Cruickshank v The the King
[2022] NZCA 493
•19 October 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA168/2022 [2022] NZCA 493 |
| BETWEEN | MICHAEL CHRISTOPHER CRUICKSHANK |
| AND | THE KING |
| Hearing: | 20 September 2022 |
Court: | Simon France, Ellis and Dunningham JJ |
Counsel: | J E L Carruthers for Appellant |
Judgment: | 19 October 2022 at 11.30 am |
JUDGMENT OF THE COURT
A.The appeal against conviction is allowed and the convictions are quashed.
B. There is no order for a retrial.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Mr Cruickshank appeals conviction and sentence on three charges of threatening to kill. The charges flow from emails sent on 20 January 2020 to the Prime Minister at 4.54 pm and to the Prime Minister and the Minister of Justice, Andrew Little at 5.35 pm. Following a two-day jury trial before Judge Gibson, Mr Cruickshank was convicted on all three charges. He was sentenced to 12 months’ imprisonment.[1]
[1]R v Cruickshank [2022] NZDC 5632.
There are two grounds of appeal against conviction. First, it is submitted that the direction on intoxication was incomplete such as to have caused a miscarriage. Second, that evidence of previous allegations of offending of the same type, volunteered by Mr Cruickshank in his police interview, was led without any propensity application having been made and without objection from Mr Cruickshank’s trial counsel. Its presence without targeted direction from the Judge is submitted to amount to a miscarriage. Concerning sentence, it is submitted the starting point, which was also the end point, of 12 months’ imprisonment was too high, and that a sentence not involving imprisonment should have been imposed.
Facts
Mr Cruickshank has a longstanding grievance with the government stemming from the handling of a workplace injury he suffered in 1995. In 2008 he was charged but acquitted of threatening to kill an employee of the Accident Compensation Corporation. It is clear Mr Cruickshank is increasingly preoccupied with what he views as his mistreatment. As an example, over a three-month period at the end of 2019 he sent 85 emails to public figures, including the targets of the emails that led to these charges.
The two emails the subject of Mr Cruickshank’s convictions said:
if yo contune to supporting state terriorismjand act of war declared on a victim mnamely Mr Michael Christopher Cruickshabnka and decalre dact of war on my life by your NZ Police that i will personally wipe you off this fuking planet and that is what younow face as an outcome
wear that Jaconda!
because that is now the reality of 20 years of your state terrorism on an njjured victims life
…
i dont think there is any question that I will blowyour feknhead of if your gas lighting on my life continues by your terrorists who declared this an act of war against me , you have kids who want to see you grow old as do i, so isuggest you place that into proper perspective, because after 20 years what ever it now costs me will cost you. take that to your terrorist run Police in NZ who are active state terrorists under your watch
The defence at trial was that Mr Cruickshank was intoxicated at the time, does not remember sending the emails and did not intend that the recipients would take them seriously. Mr Cruickshank both gave a police interview and testified.
First ground of appeal — need for a fuller intoxication direction
It is important to this ground of appeal to set out in some detail the role that intoxication played in Mr Cruickshank’s defence. We start with the police interview. When first asked about the emails Mr Cruickshank said:
How can I tell you about the emails, I was drunk as and Monday I had about 12, 14 beers so um Monday was a very very bad day for me, I was in a lot of pain. I was ah I had got rid of my advocate I think a couple of days before. Um so I don’t, you know I don’t even remember writing emails on Monday, so to be perfectly honest. So, I will need to see what’s in the emails now … to understand what my way of thinking [was]. That’s the god’s honest truth.
And shortly after:
Afternoon I haven’t got a clue, I have not got a notion. I don’t think I slept all night. I think I was drinking all through the night, all afternoon. I don’t think I slept for about 36 hours[.]
Later on he would further respond:
To be perfectly frank I do not remember sending any emails on Monday, right. I was absolutely wasted so it’s possible I could’ve.
And finally:
ES… I’m surprised … that you can’t remember what happened on Monday.
MC Well, have you ever drank 14 or 15 beers.
ES Well you told me that you drunk quite often.
MC Yeah.
ES Between 2 and 12 beers.
MC Between 2 and 12 beers.
ES So if you have 14.
MCThat’s unusual, I mean I say Monday was, Sunday and Monday was very unusual actually and ah.
ES What was unusual about them?
MCOh I was just in a lot of pain[,] lot of frustration. … you just reach the end of it so Sunday, Monday I can’t remember anything. I mean so I couldn’t even tell you, I couldn’t even tell you what day today is.
Mr Cruickshank testified and the topic was extensively referred to:
A.I have no recollection whatsoever of sending that email, and that’s the God’s honest truth.
Q. Did you compose the email?
A.I have no idea. I can’t remember that period of time at all. My mind is totally blank. I was drinking very heavily and, yeah. There lies the problem.
…
A.You were talking to a very drunk man most of the time. I … 19th of January, yeah.
…
A.And that’s the God’s honest truth. I’m usually pretty drunk when I go on a tangent and, yeah. The next day I won’t even remember sending them. That’s the God’s honest truth.
…
Q.Do you agree that when you’re drunk you can still do things intentionally?
A.When I do thing[s] when I’m drunk?
A.Ahh, what do you mean intentionally?
Q.You have a purpose that you want to achieve and you do something to achieve that purpose. So let’s take a little example. You want to turn the TV on, so you intentionally press the button on the remote. You can still do that when you’re drunk, right?
A.No.
Q.No?
A.No, because I get drunk and go to sleep.
Q.Well there must be some time in-between when you start drinking?
A.I usually drink – no – when you’re suffering post-traumatic stress and you get drunk and you’re taking some form of medication at times [they’re] different times that you’re gonna, and you wake up with a headache or you wake up not remembering anything.
Q.But there’s a time in between when you start drinking and when you fall asleep –
A.Well given that I didn’t start drinking until you actually, until yous actually put me onto that situation.
Q.But that’s not what we’re talking about Mr Cruickshank. I’m asking you during that time that you’re drinking whether you can still function; whether you can still do things intentionally?
A.I think everybody when they’re drunk can do things that they can’t remember too.
Q.I’m not disputing that.
A.So of course you can do things and remember them and there’s other times you do things and you don’t remember them. It’s, um, on this occasion I could actually say that I can’t remember sending very many of these emails. So …
…
Q.Do you know what Dutch courage is, is that a term you’re familiar with?
A.No.
Q.So when someone drinks a lot of alcohol they get more brazen, does that sound familiar to you?
A.Yeah.
Q.Possible that’s what’s happened here?
A.I’ve no idea, how can I answer that, am I more brazen when I’m drunk?
Returning to the elements of the offence with which Mr Cruickshank was charged, they are that there must be a threat to kill and the maker of the threat must intend it to be taken seriously.[2] The defence was that Mr Cruickshank had no recollection of sending them, but if he did send them he lacked the necessary intent primarily because of intoxication. There can be no issue that intoxication was at the heart of the defence.
Summing up
[2]Crimes Act 1961, s 306; R v Meek [1981] 1 NZLR 499 (CA) at 503; and R v Cherri (1989) 5 CRNZ 177 (CA) at 178.
Comments by the Judge on intoxication, being either his own or summarising counsels’ addresses, appear throughout the summing up but there is no standalone direction on intoxication.
The first passage provides:
[14] … Now, in this case, the defendant explained his version of events to you and it was largely as he told the police, and in the interview at page 35, he said: “Well, I don’t remember sending the emails,” and he said in that interview: “It doesn’t sound like something I would normally write,” and he said that he was intoxicated, he was drunk. Now, as you have been told, intoxication is not a defence. You can still have a drunken intention but, in any event, that was what you were told by the defendant that he has no recollection of sending the emails, not something he would usually do and from that, he would say that he did not intend to make the threats with the intention that they would be taken seriously. If you accept what he says, then obviously the proper verdict would be an acquittal because he has not done what the Crown says that he had done in sending an email to the recipients containing a threat to kill. If what he says leaves you unsure then, again, the proper verdict is an acquittal or a verdict of not guilty because you will have been left with a reasonable doubt. If what the defendant says seems a reasonable possibility, the Crown will not have discharged its task and you must acquit.
[15] If you disbelieve the defendant’s evidence about what he said about not recalling sending the emails and being intoxicated and drunk, and not intending to make a threat to kill, then do not leap from that assessment to guilt because to do that would be to forget who has to prove the case. …
And next:
[18] For the defendant, the defence case relies on what he really said to the interviewing constable at page 35. I have already mentioned that in the transcript where he summarises what he is saying. He says at page 30 he does not remember writing and he said: “I was drunk.” Page 35, he says: “I didn’t deny I was the person who sent them. I’m saying to you I can’t remember, so I can’t say whether I did or didn’t send them, but they don’t sound like [something] I would normally write and I had a lot of drink over the weekend and it’s out of character for me to write something like that.” And that is the defence case that there was no intention if he did send the emails, which he cannot recall doing, that the threats contained in the emails were [n]ever meant to be taken seriously, so that is it, effectively, in a nutshell.
The next extract is in the context of summarising the Crown’s submissions. The “he” referred to throughout is Mr Cruickshank:
[19] … He said at the interview that he could not remember, but he accepted that he probably did send them at some point and there is simply no evidence that anybody else sent them, or could have sent them, and even if he was drunk we do not know his level of intoxication, and there is no evidence to suggest that he did not have the ability to send the emails because someone sent them and it can only really have been him. They were obvious threats. He reminded you that a conditional threat was still a threat covered by the law and the real issue is were the threats intended to be taken seriously and Mr Dow submitted to you that they were and that, as he rightly said, intoxication is not a defence because you can still be drunk and still have an intention to do something. So the fundamental issue, according to the Crown and I think the defence accept this, is was the intention that the addressee take the threats seriously. He submitted a drunken intention is still an intention. …
Submissions
For Mr Cruickshank, Mr Carruthers submits that an orthodox direction on intoxication contains three aspects — intoxication is not a defence, a drunken intent is still an intent, and intoxication can be taken into account when assessing whether a defendant had the required intent.[3] While the Judge noted the first two limbs on more than one occasion, the third is missing and this constituted a miscarriage.
[3]Citing Herewini v R [2013] NZCA 294, (2013) 26 CRNZ 666 at [18]; and Singh v R [2018] NZCA 388 at [15].
For the Crown, Mr Davie submits an intoxication direction was not needed as there was no foundation for the proposition that Mr Cruickshank was so drunk he did not intend for the threats to be taken seriously. The submission then identifies acts that appear to indicate a capacity to form intention such as the process of sending an email. It is submitted intoxication did not make it less likely he intended the threats to be taken seriously.
Assessment
We consider the appellant’s concern is well founded. The essence of the defence is that Mr Cruickshank was so drunk he did not really know what he was doing. Sending emails to addresses used often does not make unavailable an argument that when sending the emails he was not really aware of what he was doing and certainly did not intend anyone to take seriously the threat to kill contained within them. His claimed state of intoxication was plainly relevant, indeed central to the defence.
The risk here is that the repeated references to a drunken intent still being an intent and intoxication not being a defence, without the important third limb, left the jury in doubt as to the relevance if any of Mr Cruickshank’s alleged drunken state. The third limb was Mr Cruickshank’s defence and it needed to be set out clearly in the summing up. A standalone direction on intoxication was the preferable approach but regardless it was essential the jury be told that the claimed intoxication, if accepted, could be taken into account and to which element of the offence it had most potential relevance.
In our view the Crown’s submission conflates its view of the merits of the defence with the separate issue of the trial Judge’s task in relation to Mr Cruickshank’s evidence. We consider a core omission of this nature which goes to the heart of the defence is a miscarriage requiring a response. It follows that the appeal must be allowed and the convictions quashed.
It is unnecessary therefore to address the second ground of the conviction appeal and the sentence appeal. We are advised Mr Cruickshank will imminently have served his sentence. In these circumstances we consider a retrial order is not appropriate, and nor is one sought by the Crown.
Result
The appeal against conviction is allowed and the convictions are quashed.
There is no order for a retrial.
Solicitors:
Crown Law Office, Wellington for Respondent
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