K v Police HC Auckland CRI 2008-404-285

[2009] NZHC 743

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-285

K

Appellant

v

POLICE

Respondent

Hearing:         30 June 2009

Appearances: P L Borich for Appellant

NMH Whittington for Respondent

Judgment:      3 July 2009

JUDGMENT OF CHISHOLM J

This judgment was delivered by me on 3 July 2009 at 1pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

K V POLICE HC AK CRI 2008-404-285  3 July 2009

A.       Appeal allowed.

B.       Conviction quashed.

REASONS

Introduction

[1]      Following a summary hearing in the District Court the appellant was found guilty on a charge alleging that he had without reasonable cause discharged a firearm with reckless disregard for the safety of others, contrary to s53(3) of the Arms Act

1983.  The appellant was fined $1,250.  He appeals against his conviction.

[2]      The circumstances giving rise to the conviction appear to be novel.  Unlike previous convictions under s53(3), this conviction was based on the risk of injury to children as a result of the noise of the rifle being fired.  There was no suggestion that the bullets, which were fired into a hillside, posed a risk to anyone.  When firing the shots the appellant had an unimpeded view of the hillside.

Background

[3]      The appellant and complainant occupy adjoining rural residential properties, with the appellant’s house being about 50 metres from the boundary with the complainant’s  property.    Although  there  had  been  animosity  between  the  two families, this was not relevant to the events that occurred.

[4]      It is not disputed that at around 7.40pm on 6 January 2008 the appellant discharged a .223 rifle on to a hillside from a deck attached to his house.   His evidence was that he was demonstrating the rifle to a visitor.  Four or five shots were fired in quick succession.  While the appellant acknowledged that the bullets might have passed over a far corner of his neighbour’s property before hitting the hill, his undisputed evidence was that at that point they would have been 60 to 70 metres in the air.

[5]      That evening the appellant’s neighbours, Mr and Mrs Fry, were hosting two families for dinner.  The gathering included eight children aged between three and 13 years.  When the firearm was discharged some of the children were playing outside. The adults were inside.   Immediately after the shots were fired the adults heard children  screaming  and  ran  outside.    On  undisputed  prosecution  evidence  the children were about 50 metres from where the shots had been fired.

[6]      Once the adults at the Frys’ property had established that the children had not been hurt (I will return to some hearsay evidence that one of the children had bumped her head), there was a verbal exchange between some of the people at the Frys’ property and the appellant.  The police were called and ultimately the appellant was charged.

District Court hearing

[7]      Evidence for the prosecution was given by Mr Fry, one of the visitors to his property,  and  two  police  officers.    After  a  defence  “no  case”  submission  was rejected, evidence for the defence was given by the appellant, his partner, and their two guests who had been on the deck when the shots were fired.

[8]      In her reserved decision the Judge found:

(a)The appellant would have been aware that at least one child could well have been outside when the shots were fired: at [32].

(b)The shots were fired “in the general direction of the Frys’ home although there is no evidence that it was directly in the area where the children may have been playing”:  at [35].

(c)      The shooting would have created “stress, anxiety and fear” for the children: at [35].

It is common ground that the finding that the shots were fired in the general direction of the complainant’s home is not supported by the evidence.  In fact, for the most part the shots travelled over the appellant’s property almost parallel to the boundary

between the two properties.  However, I accept that this error was not significant to the outcome.

[9]      Having made those findings the Judge then considered whether the appellant had discharged his firearm “without reasonable cause”.   She concluded:   the appellant was aware that there were children outside the complainant’s home;  his sole motive in firing the gun was to “show off his prowess” with firearms in front of his guest;  his sole concern was “simply for the children not to be hit”;  and he knew the noise that the gun was capable of generating when fired (at [39] to [42]).

[10]     Following that the Judge reasoned:

[43]      The Frys’ children might have previously been aware of the noise generated by Mr K  ’s shooting but children are necssarily vulnerable and prone to being frightened by unexpected and spontaneous loud bangs or clattering.  In reacting to such unexpected developments, there is clear potential for the children outside of the Frys’ home to be injured in instinctively reacting to the noise of the firing of the gun. That one of the children appeared to have suffered a head bump and the distressed and spontaneous reactions of the children support that view.

[44]      In light of that and given there was no urgent need for Mr K   to fire his gun immediately, a reasonable person in Mr K  ’s shoes, having been aware of the children outside of the Frys’ house, would have and should have notified the adults in the Frys’ property that some shooting was imminent so that the children could be brought inside or other arrangements made.  This especially when as Mr K   himself admits that the Frys’ property was about 50 metres away from his boundary.

That reasoning led the Judge to the conclusion that the firearm had been discharged

“without reasonable cause” in terms of s53(3).

[11]     Then  the  Judge  considered  whether  the  appellant’s  use  of  the  firearm amounted to “reckless disregard for the safety of others” in terms of the subsection. She said:

[50]      … it is my view that he deliberately and unreasonably placed these children at risk of injuries not from being hit by his bullets but endangered them by the sound of his firing the gun.  He knew that children were actually nearby and fired off at least 4 shots in quick succession from a rifle.

[51]     I am simply unable to accept that an experienced user of guns would be unaware of the likely physical reaction of the children outside the Frys’ house on

hearing a gun fired near their vicinity.   The children’s spontaneous reactions are themselves evidence of the predictability of the endangerment of their welfare by Mr Fry firing off at least 4 rounds while knowing that they were outside.

The Judge then addressed a defence suggestion that the bullets had been fired to the only available physically safe place and responded that “there is no general right in New Zealand to fire one’s gun at the time and place of its owner’s choosing”: at [54]. It is claimed by the appellant that this comment effectively reversed the onus.

[12]     The charge was found to be proved.

Issues

[13]     Three broad grounds of appeal are advanced on behalf of the appellant. (a)   Inadmissible evidence was admitted.

(b)Factual findings based on inadmissible evidence or not supported by the evidence were made.

(c)       The Judge misdirected herself as to the elements of the offence. It is convenient to begin with the third ground.

Did the Judge misdirect herself as to the elements of the offence?

[14]     To provide a background for the summary of arguments and discussion that follows it is appropriate to reproduce s53(3):

(3) Every person  commits an  offence  and  is  liable  on  conviction  on  indictment  to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, without reasonable cause, discharges or otherwise deals with a firearm, airgun, pistol, or restricted weapon in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others.

Appellant’s argument

[15]     Mr Borich advanced two broad propositions:  first, s53(3) is aimed at risks to the safety of people arising from discharge of projectiles from a firearm and not at

injury that might indirectly arise from the noise of the discharge;  secondly, even if that proposition is rejected, the Judge nevertheless misconstrued and misapplied s53(3).

[16]     Developing his first point, Mr Borich claimed that it could not have been intended  that  the  sound  of  a  firearm  discharging  in  a  rural  setting  with  other properties 50 to 70 metres away would be caught by the section.  He argued that if that was the case a firearm could never be discharged unless all persons were warned in advance so that they could prepare themselves and make themselves safe against perceived risks.  Several examples, including rabbit shooting in a rural setting, were advanced to illustrate what Mr Borich contended was the absurdity of such a wide interpretation of s53(3).

[17]     In relation to the second point Mr Borich claimed that the Judge should have considered the issue of “reasonable cause” and “reckless disregard for the safety of others” in the reverse order as indicated by R v Tipple (CA217/05, 22 December

2005).   On this basis the issue of reasonable cause would only come into play if reckless disregard for the safety of others had been established.  He also argued that the Judge’s analysis appeared to be directed at endangerment of safety rather than at the issue of reckless disregard for safety, there being no evidence to support the contention that there had been a “deliberate, unnecessary risk running” in terms of R  v  Tipple.    Mr  Borich  also  argued  that  like  Jonker  v  Police  (High  Court, Christchurch Registry, AP 308/92, 30 October 1992, Holland J) there was no admissible evidence of actual real or potential danger.

Response on behalf of police

[18]     Mr Whittington argued that there is nothing in s53(3) to indicate that sound is not intended to be caught and there is no proper basis for interpreting the subsection in  a  way  that  would  confine  its  application  to  projectiles.    He  argued  that  in situations  where  sound  can  endanger  safety the  critical  question  is  whether  the circumstances engage the subsection.  He claimed that Mr Borich had overstated the implications  of  such  an  interpretation.     In  the  rabbit  shooting  situation  Mr

Whittington’s response was that the subsection could only be engaged if it was known that children were close by and likely to be affected.

[19]     In relation to the other arguments concerning the application of s53(3) Mr Whittington responded that so long as the elements of “reasonable  cause” and “endangering safety” are properly applied it should not matter which is considered first.  He submitted that in this case the circumstances justified the application of the subsection and the Judge had properly analysed and applied the statutory provision.

Discussion

[20]     Given  the  absence  of  any  case  law  as  to  whether  s53(3)  is  capable  of applying to the consequences of the discharge of sound (as opposed to projectiles), it is necessary to resort to the text and purpose of the Act.

[21]     Nothing  in  the  text  of  s53(3)  indicates  that  the  words  “discharges  or otherwise deals with a firearm” should be read in a restrictive sense so as to exclude the consequences of sound.  Indeed, express reference to dealing with a firearm other than by way of discharging it means that Parliament did not intend the subsection to be confined to the consequences of discharging projectiles.    Under those circumstances there would appear to be no logical reason why the consequences of sound arising from the discharge of a firearm should be beyond the reach of the subsection provided, and this is an extremely important proviso, that the other requirements of the subsection can be proved to the criminal standard.  Nothing in the wider context of the other subsections within s53 or, indeed, within the Act as a whole leads to a different conclusion.

[22]     This interpretation also seems to be consistent with the purpose of the Act. According to its long title the Act is to consolidate and amend the law relating to firearms and to promote, amongst other things, the “safe use … of firearms”.  That purpose could be undermined by an unduly restrictive interpretation of s53(3). Moreover, there do not appear to be any policy considerations that would justify excluding the dimension of sound when a firearm is discharged.   I agree with Mr Whittington that the “reasonable cause” and “likely to injure or endanger/reckless

disregard” requirements significantly narrow the scope of the section and would prevent absurdities arising.

[23]     I therefore accept that it is conceivable that s53(3) might be triggered by the sound of a firearm being discharged.   But such situations, if they arise, would be extremely rare, especially if no injury was suffered by the victim.  The subsection might, for example, be brought into play if the sound of a firearm discharging caused injury to a young child who ran into the path of a car.   But in that situation the prosecution would have to prove that the shooter realised that this could well happen and deliberately decided to run the risk.

[24]     Turning now to the Judge’s application of s53(3), I accept that in R v Tipple the Court of Appeal endorsed the trial Judge’s approach which addressed whether there was “reckless disregard” before addressing whether there was “reasonable cause”.  While I agree with Mr Borich that this is a more logical approach, I note that the section itself adopts the reverse order and this is probably why Judge Walker adopted the order that she did.  Provided the two elements are properly interpreted and applied, I do not think that the order in which they are addressed is critical.

[25]     In the end, as Mr Whittington submitted, the crucial issue in this case is whether in the particular circumstances it was open to the Judge to find the charge proved.  That brings me to the other two grounds of appeal.

Whether inadmissible evidence was adduced

[26]     The thrust of this ground of appeal is that hearsay evidence was adduced to establish, first, the location of the children at the time the shots were fired and, second, that one of the children had bumped her head.  While the respondent accepts that some hearsay evidence was admitted, it claims that this evidence was not significant to the outcome.

Location of the children

[27]     When some of the children went out to play they told their parents, who were inside the house, where they were going to play.   The children were not called to

give evidence and no notice was given under s22 of the Evidence Act 2006 of the intention to adduce hearsay evidence.  Thus the evidence about the children saying where they were going to play is plainly hearsay and inadmissible.

[28]     But in the overall context of the case this was not significant because there was  admissible  evidence  from  which  the  Judge  could  infer  the  location  of  the children at the time the shots were fired.   Mr Fry and Mr Donovan both gave evidence that immediately after the shots were fired they ran out of the house and found the children close to the boundary.  I should add, however, that the appellant’s knowledge about their location is an entirely different matter.

Bump on the head

[29]     There  is  a  problem  with  the  evidence  about  one  of  the  children  having bumped her head.  Undoubtedly that evidence was hearsay.  No notice under s22 had been given.  I reject Mr Whittington’s argument that the situation is saved by s16 of the Evidence Act.  That section relevantly provides:

(2)       For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person –

…

(c)       is unfit to be a witness because of age or physical or mental condition ….

However, there was no evidence as to the age of this particular child (the evidence only indicated an age range of three to 13 years) and in any event there was no notice under s22.  Plainly the evidence about the bump on the head was inadmissible.

Did the Judge make findings based on inadmissible evidence/without evidence?

[30] The fact that one of the little girls had bumped her head was referred to at three places in the decision: [4], [11] and [43]. As can be seen from paragraph [43] quoted at [10] above, the Judge appears to have taken the bump on the head into account, at least to some extent.

[31]     Without that hearsay evidence there would have been no evidence that any of the children had been injured.  Whether that would have altered the outcome in the District Court, I cannot say.  However, in the absence of any injury it must be much more difficult for the prosecution to prove its case to the criminal standard.  Tenuous or speculative evidence about the perceived reaction of a child or children will not suffice.

[32]     The element of “reckless disregard for the safety of others” endorsed by the

Court of Appeal in R v Tipple at [40] involves:

… deliberate and unreasonable risk running. If he [the accused] did not know of the risk that people would be endangered by what was going on, then he is not guilty of the offence.

This presents a relatively high threshold.  In my view it was not met by the Judge’s finding (see [8] above) that the appellant knew that at least one child was outside the complainant’s house or by her later finding (see [9] above) that the appellant was aware that there were children outside the complainant’s house.   It fell short of establishing that the appellant knew, or should have known, the actual location of the children or their likely age range.

[33]     While the Judge concluded that there was “clear potential for the children … to be injured in instinctively reacting to the noise”, she did not explain how that might have eventuated, especially if there was only one child.  Reading the judgment as a whole it is difficult to avoid the conclusion that the Judge was influenced by the inadmissible evidence about one of the children having suffered a bump to her head.

[34]     In all the circumstances I am driven to the conclusion that the appellant’s conviction is unsafe.

Result

[35]     The appeal is allowed and the conviction is quashed.

Solicitors:           Rice Craig, Auckland

Crown Solicitor, Auckland