Cruickshank v The the King - [2022] NZCA 493

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA168/2022
[2022] NZCA 493

BETWEEN	MICHAEL CHRISTOPHER CRUICKSHANK Appellant
AND	THE KING Respondent

Hearing:	20 September 2022
Court:	Simon France, Ellis and Dunningham JJ
Counsel:	J E L Carruthers for Appellant M R L Davie for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZCA 493
Decision Date: 19 October 2022 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the conviction and sentence of Michael Christopher Cruickshank on three charges of threatening to kill. The charges stemmed from emails sent to the Prime Minister and the Minister of Justice on January 20, 2020. Cruickshank was convicted following a two-day trial and sentenced to 12 months’ imprisonment. The appeal against conviction was based on two grounds: the first was that the direction on intoxication was incomplete, which caused a miscarriage of justice; the second was that evidence of previous allegations of similar offending was led without a propensity application and without objection from Cruickshank's trial counsel, which also amounted to a miscarriage. Concerning sentence, it was submitted that the starting point and the end point of 12 months’ imprisonment was too high, and that a sentence not involving imprisonment should have been imposed.

The court found that the direction on intoxication was indeed incomplete, lacking an important third limb, which was crucial to Cruickshank's defence. The court held that the omission of this essential aspect of the intoxication direction went to the heart of the defence and constituted a miscarriage of justice, leading to the quashing of the convictions. The court did not address the second ground of appeal or the appeal against sentence as the first ground was sufficient to allow the appeal and quash the convictions. There was no order for a retrial as Cruickshank would have served his sentence by the time the judgment was given.

Orders