Kidnapping conviction for Kaiapoi citizen
DAVID CLARKSON, BLAIR ENSOR AND JOELLE DALLY
A Canterbury businessman who nabbed two burglars in a citizen's arrest has landed himself a kidnapping conviction.
However, a jury's decision to reject assault charges against David Clemence for the two men - a pair with significant criminal records - may set guidelines for other citizens who decide to act against repeated losses to thefts.
It means that Clemence's efforts in catching the pair were lawful, even to them getting their hands bound with cable ties.
However, the likely interpretation of the jury's verdict is that Clemence detained the men too long when he should have just handed them over to the police for arrest.
He is allowed to detain people found committing crimes - making a citizen's arrest. But once an arrest is made, miscreants have to be delivered straight to the authorities as soon as practicable - no passing "Go" will be allowed.
And in this case, Clemence took a detour instead of taking Pender straight to the police station.
VIGILANTE ACTS 'WILL NOT BE TOLERATED'
David Clemence - whose associates caught the men stealing petrol at his Kaiapoi yard - was within his rights to bundle the men off to the local police station.
The problem was, he took a detour on the way.
Clemence was yesterday found guilty, after a six-day jury trial in the Christchurch District Court, of kidnapping the thieves.
However, the jury found him not guilty of numerous assault charges - rejecting all of the evidence of the bashings, kickings, and dunking in the river heard from the two men, Matthew Darryl Pender-McLean, aged 20 at the time, and Carl Edward Clark, 23.
That means the jury either did not accept the men's claims of being beaten for hours and dunked in the Kaiapoi River with their hands tied, or they decided it was not unlawful.
Despite the acquittals on the assault charges, police say the case is a warning that "vigilante acts" will not be tolerated, though they will not pursue anyone else in connection with the two men's injuries.
At the time of the April 2011 incident, Clemence was fed-up with thefts from his firm, Clemence Drilling, which he said had been working around the clock to maintain the region's earthquake-damaged water system.
A month before the kidnapping, a ute containing keys vital to the work on water pipes servicing people in Christchurch, Waimakariri and Hurunui, was stolen and later found burnt out at the Ashley River bed. That was on top of a reported six burglaries in the preceding months.
So when Clemence kidnapped the two thieves on April 8, he attracted much local support.
After Clemence loaded the pair into a car, he made Pender show him the two Kaiapoi addresses where he and Clark were living, with a view to visiting the houses next day to try to find property that had been stolen earlier.
That meant a bit of a drive around Kaiapoi.
Clemence and the group of Pasifika men who caught the pair turned up at the addresses the next day and effectively searched them.
The detour the previous night gave the jury grounds to find that the detention was unlawful. It returned its verdicts after about 11 hours of deliberation.
The officer in charge of the case, Detective Aaron George, said he remained "adamantly sure" that the men were assaulted on the night they committed the burglary.
However, police had found there would be no benefit in pursuing further arrests.
That Clemence was found guilty of kidnapping showed "you can't take the law into your own hands", George said."You can't inflict your summary justice vigilante acts and then have the audacity to deliver them to police and say ‘right, clean this up'.
"If you catch someone doing something at night, and it's safe to take some action . . . detain them and then ring police straight away.
"At the end of the day those guys have histories . . . and they were caught that night committing a crime. "[But] from a law point of view, Mr Clemence and his associates overstepped the mark."
Judge Gary MacAskill asked for a report to be prepared on Clemence's suitability for home detention ahead of his sentencing on December 4. The two thieves had earlier pleaded guilty to burglary charges and have been sentenced. Pender got home detention, and Clark got community work.
Clark was also convicted of breaching bail conditions, by failing to report to Probation Services while he was on bail.
At his court appearance for the breaches, his lawyer said media coverage of the Clemence case had forced him into hiding, as he had been assaulted three days after the incident by a member of the public who sided with Clemence.
- © Fairfax NZ News