TURNBULL v NEW ZEALAND POLICE [2022] NZHC 776

TURNBULL v NEW ZEALAND POLICE [2022] NZHC 776 [13 April 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-000028[2022] NZHC 776BETWEEN SHANNON TURNBULLAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: D Henderson for the AppellantC A Brook for the RespondentJudgment: 13 April 2022JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 13 April 2022 at 2:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Crown Law (C A Brook), WellingtonCounsel: D Henderson, Dunedin[1] During the course of an audit of their files, Police identified irregularities inthe conviction of Shannon Turnbull for an offence under s 112(2)(a) of theTelecommunications Act 2001 of misusing a telephone device. Having pleaded guiltyto the charge, Mr Turnbull was convicted and ordered to pay $400 reparation to thevictim. The Police invited Mr Turnbull to file this appeal. They also consent to theconviction being quashed.Background[2] In September 2011, Mr Turnbull was charged with various offences involvingmultiple female complainants. One of the charges related to him sending an intimatephotograph of a 15-year-old girl by text message to her mother and some of his friends.[3] That charge was initially laid as an offence against s 124 of the Crimes Act1961 of distribution or exhibition of an indecent matter. At the time, the Attorney-General's consent was required before a prosecution could be commenced under thissection. This requirement was overlooked, and consent was neither sought norobtained.[4] The Crimes Act charge was subsequently amended to the charge under theTelecommunications Act (which did not require the Attorney-General's consent).Mr Turnbull pleaded guilty to the amended charge, was convicted and ordered to pay$400 reparation to the victim.Discussion[5] The Police acknowledge that the failure to obtain the Attorney-General'sconsent means there was no jurisdiction to proceed with the charge as laid. This taintsthe subsequent amendment and conviction. There is no guarantee the Attorney-General would have given consent had it been sought. Had it been refused,Mr Turnbull may not have been prosecuted at all for that conduct.[6] Further, it is at least arguable that the amended charge was nullity. The legaleffect of the failure to obtain consent is that the charge was nullity incapable of beingamended and, in any event, the "amendment" was not truly an amendment at all (anentirely different offence under a different Act was substituted). Had the Policewithdrawn the original charge and replaced it with a new charge under theTelecommunications Act there would be no issue, but that is not what has occurred.[7] In all the circumstances, I am satisfied that a miscarriage of justice hasoccurred. Although the appeal is significantly out of time, leave is granted toMr Turnbull to appeal. The conviction is quashed as is the order for reparation.Because Mr Turnbull has paid the reparation, the Police have advised they will repayMr Turnbull the $400 he paid the victim. No order is required in that regard.____________________________Woolford J