TURNER v R [2020] NZCA 414

TURNER v R [2020] NZCA 414 [14 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA146/2020[2020] NZCA 414BETWEEN IAN BASIL TURNERAppellantAND THE QUEENRespondentHearing: 1 September 2020Court: Goddard, Ellis and Dunningham JJCounsel: Mr Turner in personC Ure for RespondentJudgment: 14 September 2020 at 2.00 pmJUDGMENT OF THE COURTA The appeal against conviction and sentence in relation to the charge ofescape from lawful custody is dismissed.B The appeal on the careless use charge is allowed.C Mr Turner is discharged without conviction on the careless use charge.D The conviction on the careless use charge is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Mr Turner appeals his conviction and sentence for:1(a) careless use of a motor vehicle;2 and(b) escape from lawful custody.3[2] He was acquitted at trial on a further charge of intimidation, arising out of thesame incident.4[3] Mr Turner was self-represented in this appeal, as he was at his trial.Background[4] 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 outsideMr Turner's home. Mr Turner was about to run his two dogs; he had to move one ofhis cars out of his driveway to take the dogs out in a second car. He backed the firstcar out and parked behind, and very close to, Ms Waters' car.[5] Ms Waters gave evidence that she felt and heard Mr Turner's car hit the backof her car (the Judge noted at sentencing that this must have been slight contact).5Ms Waters got out to have a look; she considered there were slight marks on thebumper of her car.[6] Mr Turner and Ms Waters then argued. Ms Waters said Mr Turner becameabusive. Ms Waters got back into her car. Mr Turner then drove the second car out ofthe driveway and parked it close to the front of Ms Waters' car, preventing her from1 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 discretionarydisqualification from holding or obtaining a driver's licence).3 Crimes Act 1961, s 120 (maximum penalty 5 years' imprisonment). Because a charge under s 120is a category 3 offence and because Mr Turner elected trial by jury, the first appeal court isthis Court: Criminal Procedure Act 2011, s 230(1)(b)(i).4 Summary Offences Act 1981, s 21 (maximum penalty 3 months' imprisonment or $2,000 fine).5 R v Turner [2020] NZDC 4127 [Sentencing judgment] at [4].leaving easily. He put his dogs in the car. Her evidence at trial was that she felttrapped. Mr Turner appeared to be filming her.[7] Ms Waters called the police from her car. Constable Crago arrived and spokewith 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 toldhim that he was under arrest for intimidating behaviour. She told him he could notleave.[8] But Mr Turner got into his car and drove off, telling the Constable that he wasgoing to run his dogs and that he would be back in half an hour. The Constable didnot pursue him; she called additional officers to assist with his arrest upon his return— which he did, as promised.Trial and sentence[9] Mr Turner's trial took place at the New Plymouth District Court between27 and 29 January 2020. The jury returned guilty verdicts for charges 1 (careless useof a motor vehicle) and 3 (escaping lawful custody), and a not-guilty verdict forcharge 2 (intimidation). Mr Turner was sentenced to 175 hours' community work onthe lead charge of escaping custody and 60 hours' community work on the carelessuse charge, to be served concurrently.6Conviction appeal[10] 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 ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or6 At [21].(c) in any case, a miscarriage of justice has occurred for anyreason.[11] Subsection (4) relevantly defines "miscarriage of justice" as: any error, irregularity, or occurrence in or in relation to or affectingthe 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.[12] Mr Turner's submissions on appeal challenged four aspects of the trial andverdicts. First, he says that the jury did not understand the question trail for thecareless use charge. Secondly, Mr Turner essentially says that the jury's verdicts onthe charges were unreasonable. Thirdly, he complains of the court's rules and physicalenvironment. And finally, he challenges much of the trial evidence as "fake".Charge 1: question trail and unreasonable verdict[13] Section 8 of the Land Transport Act 1998 provides:8 Drivers not to be careless or inconsiderateA person may not drive a vehicle, or cause a vehicle to be driven,carelessly or without reasonable consideration for other persons[14] And s 37 provides:37 Contravention of section 8(1) A person commits an offence if the person operates a vehicle on a roadcarelessly or without reasonable consideration for other persons usingthe 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 fromholding or obtaining a driver licence for such period as thecourt thinks fit.[15] In Mr Turner's case, the question trail relating to the careless use charge wasas follows:1. Are you sure Mr Turner was the driver of a blue Mitsubishi Chariotmotor vehicle registration AZE407 on Stanners Street, Eltham on11 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 byMr 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 thata 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."[16] Mr Turner says that the question trail fails to appropriately address the chargebecause it makes no reference to "injury". He cites an episode of the New Zealandtelevision 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, requiringa tow truck removal.The Police officer in attendance said that the driver was lucky because ifanyone was hurt a careless driving charge would have been issued, but asnobody was injured (only damage to the vehicle) only an infringement forfollowing to close was issued (this incident took place on a motorway).[17] The only question for us is whether it was open to the jury on the evidence toconvict Mr Turner on the careless use charge. Neither injury, damage, nor even actualcontact with property or persons are necessary elements of that offence. A televisionshow does not constitute authority to the contrary. Indeed, the Judge arguably set thethreshold higher (and more favourably to Mr Turner) by framing his second questionin terms of whether Mr Turner's car "hit" Ms Waters car. We can discern no error inthe other questions. And on the evidence of Ms Waters — which the jury was entitledto accept — it was open to the jury to answer "yes" to all three; the presence or absenceof a scuff mark does not preclude that conclusion.[18] More importantly, however, in light of the conclusion we come later to on thesentence appeal — that Mr Turner should be discharged without conviction on thischarge — the above issues are, effectively, moot.Charge 3: unreasonable verdict[19] 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 arrestedwithout cause and so was not escaping from lawful custody. He also says he believedthat Constable Crago agreed to let him leave — the basis for this is that theConstable "just stood there" and "didn't say no" after he explained that he was leavingto run his dogs and get petrol.[20] Mr Turner's first point is wrong, as matter of law. An arrest is not renderedunlawful by virtue of the relevant charges not later resulting in a conviction. That ismade clear by s 120(2) of the Crimes Act 1961, which provides:(2) For the purposes of this section, custody under an illegal warrant orother irregular process shall be deemed to be lawful.[21] As well, the arrest power exercised here (under s 39 of the Summary OffencesAct 1981) makes it clear that a warrantless arrest may be effected when a constablehas good cause to suspect that a person has committed an offence against that Act.7Whether or not the charge is ultimately proven does not affect the lawfulness ofan arrest under s 39. So even though Mr Turner was acquitted on charge 2, the arrestnevertheless constituted a lawful custody from which he undoubtedly escaped, albeitfor a short time.[22] 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 could7 Charge 2: intimidation under s 21 of the Summary Offences Act.not leave; (2) that he was under arrest; and (3) that he left anyway. That is all that thecharge requires.General points: court rules and physical environment[23] Mr Turner also complains that the air-conditioning in the courtroom wasbroken. He says that he was unable to make notes during recesses because he wastaken to the cells without his materials. He takes issue with Constable Crago beingallowed 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 bythe Crown) sent an email to Constable Crago that he was not permitted to see.[24] We proceed on the basis that Mr Turner is correct in relation to the mattersraised 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.[25] As to the presence of Constable Crago in Court, s 197(1)(f) of the CPA preventsthe Judge from excluding the officer in charge of the case. There is nothing in thispoint.[26] As to the last point, Ms Shadiack did, indeed, write an email in which she saidthat 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 tothe constable in charge of the case, Constable Crago. Ms Milne has providedthe Court with a copy. There is one piece of the email which is irrelevant anddeals 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 theemail has been given to Mr Turner. I am not sure what he is going to make ofit as far as cross-examination is concerned but now that he has the documentit will be a question of waiting and seeing and ensuring that any questions ofMs 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).[27] That Mr Turner was, in fact, given a copy of Ms Shadiack's email, is clear fromhis cross-examination of Ms Shadiack, where he refers to its contents. Although notpossible to say with certainty, it may well be that it was Ms Shadiack's evidence thatcaused the jury to acquit Mr Turner on the intimidation charge.[28] Mr Turner clarified during the hearing before us that his actual complaint wasthat he had not been given the email earlier, and that he had to ask for it upon learningof 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 seemsto have turned it to his advantage. Any earlier non-disclosure (about which we expressno view) could not have affected the outcome of the trial."Fake" evidence[29] Mr Turner continues to contest several parts of the evidence given byMs Waters and Constable Crago. He points to several photos and his video evidenceas proof. He also asked that we listen to the audio recording of the call made byMs Waters to the police. We have done that.[30] Ultimately, however, we do not consider that the photos, video evidence or theaudio 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 wasacquitted) or the careless use charge (for which we propose to discharge him withoutconviction). They shed no light on the escaping custody charge. There is no need toconsider them further.Sentence appeal[31] The Crown accepts that the concurrent sentence of 60 hours' community workon the careless use charge was not available to the judge: the maximum penalty forthat offence is a fine.9 It is therefore necessary to quash that sentence and consider thematter afresh.9 Land Transport Act, s 37(2)(a).[32] Very properly, the Crown did not invite us to substitute a fine for thecommunity work; that would have had the effect of increasing the overall sentenceimposed. Indeed, Ms Ure, for the Crown, acknowledged that the careless useoffending was at the very lowest end of the spectrum, meaning a conviction anddischarge might be appropriate. But we have formed the view that we should go onestep further and substitute a discharge without conviction under s 106 of theSentencing Act 2002.[33] In deciding whether to discharge without conviction, s 107 of theSentencing Act requires the court to assess the gravity of the offence, identify thedirect and indirect consequences of conviction, and then consider whether thoseconsequences are "out of all proportion" to the gravity of the offence.[34] 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 morethan the time it took Mr Turner to drive out of his driveway and parkon the road.(b) The only evidence of carelessness or absence of reasonableconsideration was Ms Waters' evidence that Mr Turner's car bumpedher car. And while we acknowledge that the jury must have acceptedthat this occurred (because of the way the question trail was framed),we think the "bump" could not have been more than the slightestcontact. 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 nounequivocal physical evidence even of that. Any "damage" there mighthave been was negligible.[35] In considering the consequences of a conviction, we must consider not just theeffect of a conviction itself but also its indirect effects. In particular, Mr Turneradvised, and we accept, that the 35 demerit points that flow from a careless useconviction would (combined with Mr Turner's previous demerit points) result in hisdisqualification from driving. Mr Turner is a man in his 70s who lives in a small ruraltown. We have little doubt that being unable to drive would make his day to day life— including, potentially, compliance with his community work sentence — extremelydifficult.[36] We consider that these indirect consequences would be out of all proportion tothe seriousness of the careless use offending here. Mr Turner will accordingly bedischarged without conviction on that charge.[37] Putting to one side Mr Turner's challenge to his conviction on the escapingcustody charge (which has not succeeded), he had no real issue with the communitywork sentence he received on that charge. We consider that it appropriately reflectsthe low level and slightly unusual nature of that offending. We do not consider thataspect of his sentence further.Result[38] Mr Turner's appeal against his conviction and sentence in relation to the chargeof escape from lawful custody is dismissed.[39] His appeal on the careless use charge is allowed. He is discharged withoutconviction on that charge under s 106 of the Sentencing Act. The conviction on thatcharge is quashed.Solicitors:Crown Law Office, Wellington for Respondent