O'Bryne v Police

[2013] NZHC 2065

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000117 [2013] NZHC 2065

BETWEEN	RODGER WILLIAM O'BYRNE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 August 2013
Appearances:	Appellant Appears In Person D L Elsmore for Respondent
Judgment:	14 August 2013

JUDGMENT OF D GENDALL J

Introduction

[1]      After a defended hearing in the District Court the appellant was found guilty of threatening to kill and of discharging a firearm near a dwelling house without reasonable cause so as to annoy or frighten any person.  The complainant was the appellant’s neighbour.  On each charge the appellant was fined $500 and ordered to pay reparation of $750.  He was also ordered to enter into a $5000 bond to keep the peace for 12 months.

[2]      On 20 May 2013 the appellant appealed to this Court against his conviction and sentence and in doing so sought leave to adduce further evidence in support of the conviction appeal.

[3]      In a judgment given on 11 June 2013, Chisholm J refused leave to adduce further evidence, and dismissed the appeal both against conviction and sentence. The appellant then filed in this Court a notice of appeal dated 27 June 2013 whereby

he sought leave to appeal the decision of Chisholm J to the Court of Appeal.

O'BYRNE v NEW ZEALAND POLICE [2013] NZHC 2065 [14 August 2013]

Background

[4]      In setting out the background to this appeal, it is useful to repeat paragraphs

[3] to [11] of Chisholm J’s decision of 11 June 2013 outlining this:

[3]       Over many years Mr O’Byrne has farmed 450 acres near Rangiora, part of which is devoted to cropping.  At particular times of the year birds are a problem.  For the past 14 years the complainant, Mr Kaak, has owned a

10 acre lifestyle block which adjoins Mr O’Byrne’s property.

[4]       During the last four years or so there has been conflict between Mr O’Byrne and Mr Kraak.  Prior to the events giving rise to this prosecution four cameras had been placed on Mr Kraak’s property.  My understanding is that one of these cameras belonged to the police and three to Mr Kraak. Video footage from some of these cameras formed part of the prosecution evidence in the District Court.

[5]       Events giving rise to the prosecution occurred on 4 March 2012.  It was the prosecution case that shortly after lunch Mr Kraak was disturbed by a bird scaring device located on Mr O’Byrne’s property, but close to the boundary.  It was going off at regular intervals and Mr Kraak claimed that it was scaring his family and spooking their horses.

[6]       Mr Kraak then noticed Mr O’Byrne driving his farm bike up a lane next to the boundary.  When he attempted to speak to Mr O’Byrne, Mr O’Byrne told him to “get stuffed” and drove off.  For his part Mr O’Byrne denies that this conversation took place and claims that this can be verified by the video footage that he now seeks to adduce by way of further evidence on appeal.

[7]       Later  that  day,  around  5:30  p.m.,  Mr  Kraak  again  heard  Mr O’Byrne’s farm bike come up the lane as well as some shots.  When he went to the boundary he was able to see Mr O’Byrne sitting on his farm bike and cradling a firearm.  According to Mr Kraak he then challenged Mr O’Byrne about whether he was genuinely scaring birds and asked him to consider moving his bird scaring activity further away.  It is alleged that Mr O’Byrne again told Mr Kraak to “get stuffed”, following which he deliberately fired a shot close to Mr Kraak’s head with the intention of frightening him.  Then Mr O’Byrne said “Come over here and I will kill you” in a very threatening manner.

[8]       Those allegations were strongly denied by Mr O’Byrne.  Although he agrees that the incident occurred, he claims that it was contrived by Mr Kraak and his wife to get even with him because he had earlier successfully defended a prosecution in which Mr Kraak was the complainant.

[9]       According to Mr O’Byrne he was using his gun to scare birds for crop protection purposes.  Mr Kraak came to the boundary and accused Mr O’Byrne of using the bird scaring device to annoy him.  After Mr O’Byrne told him to get stuffed, Mr Kraak quite aggressively climbed the deer fence, charged across the gap in the shelter belt, and climbed up on the gate.

[10]     Mr O’Byrne then warned Mr Kraak to stay on his own side of the boundary saying “If you come over here I’ll heel you”.  By that he meant he would have him (Mr Kraak) removed back to his place (Mr Kraak’s place). Then another flock of birds came out of the wheat and, after putting his arm up very quickly and warning Mr Kraak twice by saying “birds”, he fired a shot to scare the birds away. The shot was directed away from Mr Kraak.

District Court decision

[11]      Essentially, the case came down to an issue of credibility between

Mr Kraak and Mr O’Byrne, both of whom gave evidence.

Law relating to leave to appeal

[5]      Leave to appeal at the time was governed by the provisions of s 144 of the

Summary Proceedings Act 1957:

144      Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:    provided that, if the  High  Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3)       Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court, or within such further time as the Court of Appeal may allow, apply to the Court of Appeal in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[6]      The requirements of s 144 which must be met if leave to appeal is to be granted are therefore:

(a)      There must be a question of law;

(b)The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and

(c)      The court must be of the opinion that it ought to be so submitted.

It is clear this Court has no residual discretion to grant leave if no question of law arises on the appeal.

[7]      In its decision on these aspects in R v Slater1  the Court of Appeal stated at

[215]:

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in ss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question of whether that point of law raises a question of general or public importance, are to be diluted.

[8]      With these comments firmly in mind, I need to say at the outset that, in my view the present application is quickly disposed of.  The appellant, as I see it, has not posed any questions of law in his application for leave.

[9]      The main point the appellant appears to raise here is an issue over the District Court finding that he discharged a firearm “near a dwelling house”.  Both the Judge in the District Court and Chisholm J  correctly stated the test for discharging a firearm near a dwelling house, each having properly considered the decisions on this

aspect of Carter v Police2 and Rose v Police.3    What seems to be the target of the

appellant’s complaint here is the application by the respective Judges of that test to the facts of this case.  I am satisfied there is no misstatement or misapplication of the law here.   The appeal relates essentially to questions of fact where findings were

1      R v Slater [1997] 1 NZLR 211.

2      Carter v Police HC Auckland AP128/95, 31 July 1995.

3      Rose v Police HC Wellington AP112/91, 27 August 1991.

made that the appellant’s firearm was discharged near a dwelling house.  This is not an appropriate issue for leave to appeal to be granted.

[10]     Next, it seems that in his appeal the appellant also endeavours to challenge the finding that he had not established on the balance of probabilities that he had reasonable cause to discharge the firearm in the circumstances of this case.  On this aspect the District Court Judge found that the appellant’s use of the firearm could have been a legitimate form of pest control, and if it was discharged for this purpose alone the Judge would have found that reasonable cause existed.  In considering all the available evidence, however, including a DVD recording of the events, the District Court Judge found that the appellant’s purpose in discharging the firearm was to give a clear message of belligerence quite unrelated to his farming operations. His purpose was solely to scare the neighbour with whom it seems he was effectively feuding.

[11]     This was a finding of fact based on the evidence which was before the Judge and in his decision Chisholm J found that the District Court Judge was quite able to reach this conclusion, it coming down to matters of credibility.

[12]     Effectively, therefore, the findings of fact made by the District Court Judge were concurred with by Chisholm J in his decision, and there is no indication of any kind that the legal tests were improperly applied here.

[13]     So  far as the second charge of threatening to  kill was  concerned, again Chisholm J, in his decision, noted that the District Court Judge had the benefit of hearing and seeing the witnesses, including the appellant and his neighbour. The Judge had made a strong finding of credibility on this charge, rejecting the evidence of the appellant that he had used the word “heel” instead of the word “kill” in issuing his threats.  Chisholm J held that the District Court Judge was entitled to make the findings she did on those issues of credibility, given that she had the benefit of hearing all the witnesses, and I agree.

[14]     For all the reasons I have outlined above, I am satisfied here that there is no question of law involved in the present appeal.   The proper tests for the offences

concerned were applied and essentially what is the appellant’s complaint here is the Judges’ application of those tests to the facts. As I see it, this is purely an attempt on the part of the appellant to re-argue questions of fact.

[15]     That is sufficient to dispose of this application for leave to appeal which must be refused.  I do not need to go on to consider therefore whether there is a question here which, by reason of its general and public importance or for any other reason, ought  to  be  submitted  to  the  Court  of  Appeal.     Notwithstanding  this,  for completeness I express a preliminary view that, even if this appeal had related to a question of law, I would have found that there was no reason of general or public importance here or any other reason which might justify this appeal being submitted to the Court of Appeal.

[16]     For  all  these reasons  the  present  application fails.    Leave to  appeal  the decision of Chisholm J dated 11 June 2013 to the Court of Appeal is refused.

...................................................

D Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Appellant