Hutton v R

[2010] NZCA 160

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/2010
[2010] NZCA 160

BETWEENPAUL MARTYN HUTTON

Appellant

ANDTHE QUEEN

Respondent

Hearing:27 April 2010

Court:Baragwanath, MacKenzie and Lang JJ

Counsel:P G Mabey QC for Appellant

M E Ball and P D Marshall for Respondent

Judgment:3 May 2010 at 10.30am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Lang J)

[1]        Mr Hutton was convicted following trial in the District Court before his Honour Judge Harding and a jury on several charges relating to firearms and drugs.  He now appeals against his conviction on just one of these, a charge of using a firearm against a member of the police.  Mr Hutton contends that the jury’s verdict on this charge was unreasonable, and that it cannot be supported having regard to the evidence.

The facts

[2]        All of the charges against Mr Hutton arose out of a search that the police carried out of a property situated at 144 Waipapa Block Road, near Tauranga.  The Armed Offenders Squad (“AOS”) went to that address on 21 December 2007 in order to carry out a search under the provisions of the Arms Act 1983.  The police believed that Mr Hutton lived at the address and that a 9 mm pistol would be found there.

[3]        When the police arrived at Mr Hutton’s property, they surrounded it.  One of the AOS officers, Senior Sergeant Saunders, then knocked on the door.  After some delay Mr Hutton came to the door.  Very shortly afterwards, Mr Hutton indicated that he wished to use the bathroom and began to walk upstairs to a mezzanine bedroom.  Two police officers, Senior Sergeant Saunders and Detective Sergeant Lyttle, accompanied him upstairs, where he used a toilet attached to the main bedroom of the address.  Detective Sergeant Lyttle then told both Mr Hutton and a female person who was lying on the bed why the police were at the address.  He said that they were there to find a person by the name of Paul Hutton, and that they believed that a 9 mm pistol was present at the address.

[4]        Mr Hutton did not respond directly to what Detective Lyttle told him.  Instead, and without saying where he was going or what he was going to do, Mr Hutton proceeded to walk downstairs and out the front door of the house. 

[5]        After leaving the house Mr Hutton walked towards a Holden Calais motor vehicle that was parked in the courtyard of the address.  He was followed closely by Senior Sergeant Saunders.  Other members of the AOS were in the vicinity and monitored his progress towards the vehicle.

[6]        As Mr Hutton approached the vehicle he used a remote device to unlock it.  When he reached the vehicle he opened the right hand rear door and reached into the back seat.  Not surprisingly, Senior Sergeant Saunders was concerned about Mr Hutton’s actions, and he came up to the car to see what Mr Hutton was doing.  Another member of the AOS, Constable MacKinnon, did the same.  At this point the officers saw Mr Hutton reach into a bag that was sitting on the back seat of the vehicle.  Senior Sergeant Saunders was able to see a pistol inside the bag.  Mr Hutton then removed a pistol from the bag.

[7]        Senior Sergeant Saunders immediately used one hand to seize hold of the pistol and the other to seize hold of Mr Hutton’s hand in an endeavour to remove the pistol from Mr Hutton’s grip.  Mr Hutton put up some resistance to the officer’s efforts, but eventually he let the officer take the pistol from him.  Senior Sergeant Saunders then removed Mr Hutton from the area of the vehicle and he was subsequently arrested.

[8]        The pistol was later examined and found to be in working order.  It had ammunition in the magazine but no round in the chamber.

[9]        At trial, the Crown case was that when Mr Hutton removed the pistol from the bag he was using it to threaten the police.  The defence case was based largely on Mr Hutton’s evidence.  He told the jury that he was removing the pistol from the bag in order to hand it over to the police, and that he had no intention of using it to threaten them.

The law

[10]       The appeal relies upon s 385(1)(a) of the Crimes Act 1961, which provides as follows:

385Determination of appeals in ordinary cases

1AAThis subsection applies to—

(a)          an appeal to the Supreme Court or the Court of Appeal against conviction:

(b)         an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against conviction.

1             On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—

(a)          That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

…

[11]       The manner in which this Court is required to apply s 385(1)(a) is now well understood.  In R v Owen[1] the Supreme Court said:

Legal Aspects of s 385(1)(a)

The test

[5]         Section 385(1)(a) contains two distinct, albeit overlapping, concepts.  The first concerns a verdict which is unreasonable.  A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.  The second concept concerns a verdict which cannot be supported having regard to the evidence.  That will be so when there is no evidence capable of supporting it.  This can arise particularly when a specific factual ingredient of the offence lacks evidentiary support.  It is unlikely that a case will have reached the point of a verdict of guilty if that is so, but this ground is contained in para (a) both for historical reasons to be mentioned below, and because it must have been thought necessary to cater for that kind of case.  Although they are distinct, the two limbs of s 385(1)(a) overlap because a verdict of guilty based on no evidence must necessarily be an unreasonable verdict.  On the other hand, a verdict of guilty based on some evidence is not necessarily a reasonable verdict.

[1]           R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.

[12]       In the present case counsel for Mr Hutton relies upon the first of the two concepts to which the Supreme Court referred in the passage cited above.  He contends that the jury’s verdict was unreasonable because the jury could not rationally have determined a critical conflict in the evidence in favour of the Crown.  This meant that the jury could not reasonably have been satisfied to the required standard that Mr Hutton was guilty of the charge that he faced.

[13]       The Supreme Court made it clear in Owen that there is no need to place any gloss on the term “unreasonable”. The Court said at [17]:

… There is, in the end, no need to depart from the language of Parliament.  The question is whether the verdict is unreasonable.  That is the question the Court of Appeal must answer.  The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.  We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict.  These words express the consequence of the verdict being unreasonable.  They should not be used as tests in themselves.

[14]       Importantly for present purposes, the Supreme Court in Owen also endorsed the following aspects of the earlier decision of this Court in R v Munro:[2]

(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)Appellate reviews of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court.  Assessment of the honesty and reliability of the witnesses is a classic example.

(c)The weight to be given to individual pieces of evidence is essentially a jury function.

(d)Reasonable minds may disagree on matters of fact.

(e)Under our judicial system the body charged with finding the facts is the jury.  Appellate courts should not lightly interfere in this area.

(f)An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record.  The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[2]           At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

[15]       Before turning to consider the discrete issues that the appeal raises, it is appropriate to briefly consider the elements of the charge that Mr Hutton faced and the manner in which the Judge put the issues in dispute to the jury.

The elements of the charge

[16]       The charge that Mr Hutton faced was laid under s 198A(1) of the Crimes Act, which provides as follows:

198A    Using any firearm against law enforcement officer, etc.

(1)      Every one is liable to imprisonment for a term not exceeding 14 years who uses any firearm in any manner whatever against any member of the Police, or any traffic officer, or any prison officer, acting in the course of his or her duty knowing that, or being reckless whether or not, that person is a member of the Police or a traffic officer or a prison officer so acting.

[17]       In order to prove the charge the Crown needed to establish the following elements:

(a)         That Mr Hutton used a firearm against a member of the police; and

(b)That that police officer was acting in the course of his duty at the time that Mr Hutton used the firearm against him; and

(c)That Mr Hutton knew when he used the firearm that the person against whom the firearm was used was a member of the police.

[18]       There was no dispute that all of the police officers who were present at Mr Hutton’s property on 21 December 2007 were acting in the course of their duties.  It was also common ground that Mr Hutton knew that they were members of the police.  The sole issue at trial was therefore whether, when Mr Hutton took the pistol out of the bag on the back seat of his car, he was using it against the police. 

[19]       In this context we accept the submission of counsel for Mr Hutton that it was not sufficient for the Crown to prove only that Mr Hutton was in possession of the pistol whilst members of the police were in the vicinity.  It was also necessary for the Crown to establish that Mr Hutton actually used the pistol.  The concept of use in s 198A involves proof of more than simple possession.  It requires actual use of the weapon in a positive way. 

[20]       It was also necessary for the Crown to prove that he used the pistol against the police.  The word “against” is to be given its ordinary meaning, which is that the pistol was used in a manner that was adverse in some way to the interests of one or more members of the police who were present at the property.

[21]       As counsel for Mr Hutton accepted, it was not necessary for the Crown to prove that Mr Hutton presented and aimed the pistol at the police, or that he fired it.  The fact that Mr Hutton removed the weapon from the bag would be sufficient to constitute the actus reus element.  It would amount to a “use” of the weapon in terms of the section.  The intention nominated by the Crown, namely that Mr Hutton deliberately used the pistol to convey a threat to the police, would also be sufficient to satisfy the mens rea element.    

The Judge’s directions to the jury   

[22]       The Judge’s directions to the jury reflected both the issue in dispute and the manner in which counsel had put their respective cases during their closing addresses.  In describing the issue that the jury was required to determine, the Judge said:

Secondly, [the Crown has to prove] that the accused has, in some way, handled or manipulated that firearm, so as to deliberately and intentionally convey a threat of its use and that is really the issue for you here.  The Crown says, that what happened was a deliberate threat to the police, the defence says, no it isn’t. 

[23]       Later, when describing the respective positions of the parties in greater detail, the Judge said:

[50]       The Crown position is that the accused was using a gun to deliberately threaten the police.  The Crown does not suggest that it was presented in the sense that it was pointed directly at one and ready to fire, but the Crown case is, that it was being used to convey some sort of threat, that there was not just a voluntary handing over of it.  The Crown says, well he never told the police he was going to get it and there was a scuffle at some length and an amount of force needed to remove it from him and in those circumstances you can be sure, the Crown says, that there was an intention to threaten.

[51]       The defence position is, of course quite different and is that the accused was getting the pistol to give it to the police; that there was no intention to threaten the police at all.  The defence position is, that it was being held by the barrel as Constable MacKinnon, one of the police witnesses, also said and the defence says, the accused would really have had to have been extremely stupid to be going for a pistol, when he is under the constant observation of armed AOS members, who already had weapons on them.  The defence says, there was never any intention to convey any threat at all and the police reaction and concern that that might have been the case is normal, but it doesn’t of course mean that there was a threat intended by the accused, which is what you have to be concerned about here.

[24]       Neither counsel takes issue with any of these passages from the Judge’s summing up.

Was it necessary for the jury to resolve a conflict in the evidence regarding the manner in which Mr Hutton was holding the pistol?

[25]       This leads us to an issue that counsel for Mr Hutton submits lies at the heart of the appeal.  It relates to an apparent conflict in the evidence given by Senior Sergeant Saunders on the one hand, and Constable McKinnon and Mr Hutton on the other, regarding the manner in which Mr Hutton was holding the pistol when he removed it from the bag.

[26]       Senior Sergeant Saunders said that he was standing beside and to the immediate left of Mr Hutton when Mr Hutton reached into the back seat of the car and removed the pistol from the bag.  He said that when Mr Hutton picked up the pistol he held it in a way that was consistent with an intention to point it at somebody or to fire it.  In this regard he said in evidence-in-chief:

Q.Did you see which hand Mr Hutton had the pistol at the time he picked it up?

A.I couldn’t recall exactly but I would think it was his right hand.

Q.And what happened next?

A.He grabbed the pistol in a way that I described it, yeah picked up the pistol with the [intention] of pointing it at somebody or firing it.  By that I mean the [butt] was in the webbing of his between his forefinger and his thumb he’d hold it with his trigger finger down the right hand side of the barrel of the pistol.  Pretty much as he pulled it out of the bag, I grabbed hold of it.

Q.Can you just pause there and describe to the members of the jury how you grabbed hold of the pistol?

A.I clamped both hands onto it and said words to the effect of what are you doing and we sort of both stood up simultaneously.  We had a bit of a scuffle.  I was exerting quite an amount of force on the firearm.

…

[27]       When pressed on this point in cross-examination, Senior Sergeant Saunders rejected the suggestion that Mr Hutton had picked the pistol up by the barrel and that the butt of the pistol had not been pointing upwards.  He accepted, however, that the pistol may have been wrenched into that position during the course of his struggle to disarm Mr Hutton.

[28]       Constable MacKinnon, on the other hand, said that he approached the car when Mr Hutton opened the door of the vehicle.  He was standing hard against the open door of the vehicle and to the rear of Mr Hutton.  He recalled seeing Mr Hutton holding the pistol by the barrel after he removed it from the bag, and said that the butt of the pistol was facing upwards.

[29]       Constable MacKinnon’s evidence was largely in line with the evidence given by Mr Hutton.  He told the jury that he held the pistol by the barrel when he removed it from the bag, and that the butt of the pistol was pointing upwards.

[30]       Counsel for Mr Hutton submitted that the jury could not reasonably reject Mr Hutton’s evidence on this point, supported as it was by the evidence of Constable MacKinnon.  He also contended that the Crown could only prove the charge if the jury determined this issue in its favour.  He argued that, if the jury accepted that there was a reasonable possibility that Mr Hutton was holding the pistol by the barrel and with the butt facing upwards, it would be bound to conclude that he did not intend to use it against the police.  The jury would be obliged to reach that conclusion because, if Mr Hutton held the pistol in that way, he was acting in a manner that was entirely inconsistent with any intention to use the pistol to convey a threat to the police. 

[31]       It needs to be remembered, however, that Mr Hutton had only just removed the pistol from the bag when Senior Sergeant Saunders intervened.  He had not reached the point of being in a position to point or aim the pistol at the police.  The Judge correctly directed the jury that it needed to decide whether the Crown had proved that Mr Hutton was using the pistol to convey deliberately a threat to the police.  We consider that it was open to the jury to conclude that that was what Mr Hutton was doing regardless of how he was holding the pistol at the point when he took it out of the bag.  We therefore do not view this particular issue as having the importance that counsel for Mr Hutton ascribed to it both at trial and in advancing Mr Hutton’s appeal.  Neither do we consider that it was essential for the jury to resolve this conflict in the evidence (if that is what it was) in favour of the Crown in order to reach a guilty verdict.

[32]       The jury may not, in fact, have viewed the evidence of the two police witnesses as being in conflict at all.  As we have already observed, Senior Sergeant Saunders accepted that the pistol may have been wrenched into the position in which Constable MacKinnon saw it during the course of his struggle with Mr Hutton.  The jury may also have concluded that Constable MacKinnon did not see how Mr Hutton was holding the pistol until the point at which the struggle was in its final stages.  That possibility arises because Constable MacKinnon said that he was standing behind Mr Hutton and that he could see Mr Hutton’s back but he could not see into the back seat area of the car.  He also said that he did not realise that Mr Hutton was holding a pistol until after the struggle between Senior Sergeant Saunders and Mr Hutton was under way.

[33]       Moreover, if the jury did prefer the evidence of Senior Sergeant Saunders to that given by Constable MacKinnon, that conclusion is explicable on the evidence.  We have already referred to the fact that Constable MacKinnon said that he was standing behind Mr Hutton so that he could see Mr Hutton’s back but he could not see into the back of the car.  Constable MacKinnon also accepted that he did not even realise that Mr Hutton was holding a pistol until after the struggle was under way, and that his focus was on the senior sergeant rather than what Mr Hutton was holding in his hand.  Senior Sergeant Saunders, on the other hand, said that his attention was firmly focussed on what Mr Hutton was doing when he reached down to remove the pistol from the bag. 

[34]       These factors may have persuaded the jury to accept the evidence given by Senior Sergeant Saunders rather than that given by Constable MacKinnon and Mr Hutton.

[35] This discussion underscores the importance of the principles to which we referred earlier at [14]. It is open to a jury in any case to accept or reject, either wholly or in part, the evidence of any witness. The assessment of the weight to be given to individual witnesses is quintessentially a jury function. The jury, and not an appellate court, is uniquely placed to carry out that task. For that reason alone we consider that the jury was entitled to accept the evidence of Senior Sergeant Saunders if it considered that evidence to be reliable. It was not bound to accept, or be left in a state of reasonable doubt by, the evidence of the accused and Constable MacKinnon.

[36]       This discussion leads us to the principal issue in the present appeal, which is whether there was sufficient evidence to permit the jury to reasonably conclude that Mr Hutton removed the pistol from the bag in order to use it against the police. 

Was there sufficient evidence to enable the jury to reasonably conclude that Mr Hutton was using the pistol against the police officers?

[37]       The Crown submits that the jury was entitled to rely on the evidence of Senior Sergeant Saunders as demonstrating that, when Mr Hutton removed the pistol from the bag, he was holding it in a manner that was consistent with an intention to use it to convey a threat to the police.  It submits, however, that other aspects of the evidence also support that conclusion.

[38]       Counsel for Mr Hutton also accepted that, on the evidence, the only innocent explanation for Mr Hutton’s actions was that given by Mr Hutton in his evidence at trial.  As we have already indicated, this was to the effect that he removed the pistol from the bag in order to hand it to the police.  As a result, if the Crown was able to exclude Mr Hutton’s explanation as a reasonable possibility, it was virtually inevitable that the jury would find him guilty. 

[39]       One of the principal obstacles lying in the path of Mr Hutton’s explanation was the fact that he never said or did anything at any stage to indicate that his intention when he removed the pistol was to hand it over to the police. 

[40]       Senior Sergeant Saunders told Mr Hutton at an early stage that the police were at his address to search for a 9 mm pistol.  When Mr Hutton received this advice he did not respond to the officer in any way at all.  He did not, for example, tell the officer that the pistol was in his vehicle or offer to go and get it.  Rather, he said nothing before he left the house and walked to the vehicle.  When Mr Hutton arrived at the vehicle he did not tell the police that he was going to retrieve the pistol from inside it.  Instead, he opened the door, reached into the bag and pulled the pistol out of it. 

[41]       If the purpose of Mr Hutton’s journey to the vehicle was to uplift the pistol in order to hand it over to the police, one might reasonably expect that Mr Hutton would have communicated that fact to the senior sergeant at some stage before he removed the pistol from the bag.

[42]       There was also evidence before the jury about Mr Hutton’s demeanour as he walked to the vehicle.  Senior Sergeant Saunders said that Mr Hutton’s demeanour at this stage was such that it put the senior sergeant on “high alert”.  He said that Mr Hutton appeared to be very much on edge at this time.  His demeanour was therefore arguably more consistent with that of a person who was about to use the pistol against the police rather than a person who was about to hand it over to them.

[43]       Then, after Senior Sergeant Saunders sought to take the pistol off Mr Hutton, he offered resistance to the extent that a scuffle ensued.  He did not let go of the pistol immediately as one might expect him to do if his intention was to assist the police by handing the pistol over to them.

[44]       Even after he had been disarmed, Mr Hutton did not say anything to suggest that this had been his intention.  Instead, he acted in a manner that the jury would have been entitled to conclude was aggressive and confrontational.  After Senior Sergeant Saunders took the pistol off him Mr Hutton walked towards another AOS member, Detective Constable Harris, and said “Go on do it, do it then”.  

[45]       Next, the Crown points to the fact that the pistol had live ammunition in the magazine.  The evidence also disclosed that it would only have taken a second or two for the pistol to be cocked and made ready for firing.

[46]       We have concluded that, viewed as a whole, the evidence was sufficient to enable the jury to reasonably conclude that when Mr Hutton removed the pistol from the bag he was using it in a manner adverse to the interests of the police.  It was also sufficient to enable the jury to exclude as a reasonable possibility Mr Hutton’s explanation that he removed the pistol from the bag in order to hand it over to the police.

[47]       For these reasons we do not accept that the jury’s verdict was unreasonable in terms of s 385(1)(a) of the Crimes Act.

Result

[48]       The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington