Gray v The Queen

[2019] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA188/2019
 [2019] NZCA 207

BETWEEN	CHRISTOPHER GRAY Applicant
AND	THE QUEEN Respondent

Court:	Collins, Peters and Mander JJ
Counsel:	C J Tennet for Applicant R K Thomson for Respondent
Judgment: (On the papers)	10 June 2019 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave to appeal is granted.

BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Mr Gray applies under s 237 of the Criminal Procedure Act 2011 for leave to pursue a second appeal, having been convicted in the District Court of unlawfully possessing a pistol, an offence under s 45 of the Arms Act 1983.[1]  That conviction was upheld by the High Court.[2]

   [1]New Zealand Police v Gray [2017] NZDC 25794.

   [2]Gray v New Zealand Police [2018] NZHC 3030.

2. The relevant provisions of s 45 of the Arms Act make it an offence to carry or have possession of a pistol “except for some lawful, proper and sufficient purpose”.  Once it has been proved that the defendant was carrying or in possession of a pistol “the burden of proving the existence of some lawful, proper, and sufficient purpose” shifts to the defendant.

3. Mr Gray’s application for leave was filed approximately 74 days out of time.[3]  Despite the paucity of evidence explaining the delay, we grant an extension of time for filing the application for leave to appeal.  We do so because no prejudice is caused to the Crown by Mr Gray’s delays and because we consider it important to deal with the application on its merits.

Background

[3]The application should have been filed 20 days after the High Court Judge’s decision was released, Criminal Procedure Act 2011, s 239.

1. Mr Gray’s former partner was in the process of moving out of their apartment when they became involved in an acrimonious dispute.  They each called the police.  When the police arrived Mr Gray’s partner had left the apartment.  Mr Gray was, however, in possession of a loaded Glock pistol that he was carrying in a holster.  Mr Gray co-operated with the police by handing over the pistol and ammunition.  He also co-operated with the police when they removed other guns from the apartment.  Mr Gray is licensed to possess firearms, including the pistol.

2. Mr Gray was charged with being unlawfully in possession of the pistol.  The issue at his trial was whether his explanation that he had armed himself in case his former partner returned to the apartment with associates constituted a “lawful, proper and sufficient purpose” for carrying the weapon in his apartment.

3. In rejecting Mr Gray’s explanations for possessing the pistol, the District Court Judge recorded:[4]

   There were, in short, a number of other options and opportunities for the defendant short of having to use a loaded pistol for the purposes of protecting himself.  I reject the self-defence argument.  In the circumstances it was not a proportionate or a reasoned response to the threat perceived by the defendant and I believe he did not exercise, what I understand to be, his usual responsible and mature judgment about weapons when he armed himself in the way he did and loaded the weapon.  In the circumstances this was not the response of an experienced user of firearms, as the defendant clearly is and shows the level of distress he was under at the time in exercising his judgment in that way.

   I reject therefore the defence that he raises in the circumstances of this case, insofar as it relates to the s 45(2) defence, namely that possession was for a lawful, proper, and sufficient purpose …

   [4]New Zealand Police v Gray, above n 1, at [31]–[32].

4. In the High Court, Mr Gray submitted that he had been wrongly convicted because:

   (a)as he was licensed to possess the pistol, no offence was committed by him carrying the loaded pistol inside his private dwelling;

   (b)it was sufficient for Mr Gray to show he reasonably believed he needed to carry the gun in self-defence; and

   (c)as Mr Gray’s possession of the pistol was for a lawful purpose, his possession of the pistol also satisfied the “proper and sufficient” requirements of s 45 of the Arms Act.

5. In rejecting Mr Gray’s appeal, the High Court Judge reasoned that by the time the police arrived at the apartment, there was no imminent threat to Mr Gray even when the circumstances were viewed from his point of view.[5]  The High Court held that, as it was not reasonable for Mr Gray to have the loaded pistol in his possession when the police arrived, he had failed to establish that he had possession for “some lawful, proper and sufficient purpose”.

Proposed grounds of appeal

[5]At [20].

1. Mr Gray’s proposed grounds of appeal may be distilled to three points:

   (a)Because s 36 of the Arms Act creates a separate offence of carrying a pistol beyond a dwelling without authority, it cannot be an offence for Mr Gray to have carried the pistol within his apartment, and that in any event, s 36 shows Mr Gray had a lawful and sufficient purpose for carrying the pistol within his apartment.

   (b)Section 25(c) of the New Zealand Bill of Rights Act 1990 requires s 45 of the Arms Act to be read in a way that places on the prosecution the burden of disproving Mr Gray had a lawful and sufficient purpose for carrying the pistol.

   (c)The lower courts should have found Mr Gray was acting in self‑defence.

Analysis

1. Section 36 of the Arms Act makes it an offence to carry a pistol “beyond the curtilage of [a] dwelling”.  The fact Mr Gray did not commit an offence against s 36 of the Arms Act is no answer to the question of whether or not he committed an offence under s 45 of that Act.  Section 36 of the Arms Act creates a separate offence to s 45.  The fact Mr Gray could not be guilty of an offence under s 36 of the Arms Act is not relevant when determining his guilt or innocence under s 45.  There is therefore, no merit to the first proposed ground of appeal.

2. Section 45(2) of the Arms Act provides that once the prosecution has proven beyond reasonable doubt that the defendant was in possession of or carrying a pistol, the burden switches to a person in Mr Gray’s position to prove the existence of some “lawful, proper and sufficient purpose” for him having possession of the pistol.  Parliament has clearly placed the burden on a defendant of proving the lawfulness, propriety and sufficiency of his or her purpose in carrying a firearm.  We can see no basis upon which the plain and natural meaning of s 45 of the Arms Act can be displaced by a different meaning that might be consistent with the New Zealand Bill of Rights Act 1990.[6]  For this reason, we do not see sufficient merit in the proposed second ground of appeal to justify leave being granted to pursue an appeal in this Court.

   [6]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [57] and [89].

3. The finding in the Courts below that Mr Gray’s conduct did not satisfy the requirements of self-defence involved those courts properly applying the law to the facts of this case.  There is no basis upon which a second appeal can be justified in relation to the third proposed ground of appeal.

Result

1. We grant the application for an extension of time for filing the application for leave to appeal.

2. We decline the application for leave to appeal.

Solicitors:
Crown Law Office, Wellington for Respondent