Turnbull v Police

[2022] NZHC 776

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-000028

[2022] NZHC 776

BETWEEN

SHANNON TURNBULL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Appearances:	D Henderson for the Appellant C A Brook for the Respondent
Judgment:	13 April 2022

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 13 April 2022 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Crown Law (C A Brook), Wellington Counsel: D Henderson, Dunedin

TURNBULL v NEW ZEALAND POLICE [2022] NZHC 776 [13 April 2022]

[1]                  During the course of an audit of their files, Police identified irregularities in the conviction of Shannon Turnbull for an offence under s 112(2)(a) of the Telecommunications Act 2001 of misusing a telephone device. Having pleaded guilty to the charge, Mr Turnbull was convicted and ordered to pay $400 reparation to the victim. The Police invited Mr Turnbull to file this appeal. They also consent to the conviction being quashed.

Background

[2]                  In September 2011, Mr Turnbull was charged with various offences involving multiple female complainants. One of the charges related to him sending an intimate photograph of a 15-year-old girl by text message to her mother and some of his friends.

[3]                  That charge was initially laid as an offence against s 124 of the Crimes Act 1961 of distribution or exhibition of an indecent matter. At the time, the Attorney- General’s consent was required before a prosecution could be commenced under this section. This requirement was overlooked, and consent was neither sought nor obtained.

[4]                  The Crimes Act charge was subsequently amended to the charge under the Telecommunications Act (which did not require the Attorney-General’s  consent). Mr Turnbull pleaded guilty to the amended charge, was convicted and ordered to pay

$400 reparation to the victim.

Discussion

[5]                  The Police acknowledge that the failure to obtain the Attorney-General’s consent means there was no jurisdiction to proceed with the charge as laid. This taints the subsequent amendment and conviction. There is no guarantee the Attorney- General would  have  given  consent  had  it  been  sought.  Had  it  been  refused,  Mr Turnbull may not have been prosecuted at all for that conduct.

[6]                  Further, it is at least arguable that the amended charge was nullity. The legal effect of the failure to obtain consent is that the charge was nullity incapable of being amended and, in any event, the “amendment” was not truly an amendment at all (an

entirely different offence under a different Act was substituted). Had the Police withdrawn the original charge and replaced it with a new charge under the Telecommunications Act there would be no issue, but that is not what has occurred.

[7]                  In all the circumstances, I am satisfied that a miscarriage of justice has occurred. Although the appeal  is  significantly  out  of  time,  leave  is  granted  to Mr Turnbull to appeal. The conviction is quashed as is the order for reparation. Because Mr Turnbull has paid the reparation, the Police have advised they will repay Mr Turnbull the $400 he paid the victim. No order is required in that regard.

Woolford J