CLARKE v NEW ZEALAND POLICE [2017] NZCA 198

CLARKE v NEW ZEALAND POLICE [2017] NZCA 198 [23 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA480/2016[2017] NZCA 198BETWEEN NEIL MARTIN CLARKEApplicantAND NEW ZEALAND POLICERespondentCourt: Kós P, Courtney and Williams JJCounsel: Applicant in personC J Hurd for RespondentJudgment:(On the papers)23 May 2017 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Neil Clarke was convicted in the District Court on four charges arising from an incident in Tennyson St in Wellington on 23 November 2014.1 His convictions for assaulting an officer in the execution of duty and resisting arrest were quashed on appeal. However, his appeal against conviction for failing to remain and refusing to1 New Zealand Police v Clarke DC Wellington, 17 March 2016.give a blood sample was dismissed.2 Mr Clarke applied for leave to bring a second appeal.3[2] Under s 237(2) of the Criminal Procedure Act 2011 this Court must not grant leave for a second appeal unless it is satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] Mr Clarke, who is unrepresented, has filed two documents that take the form of submissions. In the first he identifies nine grounds of appeal. Grounds one to four and six to eight are all directed towards findings of fact made by the Judge Tompkins. The fifth ground of appeal relates to the issue of self-defence. The ninth ground of appeal asserts that Mr Clarke's arrest was false so that from the time of hisarrest he was also falsely imprisoned. The second document raises as a ground of appeal the contents of the notice of police bail.The case in the District Court[4] Following an altercation between Mr Clarke and another motorist on the afternoon of 23 November 2014, Mr Clarke drove his scooter to Tennyson Street. Police arrived shortly afterwards, having been called by both a passing motorist and Mr Clarke himself. Conflicting accounts were given by the police officer and Mr Clarke as to what happened.[5] Mr Clarke's account was that he was on the phone when the officer arrived. He denied being asked by the officer to remain. He said that he told the officer he was leaving and as he walked off he was tackled from behind. He took this to be an unlawful arrest.[6] On the police officer's account Mr Clarke appeared to have been drinking and was directed to remain until another police unit could attend to administer a roadside breath screening test. Mr Clarke was abusive and threatened to leave. The2 Clarke v New Zealand Police [2016] NZHC 2168.3 The application has been dealt with on the papers in accordance with Winkelmann J's minutedated 31 October 2016.officer again told him to remain but Mr Clarke began walking away. The officer tried unsuccessfully to detain him by placing his hand on Mr Clarke's shoulder. The officer then applied a "bear hug" from behind but Mr Clarke kept walking. Theofficer took him to the ground and restrained him.[7] Judge Tompkins rejected Mr Clarke's evidence and accepted the evidence ofthe police officer. He found that the officer made three separate demands on the defendant to remain and warned him of the consequences that would follow if he did not and that the officer properly placed Mr Clarke under arrest.4[8] After being arrested Mr Clarke was taken to the police station. He was advised of his rights under the New Zealand Bill of Rights Act 1990 (BORA). He was required to undergo an evidential breath test, which he refused. He was then required to undergo an evidential blood test, which he also refused. At trial he maintained that the police had failed to follow the correct procedure. The Judge found that Mr Clarke was properly advised of his rights.5The High Court appeal[9] Simon France J reviewed the evidence relating to the competing versions of events at the roadside and the police station. He accepted that Judge Tompkins had not addressed the issue of self-defence that Mr Clarke had raised in relation to the charges of assaulting the officer in the execution of duty and resisting an officer in the execution of duty.6 He quashed those convictions and directed a retrial, though acknowledged that it was a matter for the prosecution as to whether to proceed with that course.7[10] The ground of appeal raised in relation to the charge of failing to remain wasthat Judge Tompkins had made an error in rejecting Mr Clarke's evidence that he hadnot heard the officer telling him to remain and had therefore not knowingly refused to remain. Simon France J noted the difficulties of challenging credibility assessments on appeal and that in this case there was evidence from an independent4 New Zealand Police v Clarke, above n 1, at [13].5 At [18].6 Clarke v New Zealand Police, above n 2, at [28].7 At [34].witness that was consistent in the salient aspects with the police officer's evidence. Moreover, Simon France J regarded Mr Clarke's evidence as inherently lackingcredibility.8 Finally, other contextual evidence such as Mr Clarke's anger and his language laid a foundation on which to find that the independent witness' accountwas more credible. There was, therefore, no basis on which to challenge the Judge'scredibility findings.9[11] In relation to the charge of refusing to permit a blood specimen to be taken Ms Sheat, for Mr Clarke, argued that although Mr Clarke had been given a BORA warning after refusing a breath test a second warning was not given before the request for a blood sample was made. She submitted that Mr Clarke should have been told again that he could speak again to a lawyer at that point and might be charged if he refused to provide a blood sample.[12] Simon France J noted Judge Tompkins' finding of fact that Mr Clarke wasadvised of his rights at the appropriate times. There was no basis on which to challenge that finding. So the appeal in relation to that charge failed.Application for leave to bring a second appeal[13] Of the nine grounds of appeal that Mr Clarke has raised grounds, one to four and six to eight are all directed towards findings of fact, particularly findings of fact by the District Court Judge, many of which were based on the Judge's adversecredibility assessment. None of these grounds raise any matter of general or public importance which would justify a second appeal.[14] The fifth ground of appeal relates to the issue of self-defence. Mr Clarkerelies on Simon France J's observation, made when considering the issue of self-defence in relation to the charge of assaulting an officer in the execution of duty and resisting arrest, that:108 At [22].9 At [25].10 At [27] (emphasis in original).The key matter is whether Mr Clarke believed, however unreasonably, he was the victim of an unlawful arrest. If so, then there would be a reasonable doubt as to mens rea, and a reasonable possibility of self-defence.[15] Mr Clarke submits that, on the basis of this statement, the charge of refusing to remain must also be dismissed. However, Judge Tompkins made a factual finding (which is not amenable to challenge on a second appeal) that Mr Clarke heard the direction to remain before he was "bear hugged". In those circumstances self- defence was not a defence to a charge of failing to remain and the point does not justify a second appeal.[16] The ninth ground of appeal is that Mr Clarke's arrest was false so that fromthe time of his arrest he was also falsely imprisoned. This ground has no factual or legal basis. First, when Mr Clarke refused to remain for the purposes of a breath screening test he had not yet been arrested. Secondly, the validity of that arrest has not been impugned in either the District Court or on appeal to the High Court. There is, therefore, no basis on which to assert that the arrest was invalid.[17] The second document Mr Clarke filed has a copy of the notice of police bail attached. It records that he had been arrested for assaulting a police officer, resisting a police officer and refusing a request for a blood sample. Mr Clarke submits that this shows that he was not under arrest for refusing to remain and therefore had every right to leave when he attempted to do so. Again, he raises the issue of his belief that he was being falsely arrested and imprisoned.[18] The notice of police bail has no significance in terms of the factual findings made by Judge Tompkins and upheld by Simon France J. For the reasons just discussed Mr Clarke's belief that he was being falsely arrested does not provide any basis for a second appeal against the refusing to remain charge.[19] Finally, there is no risk of a miscarriage of justice if leave for a second appeal is not granted. Both convictions depend on the factual findings that Judge Tompkins made, particularly his rejection of Mr Clarke's claim not to have heard therequirement to remain and his claim that he was not properly advised of his BORA rights. Those findings were comprehensively considered in the High Court and weare satisfied that there is no risk of miscarriage if Mr Clarke is not granted leave to appeal.[20] Accordingly, the application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent