Turner v Police

[2019] NZHC 1382

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-74

[2019] NZHC 1382

BETWEEN

RICHARD PARATA TURNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 June 2019
Appearances:	C J Tennet for Appellant S Carter for Respondent
Judgment:	18 June 2019

JUDGMENT OF COOKE J

[1]    On 19 February 2018, Mr Turner failed to appear for trial before Judge Harrop in the Hutt Valley District Court for one charge of driving while suspended.1 In his oral decision dated the same day, the Judge found Mr Turner had no reasonable excuse for his absence and it was not contrary to the interests of justice to proceed without him.2 The Judge noted in a second oral decision on the same day that he had found the charge proved against Mr Turner.3 Mr Turner was later sentenced to a disqualification from driving for six months from 30 August 2018, a fine of $500 and court costs of $130.4 Mr Turner now appeals his conviction.

1      Land Transport Act 1998, ss 32(1)(c) and 32(3); maximum penalty of 3 months’ imprisonment and $4,500 fine.

2      Police v Turner [2019] NZDC 4321.

3      Police v Turner [2019] NZDC 4330. The transcript of this judgment is not available.

4      Police v Turner [2018] NZDC 27384.

TURNER v NEW ZEALAND POLICE [2019] NZHC 1382 [18 June 2019]

Background

[2]    On 3 May 2017 Mr Turner was suspended from driving for three months by the police. On the evening of 24 June 2017 Mr Turner was driving his car in Upper Hutt. He was stopped at a checkpoint conducted by Rimutaka prison staff and police. He produced a photocopied driver licence.

[3]    In explanation for the offending Mr Turner said he didn’t know his driver licence was suspended.

[4]    Under s 118(1)(a) of the Criminal Procedure Act 2011, a defendant must be present at any hearing he or she has been summoned to attend.

[5]    The offence Mr Turner is charged with, driving while suspended, is a category 2 offence and the prosecutor was present. Pursuant to s 122 of the Criminal Procedure Act, if the District Court was satisfied Mr Turner had no reasonable excuse5 and it was not contrary to the interests of justice6 the Court “may” proceed with the trial without the defendant.7 Statutory matters relevant to the interests of justice assessment relevantly include:8

(a)Any information about the defendant’s absence;

(b)Any issues the defendant indicated were disputed and the extent of those disputes;

(c)The likely length of any adjournment with reference to the interests of the victims, witnesses and their memories;

(d)The nature and seriousness of the offence; and

(e)The interests of any co-defendants.

5      Criminal Procedure Act, s 122(3).

6      Section s 122(4). 7       Section 122(3)(a). 8            Section 122(5).

[6]    In assessing the interests of justice the Judge may be guided by Lord Bingham’s comments in R v Jones that the “overriding concern” is to ensure the trial “will be as fair as circumstances permit and lead to a just outcome.”9 The Court of Appeal in Kumar v R noted the factors in R v Jones correlate to those set out in the statute and used the case to support an analysis under s 122.10

[7]    The Judge noted Mr Turner had pleaded not guilty to the charge when he was first called on 29 June 2017. On 4 July 2017 the case was adjourned to 31 August. Mr Turner failed to appear on that day and a warrant to arrest him was issued. The next appearance was before Judge Tompkins  on 31 October 2017.  At that  stage   Mr Turner indicated he did not accept the jurisdiction of the Court due to Māori sovereignty. Judge Tompkins set the trial down for 19 February 2018 at that stage. This was the hearing at which Mr Turner failed to appear.

[8]    As Mr Turner was not present and the offence he had been charged with was a category 2 offence, the Judge analysed whether this matter could proceed in his absence under the Criminal Procedure Act. Relevantly, the Judge found:

(a)He was not satisfied there was a reasonable excuse;

(b)No reasons were put forward for that absence;

(c)The only disputes the Judge was aware of that Mr Turner would raise were related to the jurisdiction of the Court. These matters were not meritorious;

(d)No concerns existed for witnesses in terms of an adjournment;

(e)The offence was minor so no significant prejudice existed for proceeding in Mr Turner’s absence; and

9      R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [14].

10     Kumar v R [2013] NZCA 77, [2013] NZLR 201 at [26] and [75].

(f)The police were ready to proceed and any adjournment would result in a long length of time before the trial could proceed due to police availability. He was concerned about the length of time, at his estimate 18 months, between the charges being brought and being heard.

[9]    On that basis, the Judge found it would not be contrary to the interests of justice and proceeded in Mr Turner’s absence.

Approach on appeal

[10]   Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.

[11]   A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. Not every error or irregularity causes a miscarriage of justice. A miscarriage is more than an inconsequential or immaterial mistake or irregularity.11

[12]   A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.12 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.13 In the present case the miscarriage could arise if there was material potential prejudice arising from a truncation of fair trial rights.

Analysis

[13]   The first ground of appeal raised by Mr Tennet for Mr Turner is that of Māori sovereignty. I accept the submissions of Ms Hislop for the Police that this is not a

11     Matenga v R [2009] NZSC 18 at [30].

12     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

13 At [110].

relevant argument. There are numerous decisions which note that the jurisdiction of the courts to convict and sentence defendants cannot be challenged in this way.14 In Creeks v R the Full Court of the High Court relevantly said:15

[7] The Court of Appeal has made it clear that the courts are not the forum for a fundamental challenge to the entire constitutional structure of the country or for political campaigns of the sort the appellants are waging. Maori sovereignty can be the subject of debate in Parliament. The Waitangi Tribunal may be prepared to consider it. It can be debated in public meetings or the media. It may be the subject of lawful protest. But an assertion of Maori sovereignty does not raise a justiciable question. It cannot succeed in the general courts of New Zealand. …

[14]As such, this ground cannot succeed.

[15]   Mr Tennet’s primary focus in reference to the conviction appeal is that the initial decision the Judge made to progress the hearing without Mr Turner, who was self-represented. He relied on the decision of the Court of Appeal in Milliken v R.16 Mr Tennet says that:

(a)The Judge failed to consider Mr Turner’s excuse in the police summary of facts he did not know of his suspension as a dispute under s 122(4);

(b)Moving forward in Mr Turner’s absence would do nothing to progress the case as he had to be present for sentencing and the references to a lengthily period of time passing before a new trial could occur were inappropriate; and

(c)No reference was made to the fact Mr Turner was unrepresented.

[16]   Mr Turner was self-represented. He indicated at first call he did not accept the jurisdiction of the Court.  That was the best indication before the Court as to what  Mr Turner disputed. Mr Turner gave no indication he would argue the case on the basis he lacked mens rea. Neither did Mr Tennet suggest that there was a viable defence based on that factor. The offering of that excuse at the time would not be

14     For example Morunga v Police [2016] NZCA 599 at [6]–[9].

15     Creeks v R HC Auckland A139/00, 6 November 2000.

16     Milliken v R [2014] NZCA 236.

uncommon, and it was not later raised before the Court. During the appeal hearing Mr Tennet and Mr Turner both raised a concern about non-disclosure, and Mr Turner made an associated point that he was not aware of his suspension because he had not been notified. But as Mr Tennet effectively acknowledged that would not provide a defence in these circumstances. Given this I do not think the Judge can be criticised for proceeding. The facts of this case are very different from those in Milliken, as  Mr Tennet acknowledged.

[17]   Mr Tennet argued that nothing was to be gained by progressing as sentencing still had to occur in Mr Turner’s presence.   That is only true to a limited extent.     Mr Turner had pleaded not guilty and a hearing was required. The Judge made reference to the potential for lengthy delays and that an adjournment would result in a gap of 18 months between charging and hearing. It is legitimate for a Judge to be concerned about a long adjournment particularly for a case of this kind. The police had made an effort to be ready for the trial before him only to find the defendant was absent without reasonable excuse. One witness had travelled from the central North Island. A defendant failing to appear before a Court does impose a time cost on both the police and the court. It is appropriate to consider that when weighing the interests of justice.

[18]   I accept that the Judge made no express reference to Mr Turner’s status as a self-represented litigant. But I do not accept that the Judge overlooked this factor, or failed to take into account. Mr Turner had already failed to appear at an earlier stage of the proceeding. He was informed of where the trial was to be and when and he still failed to appear. At the hearing on 21 October 2017 Mr Turner indicated that he did not accept the Court had jurisdiction. That suggested that Mr Turner had made a decision on how he was going to respond to the charges, and the Judge was entitled to consider that the decision not to appear was conscious rather than due to error. Whilst allowance needed to be given for the self-represented status, it seems to me that the procedural course of the proceeding overall duly did so.

[19]   Given the relatively minor nature of the charges, the lack of a viable defence, the fact that this was the second of the five hearings at which he had failed to appear, that this hearing had been scheduled to deal with Mr Turner’s not-guilty plea, and that Mr Turner had indicated that he did not accept the jurisdiction of the Court, I am satisfied that no miscarriage of justice has occurred. Accordingly the appeal is dismissed.

Cooke J

Solicitors:

Justice Chambers, Petone for Appellant

Crown Solicitor, Wellington for Respondent