Turner v Police - [2012] NZHC 274

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-045 [2012] NZHC 274

BETWEEN IAN BASIL TURNER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 February 2012

Counsel: Appellant in person
S A Law for Respondent

Judgment: 24 February 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 February 2012 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
C & M Legal (New Plymouth) for Respondent
(copy to Appellant in person)

TURNER V POLICE HC NWP CRI-2011-443-045 [24 February 2012]

Introduction

[1] On 14 September 2011 in the District Court at Hawera, Judge LH Moore convicted Mr Turner on one charge of assaulting a constable with intent to obstruct him in the execution of his duty and one charge of resisting the constable acting in the execution of his duty. He appeals his convictions.

[2] The appellant represented himself at the trial. He cross-examined the prosecution‟s witnesses and he gave evidence himself. I will describe his part in the proceeding once I have covered the evidence-in-chief of the prosecution witnesses.

The prosecution’s case at trial

[3] There were two witnesses called by the prosecution. The first was Constable Temperton. Constable Temperton gave evidence that on 23 August 2011 he and Constable Brown established a vehicle checkpoint in Eltham. Shortly after 5:00 pm the appellant was stopped at the checkpoint. I should note at this point that the appellant is a male of approximately 60 years with a large and powerful build.

[4] Constable Temperton‟s evidence of what happened when he first spoke to the

appellant sets the scene for what happened subsequently:1

Spoke with the driver and immediately he, um, he had raised voice, he said to me that, um, told me that he was sick of being stopped by us folk, um, he also said that we should know that he doesn‟t drink and I said to the driver that „I had no idea who you are, I‟ve never met you before‟ and he said,
„Well, you‟re all the same. You‟re all dodgy‟ and he said that, „I‟m as bad as that, um, that cop D‟Arthy from Eltham‟ and again I said to him, that well,
you know, „I‟ve never met you before‟.

[5] The constable went on to give evidence that he advised the appellant that the reason for him being stopped was so that the constable could conduct a vehicle licence and alcohol check. The response, according to the constable, was that the
appellant began swearing and he told the constable to hurry up.

1 Notes of evidence taken before Judge LH Moore on 14 September 2011, at 5.

[6] The appellant gave Constable Temperton his licence and the constable recorded details from it in his notebook. The appellant also gave the constable his address and occupation. The constable‟s evidence continued:2

I, um, required him to undergo a passive breath test and his reply was, „Fuck off, you‟re not breath testing me‟ and swearing, um, abusive and while…

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.

Continue reading Turner v Police

Details

AGLC: Turner v Police [2012] NZHC 274
Case: [2012] NZHC 274
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the case of Turner v Police, the appellant, Ian Basil Turner, appealed against his convictions for assaulting a constable with intent to obstruct them in the execution of their duty and for resisting the constable acting in the execution of their duty. The convictions were made by Judge LH Moore in the District Court at Hawera on 14 September 2011. Turner, who represented himself at the trial, was unhappy with the outcome and sought to appeal the decision.

The legal issues that the court was required to decide included whether there was sufficient evidence for the District Court Judge to convict Turner and whether the evidence of the constables was so unreliable that the District Court Judge should not have given it weight. Turner also submitted that the District Court Judge was biased in favour of the Police witnesses and should have accepted his evidence instead.

In its judgment, the court found that the District Court Judge was entitled to find proved that Turner deliberately assaulted Constable Temperton by opening the car door. The court held that Turner's belligerence coupled with the degree of force required to lift Constable Temperton off the ground and propel him backwards to the road was sufficient for the Judge to conclude that it was not a reasonable possibility that all that Turner was doing was trying to free a painfully trapped ankle. The court also found that the District Court Judge was entitled to convict Turner on the charge of resisting arrest, as there was nothing in the evidence which would make his finding unsafe.

Ultimately, the appeals against conviction were dismissed, and Turner's convictions stood. The court held that the evidence established beyond reasonable doubt that Turner was angry at being stopped and aggressive with the constable, and that he knew that the constable was acting in the course of their duty in checking his details. The court found that Turner had decided to get out of his car with the intention of calming his dogs but also knew that in pushing the constable out of the way, he would hinder, delay, or make more difficult the constable's job, thus obstructing them.

Orders