Eden v Police HC GIS CRI 2008-416-000001
[2008] NZHC 2172
•22 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2008-416-000001
E
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 22 February 2008
Appearances: Mr L Hemi for Appellant
Mr R J Collins for Respondent
Judgment: 25 February 2008 at 3 pm
JUDGMENT OF LANG J [on appeal against conviction]
This judgment was delivered by me on 25 February 2008 at 3 pm, pursuant to Rule
540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Burnard Bull & Co, GisborneCrown Solicitor, Gisborne
E V NZ POLICE HC GIS CRI-2008-416-000001 25 February 2008
[1] On 21 July 2006 the appellant, Mr E , became involved in a confrontation with three other persons outside the driveway of his address in Ruatoria. After a heated discussion, Mr E went into his house and then returned with what appeared with a rifle. In words of one syllable, and with the weapon in his hand, Mr E successfully persuaded the visitors to leave immediately.
[2] As a result of this incident the police laid three charges against Mr E . They charged him with threatening to kill, presenting an air gun without lawful and sufficient purpose and being in possession of an air gun except for some lawful, proper and sufficient purpose. They laid the latter two charges under ss 52(1) and
45(1) respectively of the Arms Act 1983.
[3] Mr E defended the charges, and elected to represent himself. At the end of the hearing, His Honour Judge Rota delivered an oral decision in which he convicted Mr E on each charge. Mr E was subsequently sentenced by another Judge, Judge Hole, to serve 200 hours of community work.
[4] Mr E now appeals to this Court against his conviction on the charges under the Arms Act 1983 (“the Act”). He contends that the prosecution did not adduce any evidence to prove that the item that he brought from his house was an air gun in terms of the Act. He argues that that omission was fatal to the prosecution case, and that this Court should quash his convictions on those charges.
What is an air gun under the Arms Act 1983?
[5] In order to prove the charges against Mr E it was necessary for the prosecution to prove beyond reasonable doubt that the weapon that he brought out from his house fell within the description of an airgun in terms of the Act.
[6] The Arms Act 1983 defines “air gun” as follows:
2 Interpretation
In this Act, unless the context otherwise requires,—
airgun includes—
(a) Any air rifle; and
(b) Any air pistol; and
(c) Any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged:
[7] The prosecution was therefore required to establish that Mr E was in possession of, and presented, an air rifle, an air pistol, or any weapon from which, by the use of gas or compressed air (rather than by force of explosive), any bullet or other projectile could be discharged.
[8] The Act does not contain a further definition of the terms “air rifle” or “air pistol”. The New Shorter Oxford English Dictionary (4th, 1993), however, defines “air rifle” as:
A rifle firing pellets etc by compressed air.
[9] Chambers 21st Century Dictionary (1996) defines “air rifle” as:
A rifle that is fired by air under pressure.
[10] Both of these definitions are consistent with the third of the definitions of
“airgun” contained in the Act, as set out in [6].
[11] Neither dictionary contains a separate definition of “air pistol”, but by analogy it must be defined as “a pistol that is fired (or that fires pellets) by compressed air (or by air under pressure)”.
[12] The distinguishing feature of an airgun is therefore that it fires projectiles using compressed air rather than explosive force. This is relevant for the purposes of the Act, because a weapon that fires projectiles using explosive force comes within the definition of a “firearm”. The possession and use of firearms is subject to different provisions within the Act than those relating to airguns.
[13] It follows that, in order to prove the charges against Mr E , it was necessary for the prosecution to establish the means by which his weapon discharged
pellets or projectiles. In particular, it needed to prove that the weapon used gas or compressed air (as distinct from explosive force) to propel those items.
The Judge’s decision
[14] In delivering his decision the Judge described the critical sequence of events as follows:
[3]The defendant came out of his house and spoke to the men. What was said is also a matter of contest, but the defendant objected to these men being in his driveway and the exchange was heated and confrontational. The defendant then went back into the house and emerged with an air rifle. That air rifle has been produced in evidence. With that rifle in hand he then spoke again to the complainants who were still around the end of the drive. His words were an encouragement to leave the property.
[15] The Judge did not, however, explain the reasoning process that led him to conclude that the item was an air rifle. That is not surprising given the fact that Mr E had not indicated during the course of the hearing, either in his evidence or his submissions, that this aspect of the case was in dispute.
[16] Moreover, it is possible that the Judge may have been under the impression, even before the hearing began, that Mr E accepted that the weapon was an air rifle. The Judge may have gained this impression on the basis of a discussion that he held prior to the commencement of the hearing with the Duty Solicitor, who had obviously been asked to speak to Mr E . The discussion is recorded as follows:
COURT
Did you speak with Mr E , Mr Clarke?
MR CLARKE
I have Sir. He does wish to proceed with the defended hearing. Having spoken with him there does appear to be a couple of disclosure issues Sir in regards to the charges. He requested conviction histories for the witnesses and those haven’t been provided Sir. I am not sure if they are relevant or not but they are not there and it would appear that there is no armourer’s report in regards to the air rifle Sir to indicate whether it’s an operable air rifle or not.
COURT
Probably in mitigation only is it?
MR CLARKE
It may go to the charge itself Sir if it’s a non-functioning firearm.
COURT
How does it go to the charge? The charge is simply that he pointed an air rifle.
MR CLARKE
He’s also got unlawful possession of an air rifle Sir.
COURT
Yeah, how’s that –
MR CLARKE
- and that would need to be operable I thought [sic] have thought Sir
COURT
Not at all.
MR CLARKE
In that case there’s no issue arising out of that Sir.
COURT
It doesn’t seem to me to be an issue.
[17] The reference by the Duty Solicitor to the “air rifle” may well have given the Judge the impression that Mr E accepted that he had been in possession of an air rifle, but that it may not have been in an operable condition. The Judge clearly viewed that particular issue as being relevant only to issues of mitigation.
[18] It is important to remember, however, that this discussion occurred before the formal hearing commenced. It is also clear that the Duty Solicitor did not have instructions to act on Mr E ’s behalf in defending the charges. If the fact that the weapon was an air rifle was to be the subject of a concession, or formal admission, that concession needed to be sought from, and given by, Mr E once the hearing had commenced. The Judge could not treat his discussion with the Duty Solicitor as amounting to a formal concession that the weapon was an air rifle within the meaning of the Act. That ingredient needed to be established by the evidence.
[19] The Judge obviously accepted, however, that the weapon was an air rifle. In the absence of any reasoned finding as to how he reached that conclusion, it is necessary to examine whether there was sufficient evidence to enable him to reasonably reach it.
The evidence
[20] The first complainant, Mr Rangiuaia, said that whilst he was sitting in his vehicle outside Mr E ’s address he looked back in the rear vision mirror and saw Mr E “coming back and pointing the gun at us”. He amplified his evidence on this point as follows:
Q. So, you’re sitting in the truck. You said you looked in the rear vision mirror?
A. Hmmn.
Q. And you saw the defendant?
A. Coming – he come half way back down the drive pointing a gun at us, telling us to “F” off or else he’ll shoot us.
Q. Okay. Just pause there. So, how did you know it was a gun?
A. Oh well, I know what a gun looks like yeah and he had it up like that looking at us.
Q. Okay, just show the Judge again how he had it. A. Well, how you point a gun.
Q. So he was holding up by his shoulders pointing at – A. Yeah how you hold a gun is like that eh.
COURT
Q. Holding up head height as if to look along the barrel through the sites at a target?
A. Like that. And I just told the fella –
EVIDENCE IN CHIEF CONTINUED
Q. Just a minute Steven.
A. I just told the mate that was on the motorbike, Patrick Tuari, I told him boy go back to my place. Shoot to my place and I’ll go to the police station and see the police. And that was it. He took off to my
place 100 metres down the road and then I come to the Ruatoria Police Station and I seen the sergeant, Boy Keelan I think, and I think Ben was there too mame.
Q. Okay. So you left straight away.
A. Yeah. After I seen the gun we were away.
Q. Can you describe the gun to me please Steven? A. Brown gun, long barrel.
Q. Would you recognise it if you saw it again?
A. Well – I mean you know I know what a gun looks like.
[21] The second complainant, Mr Tuari, said that he was sitting on his four- wheeler motor bike outside Mr E ’s driveway. He confirmed that after the initial conversation Mr E went back inside the property. He then returned and said “if you arseholes don’t fuck off I’ll shoot yous”. Mr Tuari continued:
Q. So what did he say again? What did he say when he came out? A. With the gun?
Q. He came out with a gun did he? A. Yes.
Q. You saw a gun? A. I saw a gun.
Q. What sort of a gun was it? A. A gun.
Q. Can you describe it?
A. Not really, but it was a gun. I know what a gun looks like. Q. How do you know Mr Tuari?
A.Well, what does a gun look like to you? It don’t look like a piece of wood does it?
Q. What sort of gun was it? Do you know what sort of gun it was? A. I couldn’t really tell what it was but it was a gun anyway.
Q. Okay. Can you tell me how he was holding the gun? A. Yes. He had it like this – [Witness demonstrates]
Q. Okay. So, he was holding it – A. Like this.
Q. Sort of above waist height?
A.It was down. It was down and then when he said “if you cunts don’t fuck off I’ll shoot you” …
[22] When Mr E cross-examined Mr Tuari, the following exchange occurred:
Q. Would you be able to tell me how long it took for you to leave after you saw me with a gun?
A. How long?
Q. - it took you to leave before you saw me with a gun? A. It wouldn’t even be two minutes.
Q. So, can you remember what I said to you that day? A. After you brang the gun out.
Q. Before I brung the gun out?
A. Before you brang the gun out you said “what are you arseholes doing on this driveway? You fellas think this is a motor camp?”
[23] The third witness for the prosecution was Constable Reedy. He visited Mr E ’s address after the incident and uplifted the weapon, which he described as a “firearm”, that Mr E had used during the incident with the two complainants. He produced the item as an exhibit, and confirmed that it had not been loaded when he uplifted it. In evidence, Constable Reedy was asked if he knew what type of firearm it was and he replied, “It looks like a slug gun to me”.
[24] Constable Reedy also took a written statement from Mr E . In that statement Mr E told the Constable that he was making the statement “in relation to an incident this morning whereby I presented a slug gun on my property”. In the statement he also said:
I went inside and got the slug gun. It was not loaded and there are no slugs for it whatsoever in the house.
I stood by the water tank. I had the slug gun in my right arm and it was pointing it to the ground.
[25] Mr E elected to give evidence in his own defence. When describing the circumstances in which he came to take the firearm out of the house, he said:
A. Um, basically I was told to fuck off by the people um in the ute and I was threatened by the man on the quad bike. Um, basically he said to me shall I come wake you up and I felt threatened. I felt threatened by all three of their behaviours so basically I went inside and um – well I grabbed the firearm. It was not loaded. I had no intent on using it. It was just in case things escalated to more.
[26] He also responded to several questions in which the item that he had taken out of the house was described as a “rifle”. The prosecutor did not, however, ask Mr E to describe the item further or to explain how it operated.
Decision
[27] It is quite clear that none of the witnesses, including Mr E himself, actually said that the item was an air rifle or that it fired projectiles using gas or compressed air. The closest that the evidence came to establishing this ingredient was the opinion of Constable Reedy that the weapon that he produced as an exhibit was a “slug gun”, coupled with Mr E ’s own statement to the same effect. Constable Reedy was not asked, however, what he meant by the term “slug gun”, and he was not asked to demonstrate how the exhibit operated.
[28] I do not consider that the term “slug gun” is necessarily synonymous with an air rifle, or that judicial notice could be taken of that fact. I consider that the manner in which the firearm operated was a matter that needed to be established by independent evidence.
[29] That could readily have been done in several ways. First, the prosecution could have obtained a report, as it commonly does in cases of this type, from the Police Armourer to confirm that the weapon was an airgun in terms of the Act. Secondly, the prosecutor could have asked Sergeant Reedy to describe to the Court (and if necessary to demonstrate) how the weapon operated. Thirdly, when Mr E gave evidence the prosecutor could have questioned him regarding the method by which the weapon fired projectiles. None of those options were explored in the
present case, with the result being that there was no direct evidence at all regarding a vital ingredient of the two charges under the Act.
[30] The failure of the prosecution to prove that the item was an air gun within the meaning of the Act was, in my respectful view, fatal to the charges laid under the Arms Act 1983. For this reason the appeals against conviction in relation to those charges are allowed and the convictions are quashed.
The sentence
[31] This does not, however, affect the appropriateness of the sentence that Mr E received. Judge Hole imposed that sentence having regard to the factual background as a whole. The incident involved the use of threats whilst Mr E was in possession of a rifle. Those facts are clear regardless of whether or not his weapon fell within the definition of an “airgun” (or indeed within any other definition) under the Act.
[32] Moreover, Judge Hole sentenced Mr E on the basis that the weapon, which he described as an “air rifle”, was not loaded and that it did not work. That was probably a generous concession. Mr E was certainly adamant that the weapon had not been loaded at the time that he presented it to the complainants and that there were no slugs for it at his house. As I read it, however, his evidence did not go so far as to say that the weapon was incapable of being fired.
[33] It seems to me that the gravity of the incident that gave rise to all three charges is adequately reflected by the charge of threatening to kill. The sentence that the Judge imposed on Mr E remains, in my respectful view, appropriate notwithstanding the fact that the present appeal has been allowed. For that reason the sentence of 200 hours community work is confirmed.
Lang J
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