IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE	
CRI 2018-483-13
[2019] NZHC 855	

BETWEEN	ELSIE EVE BUCKINGHAM
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	15 April 2019 via AVL	
Appearances:	No appearance for Appellant
C C Wilkinson-Smith and R N Benic for Respondent	
Judgment:	16 April 2019	

JUDGMENT OF MALLON J

Introduction

[1]	Ms Buckingham was convicted of driving in a dangerous manner following a judge-alone trial in the Whanganui District Court.1 She was sentenced to pay Court costs of $130, reparation payments of $300 and disqualified from holding or obtaining a driving licence for a period of three months commencing 10 December 2018.

[2]	Ms Buckingham filed an appeal against  her  conviction  and  sentence  on  10 December 2018. She also requested that her sentence be deferred until after the appeal. The appeal was set down for hearing on 4 February 2019. It has since been adjourned a number of times, most recently to 15 April 2019. Ms Buckingham did not 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 not exceeding $4,500. The court must also disqualify the person from holding or obtaining a driver licence for six months or more. This is subject to s 81 of the Act which allows the court not to order disqualification or order disqualification for a period shorter than six months if there are special reasons relating to the offence

BUCKINGHAM v POLICE [2019] NZHC 855 [16 April 2019]

The respondent seeks that the appeal be dismissed under s 338 of the Criminal Procedure Act 2011.

Dismissal under s 338 of the Criminal Procedure Act

Procedural background

[3]	After filing her appeal on 10 December 2018, the procedural history is as follows:

(a)	The appeal was initially set down to be heard on 4 February 2019. The appellant’s submissions were due on 21 January 2019. These were not received. On 25 January 2019 the matter was adjourned to 14 February 2019.

(b)	Ms Buckingham emailed the Court Registry on 13 February 2019. She wanted a two month adjournment to get disclosure from Whanganui Police about a trespass order she had sought from them against a man who had allegedly stalked and harassed her and who was known to Kate Kellick and Alex McKenzie (the complainants in this case). This information was arguably relevant to the issue of what Ms Buckingham believed to be the circumstances at the time of the alleged dangerous driving incident on 30 January 2018 and therefore relevant to her self- defence argument. Ms Buckingham also said she was seeking a report from a crash report in support of her appeal. The respondent did not oppose the adjournment request but sought a shorter timeframe for the adjournment than the two months that was sought. The parties were directed to appear via AVL on 14 February 2019 so that a new date for hearing the appeal could be set and timetable directions could be made.

(c)	Ms Buckingham did not appear as directed on 14 February. The respondent did not seek dismissal for want of prosecution but did seek timetabling directions for submissions, filing fresh evidence and leave to adduce fresh evidence. The respondent confirmed that enquiries would be made with the Police in order to respond to Ms Buckingham’s

disclosure requests as appropriate. The respondent indicated that a dismissal would be sought if Ms Buckingham failed to appear again. I issued a minute adjourning the appeal to 22 March 2019.2 Timetable directions   for    submissions    were    also    made.    Noting    that Ms Buckingham’s emails to the Court could be viewed as submissions, she was directed to file any additional submissions, any new evidence on which she wished to rely, and an application for leave to file new evidence by 8 March 2019.

(d)	Nothing was filed by Ms Buckingham by that date. Simon France J issued a minute on 19 March 2019 stating that the appeal was “to be called” on the 22 March 2019 as scheduled for the Judge at that time to determine the next step.3

(e)	On 21 March 2019, an email was received from Ms Buckingham’s father, Mr Holland. He had assisted Ms Buckingham as a McKenzie friend in the District Court trial. He said that Ms Buckingham requested another adjournment on the basis Ms Buckingham had requested that photographs be provided on a USB drive so that she could use the zoom function. This was to enable Ms Buckingham’s expert 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 in hardcopy, by the Court. Grice J declined the request on the basis that Simon France J had already refused the adjournment and directed that the matter proceed as scheduled the following day.

(f)	Ms Buckingham did not appear on 22 March 2019. The respondent asked for the appeal to be dismissed under s 338 of the Criminal Procedure Act for the appellant’s failure to comply with the procedural orders fixed for the appeal. By minute issued 26 March 2019, Grice J

2	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 Simon France J (handwritten).

noted that the Court must give the appellant 10 working days’ notice of its intention to dismiss the appeal under s 338.4 The minute recorded:

[12]	Ms Buckingham had notice of the 14 February and 22 March 2019 dates for her appeal. She emailed the Court in advance of both two hearings with reference to the dates. Two requests for adjournment of today’s hearing were declined and she was advised. Regardless, she did not appear nor arrange for a lawyer to appear for her.

[13]	That said, I do not consider it appropriate to dismiss the appeals without notice  that  dismissal  could  be  a  consequence.  Ms Buckingham is put on notice that the appeal would be dismissed if she does not appear on 15 April 2019 at 10am. This matter is adjourned to that date.

[14]	This minute serves as notice that this proceeding may be dismissed 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  that   Ms Buckingham had only received the photographs she had requested from Police and the Court the previous day despite having requested them weeks before. He said these photographs were required to commission the expert crash report and they would be forwarded to the report writer that week. He could not give a timeframe by when the report would be completed. A further adjournment was sought because there would be no point in Ms Buckingham appearing without the report. Mr Holland advised that he would update the Court about the timeframe for the report in due course.

(h)	On 10 April 2019 I directed that the appeal was “to be called” as scheduled on 15 April 2019 at 10 am (although this direction was conveyed by the Registry not precisely in these terms). When the appeal 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 with procedural orders under s 338 of the Criminal Procedure Act. That section provides:

338 Power of appeal court to dismiss appeal for non-compliance with procedural orders

(1)	Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.

(2)	Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.

(3)	The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.

(4)	A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under 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 matters as outlined above. She has also failed to appear three times. It was therefore open to Grice J to put the appellant on notice of the consequences likely to arise from any further failures to comply with procedure on appeal.

[6]	The Court of Appeal in Rakuraku v R held that even if the statutory requirements for dismissal under s 338 have been met, the Court retains a residual discretion whether to dismiss the appeal.5 The Court said:6
[26] …. In exercising that discretion, the court must be guided by the interests of justice. An important consideration is the right to appeal according to law affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990. But in enacting s 338, Parliament has recognised that the right to appeal is not an untrammelled right and that the court may, when appropriate, dismiss an appeal for non-compliance with a timetable or procedural order. This no doubt recognises that there are countervailing considerations relevant to the interests of justice including the Crown’s legitimate expectation that it should be

5	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 proper response and the public interest in finality of court proceedings. The orderly and efficient administration of the court is also a relevant consideration although the court would not normally dismiss an appeal under s 338 unless there had been serious, repeated and continuing non-compliance with the court’s directions.

[7]	In deciding to dismiss the appeal in that case, the Court considered: the length of the delay (17 months since the appeal was filed); the fact that the proffered reason was an intention to apply for legal aid but this had not been pursued despite ample opportunity; in the lower courts the Judges had been impressed with the appellant’s intelligence and abilities indicating that he would have been able to file points on appeal and submissions if he had been minded to do so; the victims and their families were entitled to expect the Court to deal with the appeal rather than to allow continued delay and adjournments; there did not appear to be any basis on which the appeal would succeed; and it was reasonable to infer that the appellant had set out to deliberately mislead the Court and to frustrate the process.7

My assessment

[8]	I am not prepared to grant the respondent’s application for the appeal to be dismissed under s 338 for the following reasons:

(a)	A review of the cases shows that s 338 is commonly used where there has been serious, repeated and continuing non-compliance with the court’s directions and/or the appellant has demonstrated either a lack of any real interest in pursuing the appeal or a tendency to delay the court’s processes without any demonstrable motivation to have the appeal determined.8

(b)	The non-compliance in this case has not been as prolonged as in most of the reviewed cases. The appeal was initially scheduled to be heard on 4 February 2019. That date was adjourned to 14 February and then to 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 unnecessarily too short. Ms Buckingham was seeking disclosure and she was intending to brief an expert. She had asked for an adjournment of two months. She was granted an adjournment of less than that. There was no particular need for urgency, beyond the general interest in the orderly and efficient administration of the Court.

(d)	Ms Buckingham seems genuinely to want to pursue the appeal. She and her father have regularly contacted the Court asking for adjournments and have explained what further enquiries are being carried out.

(e)	Ms Buckingham did not have legal counsel in the District Court and does not have legal counsel now. She may not have appreciated the importance of complying with Court directions and attending the Court when directed to do so. It seems from Mr Holland’s most recent email that they considered it was not worthwhile attending the Court when Ms Buckingham was not ready to present her appeal. It also appears from the record of the District Court trial that she is distrustful of the Police and possibly of the Court as well and that she does not cope well with the stress of the Court environment.

(f)	The direction given by Simon France J left what was to occur to the Judge scheduled to hear the appeal on 22 March 2019. He did not foreclose the possibility of a further adjournment beyond that date.

(g)	I do not read Grice J’s direction given in her Minute dated 26 March 2019 as requiring the appeal to be dismissed if Ms Buckingham did not appear at the expiry of the notice period she gave. Rather, it was possible the appeal would be dismissed. I note the slightly varying wording of [13] (“would”) and [14] (“may”) of that minute.9 A residual discretion remains under s 338 despite the jurisdiction for a dismissal arising and there is nothing in Grice J’s minute to indicate she had

9	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 on 15 April 2019.

(h)	For reasons outlined below, I consider there is merit in the appellant’s appeal.

[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 the respondent orally at the hearing.

The merits of the appeal

The evidence

[10]	At around 9.30 am on 30 January 2018, Ms Buckingham was driving in her Honda 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 her partner Alex McKenzie were also on that road at that time, herding a flock of 50 sheep with the assistance of dogs up a slight incline with the road swinging to the left. There were no signs erected to warn motorists that stock was being moved. Ms Buckingham was travelling down the incline in the opposite direction, heading from her nearby house into Whanganui.

[11]	Ms Kellick gave evidence that Ms Buckingham came towards their flock of sheep. 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, which began to run in different directions separating and spreading themselves up the side of the bank. Mr McKenzie threw a rock at the windscreen of the car. Ms Buckingham drove through the flock, passed them by some 50-60 metres, did a u-turn and drove back along the road towards them.

[12]	Ms Kellick said she was standing in the middle of the road at this stage. She was not sure how fast the car was travelling but she was concerned for the safety of herself, Mr McKenzie and her flock. She got out of the way by hopping over a wooden

barrier  on  the  side  of  the  road  for  fear  of  being  run  over.	Ms Kellick said Ms 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 the driver’s side. The ute was parked on the road beside the barrier. It was “pretty much on the road ‘cos you can’t really get off the road there … one of the wheels might have been in the dirt there”. Ms Kellick saw Mr McKenzie go into the cab of the ute to get out of the way of the defendant’s oncoming car. Ms Buckingham’s car hit the side of the 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 was about 800 m-1 km from the accident.

[14]	Ms Kellick accepted it was stupid and dangerous for the rock to have been thrown. She accepted she had been running towards Ms Buckingham’s vehicle after the 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 sheep and tooted at them and, against the background, the rock was thrown because they were being protective of their stock. She also accepted there was a background of animosity between Ms Buckingham’s family and her family.

[15]	The Ford Ranger sustained minor panel damage to the bottom of the driver’s door 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 the incident, a Police Officer went to see the defendant about it. Ms Buckingham gave the following statement which was recorded in the constable’s notebook and read out in 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 I came across about a dozen sheep and five dogs. There was a ute parked up against the barrier on the right-hand side of the road, this was outside the Kellick address on Mangamahu Road at about 9.25 am. I saw a man standing next to the driver’s door of the ute. I don’t know him but I have seen him before, I think he was a worker on the Kellick address. I'm pretty sure Lucy Kellick was in the passenger seat. Because of the sheep I slowed right down to about 35 kilometres per hour, the road is very narrow but the sheep were in

front of the ute and adjacent to his door. There was room for me to drive past without stopping. I saw the man raise his left arm, he was holding something in his hand then he threw something down at my windshield as I drove past them. It was an overarm throw, it was a rock about the size of a brick, it hit my windshield and smashed it in the top right corner. I carried on about 50 metres, I was panicking, I did a u-turn, Lucy was running down the road at me waving her fists at me with her dogs. They don’t like me because I tooted at these sheep about three months ago when I came across them in the road. I didn’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 go past. Lucy was waving her arms at me, she was screaming at me, I had my windows up so I couldn’t hear what she was saying. I was trying to avoid the animals, I was terrified. I thought they were going to get me. I was lucky I didn’t crash off the road. I drove past Lucy, I saw the door, being the driver’s door, open. I don’t even remember where the male was. I could have hit him it was so scary I felt like opening the door was trying to stop me going through there. It made me feel sick, what an arsehole, ow, yuk, they wanted to stop me and I thought they wanted to bash my head in. I drove on, I hit the ute on the driver’s side, I don’t know what I hit but there was a big bang, it made the whole car pull into the ute towards it and then I bounced off. I drove off on my (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 and Lucy’s dad had issues in the past, they have a lot of issues but that’s not my business, I don’t like Lucy because of the way she reacted when I beeped my horn at her sheep. She banged her fist on my bonnet. I think she stabbed someone 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 the ute, I only hit it because the man opened the door, I wasn’t aiming for him, I hope he wasn’t hurt. I thought he was trying to block me in, that’s so sick I thought, I just had to get out of there. At the time I thought I’d smashed his door off but I have no idea if I did or not. It was really scary, throwing that rock was so unnecessary, I could have died, it was mental behaviour. I could have 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 the time she thought the woman was Lucy but she now knew it was Kate. She said that the rock was thrown at her by Mr McKenzie before she had reached the flock. The rock had hit the left-hand side and came onto the driver’s side. She was covered in glass. A photograph of the cracked windscreen was shown to her. It was put to her that it did not appear that any glass had come through the screen. Ms Buckingham said that some glass had come through.

[18]	Ms Buckingham reiterated that she was terrified for her life and frightened at what the two might do to her. She did a u-turn and decided to drive home because she could not carry on with her plans for the day in Whanganui and needed to be somewhere safe. She disputed that Ms Kellick had jumped over a road barrier to avoid

the car. On her account, Ms Kellick ran down the road towards the car waving her arms and screaming with her dogs in tow. Mr McKenzie was standing by the ute with its door open. She thought he was trying to block her from getting past. She did not feel safe from the family as they blamed her father for the death of their father. She thought 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 car without 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 Buckingham for the incident and neither gave a statement. Mr McKenzie was called to give evidence but said he did not want to answer questions. He had wanted a mediation and did not want anyone to get into trouble. He had been offered diversion for his part in 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 to be helpful for Ms Buckingham to be charged. The Police Officer brought the charge only 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 that  Ms Buckingham was stressed and emotional at the trial and found the trial process difficult. Recognising this, the Judge had allowed Mr Holland, who was present as her McKenzie friend, to take on a greater advocacy role than would normally be appropriate. 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 Judge with Mr Holland about this, Ms Buckingham made outbursts and said she wanted to go 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 a reasonable doubt. The Judge said that driving back at a distressed flock of sheep, two people, their dogs and vehicles. Ms Buckingham drove in a manner that caused one

of 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 same or 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 defendant was acting in self-defence under s 48 of the Crimes Act 1961 because it was not an act of self-defence for her to do a u-turn and drive back towards where the incident had occurred. The Judge said that even if it were, then the manner of driving would be unreasonable having regard to all the circumstances as Ms Buckingham believed them to 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 three month allowance from the mandatory disqualification period because of the special circumstance that a rock was thrown at her car and that this caused her to drive in the manner that she did.

Submissions

[24]	Ms Buckingham’s concerns with her conviction are discernible from the material she has submitted over the last few months. She says she was not able to be cross-examined or tell “the story of the attack” on her. She is seeking expert evidence from a crash expert. I infer this will be directed to determining her speed at the time and/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 of the circumstances as she believed them to be when she did her u-turn. She says her windshield was broken and that she was covered in glass; she was frightened and feared for her life; and she could not continue with the  drive  to Whanganui  after Mr McKenzie had cracked her windshield by throwing a brick-sized rock at it; and the rock thrown by Mr McKenzie occurred against the backdrop of other interactions with the 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 the opportunity to cross-examine Ms Kellick  and  the  Police  Officer.  Ms Buckingham was also given the opportunity to give evidence of her recollection of the incident and put to the Judge her narrative of the complainant’s attack.

(b)	As to self-defence:

(i)	The Judge acknowledged Ms Buckingham’s subjective perception of the circumstances were that a brick-sized rock had been hurled at her windshield and that she was being pursued down the road by Ms Kellick. The Judge acknowledged that she was terrified for her life.

(ii)	However, the Judge correctly determined that Ms Buckingham could not have been acting in self-defence as she had done a u- turn and driven back into the perceived danger. The Judge correctly determined that as being inconsistent with defensive action.

(iii)	Further, the Judge correctly held that even if Ms Buckingham’s driving could be viewed as defensive action, it was nonetheless unreasonable in the circumstances as she believed them to be. Ms Buckingham was shielded in her car while the complainants were exposed on the road.

(c)	There was no miscarriage of justice arising from Ms Buckingham’s father’s advocacy role as McKenzie friend. This was permitted by the Judge for the benefit of Ms Buckingham given her emotional state.

(d)	The sentence was not manifestly excessive since the disqualification period of three months was less than the six month minimum mandated by the Land Transport Act. The Judge clearly turned his mind to the

special circumstances Ms Buckingham was in and made allowances for this.

Approach to appeals against conviction

[27]	Section 232 sets out the approach to be taken on a first appeal against conviction:

232	First appeal court to determine appeal

(1)	A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)	The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)	in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b)	in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)	in any case, a miscarriage of justice has occurred for any
reason.

(3)	The first appeal court must dismiss a first appeal under this subpart in any 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 was affected; 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 appellant pleaded guilty.

Assessment

[28]	Ms Buckingham’s contention that she was not cross-examined is not correct and 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 a

person cannot be impugned. Viewed objectively, she drove in a manner that was dangerous to the complainants. Ms Buckingham appears to accept this.

[30]	The sole ground which she can and wants to advance is the Judge’s assessment of 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 related questions. 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 or another? This is also a subjective test to be determined with reference to the circumstances as the defendant believed them to be.

(c)	Was the force used reasonable in those circumstances? This is an objective test taking into account the defendant’s subjective understanding 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 them to be? I have already summarised those, drawn from her evidence today and her statement the day after the incident to Constable Ferguson.

[27]	However, in my view, it simply could not be self-defence to react in the way that the defendant did. She stopped, undertook a u-turn, and drove back 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 believed them 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 her windshield (which Ms Kellick accepted was a dangerous act and was stupid and should not have occurred);

(b)	with a smashed windshield she did not think she could continue driving some 30 km into Whanganui and continue her day (the photographs indicate most of the left-hand side of the glass was shattered) and she was covered in glass (this appears to be an exaggeration on the basis of the photos but it may nevertheless be what Ms Buckingham thought in her panicked state at the time).

(c)	there was a background of animosity between the complainant’s family and 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 of Ms Buckingham’s car;

(e)	she feared for her life (Ms Kellick agreed that Ms Buckingham “was in flight mode, she was scared probably”) and felt she needed to get somewhere safe (consistent with this, she drove to a nearby neighbouring house after she had collided with the ute);

(f)	she perceived Ms Kellick as running down the road at her screaming and waving her hands in the air with her five dogs in tow (Ms Kellick accepted she had been running towards Ms Buckingham, screaming at her after the  rock  was  thrown,  because  she  was  “angry”  about  Ms Buckingham coming through the sheep); and

(g)	she perceived Mr McKenzie was trying to block the road by leaving his car door open.

[34]	In those  circumstances  as  she  believed  them  to  be  it  is  arguable  that Ms Buckingham’s decision to do a u-turn and drive back up the hill could be regarded

as 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 the fact her windshield was cracked. Once she had stopped, she could not remain stationary given the complainants had hurled a rock at her, one of them was running down the hill at her, the other was standing beside a large and powerful vehicle, and the background of animosity between the complainant’s and appellant’s families. In those circumstances it is arguable that Ms Buckingham’s decision to drive back up the hill was defensive. The Judge’s reasons do not indicate why he dismissed these considerations.

[35]	It is also arguable that the force she used (the manner of her driving once she had decided she needed to get to safety and had turned to drive back up the hill) was reasonable force in the circumstances as she believed them to be. The force she used was to drive back at a pace which caused one person to hop over the barrier (but immediately before that this person had been screaming and waving her hands at   Ms Buckingham on her account, the barrier at the side of the road is not high and the person hopped over the barrier well before Ms Buckingham drove past). It also caused another person to hop back into his ute (but Ms Buckingham thought he was trying to stop her and once he was inside his large ute it was presumably possible that he might chase her). It also caused Ms Buckingham to hit the ute (this appears not to have been intentional, but was rather a glancing of the side of the ute in Ms Buckingham’s panicked state). Again, the Judge’s reasons do not indicate why he dismissed these considerations.

[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 an act in self-defence (when, as I have discussed, the circumstances as Ms Buckingham understood them to be explained why she took this approach to the danger); and took the view that the driving was too dangerous to be reasonable force (when, as I have discussed, the circumstances as Ms Buckingham understood them to be put the nature of her driving in perspective). I note that neither Ms Kellick or Mr McKenzie were injured by the driving and the damage to the ute was also described by the officer as minor. Those three were all willing to have the matter resolved by mediation, which was a sensible proposal from them in the circumstances.

[37]	I therefore consider the conviction appeal should be allowed. It is not necessary to wait for  the  crash  investigation  report  that  is  being  obtained  by  Ms Buckingham. Indeed I would have informed Ms Buckingham of that had she attended when directed to do so.

[38]	Because I consider the conviction appeal should be allowed, it is not necessary to consider the sentence appeal. However, the fact that Ms Kellick, Mr McKenzie and the Police all wished to have the matter resolved by mediation, and that Mr McKenzie received diversion for his role in the incident, does raise an issue about whether a conviction was necessary in all the circumstances.

Result

[39]	The respondent’s application under s 338 of the Criminal Procedure Act is dismissed.

[40]	Ms Buckingham’s appeal against conviction is allowed and her sentence is quashed. 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 of reasons, including that Ms Buckingham’s disqualification period has, as I understand it, expired. If the respondent seeks an order for retrial, it is to advise the Court within 14 days. Depending on the respondent’s position, it may then be necessary to seek submissions from Ms Buckingham about this.

Mallon J

Schedule of cases determined by s 338 dismissals	
Porter 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 Auckland Council [2019]
NZCA 15	•	19 Jan 2018 – applied for leave to appeal against pre-trial decision but did nothing to advance the application.
•	Subsequently accepted a sentence indication and pleaded guilty to charges and sentenced to imprisonment.
•	29 Nov 2018 – provided 10 day notice under s 338(2) regarding appeal against moot pre-trial decision.
•	5 Dec 2018 – wrote to Registrar saying he was unable to make decision on appeal and wished he may take legal advice.
•	17 Dec 2018 – minute directing submissions by 20 Dec 2018 and giving s 338(2) notice of dismissal if no submissions were made.
•	21 Feb 2019 – Appeal dismissed (appeal without merit and is moot).	
Mitchell v Police
[2019] NZHC
178	•	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 to
advance appeal, asked to withdraw and requested adjournment to allow appellant to file documents as self-represented litigant.
•	23 Oct 2018 – Court adjourned appeal till 11 Dec 2018 and directed appellant 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 and requiring grounds of appeal by 30 Nov 2018, gave s 338(2) notice of dismissal for non-compliance.
•	8 Nov 2018 – appeal set for hearing on 4 Feb 2019.
•	27 Nov 2018 – Court sent appellant letter referring to minute and direction 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 considered points of appeal.
•	4 Feb 2019 – at hearing, both sides indicated they were not ready to proceed given the document submitted by the appellant.
•	15 Feb 2019 – Judge considered merits of appeal and then dismissed the appeal under s 338.	
Johnson v Police
[2018] NZHC
1790	•	23 Sep 2016 – pleaded guilty.
•	9 Aug 2017 – appeal against conviction on grounds that Judge was wrong to decline to grant an adjournment and that she pressured to plead (appeal 11 months out of date).
•	Application for leave before Court on two occasions: first occasion, on 26 Oct 2017, no submissions had been filed in support. Matter was
adjourned to 7 Dec 2017. On 5 Dec 2017, J sought further adjournment to advance two further grounds of appeal. Matter vacated and adjourned.
•	13 Mar 2018 – application for leave hearing. Granted following day. To be called on 24 May 2018.
•	22 May 2018 – further adjournment of two months sought in order for Public Defence Service (PDS) to obtain privilege waiver from the
appellant.
•	19 Jul 2018 – no waiver provided by J. Judge considered the history showed no interest in appeal. Appeared to be an abuse of process.
•	Appeal dismissed 10 days after notice given.	
Young v District Court at	•	16 Dec 2015 – leave to appeal against name suppression decision.
•	10 Mar 2016 – applicant indicated that application for leave to appeal would be abandoned but no notice of abandonment was filed, no steps	

Hamilton [2017]
NZSC 60	taken 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] NZCA
101	•	23 Oct 2015 – convicted in DC.
•	8 Dec 2015 – filed notice of appeal.
•	21 Mar 2016 – court directed full particularised grounds of appeal to be filed within 14 days of legal aid being decided.
•	16 Apr 2016 – court gave 28 day extension with grounds to be filed by 14 May 2016.
•	23 Jun 2016 – no compliance with above, court found out that interim
legal aid had been granted, court extended time for compliance to 25 Jul 2016.
•	25 Jul 2016 – case officer advised that counsel no longer acting.
•	2 Aug 2016 – court directed particularised grounds to be filed within 21 days.
•	8 Sep 2016 – court advised that legal aid had been withdrawn.
•	13 Sep 2016 – final opportunity given with another 21 days extension with notice of dismissal for want of compliance also given. Given s 338(2) notice.
•	26 Sep 2016 – letter to court indicating difficulties in getting “positive momentum” in appeal and access to material.
•	6 Oct 2016 – court told E of what was required for particularised grounds of appeal, granted further 21 day extension.
•	16 Mar 2017 – Crown filed memorandum asking for s 338 dismissal and noted non-compliance.
•	11 Apr 2017 – appeal dismissed for non-compliance. Ample opportunities had been given, no merit in appeal, and appeal a burden to the
complainants.	
Tuirangi v Police
[2017] NZCA
571	•	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 be advanced and to make submission.
•	8 Sep 2017 – met with counsel who gathered that T no longer wanted to pursue appeal.
•	24 Nov 2017 – deadline for compliance, notice given under s 338(2) of the CPA on 18 Oct 2017.
•	7 Dec 2017 – appeal dismissed.	
Radich v Police
[2017] NZHC
3013	•	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, advised court that counsel instructed, matter adjourned, court advised appellant
that 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 had instructed counsel, directions given for submissions.
•	9 Nov 2017 – failed to appear as instructed for callover, notice given under s 338(2).
•	6 Dec 2017 – appealed dismissed for failure to comply.	
Rakuraku v R
[2016] NZCA
351	•	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 of charges 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 adjournment	

	sought, Court said too long and directed submissions to be filed by 6 April 2016.
•	15 April 2016 – non-compliance with directions, directed further
adjournment and set timetabling directions. Court said it was prepared to give further extension if appellant requested.
•	12 May 2016 – Court said that consideration would be given to 10 day s 338 notice if there was further non-compliance. Court noted that appellant had not made legal aid application.
•	2 Jun 2016 – appellant ordered to appear, did appear by AVL, said that he had applied for legal aid but inquiries revealed that no application had been received by Legal Services. Crown opposed application for
adjournment, Crown asked the appeal to be dismissed on s 338 grounds.
Court did not dismiss, gave appellant one final opportunity to retain
lawyer and file points on appeal with supporting submissions. Appeal adjourned. Section 338(2) notice given.
•	8 Jul 2016 – minute recording that there had been no compliance as required by s 338 order. Matter to be called as scheduled to give appellant opportunity to make submissions about dismissal under s 338.
•	21 July 2016 – appellant appeared by AVL. He had not complied with timetabling directions and orders from last hearing, appellant told the court 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] NZHC
1103	•	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 not expand on, explain or articulate anything about his appeal. Also sent
follow up email linking youtube.com videos as footnotes.
•	21 May 2015 – appeal struck out. Email could not be regarded, in any sense, to be submissions.	
Moseley v Police
[2014] NZHC
972	•	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 that appellant had not replied to requests.
•	9 May 2014 – dismissal under s 338.	
Ellis v R [2013] NZCA 185

Leave to appeal against this dismissed by
Supreme Court in Ellis v R [2013] NZSC 95.	•	26 Oct 2011 – filed appeal.
•	Oct 2012 – appellant had failed for some 10 months to comply with directions, told that there would s 338 dismissal if there was continued non-compliance.
•	Two further minutes dealing with procedural directions issued (on 5 Feb 2013 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] NZCA
464	•	Convicted in 26 Sep 1997, appealed and then abandoned both appeals on 15 Sep 1998.
•	20 Jul 2011 – purported to file a further appeal, directed to file an
application to set aside the notice of abandonment and file application for extension 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.