L v Police HC Hamilton CRI-2006-419-30

[2006] NZHC 445

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-30

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:        P J Bromiley-Loane for Appellant

J Mackie for Respondent

Judgment:      2 May 2006

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Phoebe Bromiley-Loane, Thames

Crown Solicitor, Hamilton

L V NEW ZEALAND POLICE HC HAM CRI-2006-419-30  2 May 2006

[1]      This appeal is from the conviction of the appellant by Judge Maze in the District Court at Thames on 13 February 2006 on a charge under s 53(3) of the Arms Act 1983 alleging that without reasonable cause she dealt with an air rifle with reckless disregard for the safety of others.

[2]      The prosecution arose from the execution of a search warrant for unrelated reasons of the appellant’s house in Thames.   Living in the house were her elderly father and her children, a girl of 12 and boys of 11, 8 and 3.  One of the three officers executing the warrant located in a room which the Judge found to be the bedroom of the 11 year old boy an air rifle, its butt on the floor, cocked and loaded with a slug.

[3]      In response to the police enquiry as to why the air rifle was in that state and position and not secured the appellant was aggressive and said “So I can use it next time youse come round.”  She was convicted on the charge of threatening to injure a constable with intent to intimidate him and has  not  challenged that  decision on appeal.

[4]      Photographs show the wardrobe which is set in to the wall of the bedroom. The wardrobe doors are in the closed position and a chest of drawers pushed up against the right-hand door.

[5]      It is common ground that the air rifle was acquired by the appellant’s former partner who is the father of the children for the purpose of teaching the 11 year old to shoot.  The weapon cost a sum of the order of $500 which the father was paying off on hire purchase.  He lived elsewhere but regularly he or the appellant would take the 11 year old to the local rifle club to practice marksmanship.  There is evidence that just a few days before the execution of the warrant the air rifle had been used at the appellant’s address for shooting birds.

[6]      The prosecution case depended on the circumstantial evidence of the location and condition of the air rifle when found.   The appellant’s former partner gave evidence that after its last use he put the air rifle back in the wardrobe having first

unloaded it.  He said he placed it on top of a high shelf having first moved the chest of drawers.  He asserted that the rifle was in a safe place.

[7]      In her evidence the appellant asserted that when she left the premises prior to her return together with the children’s father during the course of the execution of the warrant the air rifle had been in the wardrobe.  Asked how she knew where it was she replied that was because her father and children were in the house, they did not have the air rifle and so she knew it would still be in the secure location in the wardrobe where the children could not get to it.  So the defence account was that at all  material  times  the  air  rifle  was  unloaded  high  in  the  cupboard  which  was protected from opening by the chest of drawers.

[8]      It was well open to the learned Judge to accept the evidence of one of the constables that when executing the warrant he found the air rifle immediately inside the wardrobe on the floor with the safety catch off.  He broke or “split” the weapon to see if it was loaded and saw there was a slug loaded into the barrel.   Counsel informed me that the rifle is cocked by the breaking process.  The officer deposed that when he attempted to cock the air rifle there was no resistance on the springs and therefore it was already cocked and was ready to be fired by pulling the trigger.

[9]      I have much sympathy for the learned Judge.   There was clearly potential danger.  In these circumstances there was very real risk that the eight year old might have got hold of the weapon, pointed it at the three year old and killed him.

[10]     I am nevertheless satisfied that the conviction cannot stand.   The reality of this  case  is  that  the  air  rifle  had  been  bought  effectively  for  the  11  year  old. Section 21 of the Arms Act prohibits any person from having an air rifle in their possession unless they are either of or over the age of 18 years or between 16 and 18 and the holder of a firearms licence.  Nominally the possessor of this air rifle was probably the appellant  given her  control over  the house and  its  contents  which included the air rifle.  She, like her former partner, facilitated the 11 year old’s use of the air rifle in the controlled conditions of the rifle club.  While the learned Judge did not accept the appellant’s evidence it does not appear that there was clear focus before her on the theory that has been the centre of argument in this Court.  This is

that the father  may very well have placed the  firearm  in a safe position  in the cupboard unloaded.  There is no evidence to show that the appellant knew anything different.  There is nothing to exclude as a reasonable possibility that the 11 year old decided to gain access to the weapon, climbed up on the chest of drawers and took it from the high shelf and proceeded to load and cock it, actions which he knew very well how to do.

[11]     The offence charged requires proof that the appellant:

…without reasonable cause… deal[t] with a[n]… air gun… in a manner likely  to  injure  or  endanger  the  safety  of  any  person  or  with  reckless disregard to the safety of others.

[12]     The Crown did not contend that, if the last the appellant knew of it the air gun was  on  the  high  shelf  in  the  cupboard  unloaded,  such  conduct  infringed  that provision.   Since the evidence does not prove beyond reasonable doubt that the appellant was party to or knew of the change in that condition which must have occurred prior to the arrival of the police, the charge fails on the facts.

[13]     It is therefore unnecessary for me to address Mrs Bromiley-Loane’s legal submission that even on the version found by the District Court there was in law no “dealing” with the air gun by the appellant.  Her argument turns on the construction of s 53 including an antithesis between subsections (2) (leaving an air gun where it may endanger someone) and (3) (discharging or otherwise dealing with an air gun in a  manner  likely to  injure  or  endanger);  and  a  noscitur  a  sociis  contention  that “discharges or otherwise deals with” (the language of subsection (3)) requires at least some positive involvement with the use as was the case in R v Tipple CA17/05

22 December 2005.

[14]     The appeal is accordingly allowed and the Arms Act conviction is set aside.

W D Baragwanath J