O'Byrne v Police
[2013] NZHC 1367
•11 June 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2012-409-000117 [2013] NZHC 1367
BETWEEN RODGER WILLIAM O'BYRNE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 20 May 2013
Appearances: M J Callaghan for Appellant
D L Elsmore for Respondent
Judgment: 11 June 2013
JUDGMENT OF CHISHOLM J
A Leave to adduce further evidence is refused. B The appeal against conviction is dismissed.
C The appeal against sentence is also dismissed.
Introduction
[1] Following a defended hearing in the District Court Mr O’Byrne was found guilty of threatening to kill and discharging a firearm without reasonable cause so as to annoy or frighten any person.1 The complainant was his neighbour. On each charge he 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
[2] Mr O’Byrne appeals against conviction and sentence. He seeks leave to adduce further evidence in support of the appeal against conviction.
1 Police v O’Byrne DC Christchurch CRN 12009003074-5, 5 November 2012.
2 Police v O’Bryne DC Christchurch CRI 2012-009-002618, 18 December 2012 at [11].
O'BYRNE v NEW ZEALAND POLICE [2013] NZHC 1367 [11 June 2013]
Background
[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 Kraak, 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’s 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.
Threatening to kill charge
[12] Judge Moran accepted Mr Kraak’s evidence that Mr O’Byrne had threatened to kill him. And taking into account the history of animosity between the parties and the context in which the threat had been made, the Judge also accepted that Mr O’Byrne intended the threat to be taken seriously.
[13] Mr O’Byrne’s evidence that he had said “Come here and I will heel you”, was described by the Judge as contrived. The Judge also noted that when Mr O’Byrne was interviewed by the police two days after the incident, he did not mention that he had told Mr Kraak that he would “heel” him despite the alleged threat to kill having been put to him specifically by the detective.
[14] The Judge also said that she had gained considerable assistance from a careful study of the police surveillance recording:3
...Although silent, the recording clearly depicted Mr O’Byrne’s anger and animus towards his neighbour and the evolution of a highly volatile scene. In the context of the background of hostility and volatility of this latest encounter, it is inherently likely that Mr O’Byrne would utter the threat to kill.
Judge Moran also considered it significant that during his interview Mr O’Byrne had told the detective about an earlier incident during which he had threatened to kill Mr Kraak if he did not shut his mouth.
Discharge of firearm charge
[15] Judge Moran proceeded on the basis that the Crown had to prove three elements beyond reasonable doubt:
(a) Mr O’Byrne discharged a firearm;
(b) near to a dwelling house (that of the Kraak family); and
(c) as a consequence of the shot someone, namely Mr Kraak, was annoyed or frightened.
She also proceeded on the basis that if those elements were proved it was then for Mr O’Byrne to establish on the balance of probabilities that he had reasonable cause to discharge the firearm.
[16] Given that Mr O’Byrne did not dispute that he had discharged the firearm the Judge found that element proved. After considering Carter v Police4 and Rose v Police5 the Judge also accepted that the second element had been proved:6
...I am satisfied that, in the context of this case, Mr O’Byrne did discharge his firearm “near” the Kraaks’ dwelling house. He was right on the boundary of the Kraaks’ residential section, albeit 70 metres from the
3 Police v O’Byrne, above n 1, at [30].
4 Carter v Police HC Auckland AP128/95 31 July 1995.
5 Rose v Police HC Wellington AP112/91 27 August 1991.
6 O’Byrne v Police, above n 1, at [41].
dwelling house itself. The sound of the discharge could be clearly heard by the occupants whose alarm at such a close discharge was justified. The purpose of the legislation is to protect or give security to the occupants of a dwelling house and Mr O’Byrne’s discharge of his firearm compromised that purpose. I am satisfied in terms of the intention of the legislature, having regard to the context in which it occurred, and the lifestyle block in which the Kraak family lived, that the nexis is established and that the firearm was discharged near to the dwelling house.
The Judge also accepted Mr Kraak’s evidence that he was frightened and that when he went inside his house afterwards he was “a wreck and very jelly-like”. Thus the three elements of the charge had been proved.
[17] Finally, the Judge considered whether Mr O’Byrne had reasonable cause to discharge the firearm. She accepted that he had pest control problems with cropping which were extreme at times and that his longstanding practice was to employ two methods of control: a bird scaring device and firearms. So she accepted that the use of a firearm by Mr O’Byrne was a legitimate method of pest control and that if he fired the shot on 4 March 2012 for that purpose he would have established reasonable cause, and would be entitled to be acquitted on that charge.
[18] The Judge then considered Mr O’Byrne’s purpose when discharging the firearm. She said that she was greatly assisted by the camera footage and the evidence of Mr Chappell (a defence witness) who had analysed footage from the three video cameras. She concluded that Mr O’Byrne had responded almost immediately to Mr Kraak’s challenge by “deliberately and provocatively firing his shotgun in an act of defiance.”7
[19] Judge Moran also decided that the critical finding did not concern the direction of the shot, but rather why it was fired. On that issue she found:8
...Mr O’Byrne’s purpose in firing the shotgun close to Mr Kraak’s boundary and immediately after he had been asked not to do so, was to convey a clear message that he would do just what he liked. It was an act of belligerence and was unrelated to his farming practice. Mr O’Byrne’s body language, and particularly the gestures which followed straight afterwards, clearly demonstrate that. I accept that Mr Kraak was genuinely frightened and that this was Mr O’Byrne’s purpose.
7 At [55].
8 At [57].
Consequently Mr O’Byrne had failed to establish that he had reasonable cause to discharge the firearm, and the charge had been proved by the police.
[20] I will return to the issue of sentence later.
Application for leave to adduce further evidence
[21] At the hearing before Judge Moran the surveillance footage that was played covered only a 10 minute period immediately before and after the discharge of the firearm. The appellant now seeks to adduce earlier video footage to prove that he and Mr Kraak did not have a discussion earlier that afternoon as alleged by Mr Kraak on the basis that this will go to the heart of Mr Kraak’s credibility. He also seeks to supplement the 10 minute coverage.
Some background to the surveillance footage
[22] Initially the police only disclosed 10 minutes of footage that had been recorded on the day in question from three different cameras. This was on the basis that this was the only footage that was relevant to the charges. A police jobsheet dated 31 August 2012 indicated that camera 4 was not working and this was repeated in a jobsheet dated 7 September 2012. This proved to be incorrect, as camera 4 in fact operated on an intermittent basis.
[23] Following enquiries about the footage held by the police and difficulties in playing the footage that had been provided, Mr Callaghan requested on 11
September 2012 all the footage for the entire “operation”. There were further problems in formatting the footage so that it could be played by the defence counsel and a defence expert, Mr Chappell, who was available to view the footage.
[24] Eventually, on 8 October 2012 (which was two weeks before the hearing) the police finally advised Mr Callaghan that the defence could view the footage at the Rangiora police station. Taking into account the time that it was anticipated would be required to view the footage and the proximity of the hearing, Mr Callaghan
decided to proceed on the basis of the 10 minute footage straddling the alleged offending.9
[25] As already mentioned, the 10 minute footage was played at the hearing.
[26] Following conviction, Mr O’Byrne renewed his request for full disclosure of the entire footage. As he put it in his affidavit supporting of the application to adduce further evidence:
13.After the Court Decision came out there was some emphasis placed upon the fact that there had been an earlier meeting between Mr Kraak and I, which I denied, the position on which the shots were fired from,...the fact that the Judge found that there was nobody in the vehicle which I maintained is able to be seen on one of the latest tapes that has been supplied...
14.One of the other issues was the angle on which the cameras were facing and the angle on which the shots were fired. There was a dispute regarding the angle of the cameras.
It was also asserted that adjustments to the fourth camera (which are apparent from the footage from that camera) support Mr O’Byrne’s contention that Mr Kraak’s evidence was not reliable and that the incident had been contrived by Mr Kraak and his wife.
[27] Full disclosure of all the usable video footage was finally made to the appellant on 15 March 2013, this appeal having been filed about two months earlier. Mr O’Byrne made a log of events depicted in the footage from the four cameras from 11:55 a.m. until 9:50 p.m. on 4 March 2012.
The test for admission of further evidence
[28] The test described by the Court of Appeal in R v Bain and later endorsed by the Privy Council is:10
An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and
9 As it turned out, there was a total of 24 days footage (taking into account that each camera had separate footage).
10 R v Bain [2004] 1 NZLR 638 (CA) at [22], endorsed by Privy Council in Bain v R 23 CRNZ 71 (PC) at [34].
(b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criteria is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
Later the Court of Appeal explained that in substance there are three controls on the admission of further evidence: freshness, credibility, and whether the new evidence is such that it might have led to a finding of not guilty if it had been called at trial.11
Freshness
[29] Initially the defence was unwittingly misled by the police about the existence of footage from the fourth camera and as late as 7 September 2012 it was still being indicated to the defence that the fourth camera had not worked. This was compounded by problems in the formatting of the footage which meant that it could not be accessed by the defence until shortly before the hearing.
[30] On the other hand, it would have been possible for an adjournment to have been sought. Mr Callaghan indicated that this course was not adopted because at that stage there was no evidence about the earlier meeting. While this is true, I note that in his statement to the police on 5 March 2012 Mr Kraak stated:
At about 2 p.m. I saw Roger [O’Byrne] riding his four wheeler near the boundary property so I went to talk to him about the LPG gun in the hope to get him to move it from its location as the noise was becoming a nuisance to our horses which were in the shed on the corner of our property closest to the bird scarer.
He went on to say that when he started to talk to Mr O’Byrne, Mr O’Byrne replied
“Why don’t you get stuffed” or something similar and rode off on his farm bike.
11 R v Bain, above n 10 at [26].
[31] With the benefit of hindsight it might be said that the significance of the earlier meeting should have been appreciated. But at the time decisions were made about the viewing of the camera footage, it is understandable that no one appreciated that the earlier meeting would feature at the hearing.
[32] On balance I have decided that it would be contrary to the interests of justice to refuse leave to adduce further evidence solely on the basis that it was not sufficiently fresh. This reflects the unusual circumstances of this case. I should add, however, that this does not in any way suggest bad faith on the part of the police.
[33] Given that conclusion it now becomes necessary to examine the other controls on the admission of further evidence.
Credibility
[34] There is no suggestion that anyone has tampered with the evidence. It is common ground that this requirement is met.
Cogency
[35] The basis on which the appellant says that the evidence is cogent has already been summarised: see [26] above.
[36] By way of response the respondent contends: the cameras, including camera
4, only show a limited part of the boundary and the further evidence could not therefore establish that the earlier meeting had not taken place; this is especially so given the absence of any specificity about the exact time and location of the meeting; in any event, Mr O’Byrne accepted during the video interview that the meeting took place; and further reference to footage already played in the District Court, even if supplemented by footage from camera 4, is irrelevant to the issue whether the footage should be admitted.
[37] I will begin my assessment of the cogency of the new evidence by reference
to Mr O’Byrne’s statement to the police. Then I will consider his evidence. Finally I
will consider whether the new evidence is such that it might have led to a finding of not guilty if it had been called at trial.
[38] After Mr O’Byrne had told Detective Drake his side of the 5:43 p.m. incident the detective said to him “and you’ve had no more dealings with Mr Kraak that day at all?” to which Mr O’Byrne replied “No.” On my reading of the transcript of the interview this was referring to dealings after the incident at around 5:43 p.m., hence the reference to “no more dealings”. I do not accept Mr Callaghan’s submission that this refers to the whole day.
[39] The interview then switched to what Mr Kraak had told the police. Detective Drake told Mr O’Byrne that she would put to him a couple of things that Mr Kraak had said so that he could comment if he wished. The following exchanges then occurred:
Detective: Um, he said that he he’s obviously seen you out there and he’s come out and he’s started to talk to you and that you’ve said why don’t you get stuffed or something similar.
Mr O’Byrne: I did say that. I did.
Detective: You did and then you rode off, you’ve been on your four
wheeler bike, is that
Mr O’Byrne: Three wheeler yep
Detective: Three wheeler ok and then you rode off, um that’s fine
Mr O’Byrne: Yep I did say that, say that
Detective: Yep
Mr O’Byrne: I just have no interest in – I just have no interest in talking to those people at all.
This ties in with the earlier incident where Mr O’Byrne had told Mr Kraak to get stuffed and then driven away. Later there was specific reference to what Mr Kraak had said about the 5:43 p.m. incident which tends to rule out any possibility that the detective and Mr O’Byrne were in fact discussing this incident, not the earlier one.
[40] Now I turn to Mr O’Byrne’s evidence at trial concerning the earlier incident.
[41] During Mr O’Byrne’s evidence in chief the following exchange occurred
between Mr Callaghan and Mr O’Byrne:
Q. Do you recall the 4th of March?
A. Oh vaguely, until this happened it was no different to any other day. Q. Okay. How many runs did you do that day?
A. Probably three.
Q. Okay, we’ve heard Mr Kraak say that on the, in the afternoon,
2 o’clock-ish, he tried to talk to you when you were near the corner of the boundary.
A. Yeah I heard him say that. Q. Yes, do you recall –
A. I don’t, I don’t actually recall that, there was one about, ah, a week
beforehand when his wife came over and, ah, had a shot at me.
Q. Okay. But you don’t recall that the –
A. No.
Q. - the – could it have happened?
A. I, I mean, he could have been there and I not have heard him –
Q. Yes.
A. - that’s possible.
Q. Why’s that?
A. Well, I mean, if I had my earmuffs on and I was riding the bike, and he got there after I’d left, maybe I didn’t even go that far that particular – I, I don’t recall.
Q. Okay.
A. I don’t think there was an event that afternoon.
Q. Okay. We know there was one at –
A. 5 o’clock.
Q. - 5 o’clock –
A. Later on. Q. Yes.
I note that there was no outright denial that the earlier event had occurred. Rather
Mr O’Byrne did not think that such event had occurred.
[42] When Mr O’Byrne was under cross-examination the prosecutor explored the evidence that had been given by Mr Kraak about the meeting earlier in the day:
Q. So when Mr Kraak comes along to you and says, earlier in the day, “Can you move that bird scarer away from closer to my property?” you tell him to get stuffed, don’t you?
A. No, he didn’t say that.
Q. We’ve heard his evidence that he said –
A. Ah, we’ve heard his evidence but, you know, what he said to me was
more an instruction. It wasn’t a conversation.
Q. So do you remember that conversation about the bird scarer? A. Yes I do.
Q. But the bird scarer remained where it was didn’t it?
A. What, for the day? Q. For that day.
A. Yeah.
Q. And he went away and you went about your business, is that right? A. That’s correct.
Shortly thereafter the prosecutor embarked upon a detailed cross-examination about the incident at 5:43 p.m. Again there was no room for confusion about which incident was being discussed, especially given the reference to “earlier in the day”.
[43] Together with the video footage that was played in the District Court, this was the evidence before the Judge. She was entitled to interpret that evidence as either a concession on the part of Mr O’Byrne that the earlier meeting had taken place or, at the very least, an indication that he was not able to categorically say that it had not taken place. The issue is whether the video footage that the appellant now seeks to adduce would have sufficiently undermined Mr Kraak’s credibility for a verdict of not guilty to have been likely.
[44] Three of the cameras that were operating earlier in the day appear to provide a relatively comprehensive coverage of the general area where the meeting earlier in the day is said to have taken place. The footage tends to suggest that there was no meeting. However, several matters need to be taken into account. First, although unlikely, it is possible that the meeting was not captured by the footage. Secondly, regardless of whether the meeting took place, the focus must remain on the incident later in the afternoon that gave rise to the charges. Thirdly, a Judge is entitled to accept some parts of a witness’ evidence and reject other parts. Given those matters, I cannot be confident that the Judge would have been likely to have acquitted if the footage earlier in the day had been before her.
[45] The other issue is whether the footage now available, including footage from camera four, would have been likely to have altered the Judge’s approach to Mr O’Byrne’s contention that the incident had been concocted by Mr and Mrs Kraak. To a large extent this focuses on the appellant’s argument that shortly before the 5:43 p.m. incident, a person is standing alongside the white car.
[46] Having played the relevant composite footage, I have not been persuaded that there is anything in this point. The image might be a person. But as Judge Moran noted, there is no indication that Mr Kraak talked to that person. Apart from that, it is difficult to see how events could have been orchestrated in a way that would have caused the offences to have been committed. Mr O’Byrne came along the lane, did a U-turn, and then the events giving rise to the charges occurred, regardless of what Mr and Mrs Kraak might have been doing or trying to do.
[47] Nothing that I have seen leads me to the conclusion that any additional footage would have been likely to have altered the Judge’s findings of guilt.
Conclusion
[48] Ultimately it is a matter of discretion whether leave to adduce further evidence is granted. Given that the evidence has limited cogency, I am not prepared to exercise my discretion in favour of admitting the evidence, especially when it is highly likely that if the evidence was admitted the outcome would still be the same.
Appeal against conviction
[49] It is convenient to consider the discharge of firearm conviction first. While Mr Callaghan did not dispute that the Judge correctly identified the elements of the charge, he submitted that the Judge erred in finding that there was a discharge “near” a dwelling house.
[50] To support his proposition that the necessary proximity to a dwelling house had not been met, Mr Callaghan emphasised a number of matters: the considerable distance from where the shot was fired to the dwelling house; the dwelling house was sheltered by trees, a hedge, fences and buildings; there was no view of the house from where the shot was fired; and the shot was directed away from the dwelling house.
[51] I am satisfied that the Judge correctly applied the law when determining that the shot was fired “near” the dwelling house. As the Judge recognised by reference to the decisions of this Court in Carter and Rose, the word “near” needs to be applied having regard to the purpose of the legislation which, amongst other things, is to give security to persons in dwellings so that they can feel secure from the hazards that go with the use of firearms by others. It is a question of fact whether in this case the shot was fired “near” the Kraak residence and I am not prepared to differ from the Judge’s finding, especially when the dwelling in Carter was 80 – 90 metres from where the shot was fired.
[52] The purpose behind the firing of the shot came down to an issue of credibility. Having seen and heard Mr Kraak and Mr O’Byrne and the footage covering that incident the Judge was much better placed than this Court to resolve that issue. Her conclusion that it was an act of belligerence unrelated to Mr O’Byrne’s farming practice was plainly open to her. Like the Judge, I interpreted the footage of Mr O’Byrne’s body language as indicative of indicating belligerence on his part.
[53] The appeal against conviction for discharging the firearm cannot succeed. I
now turn to the other conviction.
[54] Again the Judge had the benefit of hearing and seeing the witnesses. For the reasons that the Judge gave, it is hardly surprising that she rejected Mr O’Byrne’s evidence that he had threatened to “heel” Mr Kraak. There was a suggestion that the Judge erred by taking into account the earlier incident in which Mr O’Byrne said that he had threatened to kill Mr Kraak. However, this admission appears to have been before the Judge as part of the police interview without objection. Consequently the Judge was entitled to take it into account.
[55] The appeal against conviction on this count also fails.
Appeal against sentence
[56] When imposing sentence the Judge identified several aggravating features of the offending: the high level of conflict between Mr O’Byrne and the Kraak family; his deliberate and provocative actions; absence of remorse; and absence of insight into the offending. The Judge said that she was greatly concerned about what might happen in the future.
[57] Having noted that the charge of threatening to kill carried a maximum sentence of seven years imprisonment and the firearms charge three months imprisonment, the Judge took into account the purposes and principles of sentencing. The sentence mentioned at the outset was then imposed.
[58] The appeal against sentence can only succeed if the sentence is manifestly excessive. In my view that is not the case and the appeal against sentence is dismissed.
Outcome
[59] The application to adduce further evidence is declined. The appeals against conviction and sentence are dismissed.
Solicitors:
Mark Callaghan, Christchurch
Raymond Donnelly & Co, Christchurch
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