A v Police HC Tauranga CRI 2009-470-32

[2009] NZHC 2233

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2009-470-32

BETWEEN  A

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 December 2009

Appearances: Bill Nabney for Appellant

Hayley Derrick for Respondent

Judgment:      11 December 2009

JUDGMENT OF HARRISON J

In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of

11:00 am on 11 December 2009

SOLICITORS

W T Nabney (Tauranga) for Appellant

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

A V POLICE HC TAU CRI 2009-470-32  11 December 2009

Introduction

[1]      Mr A   appeals against his conviction following summary trial in the District Court at Tauranga on one charge of presenting a firearm, a .303 rifle, without lawful and sufficient purpose.

[2]      The material facts are not in dispute.  The primary issue arising on appeal, as at trial, is whether the District Court Judge erred in concluding that the prosecution had disproved the defence of self-defence.  A secondary issue is whether the Judge should have discharged Mr A   without conviction.

Facts

[3]      The relevant facts are comprehensively set out in the judgment of Judge Peter

Rollo, and the following summary is drawn from it.

[4]      Mr A   and the complainant, Mr John Gardiner, both reside on Matakana Island, a large flat area within the wider Tauranga harbour which was originally a sand bar.  The land is owned predominantly by Maori owners or corporations.  Some of it is leased to Blakely Pacific Ltd. Some is used for agricultural purposes.

[5]      Both Messrs A   and Gardiner had been members of the Matakana Island Pig Hunting Club.   Its rules included imposition of a limited pig hunting season between 1 May and 1 September in each year.  Hunting was only allowed with dogs and knives.  Firearms were banned.  Blakely Pacific, which has forests on the island, issued the requisite hunting permits.  The club disbanded in late 2008.

[6]      One afternoon in early November 2008 Mr Gardiner was driving a five tonne truck from the ferry to his farm; the distance was about 30 minutes driving.  He saw Mr A  's Toyota Hilux on one of the roads.  Two hunting dogs were on the back; one was wearing a device which indicated that it was to be used for hunting that day.

[7]      Mr Gardiner drove his truck into the path of Mr A  's vehicle.  His purpose was to prevent Mr A   from carrying out what Mr Gardiner assumed was his

intention to go pig hunting outside the informal season.  His truck blocked the road, forcing Mr A   to brake sharply.  Mr Gardiner accepted that the vehicles touched. The collision apparently caused minor damage to the driver's door of Mr A  's vehicle.  The road was sandy.  Mr A  's vehicle veered to the left into a low sand bank.

[8]      The two men then alighted from their vehicles.  Mr A   opened the rear passenger  door  and  removed  a  .303  or  .308  rifle.    On  Mr Gardiner's  account, Mr A   held the gun in his "two hands at hip height with the weapon pointed in his general direction, but perhaps in a slightly downward position".   A heated discussion followed about the purpose of Mr A  's presence.  He said that he was there in accordance with a permit.  He said he was not hunting but going to work pursuant to his contract to maintain roads within the forest.  Eventually the two men drove away in their respective vehicles.

District Court

[9]      Judge Rollo's decision carefully traversed the competing accounts given by Messrs Gardiner and A   about the latter's use of the rifle during their encounter. The conflicting positions are summarised in these passages:

[20]      Mr Gardiner said that your discussion got heated and at one stage you raised the firearm towards your shoulder, presenting it directly at him. He said that you held this position for about 30 seconds. He said that he was just 'shitting himself', to use his words, and was not certain whether the firearm was loaded or not and he obviously decided that discretion would be the better part of valour, on this occasion.

[21]      For your part, you denied that you ever raised the rifle in the way that Mr Gardiner alleged, pointing it at him. You maintained that at all times it was pointed down at the front tyre and therefore some three metres away from Mr Gardiner and not in his immediate direction. You said that after the incident came to an end, you swung around and returned the weapon to your utility before driving off.

...

[31]     There is a conflict of evidence between Mr Gardiner and you, as to when the firearm was first presented. Mr Gardiner gave evidence that when the vehicles first came to a stop, you got out of your vehicle and immediately went to the rear passenger seat of the twin cab and took the rifle out and then presented it at hip height in his general direction. Your evidence was that it

was only after there was some initial discussion and Mr Gardiner then got out of his truck that you presented the firearm in a way which you said you did.

[10] The Judge then identified the real issue as being whether a plea of self- defence was available, recognising that it was for the prosecution to negate self- defence if it is available in the circumstances: at [23]. Nr Nabney does not challenge on appeal the Judge's earlier finding that Mr A 's admitted conduct in either pointing his firearm down towards a tyre on the left of the truck or in Mr Gardiner's general direction, as the latter alleged, sufficiently constituted the offence of presenting a firearm at law: at [22].

[11]     After reviewing the evidence, the Judge was satisfied that self-defence was not available.  He did accept that there was a history of bad blood between the two men, culminating in a previous confrontation in about July 2008 when Mr Gardiner attempted to remove the keys from Mr A  's vehicle.   The Judge accepted that Mr Gardiner's conduct that afternoon would be sufficient to raise safety issues: at [25]-[28].

[12]     However, the Judge resolved the evidential conflict as follows:

[32]      I must say that I prefer the evidence of Mr Gardiner to what you said in that respect. I found Mr Gardiner generally to be a truthful witness in what he had to say, he made concessions against his own interests and accepted, for instance the limitations on his ability to determine access to the forests. He conceded a number of points that I thought indicated that the account he was giving was generally a truthful and accurate account. I therefore accept what he says, that the firearm was presented at the very earliest stage of the confrontation between the two of you.

[33]      You  accepted  that  there  were  no  threats  of  violence  made  by Mr Gardiner and no suggestion that his body language or actions, in any way, presented an immediate threat to you. You acknowledged, in cross- examination, that you gained the upper hand, effectively, by presenting the firearm, that may of course have prevented any such behaviour occurring, but the issue arises as to whether you were justified in the actions which you took? I can accept that you may well have thought that the circumstances were such that you might have a physical confrontation with Mr Gardiner and that, having recourse to the firearm, might have been a way in which you could control that situation. But my view is that the circumstances themselves, very clearly, and I emphasise that, were such that it was a vast over-reaction by you, Mr A  , to what the true position was, as to what was going on between the two of you at that time.

[13]     Self-defence is concisely defined in this way: s 48 Crimes Act 1961:

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[14]     Both Mr Nabney and Ms Derrick for the Crown accept that evaluation of the defence of self-defence requires answers to three questions: R v Sarich CA407/04

16 May 2005 at [33] and [37]; R v Auckram [2007] NZCA 570: first, and this is the threshold inquiry, what were the circumstances as Mr A believed them to be from his point of view; second, bearing in mind Mr A 's belief, was he acting in self-defence, again considered from his point of view; third, given that belief, was the force used actually reasonable?

[15]     Both counsel have approached the appeal by reference to those questions.

(1)      Circumstances

[16]     There is no material difference between counsel on the first or threshold subjective question.   The essence of the relevant circumstances has been set out above.   In addition, Mr Nabney points to other factors such as physical and age disparities  -  Mr A    was  smaller  and  older  than  Mr Gardiner;  Mr Gardiner's actions in using his vehicle for the purpose of stopping Mr A  's vehicle; the isolated area; and Mr A  's knowledge that Mr Gardiner had assaulted an older man some time earlier.

[17]     In summary, those were the circumstances as Mr A   believed them to be when he decided to present the firearm.

(2)      Acting in self-defence

[18]     The  next  question  is  whether,  bearing  in  mind  Mr A  's  belief  and considered from his point of view, he was acting in self-defence.

[19]     Mr Nabney submits that Mr A   alighted from his vehicle and presented his weapon for the purpose of defending himself.  He says that it is implicit in Judge Rollo's findings that Mr A   feared for his own safety.

[20]     Without meaning any criticism, Judge Rollo's conclusion on this question is not crystal clear (it must be recorded that he delivered a comprehensive oral judgment).  The critical issue is whether, when presenting the gun, Mr A   was in fact acting in self-defence.  The Judge found as follows:

[28]      But having heard the evidence and seen and heard the witnesses give that evidence, I am not satisfied that this is an instance where you can rely successfully on a plea of self-defence. No doubt you were concerned, to some extent, in this dealing with Mr Gardiner, given what you have told me of Mr Gardiner’s reputation and your perception of that reputation, and the fact that there had been this very low speed impact between your two vehicles, with Mr Gardiner veering onto the wrong side of the road to stop your progress. That would no doubt have raised concerns as to your safety with Mr [Gardiner].

[21] I agree with Ms Derrick. When read in conjunction with two later findings, that (1) Mr A was, as he acknowledged, gaining the upper hand by presenting the firearm and (2) he was using the firearm to "control that situation": at [33], this passage must be construed as the Judge's conclusion that Mr A was not deploying the weapon in self-defence against the use or apprehended use of force. Instead he was using it to obtain a degree of ascendency and control, and redress the imbalance which Mr Gardiner had created. This conclusion was further verified by Judge Rollo's finding that Mr A presented the firearm at Mr Gardiner immediately after the vehicles had stopped and before there was any verbal exchange between the two men: at [9] above. In essence, as Ms Derrick submits, the Judge found that Mr A did not fear for his wellbeing, but was operating at the lower level of concern.

[22]     Accordingly, I am satisfied that the Judge's finding, which was plainly based on  the criminal  standard,  was  sufficient  to  justify rejection  of  an  assertion  that Mr A   was in fact acting for the purpose of self-defence when presenting the firearm.   However, to cover the contingency that I have erred, I will consider the third question.

[23]     The final question for Judge Rollo was whether or not the force used by Mr A    was  reasonable,  again  bearing  in  mind  his  subjective  belief  of  the circumstances.

[24]     Mr Nabney submits that  Mr A  's  action in  holding the firearm was a reasonable response when dealing with a man who was willing to take the law into his own hands.  He notes that Mr A   did nothing further than present the firearm. He did not make threats.  And when he had achieved his aim, which was to defend himself, Mr A   replaced the firearm in his vehicle and, following a further verbal exchange with Mr Gardiner, drove away.

[25]     Judge Rollo was not satisfied that the force used was reasonable.  He found that (1) the two men were separated after the accident by the positioning of the vehicles and that Mr Gardiner made no attempt to approach Mr A  : at [30]; (2) Mr A   presented the firearm immediately after the vehicles had stopped: at [32]; (3) as Mr A   conceded, Mr Gardiner did not make any threats of violence or suggest by his body language or actions that he presented an immediate threat: at [33]; and (4) Mr A   significantly overreacted, as he admitted to a police officer the next morning: at [33] and [34].

[26]     I am satisfied that these findings were open to the Judge on the facts.   In reliance on earlier authority (Arnesen v Police (1998) 3 CRNZ 495), Judge Rollo had acknowledged that, while presentation of a firearm may in some circumstances be justifiable in self-defence, there must be a reasonably and genuinely anticipated fear of a threat or danger, it must appear reasonably imminent, and it must be of a nature which could not reasonably be met by other means: at [24].

[27]     On these principles the force used by Mr A   was not reasonable on an additional ground.   Mr Gardiner had  forced  a  physical  impasse by stopping his vehicle.  There was nothing to suggest, as the Judge found, that he intended to take any further steps which might place Mr A  's wellbeing at risk.   It was open to Mr A   to drive away.  He was able to do so without difficulty at a later stage.

The inference properly available to the Judge was that Mr A   reacted to what was a provocative and unlawful act with a greater and unnecessary degree of aggression, involving the unlawful presentation of a firearm.

[28]     Mr A  's appeal against Judge Rollo's finding of guilt on the charge of presenting a firearm is dismissed.

Sentence

[29]     Judge Rollo convicted and fined Mr A   $1,000.  He ordered him to pay Court costs of $130.   He also ordered forfeiture of Mr A  's firearm and the ammunition.

[30]     Mr Nabney submits that the Judge erred in refusing to discharge Mr A   without conviction.  While taking into account the fact that Mr Gardiner initiated the confrontation, the Judge rejected this submission on the ground that Mr A  's conduct was unacceptable.  I agree.  Moreover, as Mr Nabney fairly and responsibly points out, Mr A   had refused a previous offer of diversion.

[31]     However, the question remains about whether the fine was excessive.   All relevant circumstances including Mr A  's previous good character are relevant. So too is Mr Gardiner's conduct.  It was provocative, unlawful and unjustified.  He generated  a  confrontation  in  dangerous  circumstances.    Moreover,  Mr Gardiner refused  on  two  occasions  to  participate  in  restorative  justice  meetings  which Mr A   was willing to attend.   As Judge Rollo noted, both men would have benefited from that process in the expectation that it would have assisted in resolving outstanding issues between them.   And on a later occasion Mr Gardiner assaulted Mr A  , which attracted a police warning.

[32]     In my judgment it was unnecessary to impose a monetary fine.  Justice will be done by the entering of a conviction and the existence of the order for costs and forfeiture of the firearm and ammunition.   That is a sufficient punishment in the circumstances.  The fine of $1,000 is quashed.

[33]     I wish to express my appreciation to both Mr Nabney and Ms Derrick for the

assistance given in argument on appeal.

Rhys Harrison J