CLARKE V NEW ZEALAND POLICE [2015] NZCA 570

CLARKE V NEW ZEALAND POLICE [2015] NZCA 570 [26 November 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA89/2015[2015] NZCA 570BETWEEN NEIL MARTIN CLARKEApplicantAND NEW ZEALAND POLICERespondentCA410/2015BETWEEN NEIL MARTIN CLARKEApplicantAND MINISTRY OF SOCIALDEVELOPMENTRespondentCA514/2015BETWEEN NEIL MARTIN CLARKEApplicantAND MINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 3 November 2015Court: Stevens, Fogarty and Mallon JJCounsel: Applicant in personP D Marshall for RespondentJudgment: 26 November 2015 at 10.00 amJUDGMENT OF THE COURTThe applications for leave to appeal are declined.____________________________________________________________________REASONS OF THE COURT(Given by Fogarty J)Leave to pursue second appeals[1] Mr Clarke seeks leave from this Court to pursue three second appeals.Mr Clarke is pursuing these applications for leave without having had the benefit oflegal advice. The Criminal Procedure Act 2011 requires that in order to obtain leaveto pursue a second appeal, this Court must be satisfied that the appeal involves a matterof general or public importance (that is beyond the concerns of Mr Clarke personally)or that a miscarriage of justice has occurred or may occur unless the appeal is heard.1We are satisfied in each of these three applications these criteria are not met. We giveour reasons.CA89/2015 — Conviction and sentence for assaulting a police officer[2] The police arrested Mr Clarke for breaching bail. While in the police car hekicked one of the officers who arrested him, Constable Crook. While being processedat the police station, he spat in the face of another officer, Constable Pitchford. Hewas convicted on two charges of assault in the Wellington District Court by JudgeCameron.2[3] On appeal to the High Court, Collins J allowed his appeal in respect of the firstcharge of assault (the kick). He dismissed the appeal for spitting and so assaultingConstable Pitchford.31 See Criminal Procedure Act 2011, ss 223(3), 237(2), 253(3), 276(2), 287(2) and 303(2),standardising the test for leave to appeal across these provisions. The relevant leave provision inrespect of each appeal will be addressed in turn.2 New Zealand Police v Clarke DC Wellington CRI-2014-085-6673, 4 November 2014.3 Clarke v New Zealand Police [2015] NZHC 259.[4] Collins J allowed the appeal in respect of the first assault because the DistrictCourt Judge had not determined whether there was a reasonable possibility thatMr Clarke believed Constable Crook had no authority to arrest him because he wasnot breaching his bail.4 Collins J dismissed the appeal in respect of the second assaultbecause:5[46] By the time of the incident in the police station matters had movedwell beyond issues concerning the lawfulness of the arrest of Mr Clarke forbreaching the terms of his bail. Mr Clarke knew he was in the police stationand that he was being restrained by police officers. Mr Clarke spat atConstable Pitchford when police officers, including Constable Pitchford, weretrying to restrain him.[47] Mr Clarke's decision to spit at Constable Pitchford when he was beingrestrained was quite separate in place and time from the incident involvingConstable Crook. Mr Clarke's reasons for believing he could resist his arrestby Constable Crook did not apply to the incident in the police station whenMr Clarke spat at Constable Pitchford. There was no basis for Mr Clarke tobelieve Constable Pitchford was not acting in the course of his duty whenMr Clarke spat at Constable Pitchford.[5] That was a factual determination open to the Court, just as it was open to theDistrict Court to determine that Constable Pitchford had not punched Mr Clarke priorto being spat at as Mr Clarke had contended in that Court.6 There is no compellingbasis for this Court to interfere with those factual determinations.[6] On this application for leave Mr Clarke seeks to put the matter differently.7 Hecontends that because his conviction on the first assault was dismissed he was falselyimprisoned throughout. He says that he was entitled to use all reasonable force toescape from that imprisonment and that therefore he was justified in spitting atConstable Pitchford. In advancing that submission, Mr Clarke relies on an earlierHigh Court decision in which he successfully appealed a conviction for disorderlybehaviour.8 It was found that Mr Clarke had been falsely imprisoned by a cafémanager and waiter (who prevented him from leaving a restaurant until the policearrived) and that he was justified in raising a chair and abusing the manager and waiter4 Relying on Clarke v New Zealand Police HC Wellington CRI 2003-485-28, 18 November 2003at [57].5 Clarke v New Zealand Police, above n 3.6 New Zealand Police v Clarke, above n 2, at [6].7 Mr Clarke advances his appeal under s 237(2) of the Criminal Procedure Act.8 Clarke v Police HC Wellington AP109/02, 4 July 2002.(the disorderly behaviour) because those actions were directed at the unlawfulimprisonment and were proportionate to the unlawfulness.9[7] It can be seen that the case Mr Clarke relies on is quite different from thepresent. The police officers were lawfully entitled to arrest him on the first assaulteven if the assault charge was later dismissed. The circumstances in which anindividual is liable for assaulting a police officer are well-settled.10 We are satisfiedthat Mr Clarke's appeal does not involve a matter of general or public importance.Neither do we consider a miscarriage of justice has occurred or would occur unlessthe appeal is heard. Leave to pursue a second appeal is refused.CA410/2015 — Sentence for benefit fraud[8] Mr Clarke pleaded guilty to six charges of offending related to benefit fraud.He was sentenced by Judge Tuohy in the Wellington District Court to nine months'home detention.11 In the High Court, Ellis J dismissed the appeal against sentence.12In so doing, the Judge applied settled law to the sentencing task involved.13 Ellis J'stask did not involve any significant points of law.[9] Mr Clarke now seeks leave to bring a second appeal against sentence.14Mr Clarke seeks to challenge the sentencing on the basis the sentence is manifestlyexcessive. However, as decisions of this Court in circumstances of comparableoffending illustrate, the sentence imposed on Mr Clarke was within the availablerange.15[10] This is not an appeal that involves a matter of general or public importance.Nor is there any risk of a miscarriage of justice. Leave to appeal is refused.9 At [15].10 See Waaka v Police [1987] 1 NZLR 754 (CA) at 759.11 Ministry of Social Development v Clarke [2015] NZDC 10867.12 Clarke v New Zealand Police [2015] NZHC 1692.13 At [21]–[29].14 Criminal Procedure Act, s 253(3).15 Heta v R [2012] NZCA 267 at [37]. See also Whitelaw v R [2012] NZCA 438 at [9].CA514/2015 — Appeal against refusal to discharge[11] Mr Clarke separately seeks leave to bring a second appeal against an aspect ofthe offending in the above proceeding CA410/2015, to which he pleaded guilty.16[12] Prior to pleading guilty, Mr Clarke had made an application for the charges tobe dismissed under s 147 of the Criminal Procedure Act. An application under thisAct can only succeed before the defendant enters a plea of guilty. This is because ofsubs (1) of s 147, which provides:147 Dismissal of charge(1) The court may dismiss a charge at any time before or during the trial,but before the defendant is found guilty or not guilty, or enters a pleaof guilty.(Emphasis added)[13] Ellis J in the High Court held there was nothing against which Mr Clarke couldappeal.17 This was first, because there had been no application under s 147 to theDistrict Court Judge against which Mr Clarke could appeal:[10] As far as the question of leave is concerned, I acknowledge that thequestion posed in the application for leave might be capable of constituting aquestion of law. The difficulty remains, however, that the District Court's"failure" to deal with the s 147 application means that there is, in fact, nodecision that can be appealed. The right to apply for leave to appeal unders 296 is expressly predicated on the existence of a "ruling" against which theappeal is sought to be brought. The section does not appear to me tocontemplate an appeal against the absence of a ruling.18[14] Even if this were wrong, however, Ellis J held no appeal could have beengrounded on s 147, as the applicant's guilty plea had overtaken the circumstances inwhich the section could apply.19[15] We agree. The words in s 147(1) are clear. Once he entered his guilty plea hiss 147 application was no longer extant. Accordingly, the appeal does not involve a16 The appeal is purportedly brought under s 213(3) of the Criminal Procedure Act.17 Clarke v Ministry of Social Development [2015] NZHC 1868.18 It is not even as if Judge Tuohy refused to deal with the s 147 application; it does not appear tohave even been brought to his attention.19 At [11]–[13].matter of general or public importance and there is no risk of a miscarriage. Leave toappeal is refused.Conclusion[16] All three applications for leave to appeal are refused.Current position of sentences[17] In CA89/2015, the result of the partially successful appeal in the High Courtmeant that the 80 hours of community work for assaulting Constable Cook wasquashed, but left the sentence of 80 hours community work in relation to the convictionfor assaulting Constable Pitchford.20[18] In respect of CA410/2015, Ellis J in the High Court dismissed the appealagainst the sentence imposed by Judge Tuohy in the District Court. The end resultwas that there was a sentence of 10 months' home detention.21[19] Mr Clarke has advised us that he commenced his sentence of home detentionon 11 June 2015 and is continuing to serve that sentence but, pending this appeal, his80 hours community work sentence has been deferred. As his application for leave toappeal has been dismissed it is now for the Probation Office to determine when thecommunity work sentence is to commence.ResultThe applications for leave to appeal are declined.20 New Zealand Police v Clarke, above n 2, at [61]–[63].21 Clarke v Ministry of Social Development, above n 12, at [36]. This sentence comprised ninemonths' home detention on the benefit fraud charges, as well as an addition one month's homedetention for unrelated charges of wilful trespass, wilful damage and assaulting a police officer.These charges were not the subject of these applications for leave: at [2].Solicitors:Crown Law Office, Wellington for Respondent