Gray v Police - [2018] NZHC 3030

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-232

[2018] NZHC 3030

BETWEEN
CHRISTOPHER GRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 October 2018

Counsel:

N Taylor for Appellant

R M A Coubrey for Respondent

Judgment:

21 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 21 November 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Castle Brown, Auckland
Meredith Connell, Auckland

GRAY v POLICE [2018] NZHC 3030 [21 November 2018]

Introduction

[1] Mr Gray was found guilty of being in possession of a pistol, namely a Glock 17 pistol, without a lawful, proper or sufficient purpose.1 His application for discharge without conviction was declined. The Judge instead imposed a sentence of six months’ community detention and nine months’ supervision. Mr Gray appeals each of those decisions.

Background

[2] Mr Gray got into a fight with his partner, Cody. They were sharing an apartment at the time. Cody, assisted by two female friends, was in the process of moving out. Both Mr Gray and Cody were injured and highly distressed. They separately rang the police. By the time the police had arrived, Cody had left, but they found Mr Gray with a holstered Glock 17 pistol. Mr Gray cooperated with the police in handing over the gun and ammunition, and in the removal of other firearms from the property. He was later charged with possession of a firearm in contravention of s 45 of the Arms Act 1983.

[3] The central issue at trial was whether Mr Gray had established in all the circumstances and on the balance of probabilities he was in possession of a pistol for a “lawful, proper and sufficient purpose”. Mr Gray said he had armed himself in self- defence as he was concerned Cody might return to the apartment with associates and continue the fight. He said he believed his partner had a knife. Relevantly, Judge Carruthers found:

(a)There was a full magazine of bullets in the pistol and the pistol itself had been “racked” so that there was a bullet in the chamber. It was therefore ready to fire.

(b)Mr Gray was an experienced person with guns – he was a security professional and fully licenced to possess firearms, including the Glock pistol.

1 Arms Act 1983, s 45(1).

(c)There is considerable doubt that Cody had a knife, but Mr Gray believed Cody “may” have taken a knife from the apartment.

(d)But even accepting Cody had taken a knife, it was clear that there were several obstacles to him returning and being any sort of threat to Mr Gray.

(e)Previously Mr Gray was in his own room and Cody and his friends were in the front room of the apartment; at that time Mr Gray apprehended no threat at all and he could keep the door closed.

(f)Cody was described by others as the slighter man and his friends…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray v Police

Details

AGLC: Gray v Police [2018] NZHC 3030
Case: [2018] NZHC 3030
Decision Date: 21 November 2018

CaseChat Overview and Summary

The case of Gray v Police concerns Mr Gray's conviction for possessing a Glock 17 pistol without a lawful, proper, or sufficient purpose, and his subsequent appeal against that conviction, the refusal to grant discharge without conviction, and the sentence imposed. The central issue was whether Mr Gray had a lawful, proper, and sufficient purpose for possessing the pistol during a domestic dispute. The court was required to decide if Mr Gray's self-defence claim was valid, whether the refusal to grant discharge without conviction was appropriate, and if the sentence imposed was excessive.

In assessing the appeal against conviction, the court considered whether Mr Gray's possession of the pistol was lawful. It noted that while Mr Gray was licensed to possess the pistol, this alone did not make his possession lawful if it was not for a lawful purpose. The court agreed with the trial Judge that Mr Gray's actions were disproportionate to the perceived threat. The evidence suggested that Mr Gray had ample opportunity to de-escalate the situation without resorting to armed self-defence. The court concluded that the trial Judge's findings were not in error, and the appeal against conviction was dismissed.

Regarding the discharge without conviction, the court examined the gravity of the offence and the potential consequences for Mr Gray. It held that the offence was serious, involving the possession of a firearm in a domestic context, and the potential consequences, such as losing his job in the security industry, were significant. The court found that the refusal to grant discharge without conviction was justified as the consequences were not out of proportion to the offending. The appeal against the refusal to grant discharge without conviction was also dismissed.

Finally, concerning the sentence, the court observed that the sentence imposed was within the appropriate range, considering the seriousness of the offence. The sentence appeal was dismissed. Overall, the court upheld the trial Judge's decisions, finding no miscarriage of justice in the conviction, refusal to grant discharge without conviction, or the sentence imposed.

Orders