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

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.
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.
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.

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.
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.
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…

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 The Queen

Details

AGLC: Gray v The Queen [2019] NZCA 207
Case: [2019] NZCA 207
Decision Date: 10 June 2019 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Christopher Gray applied for leave to appeal against his conviction for unlawfully possessing a pistol, an offence under the Arms Act 1983. This conviction was upheld by the High Court. The appeal concerns the interpretation and application of s 45 of the Arms Act, which makes it an offence to possess or carry a pistol except for some lawful, proper, and sufficient purpose. The Court of Appeal was required to decide whether Mr. Gray's possession of a loaded Glock pistol in his apartment constituted a lawful, proper, and sufficient purpose under s 45.

The Court of Appeal found that Mr. Gray’s proposed grounds of appeal lacked merit. Firstly, the Court noted that s 36 of the Arms Act, which pertains to carrying a pistol beyond the curtilage of a dwelling, does not negate the applicability of s 45. The Court held that these sections create separate offences and the absence of an offence under s 36 does not affect Mr. Gray's liability under s 45. Secondly, the Court found that s 45(2) of the Arms Act clearly places the burden of proving a lawful, proper, and sufficient purpose on the defendant, and this statutory provision cannot be altered by the New Zealand Bill of Rights Act 1990. Lastly, the Court upheld the lower courts' findings that Mr. Gray’s actions did not satisfy the requirements of self-defence. The Court concluded that these findings properly applied the law to the facts of the case.

The Court granted the application for an extension of time to file the application for leave to appeal, but declined the application for leave to appeal itself. The Court’s decision was based on the lack of merit in Mr. Gray's proposed grounds of appeal.

Orders