.

Appeal against sentence

[49] Mr Clarke’s appeal against sentence is only relevant to the sentence imposed

in relation to the assault on Constable Pitchford.

[50] Mr Clarke’s appeal against sentence is governed by s 250(2) of the Act which

provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[51] The Court of Appeal has explained the effect of s 250(2) of the Act in the following way:¹¹

(1) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(2) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(3) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.¹² If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(4) In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(5) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(6) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

[52] Ms Hollingsworth submits that Judge Cameron did not take Mr Clarke’s personal circumstances into account when sentencing him. She submitted Judge Cameron should have convicted and discharged Mr Clarke because the course of

action which Judge Cameron took will impede an application for citizenship which Mr Clarke apparently wishes to make. That application apparently requires Mr Clarke not to be convicted of any offence for three years preceding his application.

Analysis

[53] Mr Clarke has three convictions dated 3 July 2012 which would impede any application for citizenship if one were made now. Furthermore, if Mr Clarke’s sentence was substituted with a conviction and discharge his conviction would nevertheless be entered and would therefore hinder his citizenship application.

[54] Even though there are no reasons for the sentence which Judge Cameron imposed I am satisfied that the sentence he did impose was well within the range of sentences that were available to him.

[55] In looking at Mr Clarke’s circumstances afresh, I note he has over 80 convictions dating back to 1989. Many of his convictions are for assaults, traffic offences, disorderly behaviour, escaping from custody, wilful damage, breaching court orders and dishonesty offences.

[56] Of particular concern is the fact Mr Clarke has 20 convictions for assaulting police officers, traffic officers and resisting arrest or failing to comply with the directions of police or traffic officers. Mr Clarke’s most recent convictions of this kind occurred in 2011 when he was convicted on three charges of assaulting police officers. He was sentenced to 200 hours’ community work and to intensive supervision.

[57] The circumstances of Mr Clarke’s offending justified the sentence imposed by Judge Cameron. In my assessment, the sentence imposed on Mr Clarke in relation to the charge of assaulting Constable Pitchford was appropriate in order to:

(1) hold Mr Clarke accountable for his offending;¹³

(2) promote in Mr Clarke a sense of responsibility for his offending;¹⁴

(3) denounce the conduct in which Mr Clarke was involved;¹⁵

(4) deter Mr Clarke or other persons from committing the same or a similar offence;¹⁶ and

(5) protect the community from Mr Clarke.¹⁷

[58] I am also satisfied that the sentence imposed by Judge Cameron was the least restrictive outcome that was appropriate in the circumstances and was in accordance with the hierarchy of sentences and orders set out in the Sentencing Act 2002.¹⁸

Conclusion

[59] The appeal against the decision declining Mr Clarke’s application under s 147

of the Act is dismissed.

[60] The appeal against Mr Clarke’s conviction for assaulting Constable Crook is

allowed.

[61] The sentence of 80 hours’ community work for the conviction for assaulting

Constable Crook in the execution of her duty is quashed.

[62] The appeal against Mr Clarke’s conviction for assaulting Constable Pitchford

is dismissed.

[63] The sentence of 80 hours’ community work in relation to the conviction for assaulting Constable Pitchford in the execution of his duty is upheld.

¹⁴ _{Section 7(1)(b).}

¹⁵ _{Section 7(1)(e).}

¹⁶ _{Section 7(1)(f).}

¹⁷ _{Section 7(1)(g).}

¹⁸ Section 8(g).

_{D B Collins J}

Solicitors:

John Miller Law, Wellington for Appellant

Crown Solicitor, Wellington for Respondent