Adamson v Police
[2016] NZHC 1604
•15 July 2016
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2016-416-6 [2016] NZHC 1604
BETWEEN TIMOTHY PETER ADAMSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 July 2016 Counsel:
A Robinson for Appellant
F E Cleary for CrownJudgment:
15 July 2016
JUDGMENT OF CLARK J
Introduction
[1] Mr Adamson was tried in the District Court on a charge of reckless discharge of a firearm.1 Judge Cathcart found the charge was proved and convicted Mr Adamson on 4 December 2015.2
[2] Mr Adamson appeals his conviction.
The facts
[3] The offending relates to an incident during the afternoon of Saturday
28 March 2015. The complainant, Mr Parkinson, and his brother-in-law, Mr Moeke, were in a remote area in Tolaga Bay. Their vehicle was parked on the roadside as Mr Adamson rode past on a motorbike. A rifle was strapped to Mr Adamson’s back.
It transpired to be a 300 Short Magnum rifle, loaded.
1 Arms Act 1983, s 53(3) (maximum penalty three years imprisonment).
2 Police v Adamson [2015] NZDC 24068.
ADAMSON v NEW ZEALAND POLICE [2016] NZHC 1604 [15 July 2016]
[4] Mr Parkinson apparently recognised Mr Adamson and he and Mr Moeke followed him in their vehicle. In fairness to Mr Adamson the Judge accepted his view of what next occurred although it was in contention. Mr Adamson said he stopped his motorbike. Mr Parkinson got out of his truck and almost instantly moved towards him. There was a verbal exchange and then there was a physical struggle between Mr Adamson and Mr Parkinson. Mr Adamson took the firearm from his back and, pointing it in the direction of Mr Parkinson, fired a shot in his direction. The physical scuffle continued and further shots were fired.
The District Court decision
[5] Applying the Court of Appeal decision in R v Gadsby3 the Judge set out the four elements of the charge which the prosecution was required to prove namely, that the defendant:
(a) discharged a firearm; and did so
(b) intentionally;
(c) without reasonable cause; and
(d) with reckless disregard for the safety of others.
[6] Because Mr Adamson admitted discharging the firearm and doing so deliberately the prosecution was required to prove only the last two elements of the charge.
[7] As to whether the firearm was discharged without reasonable cause the Judge said he was required to examine what Mr Adamson actually knew about the circumstances and assess whether a reasonable person with that state of knowledge would have discharged the firearm in those circumstances. As to the element of reckless disregard for the safety of others, and continuing to apply R v Gadsby, the Judge stated the test as being whether, looked at objectively, there was a real risk that
the discharge of the firearm in the circumstances could well endanger others and whether Mr Adamson appreciated that risk.
[8] More than one shot was fired but the Judge considered he need only be satisfied that one of the shots was discharged without reasonable cause and with reckless disregard for the safety of others.
[9] Based on the totality of the evidence, including Mr Adamson’s own evidence, the Judge reached the view that Mr Adamson deliberately pulled the trigger, firing a shot just to the left of Mr Parkinson with a powerful weapon therefore meeting the key elements of the charge.
Application to abort
[10] One further aspect of the trial must be mentioned as it is the focus of one of the grounds of appeal. During cross-examination Mr Parkinson was questioned about aspects of his evidence that were not in his original statement to the Police. Mr Parkinson referred to a revised statement that he made in the week prior to the hearing and that he had a copy of it “in his pocket”. Mr Robinson, counsel for Mr Adamson in the trial and in this appeal, made an application to abort the trial on the ground of deliberate non-disclosure of the statement by the Police. Mr Robinson advised the District Court Judge that he had not seen any typed version of the witness statement. Mr Robinson was invited to identify any difference between the unsigned typed statement and the signed handwritten statement but Mr Robinson said he had not had the opportunity to compare the two documents. On the ground that the allegation of deliberate non-disclosure was not made out the Judge dismissed
the application to abort the trial and dismiss the charge.4 He took the view that such
a serious allegation should not have been made in the absence of inquiry and there was no evidential foundation for the allegation.
[11] When Mr Moeke gave his evidence he too suggested he had made further comments in a briefing with the police officer in the week prior to the hearing. At the end of the prosecution case Mr Robinson renewed his application on the same
ground of deliberate non-disclosure. The Judge dismissed the second application on the same ground and also indicated to Mr Robinson that he would take an adverse view of any effort by Mr Parkinson or Mr Moeke to embellish their evidence beyond the original statements. He refused the Police the opportunity to call evidence from the officer-in-charge. The Judge recorded in his ruling that Mr Robinson had no opposition to that decision.
[12] Finally, the ruling records that the Judge resolved to deal with the case by taking a view of the evidence most favourable to the defendant’s perspective where there was any conflict between his version and that of Mr Parkinson and Mr Moeke.
The appeal
[13] Three grounds were specified in the notice of appeal. The Judge erred in:
(a) finding Mr Adamson was without reasonable cause in discharging the firearm;
(b)finding Mr Adamson had reckless disregard for the safety of others at the time of discharging; and
(c) failing to abort the trial after it became apparent critical new evidence had not been disclosed to the defendant.
[14] Mr Robinson’s written submissions advanced 25 points on appeal. They can
be grouped as follows:
(a) the pre-trial ruling not to abort the hearing;
(b) findings of fact and failures of the Judge to make factual findings; and
(c) errors in the Judge’s credibility findings.
[15] This being an appeal under s 232 of the Criminal Procedure Act 2011 I must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason. A miscarriage of justice will have occurred if the alleged irregularities and errors created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity. I must dismiss the appeal in any other case.
[16] A “real risk” that the outcome of a trial was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5
Judge’s decision to not abort trial
[17] During the trial Mr Parkinson referred in his evidence-in-chief to being grabbed by Mr Adamson and pulled over Mr Adamson’s motorbike and flipped onto his back on the road. This detail was not in Mr Parkinson’s signed statement and Mr Robinson cross-examined him on the point.
[18] A further aspect of Mr Parkinson’s evidence was the subject of cross-examination. Mr Parkinson said when he emptied the magazine five to seven bullets were ejected. (The firearm did not hold more than four bullets.) Mr Robinson submitted the issue of how many shots were fired was crucial to the defence as it raised a serious challenge to the veracity of Mr Parkinson and Mr Moeke’s version of events. Under cross-examination Mr Parkinson said he had mentioned to the Police that he had found a live bullet at the scene. Mr Robinson says the failure of the Police to disclose this further statement was a serious breach of the obligations to provide full disclosure and the undisclosed material went to the heart of witness credibility.
[19] This part of the appeal rests on an asserted error in the Judge’s determination
that, instead of aborting the trial, the objectionable evidence should be excluded.
5 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] adopted more recently in the context of the Criminal Procedure Act 2011 by the Court of Appeal in Wiley v R [2016] NZCA 28.
Counsel submits his ability to prepare for trial was significantly prejudiced as a result of the non-disclosure. This argument does not succeed and these points on appeal cannot succeed in light of the Judge’s analytical approach to his determination of whether the charge was proved. On the Judge’s approach none of this “new evidence” is remotely relevant. As the Judge records in his judgment:6
On the defendant’s own evidence, he said that he deliberately fired a shot
“just next to him”.
[20] This was done with a powerful weapon and the Judge said it was an enormous risk to the safety of Mr Parkinson. Furthermore the Judge found the defendant appreciated the risk. In his recorded interview with the Police Mr Adamson said on three occasions that he “stupidly fired off a shot” and that he stupidly, again, fired a shot when the others were on top of him. On a third occasion he said he just swung the gun around stupidly and fired a shot.
[21] Cross-examination of the complainant as to any change in his statement and that he was mistaken as to the number of rounds fired and emptied from the firearm was available. In any event, as Ms Cleary submitted on behalf of the respondent, the exclusion of the evidence was the best possible outcome for the appellant.
[22] Ultimately, in light of the appellant’s own evidence and the Judge’s reliance on it in finding the charge proved, it cannot be said that the decision to continue with the trial materially affected its outcome.
Issues taken with findings and failures to make findings of fact
[23] Points 7–24 of the appellant’s written submissions deal with this ground of appeal. Except for one alleged error by the Judge it is not necessary to deal with each point.
[24] It is said that the Judge erred in finding that Mr Adamson fired a shot “just to the left of Mr Parkinson” and “next to Mr Parkinson”.
[25] The Judge did in fact record that on Mr Adamson’s own evidence he said he fired the first shot “just to the left” of Mr Parkinson.7 I have not been able to find that description in the notes of evidence. Following is the relevant evidence.
(a) In his evidence-in-chief Mr Adamson described Mr Parkinson coming at him. Mr Adamson said that is when he got the gun off his shoulder and put it to his side and because Mr Parkinson kept coming he “closed the bolt and just shot just next to him” (emphasis added). Elsewhere Mr Adamson said he pulled to the side and shot. During the hearing of the appeal Mr Robinson explained that, during the trial, Mr Adamson had demonstrated how he had pulled to his left side and shot. His submission was that the Judge had “blended” Mr Adamson’s pulling of the gun to his left with Mr Parkinson feeling a wave to his right.
(b)Mr Adamson was giving evidence by reference to a drawing which he made during the police interview, a copy of which he signed. This was an exhibit and it was put before Mr Adamson when he was being asked questions about the direction in which he fired. Looking at the two-dimensional drawing Mr Adamson’s arrow, indicating the direction of his shot, is to the left of Mr Parkinson.
(c) When Mr Adamson, in his evidence-in-chief, referred to the diagram he had drawn during the police interview he confirmed also the direction he turned the gun to fire. He said he “pulled it to the left and shot in the direction that [he’d] drawn in that picture”. It is possible that this evidence accounts for the Judge’s description of Mr Adamson firing a shot “just to the left of Mr Parkinson”. But little turns on whether the shot was to Mr Parkinson’s left or “just next to him”.
[26] The salient point is that on Mr Adamson’s own evidence he deliberately fired a shot just next to Mr Parkinson. None of the detailed points on appeal raised under this broad ground of challenge detract from this key aspect of the case and its
foundation for the finding that the charge was proved. The evidence upon which the
Judge’s finding was reached is not impeached by these points.
Credibility findings
[27] The submission is that the Judge erred in failing to assess Mr Parkinson and Mr Moeke as not being credible witnesses. For the following reasons I consider this point has no merit.
(a) There was disputed evidence as to whether or not Mr Parkinson was tailgating Mr Adamson’s bike to such an extent that Mr Adamson was left with no option but to stop. The Judge considered that whether or not Mr Parkinson was aggressively chasing Mr Adamson was not material to the actual issues he needed to resolve.
(b)There was conflict also in the evidence as to whether it was Mr Adamson who was the verbal aggressor at the point when Mr Parkinson got out of his vehicle and had moved towards the bike. But the nature and detail of the conflict became marginalised by the evidence from Mr Adamson himself that Mr Parkinson was offering no verbal threats and was known not to be armed or have a weapon of any sort in his possession. Mr Adamson deliberately pulled the trigger in those circumstances on the basis that Mr Parkinson just kept coming towards him.
(c) In any event, not only were findings of credibility of the prosecution witnesses of secondary importance, such findings were for the Judge to make. There was every opportunity to cross-examine them and they were cross-examined.
(d)The Judge correctly concluded he need only be satisfied that one of the shots that the defendant admitted firing was necessary to prove the charge if it was fired without reasonable cause and with reckless disregard for the safety of others. He did not need to be satisfied that every shot discharged, as apparently claimed by the prosecution, was
one that would prove the charge. His focus was on the first shot and, as he said, the charge was established on the first shot alone.
In short, the defendant has convicted himself by his own account in the witness box.8
[28] This is the finding that the points of appeal do not discredit and the reason why the appeal does not succeed.
Result
[29] The appeal against conviction is dismissed.
Karen Clark J
Solicitors:
A Robinson, Gisborne for Appellant
Crown Solicitor, Gisborne for Respondent
8 At [57].
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