Turner v Police [2012] NZHC 274 (24 February 2012)

High Court of New Zealand

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Turner v Police [2012] NZHC 274 (24 February 2012)

Last Updated: 12 March 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

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

BETWEEN IAN BASIL TURNER Appellant

AND NEW 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 he was, um, doing, saying all that I managed to obtain a breath sample, I just held it close to his mouth, held it close to his mouth and obtained a breath sample while he was yelling.

[7] Constable Temperton found that the breath sample returned a zero result and he advised the appellant of that.

[8] The tension in the situation faced by the constable was heightened by the presence in the appellant‟s vehicle of three large dogs. The constable gave evidence that the dogs lunged towards the window in his direction several times and that the appellant was backhanding them in the head and yelling at them to get back.

[9] The constable‟s evidence continued:3

Um, well I showed Mr Turner the result and that was zero and, um, and he continued his tirade and I was, I said to him that, um, bells just started ringing in my head about his behaviour. I was concerned about his behaviour and I said to him that, that I was going to go check his licence in the computer system.

[10] Constable Temperton said that he began to walk to his patrol vehicle in order to use the radio to check the licence. He wanted to check whether the appellant was disqualified from driving, whether there was an active warrant for his arrest or whether there were other matters which might be of interest to the Police. The constable‟s evidence continued:4

Um, I told him that and, um, then I proceeded to walk towards my patrol vehicle, that would have been about five metres in front of the defendant‟s vehicle on the, parked on the side of the road, um. The defendant he continued to yell, um, but the further I got away it seemed to get louder, almost screaming, um, out his window. Um, I didn‟t make it to my patrol vehicle. I turned around, um, I was concerned with his behaviour, um, it was becoming unacceptable, very loud, a residential area and there were cars stopped nearby as well. So I went back, stopped beside his vehicle near the

wing mirror and very politely stated to him that he calm down, take this, I advised him to take this couple of minutes that I‟m going to take to check his licence out to calm down. I had been thinking, um, that I may have to forbid the driver to drive because of his, um, unacceptable behaviour, very aggressive nature, um, and I was thinking along those lines and forewarning him and anyone that I had come across, um, to give them the opportunity to calm down.

[11] Constable Temperton accepted that he did not advise the appellant that he was considering forbidding him from driving.

[12] Constable Temperton gave evidence that the appellant told him that he would not “fuckin‟ calm down” and that he had had enough of the constable:5

He then sort of lent towards his door handle and it looked like he was gonna open the door. At that stage he was shaking, he was very red because he had been yelling for quite some time and I was concerned with his behaviour, um, and he reached for his door and I‟d said to him, directly, I said, um, for him to stay in his vehicle.

[13] The constable was asked whether there was any issue with the appellant getting out of his vehicle, to which the constable replied:6

Yeah, I was concerned, um, with his behaviour, um, also the three dogs that were in there I was, I believed, um, that his aggressive nature that he would be a threat to myself, a risk, um, to the public, it‟s a residential area. I believed if he had got out of the vehicle that he was going to assault me and the dogs was a big thing, um, they seemed to be, um, sparking up, they lunged towards the door when he first went to go to the door. Um, he managed to get the door slightly ajar.

[14] The constable went on to give evidence that with the door open slightly he realised that the appellant was going to come out. Constable Temperton said that he told the appellant “maybe three times” to stay in the car and that he stepped in front of the door to hold him there, again telling him to stay in the car. At that point he had raised his voice and was speaking loudly. Constable Temperton said that he did not try to force the door closed but was just holding it and was telling the appellant to close the door. He said he had his hands on the door and one leg against it. He

yelled to Constable Brown to come and help him:7

... but at that point in time, um, I found myself, um, going, well catapulted backwards really, um, and I realised then that, um, the driver, the defendant, he must have opened the door with considerable force, um, I went flying backwards, feet off the ground, um, across the west, across the eastbound lane and into the westbound lane falling into the opposite side of the road to where I was.

[15] Constable Temperton said that he found himself lying on the road and that the appellant had got out of his car. Constable Brown arrived and confronted the appellant while Constable Temperton picked himself up off the road and went to help.

[16] Constable Temperton‟s evidence was that he himself had yelled to the appellant that he was under arrest and that Constable Brown reminded the appellant of that and told him to put his hands behind his back. The constable‟s evidence was that the appellant refused to put his arms behind his back and started to walk away. Constable Brown grabbed one of the appellant‟s wrists but the appellant continued to walk and started to “thrash” with his free arm. The appellant was yelling, saying that he had not done anything. Constable Temperton said that he tackled the appellant around the waist and the two constables managed to get him to the ground. The appellant refused to put his hands behind his back but eventually the two constables managed to apply handcuffs to him. He was then taken to the Police Station and charged.

[17] The second witness to give evidence for the prosecution was Constable Brown. He said that at the relevant times he was dealing with traffic coming the other way and was on the opposite side of the road to Constable Temperton. He was aware that the appellant‟s vehicle had been stopped and he could hear the sound of raised voices. He turned to see what was happening and saw that the appellant appeared to be shouting at Constable Temperton. He could not hear what was being said because of the distance. He saw Constable Temperton walk away from the appellant‟s vehicle towards his patrol car and then he was distracted by a vehicle approaching in his direction. The next time he looked he saw that Constable Temperton had gone back to the appellant‟s vehicle and was standing beside the driver‟s door, apparently holding it shut. He said that both the appellant and

Constable Temperton appeared to be shouting. Again Constable Brown was distracted by an approaching vehicle, but only momentarily:8

... so I turned back in Constable Temperton‟s direction and saw him have a, saw him flying through the air backwards, both his feet were off the ground and his arms and feet were stretched in front of him. It appeared to me, I assumed that he had been hit with some force, um, so I then proceeded to run across the road in his direction.

[18] Constable Brown gave evidence that as he ran across the road he saw the appellant coming out of his car “in quite a rushed manner as if, gave me the impression he was going to rush straight at Constable Temperton”.9 He confirmed that Constable Temperton told the appellant that he was under arrest and said that the appellant:10

... then quickly walked around towards the back of his car and went around the back of it. I followed. As we got to the back left corner of his vehicle, almost on to the footpath I then placed my arm on the defendant‟s shoulder and stated to him that he had, that, sorry, that Constable Temperton had stated that he was under arrest. Um, I then proceeded to, once I touched his shoulder, then grabbed his right, right arm, down by the wrist to initially just to confirm that he was under arrest, however then, then attempted to pull his arm away from me. I was conscious of the fact that the defendant appeared to be an older gentleman and I was initially reluctant to exert too much force on him because I didn‟t want to injure him however he kept attempting to pull away from me however I kept hold of his right arm. At this stage Constable Temperton then came in from my right side and tackled the defendant which forced him to the ground. We then, oh, as he went to the ground I still managed, I still retained hold of his right arm and after probably, I don‟t know, 30 seconds, we then managed to place the handcuffs on the defendant. Throughout this whole time he was attempting to pull away, trying to get up off the ground. Once the handcuffs were placed on the defendant he instantly calmed down, um, and became very compliant.

The appellant’s case at trial

[19] As is to be expected with a defendant representing himself, some of the matters of concern to the appellant and which he elaborated on at the trial are not directly relevant to the matters which the prosecution had to prove. For example, the appellant was of the view that the charge of resisting the constable was not one which the Police initially considered to be appropriate. He was concerned to justify

his anger at being stopped by his opinion that the location of the vehicle checkpoint was a dangerous one. He also referred to run-ins that he had had with members of the Police in the past and his belief that those police officers were “bent” and that too many police officers display a lamentable lack of professionalism.

[20] Of more relevance to the charges is the following passage from the

appellant‟s cross-examination of Constable Temperton:11

Q. ... You said to me along the lines of that you were going up to the car, it would take about two minutes to check the licence, that‟s correct isn‟t it?

A. Yes.

Q. Did you hear me say, „In that case I will get out and check the dogs‟?

A. You said to me that you‟ve had enough of me.

Q. You didn‟t hear the other statement?

A. No I didn‟t hear you say that.

Q. In the time that I was stopped there do you know how many cars your other officer checked?

A. No.

Q. Are you aware that you trapped my ankle in the door? A. I had no idea, no, no.

[21] The appellant then showed the constable a photograph of an ankle which had a small scab on it.

[22] That concluded the appellant‟s cross-examination of Constable Temperton.

[23] The appellant cross-examined Constable Brown briefly in relation to the charge of resisting a constable. The relevant passage is:12

Q. Do you recall me saying to you, „If you‟re arresting me hurry up and put the handcuffs on‟?

A. I don‟t recall those exact words. I know you did say a number of

things but I don‟t recall those exact words.

Q. Do you recall me saying when I was on the ground that, „Are you

incompetent? Can you get these handcuffs on me?‟

A. Yes I do remember a statement to that effect.

[24] In his own evidence the appellant gave his view that the checkpoint was at a dangerous place and said candidly that he has “an ongoing problem with the IPCA over a particular officer and the number of times I get stopped so I was not happy and I was also in a hurry.”13

[25] The appellant went on to give evidence:14

I asked the officer Temperton and I believe that I did actually use the „f‟ word, um, „What the fuck are you stopping me for at this hour of the day?‟ because I could see he had a breathalyser thing in his arm, in his hand. I don‟t drink, dah, dah, dah, dah, dah. Anyway, we proceeded on, he checked the warrant, the rego and I‟d given him my licence. He had his breath test and noted that he was, ‟cos the dogs were playing up a bit ‟cos they don‟t like strangers near the vehicle, that‟s quite common. I noted that he was writing things down, stuff into his notebook and I said, „What are you doing that for?‟ and he says, „I‟m just writing particulars down there‟ and I says, I believe that you are just trying to waste time because you don‟t like my attitude. I‟ve told you I‟m in a hurry‟ and then he decided he, after writing everything down that he would then go and check it in the car and as he walked up to the car I said, „You‟re just being a fuckin‟ womble‟, are the exact words. He turned around, came back and said, „I told you I‟m just going up to the car to check your licence, I‟ll be a couple of minutes‟ and I said, „Well in that case then, I need to, I‟ll just get out and sort the dogs out‟. I went to open the door, grabbed the lever, pressed with my arm onto the door, put my right foot down, it‟s a Chariot and therefore you sort of step down, it‟s not like a car where you get out the normal way and he said, „I‟ve told you to stay here‟ and put his hands on, by the window and shut the door which I know he obviously didn‟t mean to do it but it did happen, he jammed my ankle in the door, right on the point of the bone and I just, without even thinking, didn‟t even think about it, it was just an instinctive thing, I just lent back and shut the door, the door off my leg and he disappeared out of my sight so I got out of the vehicle to see if he was all right, what had happened and Officer Brown was coming down the road and he was actually saying that, „You‟re under arrest‟ and I said, „What for?‟ and he said, „Assaulting a police officer‟. I said, „No, didn‟t touch him‟. Anyway, um, Officer Temperton was starting to get up and I walked around

‟cos I don‟t like being on the road, especially not in that area, walked around the back of the vehicle and Officer Brown came around, and had me by the

arm, I think he said right, it wasn‟t, he had the left arm, around the back and

he said, „You‟re under arrest, I‟m going to handcuff you‟ and I said, „Well do it then‟, there, I had my hands behind my back and he said, „No, get down on

the ground‟. The unfortunate part of that situation was very simply that he

had that side, Officer Temperton had the other side of me and they were, they were pulling different ways so to, in order to get down I actually dropped onto one knee so I could tip over and the only time I took my other hand from behind my back was as I tipped over to make sure I didn‟t face plant the ground and then immediately I put my hand back behind, behind me. Um, there‟s never any intention to assault the officer. I had enough time

if I‟d so desired when I got out of the vehicle to have inflicted injury on him because he was lying on the ground and I didn‟t and I wouldn‟t and, um, I berated them for their incompetence and said, „What‟s the problem? Can you get your –‟ I have very big wrists and apparently they were having, seemed like they were having trouble getting the handcuffs on because it took a couple of minutes and it wasn‟t me struggling and then we went in the police car ...

[26] In cross-examination the appellant accepted that he knew that Constable Temperton was going to his patrol car to check his details. He denied that he told Constable Temperton that he had had enough of him and would not “fuckin‟ calm down.” He denied that he knew that he had been required to stay in the car:15

Q. The officer [had] come back and asked you to remain in your car when you started to open the door?

A. No, no, no, no, no. The officer said „You stay here. I‟m going up to the car‟. I replied, „I might as well get out there and settle the dogs down‟ that‟s when I went to open the door.

[27] The appellant maintained his position that he did not deliberately assault

Constable Temperton but reacted when his foot became jammed in the door.

[28] The appellant also maintained his position that he did not resist arrest and, to the contrary, co-operated with the police officers in being handcuffed.

The District Court Judge’s decision

[29] The charge under s 192(2) of the Crimes Act 1961 (assaulting a constable with intent to obstruct him in the execution of his duty) required the prosecution to prove beyond reasonable doubt (relevantly) that the appellant assaulted Constable Temperton and that he did so with the intention of obstructing him in the execution of his duty. The appellant‟s evidence was to the effect that there was no assault (i.e. no intentional application of force) and by necessary extension no intention to obstruct the constable.

[30] The District Court Judge found Constable Temperton was acting in the execution of his duty when he required the appellant to stay in his car.16 He also

found that the action of the appellant in opening the door causing the constable to be pushed backwards bodily was an assault:17

I think the key to it is this: when I look at the evidence of what happened to the constable there is no way that this was just somebody giving the door a bit of a push to free their ankle. This was an exercise in quite massive force to shove that door back in such a way as to take somebody off their feet, throw them through the air and land them on the road. It was not an instinctive jerk.

[31] The District Court Judge addressed the intentional obstructing element of the charge as follows:18

The second part of the charge is with the intention of obstructing the constable in the execution of his duty. What does that mean? Essentially it means with the intention of making it more difficult or impossible for him to do the job he was there to do. Quite clearly, in the situation as it developed, the constable was trying to achieve two things: he was trying to create a situation where he had an appropriate opportunity to check the details Mr Turner had given him by police radio against the computer records. The other thing he was clearly trying to do, with only limited success if any at all, was to stop the performance that Mr Turner was putting on escalating into a more serious breach of the peace...

[32] The Judge concluded:19

... Well, throwing the officer back on the road or even giving him a good whang with the car door was certainly going to make it harder for him to carry out his job at the checkpoint.

[33] The District Court Judge then grappled with the point which, as I will come to later, seems to me to be the most difficult issue in this appeal:20

This is what has got me so puzzled and why I said it was all so unnecessary. What Mr Turner was doing, and how he was doing it, was slowing the process up rather than facilitating it so that he could get on his way. But in the dynamics of the situation it must have been apparent to Mr Turner, angry as he was, that what he was doing was interfering in a very effective way with what was really a perfectly routine bit of police work that we all have to cope with from time to time when we come around a corner and there is a checkpoint. So I have got to find the charge proved.

17 _{Ibid, at [15].}

18 _{Ibid, at [20].}

19 Ibid, at [20].

[34] The District Court Judge also found the charge of resisting arrest to be proved, obviously preferring the evidence of the two constables to that of the appellant.

The appellant’s case on appeal

[35] The appellant‟s case on appeal before me could, in legal terms, be expressed as submissions that there was insufficient evidence for the District Court Judge to convict or that the evidence of the constables was so unreliable that the District Court Judge should not have given it weight.

[36] In lay terms, the appellant said that the District Court Judge was biased in favour of the Police witnesses. He submitted that the District Court Judge should have accepted the appellant‟s evidence instead of the evidence of the Police.

[37] In the proceeding before me, the appellant handed up photographs which he had had taken subsequent to the trial giving further views of his ankle, both illustrating and reconstructing his position in the driver‟s seat of the vehicle and how his ankle came to be trapped. I would not have permitted a lawyer to produce those photographs. They are not new evidence in the legal sense. I allowed the appellant to do so because he would not have understood a refusal and because in a hearing de novo with a lay litigant I did not want to cut off, without considering the evidence, any line of inquiry which might cast doubt on the fairness of the lower Court hearing. However, the photographs do not contribute anything to the decisions I have to make.

Decision

[38] On the s 192 charge, I am of the view that the District Court Judge was entitled to find proved that the striking of Constable Temperton by the appellant opening the car door was a deliberate assault. The appellant‟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 the appellant was doing was trying to free a

painfully trapped ankle. I note that there is no allegation that there was any spontaneous exclamation of pain or simultaneous declaration along the lines of “my ankle!”

[39] The appellant is concerned at what he called the bias of the District Court Judge in favour of the Police. His contention is that the District Court Judge should have preferred his evidence to that of the police officers. However, it was the task of the Judge to assess the credibility of the witnesses giving evidence before him. He did that and there is nothing in the transcript that shows apparent bias nor any illogical or inconsistent findings.

[40] The real point in this appeal is whether the District Court Judge was entitled to find as being proved beyond reasonable doubt that the appellant‟s intention in forcibly opening the door was to obstruct Constable Temperton in the execution of his duty; that is to say, whether the evidence proved that when opening the door the appellant believed the constable to be in the execution of his duty and intended the opening of the door to obstruct him therein.

[41] I have quoted at [33] the passage in the District Court Judge‟s judgment dealing with this issue. The Judge was puzzled as to why the appellant would act in the way he did given that his expressed interest was in getting on his way as soon as possible. However, the Judge found that “it must have been apparent to Mr Turner, angry as he was, that what he was doing was interfering in a very effective way with what was really a perfectly routine bit of police work ...” On that basis the Judge found the charge proved. Was he entitled to?

[42] In my view the evidence established beyond reasonable doubt:

(a) That the appellant was angry at being stopped and aggressive with the constable;

(b) The appellant did want to be on his way as soon as possible;

(c) When the constable decided to check the details given to him through the radio in the Police car the appellant decided to get out of his own car to give his dogs a chance to calm down;

(d) The appellant knew that the constable was acting in the course of his duty in checking his details, although he resented him doing so;

(e) The appellant knew that the constable was requiring him to remain in his vehicle but he nevertheless decided to get out. His opening of the car door thereby assaulting the constable was done in a burst of anger.

[43] At law21 (and in common experience) a person can perform one action with more than one intention. In this case, the appellant had decided to get out of his car with the intention of calming his dogs. But he also knew, or was aware, with the constable right there at the car door telling him to remain inside that in pushing him out of the way he would hinder, delay, or make more difficult the constable‟s job; that is to say, obstruct him.

[44] Accordingly, I find that on this charge the District Court Judge was entitled to convict the appellant.

[45] On the charge of resisting arrest, I am in no doubt that the District Court Judge was entitled to find the charge proved. On appeal before me the appellant repeated his submission that the events after he got out of the car were as he had given evidence, not as the constables had given evidence. It was clearly open to the District Court Judge to find as he did. There is nothing in the evidence which would make his finding unsafe.

_{[46] The appeals against conviction are dismissed.}

_{Brewer J}

21 R v Woollin [1999] 1 AC 82; R v Wentworth [1993] 2 NZLR 450.