BUCKINGHAM v POLICE [2019] NZHC 855

BUCKINGHAM v POLICE [2019] NZHC 855 [16 April 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI 2018-483-13[2019] NZHC 855BETWEEN ELSIE EVE BUCKINGHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 15 April 2019 via AVLAppearances: No appearance for AppellantC C Wilkinson-Smith and R N Benic for RespondentJudgment: 16 April 2019JUDGMENT OF MALLON JIntroduction[1] Ms Buckingham was convicted of driving in a dangerous manner following ajudge-alone trial in the Whanganui District Court.1 She was sentenced to pay Courtcosts of $130, reparation payments of $300 and disqualified from holding or obtaininga driving licence for a period of three months commencing 10 December 2018.[2] Ms Buckingham filed an appeal against her conviction and sentence on10 December 2018. She also requested that her sentence be deferred until after theappeal. The appeal was set down for hearing on 4 February 2019. It has since beenadjourned a number of times, most recently to 15 April 2019. Ms Buckingham didnot appear at the scheduled hearing on that date, nor at the previous scheduled dates.1 Police v Buckingham [2018] NZDC 25628. The charge was under the Land Transport Act 1998,s 35(1)(b). It carries a maximum penalty of either three months' imprisonment or a fine notexceeding $4,500. The court must also disqualify the person from holding or obtaining a driverlicence for six months or more. This is subject to s 81 of the Act which allows the court not toorder disqualification or order disqualification for a period shorter than six months if there arespecial reasons relating to the offenceThe respondent seeks that the appeal be dismissed under s 338 of the CriminalProcedure Act 2011.Dismissal under s 338 of the Criminal Procedure ActProcedural background[3] After filing her appeal on 10 December 2018, the procedural history is asfollows:(a) The appeal was initially set down to be heard on 4 February 2019. Theappellant's submissions were due on 21 January 2019. These were notreceived. On 25 January 2019 the matter was adjourned to 14 February2019.(b) Ms Buckingham emailed the Court Registry on 13 February 2019. Shewanted a two month adjournment to get disclosure from WhanganuiPolice about a trespass order she had sought from them against a manwho had allegedly stalked and harassed her and who was known to KateKellick and Alex McKenzie (the complainants in this case). Thisinformation was arguably relevant to the issue of what Ms Buckinghambelieved to be the circumstances at the time of the alleged dangerousdriving incident on 30 January 2018 and therefore relevant to her self-defence argument. Ms Buckingham also said she was seeking a reportfrom a crash report in support of her appeal. The respondent did notoppose the adjournment request but sought a shorter timeframe for theadjournment than the two months that was sought. The parties weredirected to appear via AVL on 14 February 2019 so that a new date forhearing the appeal could be set and timetable directions could be made.(c) Ms Buckingham did not appear as directed on 14 February. Therespondent did not seek dismissal for want of prosecution but did seektimetabling directions for submissions, filing fresh evidence and leaveto adduce fresh evidence. The respondent confirmed that enquirieswould be made with the Police in order to respond to Ms Buckingham'sdisclosure requests as appropriate. The respondent indicated that adismissal would be sought if Ms Buckingham failed to appear again. Iissued a minute adjourning the appeal to 22 March 2019.2 Timetabledirections for submissions were also made. Noting thatMs Buckingham's emails to the Court could be viewed as submissions,she was directed to file any additional submissions, any new evidenceon which she wished to rely, and an application for leave to file newevidence by 8 March 2019.(d) Nothing was filed by Ms Buckingham by that date. Simon France Jissued a minute on 19 March 2019 stating that the appeal was "to becalled" on the 22 March 2019 as scheduled for the Judge at that time todetermine the next step.3(e) On 21 March 2019, an email was received from Ms Buckingham'sfather, Mr Holland. He had assisted Ms Buckingham as a McKenziefriend in the District Court trial. He said that Ms Buckinghamrequested another adjournment on the basis Ms Buckingham hadrequested that photographs be provided on a USB drive so that shecould use the zoom function. This was to enable Ms Buckingham'sexpert to look at the damage to the ute that she had been blamed for.Mr Holland said it would be pointless appearing until they had this.These photographs were provided to her by email, and posted inhardcopy, by the Court. Grice J declined the request on the basis thatSimon France J had already refused the adjournment and directed thatthe matter proceed as scheduled the following day.(f) Ms Buckingham did not appear on 22 March 2019. The respondentasked for the appeal to be dismissed under s 338 of the CriminalProcedure Act for the appellant's failure to comply with the proceduralorders fixed for the appeal. By minute issued 26 March 2019, Grice J2 Buckingham v Police HC Whanganui CRI 2018-483-13, 14 February 2019, Minute of Mallon J at[5].3 Buckingham v Police HC Whanganui CRI 2018-483-13, 19 March 2019, Minute of SimonFrance J (handwritten).noted that the Court must give the appellant 10 working days' notice ofits intention to dismiss the appeal under s 338.4 The minute recorded:[12] Ms Buckingham had notice of the 14 February and 22 March2019 dates for her appeal. She emailed the Court in advance of bothtwo hearings with reference to the dates. Two requests foradjournment of today's hearing were declined and she was advised.Regardless, she did not appear nor arrange for a lawyer to appear forher.[13] That said, I do not consider it appropriate to dismiss theappeals without notice that dismissal could be a consequence.Ms Buckingham is put on notice that the appeal would be dismissedif she does not appear on 15 April 2019 at 10am. This matter isadjourned to that date.[14] This minute serves as notice that this proceeding may bedismissed unless Ms Buckingham appears and the appeals proceed.(g) Mr Holland emailed the case officer on Monday 8 April 2019(submissions were due that day). He informed the Court thatMs Buckingham had only received the photographs she had requestedfrom Police and the Court the previous day despite having requestedthem weeks before. He said these photographs were required tocommission the expert crash report and they would be forwarded to thereport writer that week. He could not give a timeframe by when thereport would be completed. A further adjournment was sought becausethere would be no point in Ms Buckingham appearing without thereport. Mr Holland advised that he would update the Court about thetimeframe for the report in due course.(h) On 10 April 2019 I directed that the appeal was "to be called" asscheduled on 15 April 2019 at 10 am (although this direction wasconveyed by the Registry not precisely in these terms). When theappeal was called on that date, Ms Buckingham did not attend/appear.4 Buckingham v Police HC Whanganui CRI 2018-483-13, 26 March 2019, Minute of Grice J.The power to dismiss[4] An appeal court has the power to dismiss an appeal for non-compliance withprocedural orders under s 338 of the Criminal Procedure Act. That section provides:338 Power of appeal court to dismiss appeal for non-compliance withprocedural orders(1) Despite anything in subparts 2 to 10, an appeal court may dismiss anappeal if the appellant fails to comply with a timetable or otherprocedural orders fixed for the appeal.(2) Before dismissing an appeal under subsection (1), the appeal courtmust give the appellant 10 working days' notice of its intention todismiss the appeal.(3) The appeal court must not dismiss an appeal under subsection (1) ifthe appellant, after having been given notice under subsection (2),rectifies the non-compliance within the notice period given by thecourt.(4) A reference in any enactment other than this section to theabandonment of an appeal under this Act must, unless the contextotherwise requires, be read as including a reference to a dismissalunder subsection (1).(5) In this section, appeal includes an application for leave to appeal.[5] Ms Buckingham has failed to comply with timetabling and procedural mattersas outlined above. She has also failed to appear three times. It was therefore open toGrice J to put the appellant on notice of the consequences likely to arise from anyfurther failures to comply with procedure on appeal.[6] The Court of Appeal in Rakuraku v R held that even if the statutoryrequirements for dismissal under s 338 have been met, the Court retains a residualdiscretion whether to dismiss the appeal.5 The Court said:6[26] . In exercising that discretion, the court must be guided by theinterests of justice. An important consideration is the right to appeal accordingto law affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990. Butin enacting s 338, Parliament has recognised that the right to appeal is not anuntrammelled right and that the court may, when appropriate, dismiss anappeal for non-compliance with a timetable or procedural order. This no doubtrecognises that there are countervailing considerations relevant to the interestsof justice including the Crown's legitimate expectation that it should be5 Rakuraku v R [2016] NZCA 351 at [26].6 Above, per Randerson J for the Court.provided with adequate particulars of the grounds of appeal to enable a properresponse and the public interest in finality of court proceedings. The orderlyand efficient administration of the court is also a relevant considerationalthough the court would not normally dismiss an appeal under s 338 unlessthere had been serious, repeated and continuing non-compliance with thecourt's directions.[7] In deciding to dismiss the appeal in that case, the Court considered: the lengthof the delay (17 months since the appeal was filed); the fact that the proffered reasonwas an intention to apply for legal aid but this had not been pursued despite ampleopportunity; in the lower courts the Judges had been impressed with the appellant'sintelligence and abilities indicating that he would have been able to file points onappeal and submissions if he had been minded to do so; the victims and their familieswere entitled to expect the Court to deal with the appeal rather than to allow continueddelay and adjournments; there did not appear to be any basis on which the appealwould succeed; and it was reasonable to infer that the appellant had set out todeliberately mislead the Court and to frustrate the process.7My assessment[8] I am not prepared to grant the respondent's application for the appeal to bedismissed under s 338 for the following reasons:(a) A review of the cases shows that s 338 is commonly used where therehas been serious, repeated and continuing non-compliance with thecourt's directions and/or the appellant has demonstrated either a lack ofany real interest in pursuing the appeal or a tendency to delay the court'sprocesses without any demonstrable motivation to have the appealdetermined.8(b) The non-compliance in this case has not been as prolonged as in mostof the reviewed cases. The appeal was initially scheduled to be heardon 4 February 2019. That date was adjourned to 14 February and thento 22 March 2019.7 Above, at [27]-[29] and [39]-[40].8 See schedule of cases at end of judgment.(c) In hindsight, the adjournment to 22 March 2019 date was unnecessarilytoo short. Ms Buckingham was seeking disclosure and she wasintending to brief an expert. She had asked for an adjournment of twomonths. She was granted an adjournment of less than that. There wasno particular need for urgency, beyond the general interest in theorderly and efficient administration of the Court.(d) Ms Buckingham seems genuinely to want to pursue the appeal. Sheand her father have regularly contacted the Court asking foradjournments and have explained what further enquiries are beingcarried out.(e) Ms Buckingham did not have legal counsel in the District Court anddoes not have legal counsel now. She may not have appreciated theimportance of complying with Court directions and attending the Courtwhen directed to do so. It seems from Mr Holland's most recent emailthat they considered it was not worthwhile attending the Court whenMs Buckingham was not ready to present her appeal. It also appearsfrom the record of the District Court trial that she is distrustful of thePolice and possibly of the Court as well and that she does not cope wellwith the stress of the Court environment.(f) The direction given by Simon France J left what was to occur to theJudge scheduled to hear the appeal on 22 March 2019. He did notforeclose the possibility of a further adjournment beyond that date.(g) I do not read Grice J's direction given in her Minute dated 26 March2019 as requiring the appeal to be dismissed if Ms Buckingham did notappear at the expiry of the notice period she gave. Rather, it waspossible the appeal would be dismissed. I note the slightly varyingwording of [13] ("would") and [14] ("may") of that minute.9 A residualdiscretion remains under s 338 despite the jurisdiction for a dismissalarising and there is nothing in Grice J's minute to indicate she had9 Buckingham v Police, above n 4.already considered the factors relevant to the exercise of that discretion.That remained to be considered at the expiry of the notice period on15 April 2019.(h) For reasons outlined below, I consider there is merit in the appellant'sappeal.[9] I consider the better course is to consider the merits of the appeal on the papers.Written submissions from the respondent were filed and I also heard from therespondent orally at the hearing.The merits of the appealThe evidence[10] At around 9.30 am on 30 January 2018, Ms Buckingham was driving in herHonda Accord car down a section of Mangamahu Road which is about a 30 minutes'drive from Whanganui. This is a fairly remote and rural area. Kate Kellick and herpartner Alex McKenzie were also on that road at that time, herding a flock of 50 sheepwith the assistance of dogs up a slight incline with the road swinging to the left. Therewere no signs erected to warn motorists that stock was being moved. Ms Buckinghamwas travelling down the incline in the opposite direction, heading from her nearbyhouse into Whanganui.[11] Ms Kellick gave evidence that Ms Buckingham came towards their flock ofsheep. She thought Ms Buckingham was driving at a speed of maybe 50 km/h,although it was hard to tell and she was not sure. This distressed her flock, whichbegan to run in different directions separating and spreading themselves up the side ofthe bank. Mr McKenzie threw a rock at the windscreen of the car. Ms Buckinghamdrove through the flock, passed them by some 50-60 metres, did a u-turn and droveback along the road towards them.[12] Ms Kellick said she was standing in the middle of the road at this stage. Shewas not sure how fast the car was travelling but she was concerned for the safety ofherself, Mr McKenzie and her flock. She got out of the way by hopping over a woodenbarrier on the side of the road for fear of being run over. Ms Kellick saidMs Buckingham did not get very close to her before this.[13] Ms Kellick says Mr McKenzie was standing next to a Ford Ranger ute on thedriver's side. The ute was parked on the road beside the barrier. It was "pretty muchon the road 'cos you can't really get off the road there one of the wheels might havebeen in the dirt there". Ms Kellick saw Mr McKenzie go into the cab of the ute to getout of the way of the defendant's oncoming car. Ms Buckingham's car hit the side ofthe Ford Ranger, bounced off, and then she continued to drive back up the hill.Ms Kellick learned that Ms Buckingham had driven to a neighbour's house which wasabout 800 m-1 km from the accident.[14] Ms Kellick accepted it was stupid and dangerous for the rock to have beenthrown. She accepted she had been running towards Ms Buckingham's vehicle afterthe rock was thrown because she was angry with her for driving through the sheep.She accepted that Ms Buckingham was "in flight mode" and was "scared probably".She accepted that a few months earlier Ms Buckingham had driven through the sheepand tooted at them and, against the background, the rock was thrown because theywere being protective of their stock. She also accepted there was a background ofanimosity between Ms Buckingham's family and her family.[15] The Ford Ranger sustained minor panel damage to the bottom of the driver'sdoor and nearby mudguard, and a tyre rod on the front driver's wheel was snapped.[16] The Police were alerted to the incident. On 31 January 2018, the day after theincident, a Police Officer went to see the defendant about it. Ms Buckingham gavethe following statement which was recorded in the constable's notebook and read outin court:Elsie Buckingham states that is my full name. My date of birth is the .Yesterday morning I left home at about 9.15 am. After about 10 minutes Icame across about a dozen sheep and five dogs. There was a ute parked upagainst the barrier on the right-hand side of the road, this was outside theKellick address on Mangamahu Road at about 9.25 am. I saw a man standingnext to the driver's door of the ute. I don't know him but I have seen himbefore, I think he was a worker on the Kellick address. I'm pretty sure LucyKellick was in the passenger seat. Because of the sheep I slowed right downto about 35 kilometres per hour, the road is very narrow but the sheep were infront of the ute and adjacent to his door. There was room for me to drive pastwithout stopping. I saw the man raise his left arm, he was holding somethingin his hand then he threw something down at my windshield as I drove pastthem. It was an overarm throw, it was a rock about the size of a brick, it hitmy windshield and smashed it in the top right corner. I carried on about 50metres, I was panicking, I did a u-turn, Lucy was running down the road at mewaving her fists at me with her dogs. They don't like me because I tooted atthese sheep about three months ago when I came across them in the road. Ididn't think anything of it but they got real upset because I beeped my horn.I completed my u-turn as decided to go home. There was room for me to gopast. Lucy was waving her arms at me, she was screaming at me, I had mywindows up so I couldn't hear what she was saying. I was trying to avoid theanimals, I was terrified. I thought they were going to get me. I was lucky Ididn't crash off the road. I drove past Lucy, I saw the door, being the driver'sdoor, open. I don't even remember where the male was. I could have hit himit was so scary I felt like opening the door was trying to stop me going throughthere. It made me feel sick, what an arsehole, ow, yuk, they wanted to stopme and I thought they wanted to bash my head in. I drove on, I hit the ute onthe driver's side, I don't know what I hit but there was a big bang, it made thewhole car pull into the ute towards it and then I bounced off. I drove off onmy (inaudible 14:40:01) and went to their neighbours house, the old teacher.He drove me home and then dad picked up the car later. I was pretty close,under a metre when I was going past the ute. It was very narrow. My dad andLucy's dad had issues in the past, they have a lot of issues but that's not mybusiness, I don't like Lucy because of the way she reacted when I beeped myhorn at her sheep. She banged her fist on my bonnet. I think she stabbedsomeone and went to jail for home invasion. The rest of the Kellicks are good,I don't talk to them, but I wave at Kate if I see her. I didn't mean to hit theute, I only hit it because the man opened the door, I wasn't aiming for him, Ihope he wasn't hurt. I thought he was trying to block me in, that's so sick Ithought, I just had to get out of there. At the time I thought I'd smashed hisdoor off but I have no idea if I did or not. It was really scary, throwing thatrock was so unnecessary, I could have died, it was mental behaviour. I couldhave crashed off the edge as far as I'm aware I did not hit any of their animals.[17] At trial Ms Buckingham gave a similar account of the events. She said at thetime she thought the woman was Lucy but she now knew it was Kate. She said thatthe rock was thrown at her by Mr McKenzie before she had reached the flock. Therock had hit the left-hand side and came onto the driver's side. She was covered inglass. A photograph of the cracked windscreen was shown to her. It was put to herthat it did not appear that any glass had come through the screen. Ms Buckinghamsaid that some glass had come through.[18] Ms Buckingham reiterated that she was terrified for her life and frightened atwhat the two might do to her. She did a u-turn and decided to drive home because shecould not carry on with her plans for the day in Whanganui and needed to besomewhere safe. She disputed that Ms Kellick had jumped over a road barrier to avoidthe car. On her account, Ms Kellick ran down the road towards the car waving herarms and screaming with her dogs in tow. Mr McKenzie was standing by the ute withits door open. She thought he was trying to block her from getting past. She did notfeel safe from the family as they blamed her father for the death of their father. Shethought that Mr McKenzie must have shut the door before she hit the side of the car.She accepted there would have been enough room on the road to get past the carwithout hitting it, but there were sheep all over the road and dogs.[19] The Police saw Ms Kellick and Mr McKenzie on the day of the incident.Mr McKenzie and Ms Kellick did not want the Police to prosecute Ms Buckinghamfor the incident and neither gave a statement. Mr McKenzie was called to giveevidence but said he did not want to answer questions. He had wanted a mediationand did not want anyone to get into trouble. He had been offered diversion for his partin the incident. Similarly, although Ms Kellick gave evidence, she did so reluctantly.She said that right from the beginning she wanted a mediation and it was not going tobe helpful for Ms Buckingham to be charged. The Police Officer brought the chargeonly after Ms Buckingham had refused to speak to the Police about a mediation.Ms Buckingham's conduct at the trial[20] It is apparent from the transcript of the trial and the Judge's decision thatMs Buckingham was stressed and emotional at the trial and found the trial processdifficult. Recognising this, the Judge had allowed Mr Holland, who was present asher McKenzie friend, to take on a greater advocacy role than would normally beappropriate. During Mr Holland's questioning of the officer, the trial nearly derailed.Mr Holland alleged bad faith by the Police and, following exchanges by the Judgewith Mr Holland about this, Ms Buckingham made outbursts and said she wanted togo home. The Judge gave Ms Buckingham an opportunity to calm herself her down.The Judge was satisfied after this that the trial could proceed.District Court decision[21] The District Court Judge held the prosecution had proven their case beyond areasonable doubt. The Judge said that driving back at a distressed flock of sheep, twopeople, their dogs and vehicles. Ms Buckingham drove in a manner that caused oneof them to jump out of the way. She also had hit a parked ute with a person inside,even though there was enough room for her to drive past the ute as it was in the sameor similar position as it had been when Ms Buckingham had driven down the hill.[22] The Judge also held that there was no reasonable possibility that the defendantwas acting in self-defence under s 48 of the Crimes Act 1961 because it was not an actof self-defence for her to do a u-turn and drive back towards where the incident hadoccurred. The Judge said that even if it were, then the manner of driving would beunreasonable having regard to all the circumstances as Ms Buckingham believed themto be.[23] The Judge ordered Ms Buckingham to pay Court costs of $130, reparation of$300 and disqualified her from driving for three months. The Judge gave her a threemonth allowance from the mandatory disqualification period because of the specialcircumstance that a rock was thrown at her car and that this caused her to drive in themanner that she did.Submissions[24] Ms Buckingham's concerns with her conviction are discernible from thematerial she has submitted over the last few months. She says she was not able to becross-examined or tell "the story of the attack" on her. She is seeking expert evidencefrom a crash expert. I infer this will be directed to determining her speed at the timeand/or whether all the damage to the Ford Ranger was caused by Ms Buckingham.[25] However, her primary appeal ground seems to be the Judge's consideration ofthe circumstances as she believed them to be when she did her u-turn. She says herwindshield was broken and that she was covered in glass; she was frightened andfeared for her life; and she could not continue with the drive to Whanganui afterMr McKenzie had cracked her windshield by throwing a brick-sized rock at it; and therock thrown by Mr McKenzie occurred against the backdrop of other interactions withthe Whanganui Police, the two complainants and their families.[26] The respondent submits in reply:(a) That Ms Buckingham was cross-examined and her father was given theopportunity to cross-examine Ms Kellick and the Police Officer.Ms Buckingham was also given the opportunity to give evidence of herrecollection of the incident and put to the Judge her narrative of thecomplainant's attack.(b) As to self-defence:(i) The Judge acknowledged Ms Buckingham's subjectiveperception of the circumstances were that a brick-sized rock hadbeen hurled at her windshield and that she was being pursueddown the road by Ms Kellick. The Judge acknowledged thatshe was terrified for her life.(ii) However, the Judge correctly determined that Ms Buckinghamcould not have been acting in self-defence as she had done a u-turn and driven back into the perceived danger. The Judgecorrectly determined that as being inconsistent with defensiveaction.(iii) Further, the Judge correctly held that even if Ms Buckingham'sdriving could be viewed as defensive action, it was nonethelessunreasonable in the circumstances as she believed them to be.Ms Buckingham was shielded in her car while the complainantswere exposed on the road.(c) There was no miscarriage of justice arising from Ms Buckingham'sfather's advocacy role as McKenzie friend. This was permitted by theJudge for the benefit of Ms Buckingham given her emotional state.(d) The sentence was not manifestly excessive since the disqualificationperiod of three months was less than the six month minimum mandatedby the Land Transport Act. The Judge clearly turned his mind to thespecial circumstances Ms Buckingham was in and made allowances forthis.Approach to appeals against conviction[27] Section 232 sets out the approach to be taken on a first appeal againstconviction:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means 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 wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.Assessment[28] Ms Buckingham's contention that she was not cross-examined is not correctand seems to be a misunderstanding of the defended hearing process.[29] The Judge's determination that Ms Buckingham drove in a manner which,having regard to all the circumstances, is or might be dangerous to the public or to aperson cannot be impugned. Viewed objectively, she drove in a manner that wasdangerous to the complainants. Ms Buckingham appears to accept this.[30] The sole ground which she can and wants to advance is the Judge's assessmentof her claim on that she was acting in self-defence under s 48 of the Crimes Act.[31] The Judge correctly identified that assessing self-defence raises three relatedquestions. These are:10(a) What were the circumstances as the defendant believed them to be?This is a subjective test.(b) Did the defendant use force for the purpose of defending herself oranother? This is also a subjective test to be determined with referenceto the circumstances as the defendant believed them to be.(c) Was the force used reasonable in those circumstances? This is anobjective test taking into account the defendant's subjectiveunderstanding of the circumstances.[32] The Judge's view on these matters was briefly stated as follows:11[26] Firstly, what were the circumstances as the defendant believed themto be? I have already summarised those, drawn from her evidence today andher statement the day after the incident to Constable Ferguson.[27] However, in my view, it simply could not be self-defence to react inthe way that the defendant did. She stopped, undertook a u-turn, and droveback towards the incident. In my view, this simply cannot be an act of self-defence. Even if it was then the force used, that is the manner of driving,would be unreasonable, having regard to all the circumstances as she believedthem to be.[33] The circumstances as Ms Buckingham believed them to be were as follows:10 See, for example, Pakai v R [2016] NZCA 343 and the discussion in Adams on Criminal Law –Offences and Defences (online looseleaf ed, Thomson Reuters) at [CA48].11 Police v Buckingham, above n 1.(a) a brick-sized rock had been hurled at the car and smashed herwindshield (which Ms Kellick accepted was a dangerous act and wasstupid and should not have occurred);(b) with a smashed windshield she did not think she could continue drivingsome 30 km into Whanganui and continue her day (the photographsindicate most of the left-hand side of the glass was shattered) and shewas covered in glass (this appears to be an exaggeration on the basis ofthe photos but it may nevertheless be what Ms Buckingham thought inher panicked state at the time).(c) there was a background of animosity between the complainant's familyand her family;(d) a few months earlier, Ms Buckingham had driven through the sheep,tooting at them, and this had caused Ms Kellick to hit the bonnet ofMs Buckingham's car;(e) she feared for her life (Ms Kellick agreed that Ms Buckingham "was inflight mode, she was scared probably") and felt she needed to getsomewhere safe (consistent with this, she drove to a nearbyneighbouring house after she had collided with the ute);(f) she perceived Ms Kellick as running down the road at her screamingand waving her hands in the air with her five dogs in tow (Ms Kellickaccepted she had been running towards Ms Buckingham, screaming ather after the rock was thrown, because she was "angry" aboutMs Buckingham coming through the sheep); and(g) she perceived Mr McKenzie was trying to block the road by leaving hiscar door open.[34] In those circumstances as she believed them to be it is arguable thatMs Buckingham's decision to do a u-turn and drive back up the hill could be regardedas a defensive act. She subjectively felt as though she could not continue to drive.This is objectively understandable given the distance she would have to drive and thefact her windshield was cracked. Once she had stopped, she could not remainstationary given the complainants had hurled a rock at her, one of them was runningdown the hill at her, the other was standing beside a large and powerful vehicle, andthe background of animosity between the complainant's and appellant's families. Inthose circumstances it is arguable that Ms Buckingham's decision to drive back up thehill was defensive. The Judge's reasons do not indicate why he dismissed theseconsiderations.[35] It is also arguable that the force she used (the manner of her driving once shehad decided she needed to get to safety and had turned to drive back up the hill) wasreasonable force in the circumstances as she believed them to be. The force she usedwas to drive back at a pace which caused one person to hop over the barrier (butimmediately before that this person had been screaming and waving her hands atMs Buckingham on her account, the barrier at the side of the road is not high and theperson hopped over the barrier well before Ms Buckingham drove past). It also causedanother person to hop back into his ute (but Ms Buckingham thought he was trying tostop her and once he was inside his large ute it was presumably possible that he mightchase her). It also caused Ms Buckingham to hit the ute (this appears not to have beenintentional, but was rather a glancing of the side of the ute in Ms Buckingham'spanicked state). Again, the Judge's reasons do not indicate why he dismissed theseconsiderations.[36] I consider there is a real risk that the outcome of the trial was affected because:the Judge erroneously took the view that a u-turn towards the danger could not be anact in self-defence (when, as I have discussed, the circumstances as Ms Buckinghamunderstood them to be explained why she took this approach to the danger); and tookthe view that the driving was too dangerous to be reasonable force (when, as I havediscussed, the circumstances as Ms Buckingham understood them to be put the natureof her driving in perspective). I note that neither Ms Kellick or Mr McKenzie wereinjured by the driving and the damage to the ute was also described by the officer asminor. Those three were all willing to have the matter resolved by mediation, whichwas a sensible proposal from them in the circumstances.[37] I therefore consider the conviction appeal should be allowed. It is notnecessary to wait for the crash investigation report that is being obtained byMs Buckingham. Indeed I would have informed Ms Buckingham of that had sheattended when directed to do so.[38] Because I consider the conviction appeal should be allowed, it is not necessaryto consider the sentence appeal. However, the fact that Ms Kellick, Mr McKenzie andthe Police all wished to have the matter resolved by mediation, and that Mr McKenziereceived diversion for his role in the incident, does raise an issue about whether aconviction was necessary in all the circumstances.Result[39] The respondent's application under s 338 of the Criminal Procedure Act isdismissed.[40] Ms Buckingham's appeal against conviction is allowed and her sentence isquashed. The usual order when a conviction appeal is allowed is to order a retrial.However, it is not clear that it is in the interests of justice to do so for a number ofreasons, including that Ms Buckingham's disqualification period has, as I understandit, expired. If the respondent seeks an order for retrial, it is to advise the Court within14 days. Depending on the respondent's position, it may then be necessary to seeksubmissions from Ms Buckingham about this.Mallon JSchedule of cases determined by s 338 dismissalsPorter v R [2019]NZCA 46• 20 Feb 2019 –Notice of appeal filed. Grounds of appeal not stated.Failed to respond to Registry enquiry.• 19 Nov 2018 – directed to file detailed grounds no later than 14 Dec 2018(not done).• 11 Feb 2019 – Provided 10 day notice under s 338(2).• 12 Mar 2019 – Appeal dismissed.Lau v AucklandCouncil [2019]NZCA 15• 19 Jan 2018 – applied for leave to appeal against pre-trial decision but didnothing to advance the application.• Subsequently accepted a sentence indication and pleaded guilty tocharges and sentenced to imprisonment.• 29 Nov 2018 – provided 10 day notice under s 338(2) regarding appealagainst moot pre-trial decision.• 5 Dec 2018 – wrote to Registrar saying he was unable to make decisionon appeal and wished he may take legal advice.• 17 Dec 2018 – minute directing submissions by 20 Dec 2018 and giving s338(2) notice of dismissal if no submissions were made.• 21 Feb 2019 – Appeal dismissed (appeal without merit and is moot).Mitchell v Police[2019] NZHC178• 5 Jun 2018 – filed appeal against conviction.• 26 Sep 2018 – Court issued notice of hearing on 23 Oct 2018.• 19 Oct 2019 – counsel advised of provisional grant of legal aid toadvance appeal, asked to withdraw and requested adjournment to allowappellant to file documents as self-represented litigant.• 23 Oct 2018 – Court adjourned appeal till 11 Dec 2018 and directedappellant to file points of appeal and other documents by 2 Nov 2018.• 31 Oct 2018 – letter to Court from appellant seeking more time.• 5 Nov 2018 – Court direction vacating appeal date of 11 Dec 2018 andrequiring grounds of appeal by 30 Nov 2018, gave s 338(2) notice ofdismissal for non-compliance.• 8 Nov 2018 – appeal set for hearing on 4 Feb 2019.• 27 Nov 2018 – Court sent appellant letter referring to minute anddirection that appeal points be filed by 30 Nov 2019.• 30 Nov 2019 – no appeal points received.• 25 Jan 2019 – appellant filed document that might have been consideredpoints of appeal.• 4 Feb 2019 – at hearing, both sides indicated they were not ready toproceed given the document submitted by the appellant.• 15 Feb 2019 – Judge considered merits of appeal and then dismissed theappeal under s 338.Johnson v Police[2018] NZHC1790• 23 Sep 2016 – pleaded guilty.• 9 Aug 2017 – appeal against conviction on grounds that Judge was wrongto decline to grant an adjournment and that she pressured to plead (appeal11 months out of date).• Application for leave before Court on two occasions: first occasion, on 26Oct 2017, no submissions had been filed in support. Matter wasadjourned to 7 Dec 2017. On 5 Dec 2017, J sought further adjournment toadvance two further grounds of appeal. Matter vacated and adjourned.• 13 Mar 2018 – application for leave hearing. Granted following day. Tobe called on 24 May 2018.• 22 May 2018 – further adjournment of two months sought in order forPublic Defence Service (PDS) to obtain privilege waiver from theappellant.• 19 Jul 2018 – no waiver provided by J. Judge considered the historyshowed no interest in appeal. Appeared to be an abuse of process.• Appeal dismissed 10 days after notice given.Young v DistrictCourt at• 16 Dec 2015 – leave to appeal against name suppression decision.• 10 Mar 2016 – applicant indicated that application for leave to appealwould be abandoned but no notice of abandonment was filed, no stepsHamilton [2017]NZSC 60taken to progress matter in a timely manner.• 11 Apr 2017 –10 day notice under s 338(2) given.• 3 May 2017 – no response received, appeal dismissed.Emmerson v R[2017] NZCA101• 23 Oct 2015 – convicted in DC.• 8 Dec 2015 – filed notice of appeal.• 21 Mar 2016 – court directed full particularised grounds of appeal to befiled within 14 days of legal aid being decided.• 16 Apr 2016 – court gave 28 day extension with grounds to be filed by 14May 2016.• 23 Jun 2016 – no compliance with above, court found out that interimlegal aid had been granted, court extended time for compliance to 25 Jul2016.• 25 Jul 2016 – case officer advised that counsel no longer acting.• 2 Aug 2016 – court directed particularised grounds to be filed within 21days.• 8 Sep 2016 – court advised that legal aid had been withdrawn.• 13 Sep 2016 – final opportunity given with another 21 days extensionwith notice of dismissal for want of compliance also given. Given s338(2) notice.• 26 Sep 2016 – letter to court indicating difficulties in getting "positivemomentum" in appeal and access to material.• 6 Oct 2016 – court told E of what was required for particularised groundsof appeal, granted further 21 day extension.• 16 Mar 2017 – Crown filed memorandum asking for s 338 dismissal andnoted non-compliance.• 11 Apr 2017 – appeal dismissed for non-compliance. Ample opportunitieshad been given, no merit in appeal, and appeal a burden to thecomplainants.Tuirangi v Police[2017] NZCA571• 19 Dec 2016 – application for leave to bring second appeal.• 17 Feb 2017 – submissions due but not received.• 20 Mar 2017 – legal aid declined.• 6 Sep 2017 – counsel appointed to identify whether any grounds could beadvanced and to make submission.• 8 Sep 2017 – met with counsel who gathered that T no longer wanted topursue appeal.• 24 Nov 2017 – deadline for compliance, notice given under s 338(2) ofthe CPA on 18 Oct 2017.• 7 Dec 2017 – appeal dismissed.Radich v Police[2017] NZHC3013• 4 Jul 2017 – filed notice of appeal against conviction.• Callover – failed to appear and appeal set for hearing on 14 Sep 2017.• 14 Sep 2017 – appeared but failed to file submissions as directed, advisedcourt that counsel instructed, matter adjourned, court advised appellantthat strict adherence needed lest appeal be struck out.• 21 Sep 2017 – failed to appear as directed, adjourned to following week.• 28 Sep 2017 – appeared at callover and informed court that he hadinstructed counsel, directions given for submissions.• 9 Nov 2017 – failed to appear as instructed for callover, notice givenunder s 338(2).• 6 Dec 2017 – appealed dismissed for failure to comply.Rakuraku v R[2016] NZCA351• 7 April 2014 – pleaded guilty after receiving sentence indication,sentenced on 6 Nov 2014.• 12 Dec 2014 – sentenced after being found guilty of separate set ofcharges in a jury trial.• 19 Feb 2015 – filed appeal against conviction.• 1 Dec 2015 – appeal case management, appeals to be heard together,directions set for submissions and affidavits.• 23 Feb 2016 – non-compliance with deadlines and timetable directions,further time requested to prepare submissions, eight month adjournmentsought, Court said too long and directed submissions to be filed by 6April 2016.• 15 April 2016 – non-compliance with directions, directed furtheradjournment and set timetabling directions. Court said it was prepared togive further extension if appellant requested.• 12 May 2016 – Court said that consideration would be given to 10 day s338 notice if there was further non-compliance. Court noted that appellanthad not made legal aid application.• 2 Jun 2016 – appellant ordered to appear, did appear by AVL, said that hehad applied for legal aid but inquiries revealed that no application hadbeen received by Legal Services. Crown opposed application foradjournment, Crown asked the appeal to be dismissed on s 338 grounds.Court did not dismiss, gave appellant one final opportunity to retainlawyer and file points on appeal with supporting submissions. Appealadjourned. Section 338(2) notice given.• 8 Jul 2016 – minute recording that there had been no compliance asrequired by s 338 order. Matter to be called as scheduled to give appellantopportunity to make submissions about dismissal under s 338.• 21 July 2016 – appellant appeared by AVL. He had not complied withtimetabling directions and orders from last hearing, appellant told thecourt that he would pursue the matter in the Supreme Court.• CA dismissed appeals considering a range of factors (as discussed at [7]of the judgment in Buckingham v Police above).Parker v Police[2015] NZHC1103• Background not detailed in judgment.• 4 May 2015 – non-appearance, no submissions, no adjournment sought.Issued with 10 day notice by court under s 338(2).• 13 May 2015 – within 10 days the appellant emailed the court but did notexpand on, explain or articulate anything about his appeal. Also sentfollow up email linking youtube.com videos as footnotes.• 21 May 2015 – appeal struck out. Email could not be regarded, in anysense, to be submissions.Moseley v Police[2014] NZHC972• 20 Jan 2014 – changed lawyers.• 17 Mar 2014 – hearing date did not proceed.• 3 Apr 2014 – did not appear as directed.• 7 May 2014 – the legal services officer in Dunedin confirmed thatappellant had not replied to requests.• 9 May 2014 – dismissal under s 338.Ellis v R [2013]NZCA 185Leave to appealagainst thisdismissed bySupreme Court inEllis v R [2013]NZSC 95.• 26 Oct 2011 – filed appeal.• Oct 2012 – appellant had failed for some 10 months to comply withdirections, told that there would s 338 dismissal if there was continuednon-compliance.• Two further minutes dealing with procedural directions issued (on 5 Feb2013 and 16 Apr 2013).• 16 Apr 2013 – gave notice under s 338.• 20 May 2013 – claimed he had not received any of the minutes.• 30 May 2013: appeal dismissed. Specific notice given more than once.No merit in appeal at all.Mackrell v R[2012] NZCA464• Convicted in 26 Sep 1997, appealed and then abandoned both appeals on15 Sep 1998.• 20 Jul 2011 – purported to file a further appeal, directed to file anapplication to set aside the notice of abandonment and file application forextension of time to appeal.• 6 Sept 2012 – did not file papers as directed and was given s 338(2)notice.• 5 Oct 2012 – appeal dismissed.