Turner v The Queen
[2020] NZCA 414
•14 September 2020 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA146/2020 [2020] NZCA 414 |
| BETWEEN | IAN BASIL TURNER |
| AND | THE QUEEN |
| Hearing: | 1 September 2020 |
Court: | Goddard, Ellis and Dunningham JJ |
Counsel: | Mr Turner in person |
Judgment: | 14 September 2020 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence in relation to the charge of escape from lawful custody is dismissed.
B The appeal on the careless use charge is allowed.
CMr Turner is discharged without conviction on the careless use charge.
DThe conviction on the careless use charge is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Mr Turner appeals his conviction and sentence for:[1]
(a)careless use of a motor vehicle;[2] and
(b)escape from lawful custody.[3]
[1]This followed a jury trial in the New Plymouth District Court, presided over by Judge Barkle.
[2]Land Transport Act 1998, ss 8 and 37 (maximum penalty $3,000 fine and discretionary disqualification from holding or obtaining a driver’s licence).
[3]Crimes Act 1961, s 120 (maximum penalty 5 years’ imprisonment). Because a charge under s 120 is a category 3 offence and because Mr Turner elected trial by jury, the first appeal court is this Court: Criminal Procedure Act 2011, s 230(1)(b)(i).
He was acquitted at trial on a further charge of intimidation, arising out of the same incident.[4]
[4]Summary Offences Act 1981, s 21 (maximum penalty 3 months’ imprisonment or $2,000 fine).
Mr Turner was self-represented in this appeal, as he was at his trial.
Background
On 11 December 2018, Marilyn Waters was driving in Eltham, Taranaki. She pulled over to the side of the road to take a phone call. She parked directly outside Mr Turner’s home. Mr Turner was about to run his two dogs; he had to move one of his cars out of his driveway to take the dogs out in a second car. He backed the first car out and parked behind, and very close to, Ms Waters’ car.
Ms Waters gave evidence that she felt and heard Mr Turner’s car hit the back of her car (the Judge noted at sentencing that this must have been slight contact).[5] Ms Waters got out to have a look; she considered there were slight marks on the bumper of her car.
[5]R v Turner [2020] NZDC 4127 [Sentencing judgment] at [4].
Mr Turner and Ms Waters then argued. Ms Waters said Mr Turner became abusive. Ms Waters got back into her car. Mr Turner then drove the second car out of the driveway and parked it close to the front of Ms Waters’ car, preventing her from leaving easily. He put his dogs in the car. Her evidence at trial was that she felt trapped. Mr Turner appeared to be filming her.
Ms Waters called the police from her car. Constable Crago arrived and spoke with her. Mr Turner filmed them. Then, Constable Crago thought that Mr Turner, who was near his vehicle, intended to leave. She placed her hand on his arm and told him that he was under arrest for intimidating behaviour. She told him he could not leave.
But Mr Turner got into his car and drove off, telling the Constable that he was going to run his dogs and that he would be back in half an hour. The Constable did not pursue him; she called additional officers to assist with his arrest upon his return — which he did, as promised.
Trial and sentence
Mr Turner’s trial took place at the New Plymouth District Court between 27 and 29 January 2020. The jury returned guilty verdicts for charges 1 (careless use of a motor vehicle) and 3 (escaping lawful custody), and a not-guilty verdict for charge 2 (intimidation). Mr Turner was sentenced to 175 hours’ community work on the lead charge of escaping custody and 60 hours’ community work on the careless use charge, to be served concurrently.[6]
Conviction appeal
[6]At [21].
Mr Turner’s appeal is brought under s 232 of the Criminal Procedure Act 2011 (CPA), which provides:
232 First appeal court to determine appeal
…
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
…
(c) in any case, a miscarriage of justice has occurred for any reason.
…
Subsection (4) relevantly defines “miscarriage of justice” as:
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
Mr Turner’s submissions on appeal challenged four aspects of the trial and verdicts. First, he says that the jury did not understand the question trail for the careless use charge. Secondly, Mr Turner essentially says that the jury’s verdicts on the charges were unreasonable. Thirdly, he complains of the court’s rules and physical environment. And finally, he challenges much of the trial evidence as “fake”.
Charge 1: question trail and unreasonable verdict
Section 8 of the Land Transport Act 1998 provides:
8 Drivers not to be careless or inconsiderate
A person may not drive a vehicle, or cause a vehicle to be driven, carelessly or without reasonable consideration for other persons
And s 37 provides:
37 Contravention of section 8
(1) A person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road.
(2) If a person is convicted of an offence against subsection (1),—
(a)the maximum penalty is a fine not exceeding $3,000; and
(b)the court may order the person to be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.
In Mr Turner’s case, the question trail relating to the careless use charge was as follows:
1.Are you sure Mr Turner was the driver of a blue Mitsubishi Chariot motor vehicle registration AZE407 on Stanners Street, Eltham on 11 December 2018?
If your answer is yes – go to question 2.
If your answer is no – find Mr Turner “not guilty.”
2. Are you sure that the Mitsubishi Chariot motor vehicle driven by Mr Turner hit the parked vehicle of Ms Waters?
If your answer is yes – go to question 3.
If your answer is no – find Mr Turner “not guilty.”
3. Are you sure that in hitting the parked vehicle of Ms Waters, Mr Turner failed to exercise the degree of care and attention that a reasonable and prudent driver would have in the circumstances?
If your answer is yes – find Mr Turner “guilty.”
If your answer is no – find Mr Turner “not guilty.”
Mr Turner says that the question trail fails to appropriately address the charge because it makes no reference to “injury”. He cites an episode of the New Zealand television show “Road Cops”, where, he says:
… In July a young man ran into the back of an SUV with a large Tow Bar, puncturing his radiator and doing extensive panel work damage, requiring a tow truck removal.
The Police officer in attendance said that the driver was lucky because if anyone was hurt a careless driving charge would have been issued, but as nobody was injured (only damage to the vehicle) only an infringement for following to close was issued (this incident took place on a motorway).
The only question for us is whether it was open to the jury on the evidence to convict Mr Turner on the careless use charge. Neither injury, damage, nor even actual contact with property or persons are necessary elements of that offence. A television show does not constitute authority to the contrary. Indeed, the Judge arguably set the threshold higher (and more favourably to Mr Turner) by framing his second question in terms of whether Mr Turner’s car “hit” Ms Waters car. We can discern no error in the other questions. And on the evidence of Ms Waters — which the jury was entitled to accept — it was open to the jury to answer “yes” to all three; the presence or absence of a scuff mark does not preclude that conclusion.
More importantly, however, in light of the conclusion we come later to on the sentence appeal — that Mr Turner should be discharged without conviction on this charge — the above issues are, effectively, moot.
Charge 3: unreasonable verdict
Mr Turner’s essential submission in relation to charge 3 is that if the “real evidence” shows that he is not guilty of charges 1 and 2, then he was arrested without cause and so was not escaping from lawful custody. He also says he believed that Constable Crago agreed to let him leave — the basis for this is that the Constable “just stood there” and “didn’t say no” after he explained that he was leaving to run his dogs and get petrol.
Mr Turner’s first point is wrong, as matter of law. An arrest is not rendered unlawful by virtue of the relevant charges not later resulting in a conviction. That is made clear by s 120(2) of the Crimes Act 1961, which provides:
(2)For the purposes of this section, custody under an illegal warrant or other irregular process shall be deemed to be lawful.
As well, the arrest power exercised here (under s 39 of the Summary Offences Act 1981) makes it clear that a warrantless arrest may be effected when a constable has good cause to suspect that a person has committed an offence against that Act.[7] Whether or not the charge is ultimately proven does not affect the lawfulness of an arrest under s 39. So even though Mr Turner was acquitted on charge 2, the arrest nevertheless constituted a lawful custody from which he undoubtedly escaped, albeit for a short time.
[7]Charge 2: intimidation under s 21 of the Summary Offences Act.
And as to the second point, the jury had evidence from Mr Turner himself (in both direct and cross-examination) that Constable Crago told him: (1) that he could not leave; (2) that he was under arrest; and (3) that he left anyway. That is all that the charge requires.
General points: court rules and physical environment
Mr Turner also complains that the air-conditioning in the courtroom was broken. He says that he was unable to make notes during recesses because he was taken to the cells without his materials. He takes issue with Constable Crago being allowed to remain in the courtroom despite an order that excluded all witnesses. And he says that his neighbour Ms Cindy Shadiack (a witness intended to be called by the Crown) sent an email to Constable Crago that he was not permitted to see.
We proceed on the basis that Mr Turner is correct in relation to the matters raised under his first two general points. But while we appreciate those difficulties, there is no obvious basis on which they could lead to a miscarriage of justice. We nevertheless put them on record.
As to the presence of Constable Crago in Court, s 197(1)(f) of the CPA prevents the Judge from excluding the officer in charge of the case. There is nothing in this point.
As to the last point, Ms Shadiack did, indeed, write an email in which she said that she did not wish to be a witness and that the proceedings were a waste of time. During the trial, the Judge issued a minute that read:[8]
[2] The first matter relates to an email from the witness Ms Shadiack to the constable in charge of the case, Constable Crago. Ms Milne has provided the Court with a copy. There is one piece of the email which is irrelevant and deals with an incident unrelated to this matter just prior to Christmas 2019.
[3] I have asked for that piece of the email to be redacted, otherwise the email has been given to Mr Turner. I am not sure what he is going to make of it as far as cross-examination is concerned but now that he has the document it will be a question of waiting and seeing and ensuring that any questions of Ms Shadiack around this email are relevant to the charges before the Court.
[8]R v Turner DC New Plymouth CRI-2018-021-830, 27 January 2020 (Minute No 2).
That Mr Turner was, in fact, given a copy of Ms Shadiack’s email, is clear from his cross-examination of Ms Shadiack, where he refers to its contents. Although not possible to say with certainty, it may well be that it was Ms Shadiack’s evidence that caused the jury to acquit Mr Turner on the intimidation charge.
Mr Turner clarified during the hearing before us that his actual complaint was that he had not been given the email earlier, and that he had to ask for it upon learning of its existence. Again, however, we do not need to get into the merits of this point. As just noted, Mr Turner was eventually provided with a copy of the email and seems to have turned it to his advantage. Any earlier non-disclosure (about which we express no view) could not have affected the outcome of the trial.
“Fake” evidence
Mr Turner continues to contest several parts of the evidence given by Ms Waters and Constable Crago. He points to several photos and his video evidence as proof. He also asked that we listen to the audio recording of the call made by Ms Waters to the police. We have done that.
Ultimately, however, we do not consider that the photos, video evidence or the audio recording assist. They are not a complete record of events. And in any event, they can only be relevant to the intimidation charge (on which Mr Turner was acquitted) or the careless use charge (for which we propose to discharge him without conviction). They shed no light on the escaping custody charge. There is no need to consider them further.
Sentence appeal
The Crown accepts that the concurrent sentence of 60 hours’ community work on the careless use charge was not available to the judge: the maximum penalty for that offence is a fine.[9] It is therefore necessary to quash that sentence and consider the matter afresh.
[9]Land Transport Act, s 37(2)(a).
Very properly, the Crown did not invite us to substitute a fine for the community work; that would have had the effect of increasing the overall sentence imposed. Indeed, Ms Ure, for the Crown, acknowledged that the careless use offending was at the very lowest end of the spectrum, meaning a conviction and discharge might be appropriate. But we have formed the view that we should go one step further and substitute a discharge without conviction under s 106 of the Sentencing Act 2002.
In deciding whether to discharge without conviction, s 107 of the Sentencing Act requires the court to assess the gravity of the offence, identify the direct and indirect consequences of conviction, and then consider whether those consequences are “out of all proportion” to the gravity of the offence.
Here, we are satisfied that the gravity of the careless use offence is very low. More specifically and importantly:
(a)The charge related to a momentary act of driving — lasting no more than the time it took Mr Turner to drive out of his driveway and park on the road.
(b)The only evidence of carelessness or absence of reasonable consideration was Ms Waters’ evidence that Mr Turner’s car bumped her car. And while we acknowledge that the jury must have accepted that this occurred (because of the way the question trail was framed), we think the “bump” could not have been more than the slightest contact. There was, at most, a faint mark on the bumper of Ms Waters’ car. And we are inclined to agree with Mr Turner that there was no unequivocal physical evidence even of that. Any “damage” there might have been was negligible.
In considering the consequences of a conviction, we must consider not just the effect of a conviction itself but also its indirect effects. In particular, Mr Turner advised, and we accept, that the 35 demerit points that flow from a careless use conviction would (combined with Mr Turner’s previous demerit points) result in his disqualification from driving. Mr Turner is a man in his 70s who lives in a small rural town. We have little doubt that being unable to drive would make his day to day life — including, potentially, compliance with his community work sentence — extremely difficult.
We consider that these indirect consequences would be out of all proportion to the seriousness of the careless use offending here. Mr Turner will accordingly be discharged without conviction on that charge.
Putting to one side Mr Turner’s challenge to his conviction on the escaping custody charge (which has not succeeded), he had no real issue with the community work sentence he received on that charge. We consider that it appropriately reflects the low level and slightly unusual nature of that offending. We do not consider that aspect of his sentence further.
Result
Mr Turner’s appeal against his conviction and sentence in relation to the charge of escape from lawful custody is dismissed.
His appeal on the careless use charge is allowed. He is discharged without conviction on that charge under s 106 of the Sentencing Act. The conviction on that charge is quashed.
Solicitors:
Crown Law Office, Wellington for Respondent
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