H v Police HC Masterton CIR-2007-435-12

[2007] NZHC 1412

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIR-2007-435-12

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 December 2007 (Heard at Wellington)

Appearances: J K W Blathwayt for appellant

M W C Snape for respondent

Judgment:      10 December 2007

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr H  , the appellant, lives with his wife on Ahiaruhe Road in the rural Wairapapa, some 15 or 20 minutes outside Carterton.  Mr H   is a fencer, and a duck shooting enthusiast.

[2]      In the early evening of 7 May 2007, between 5.00 and 5.30pm – as it was getting dark, two insurance agents called at the Herricks’ front door.   They were

looking for a client, also called H  .  Mrs H  spoke to the insurance agents

H V NEW ZEALAND POLICE HC MAS CIR-2007-435-12 10 December 2007

and provided them with some help. The agents tried, to no avail, to interest her in insurance and then left.  Mr H  , who was home at the time, observed but did not participate to any great extent in that conversation.

[3]      As the two insurance agents were getting into their car, parked on the mown verge of Ahiaruhe Road outside the Herricks’ property, Mr H   approached them and told them – in solid Anglo Saxon –  to leave his property.  There is no dispute about that.  He was also, by his own admission, carrying a shotgun.

[4]      The complainants say Mr H   appeared to load, and then point, that shotgun at them.  They were very frightened, and drove off in some haste.

[5]      Mr H   denies loading the shotgun or pointing it at them.  He says he was on his way to go duck shooting when he encountered the complainants.  He merely checked the shotgun to make sure it was not loaded.  Moreover, he did not point it at them.

[6]      As a result of this incident, Mr H   was convicted in the District Court at Masterton, after a summary trial, of unlawfully presenting a firearm and possessing a firearm in a public place except for a lawful purpose.

[7]      He now appeals those convictions.  He says that, based on all the evidence, the District Court Judge was not justified in entering a conviction, or at least his mind should have been left in a state of reasonable doubt.

The Judge’s decision

[8]      In finding the appellant guilty, the Judge he said did so because he did not believe the appellant’s account.   He set out a number of reasons for reaching that view:

a)       The complainants, the two insurance salesmen, had given clear and very largely consistent evidence of what had occurred that evening. They had been consistent between themselves and with the evidence of Mrs H  .

b)Mr Li, one of the complainants, had a long familiarity with firearms and was in a position to make an informed interpretation of what was going on.

c)       Mrs H   was concerned about the defendant’s consumption of alcohol, to the extent she tried to keep him away from the discussion at the front door.

d)The  appellant  would  have  known  the  complainants’  visit  was perfectly innocent and did not pose any threat at all to him or his wife. His later actions were, therefore, entirely inconsistent with that – even on his own evidence.  Further, his explanation of checking his gun to make sure it was not loaded was not compelling.  Experienced firearm users would not do such a thing with people around.

e)       The appellant’s reference, when spoken to by the Police, of home invasion was at odds with the fact that the two complainants were leaving when approached by him.

f)        Referring to a conflict of evidence, as to whether the appellant was carrying  a  double  barrelled  shotgun  or  a  semi-automatic  gun,  the Judge said  he  was  not  able  to make  up  his  mind  which  gun  Mr H   had.  Accepting, however, that he had a semi-automatic then the Judge was satisfied he had operated the bolt of that gun in a threatening matter and had intended to do so.  Whilst he may not have loaded the gun, that did not mean he did not present the gun at the complainants  and,  having  heard  their  evidence,  the  District  Court Judge was satisfied that that is what he did.

[9]      Having listened to all of the evidence, the Judge concluded firmly that he disbelieved the appellant’s account.  As the Judge had the advantage of hearing the witnesses give evidence in person, this Court will interfere with his assessment of credibility only if it clearly goes against the weight of the evidence.

The appellant’s case

[10]     At the heart of the appellant’s case at trial, and on appeal, was the conflict of evidence as to whether, as the complainants said, the appellant had broken open a double-barrelled shotgun and loaded it, before pointing it at them, or whether, as the appellant himself explained matters, he had checked a semi-automatic shotgun to make sure it was not loaded.  Mr Blathwayt pointed to the following extract from the Judge’s decision, at [7], as being of critical significance:

Both complainants gave a description of actions taken by the defendant which would be consistent with his loading a double-barreled (sic) shotgun. I am not able to make up my mind which gun Mr H   had, but accepting in his favour that he had the semi-automatic, then I consider he operated the bolt of that gun in a way which was intended to be, and which the complainants in fact understood as being, threatening.

[11]     At that point, in an extract not emphasised by Mr Blathwayt, the District

Court Judge went on to say:

I am prepared to accept, in Mr H  ’s favour, that he did not, in fact, load the gun; I think that a man with his experience and background in firearms would not, in fact, have loaded the gun.  However, that does not mean that he did not present his gun at the complainants, and I am satisfied, having heard their evidence, that that is what he did.

[12]     Given,  Mr  Blathwayt  argued,  that  the  Judge  was  not  able  to  decide definitively which gun the appellant was holding, and therefore that on that point he had accepted the complainant’s evidence, then the complainants’ description of the whole series of events must be called into question.  If they were mistaken as to the loading action they described, it is possible they were also mistaken about the way the appellant was holding the gun.  As all of this was fundamental to the charge of unlawfully presenting, the Judge should have found the charge not proven.

[13]   In response to this submission, I note first that the appellant himself acknowledged that his actions – in terms of whether he broke and loaded the gun – could have been construed, in the circumstances, in the way the complainants did construe them.  The following evidence appears at page 60 of the transcript, being a question by Mr Blathwayt and an answer by the appellant:

Q:Both of them have given evidence about two matters, which I’m going to ask you to comment on.   First of all, that they saw you break open a gun such as the one in the other photographs, and put something in the barrel. What do you say to that?

A:Well, they wouldn’t be able to see much in that light, I wouldn’t think.  It might have appeared that I was doing that, when I pulled the gun up and pulled that bolt back and put my finger in there.

[14]     Furthermore, and very importantly, both complainants made a number of statements in evidence confirming that they had seen the appellant raise the gun to his shoulder, and point it at them.

[15]     Therefore, in my judgment, when the Judge concluded that he was satisfied, having  heard  their  evidence,  that  the  appellant  did  present  his  gun  at  the complainants, he was doing so in reliance on the clear evidence of both complainants on that point.  That evidence, together with the appellant’s acknowledgement as to the possibility of the complainants having mistaken the actions he admitted performing, was capable of satisfying the Judge beyond a reasonable doubt that the appellant had unlawfully presented a firearm.

[16]     The judge did not conclude positively that Mr H   was carrying the pump action shotgun as he said.   Rather, having been unable to conclude that point, the Judge said that if Mr H   had been carrying the pump action shotgun he was nevertheless satisfied Mr H   had worked the loading mechanism of that gun in a threatening manner.

[17]     In my judgment, therefore, the Judge’s inability to decide precisely which type of gun was being carried does not mean he was not able to conclude, beyond a reasonable doubt, that the appellant had presented a firearm.  Furthermore, I do not think  the  Judge  based  his  decision  solely on  the  manner  in  which  Mr  H   operated the loading mechanism of the gun in question. The Judge had evidence, which he said he accepted, that the complainants saw the appellant advancing upon them, carrying a type of shotgun, working the action of that gun and then raising it to his shoulder and pointing it at them.

[18]     Mr Blathwayt also referred to a number of other inconsistencies between the evidence provided by the two complainants, particularly as to the way the appellant was holding the gun when he approached them, and as to their position at various times during the incident.

[19]     Whilst  I  accept  that  the  complainants’  evidence  was  not  completely consistent as regards all details, that in and of itself does not persuade me that the Judge was wrong to reach the conclusion that he did.

[20]     Mr  Blathwayt  was  also  critical  of  the  Judge’s  comment,  as  regards  Mr H  ’s explanation that he was checking to see whether the gun was loaded.  The Judge expressed that criticism in the following manner:

I am satisfied that no experienced user of firearms would choose to perform that action with people around, particularly in the lighting situation which prevailed, when the action could have been so easily misinterpreted.   The time for Mr H   to check his gun was when he took it away from the shed.  So, I reject his account that he was simply checking to see that the gun was not loaded.

[21]     Mr Blathwayt’s criticism was that there was no evidence upon which the Judge could reach a finding that an experienced gun owner would not, in those very circumstances, have checked to see whether his gun was loaded or not.

[22]     In my judgment, what the Judge was essentially doing was expressing a finding as to the credibility, in all the circumstances, of the explanation Mr H   had provided for his actions.  The Judge saw and heard the evidence, and was in a position to make that assessment.  That he might have expressed that conclusion in somewhat  general  terms  does  not,  in  my view,  so  materially  affect  his  overall conclusion as to call it into question.

[23]     As regards the second charge, I also conclude that the Judge was justified in entering a conviction.

[24]     In  accepting that  the appellant  may have  been  carrying  the  pump-action shotgun, I do not think the Judge was thereby accepting the appellant’s evidence that he came across the appellant on his way out duck shooting.   The appellant’s wife

stated that he returned to the house after telling the complainants to leave and “gave her a bollocking” for opening the door to strangers.  The appellant did not mention this in his account, but implied that he continued on his way duck shooting.

[25]     In stating that he rejected the appellant’s account, I am satisfied that the Judge was rejecting too his explanation that he left the house and collected his gun with the sole purpose of going duck shooting.  The fact that he may later have gone out duck shooting is not decisive of his purpose in possessing the gun at the time he confronted the complainants.

[26]     The Judge did not find the appellant’s evidence as a whole to be credible.  I can see no reason for this Court on appeal to disturb that finding.  I am of the opinion therefore, that there was sufficient evidence for the Judge to convict on the charge of possession except for a lawful purpose.

[27]     In terms of the submissions on the law that Mr Blathwayt made, I do not think the fact that the general purpose the appellant had in possessing his shotgun was for duck shooting purposes means that – as regards this incident – he could not have an unlawful purpose.

[28]     Accordingly this appeal is dismissed.

Clifford J

Solicitors:  WCM Legal for appellant

Luke Cunningham & Clere for respondent