Pei v The Queen
[2016] NZHC 896
•5 May 2016
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2016-454-12 [2016] NZHC 896
BETWEEN FARANIKO FRANCES PEI
Appellant
AND
THE QUEEN Respondent
Hearing(AVL): 3 May 2016 Counsel:
P Murray for Appellant
M J Blaschke for RespondentJudgment:
5 May 2016
JUDGMENT OF WILLIAMS J
Introduction
[1] On the night of 9 August 2015, Mr Pei fired a shotgun at the Highbury Police Station from outside. Then he drove to and entered the Palmerston North Police Station. He fired two shots into the safety glass at the public counter. Constable Ross was sitting behind the counter. It is common ground that the shots were not fired at the constable or with any intention to shoot at her. On my viewing of the CCTV footage, it seems clear that the appellant purposely pointed his firearm about three metres from Constable Ross before firing. Having discharged the shotgun twice in this fashion, he then left through the main entrance and fired two further shots at the glass entrance doors. After a police chase, he was arrested on the outskirts of Palmerston North.
[2] It was also common ground that this incident occurred because the appellant was unhappy with the treatment afforded his sister at Palmerston North hospital. It appears she was a patient at the hospital and very unwell at the time. The appellant
had gone to the police the day before the incident to express his concern for her
PEI v THE QUEEN [2016] NZHC 896 [5 May 2016]
safety. The appellant discharged the firearm in the Highbury and Palmerston North police stations in order to underline his frustration in that respect.
[3] Mr Pei has pleaded guilty to three charges under the Arms Act 1983 and two under the Land Transport Act 1998 in relation to that incident.
[4] He has pleaded not guilty to a charge under s 198A of the Crimes Act 1961 of using a firearm against a law enforcement officer. He has elected a Judge-alone trial. Mr Pei applied for an order under s 147 of the Criminal Procedure Act 2011 (CPA) dismissing this charge, on the basis that there is no case to answer. That application was declined by Judge Large in the District Court at Palmerston North. He now seeks leave to appeal pursuant to s 296 of the CPA.
[5] Section 198A(1) provides:
Every one is liable to imprisonment for a term not exceeding 14 years who uses any firearm in any manner whatever against any constable, 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 constable or a traffic officer or a prison officer so acting.
(emphasis added)
[6] The questions of law identified by the appellant are:
(a) What is the correct interpretation of the term “against” as used in s
198A, Crimes Act 1961?
(b)Did Judge Large correctly interpret the word “against” in s 198A, Crimes Act 1961 when declining to discharge the Appellant under s 147, Criminal Procedure Act 2011?
[7] The other elements of the charge are not in dispute.
Jurisdiction
[8] There is a preliminary issue as to whether the High Court has jurisdiction in this matter, although counsel for the Crown accepts that in the particular circumstances of this case, leave to appeal should be granted.
[9] The starting point is that there is no specific provision for appeals against s 147 applications. Such applications are not referred to in subpart 2 of part 6 of the CPA, which relates to appeals against pre-trial decisions. Prior to the CPA, there was no jurisdiction for appeals in relation to the then equivalent of s 147 – s 347 of the Crimes Act.
[10] This application is brought as an application for leave to appeal on a question of law under s 296. Section 296 provides “if a person has been charged with an offence” the prosecution or defendant may apply for leave to appeal on a question of law arising inter alia, “in proceedings that relate to … the determination of the charge”.
[11] There is conflicting High Court authority as to whether s 296 allows a pre- trial appeal against a refusal to dismiss a charge under s 147. In Clarke v Police1 it was found that no jurisdiction exists; however in Clarke v Ministry of Social Development2 and Mihinui v Police3 it was found that although there is no general appeal against a s 147 decision there is a right under s 296 to appeal on a question of law. The same conclusion was reached in Rangitonga v Parker.4 The Court of Appeal in Anderson v R also discussed this issue although that case did not relate to s 147 specifically. Rather, it was about jurisdiction to hear an appeal relating to a decision not to grant leave to change an election. The Court found that there was jurisdiction.
[12] The appellant submits that applying the cases discussed to this case, the appeal is clearly within the ambit of the section because the question of law is
1 Clarke v Police [2015] NZHC 259.
2 Clarke v Ministry of Social Development [2014] NZHC 1830.
3 Mihinui v Police [2015] NZHC 1127.
4 Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.
closely linked to the determination of the charge: if the substantive appeal is allowed the charge will be dismissed.
[13] Crown counsel similarly notes that the question of law raised in the application is the same as it would be if it were raised after conviction. Accordingly, the relationship between the question of law and determination of the charge is a sufficiently close one. Counsel notes that the requirement for leave in s 296 enables the Court to ensure that such appeals are limited to questions of law, and are not in fact general appeals disguised as questions of law.
[14] As it transpires, I am not satisfied that the answer to the questions as posed, will be determinative of the proceeding on the facts as they are before me. I stress this is a fact-based issue. There will undoubtedly be other cases where the answer to the posed question of law is determinative of a s 147 application, and that this is likely to engage the appeal right in s 296. But on the view I have taken in this case, it is unnecessary for me to take sides in the judicial debate about appellate pathways on such applications. In order to explain my view, it is necessary first to address the substantive appeal.
Question of law – meaning of “against”
[15] The essential question is whether the appellant could still have been using his firearm “against” Constable Ross, if he deliberately discharged it in her presence, but away from her.
District Court decision
[16] The Judge discussed the interpretation of “against” and concluded that discharging the firearm away from the police officer but in her presence was sufficient for the purposes of s 198A. The Judge concluded:5
To say the weapon would need to have been pointed at Constable Ross (or in her general direction – the narrow view [of against]) must be wrong as that would give the elements of a completely different crime.
5 Police v Pei [2016] NZDC 3790 at [24].
[17] Applying that principle to the evidence as he saw it, the Judge reached this conclusion on the requirements of the charge:6
Given that the defendant knew Constable Ross was behind the partition and even accepting for a moment (if the fact finder reaches the point) that the firearm was deliberately pointed away from Constable Ross and never pointed at Constable Ross, the fact that Constable Ross while present and known by the defendant to be present, behind the partition when he discharged the weapon, it must be said that he used the firearm “in any manner whatsoever against” Constable Ross.
Submissions for appellant
[18] Counsel discussed two cases where the meaning of “against” in this context has been considered. In R v Swain7, the Judge adopted the dictionary definition of “facing; in full view of” or “towards or towards another into contact with”. It was thus found that removing a firearm from a bag and uttering the words “don’t be stupid” in response to a request from the police officer that the defendant reveal himself was sufficient. Counsel submitted that although the issue in that case was
“use”, the actions of Mr Swain were directly in response to the constable and
amounted to “against” for that reason.
[19] In Hutton v R, “against” was 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.” 8 Notably, it was not necessary to present and aim the pistol in question in that case. Removing it from the bag was sufficient to satisfy the mens rea in the particular context. In that case, the Armed Offenders Squad was looking for Mr Hutton and a pistol. Police advised him of this. He said nothing, went to a vehicle and removed a firearm. He was described as holding it with his thumb on the trigger. He resisted but eventually let
the officer take the pistol.
[20] Mr Murray submitted that the words in s 198A “in any matter whatever”
relate to the word “use” and not to “against”. That is, the firearm can be used in any
manner, but these words do not support a broad interpretation of “against” because
6 At [25].
7 R v Swain (1992) 8 CRNZ 657.
8 Hutton v R [2010] NZCA 160 at [20].
they do not say “against in any manner”. Courts, it was submitted, have previously used these words to interpret “use” broadly, but not to read “against” broadly. Thus, it was submitted, “against” still carries a narrow meaning.
[21] Mr Murray accepted that the definition of “against” in Hutton was broader than in Swain. But he submitted that discharging a firearm at or inside a police station will not in all circumstances be “adverse in some way to the interests of one or more members of police who were present”. This is because the term “against” connotes that a firearm must be used against a particular (named) constable and there must be an intended, direct connection between the defendant’s use of the firearm and the named constable.
[22] Counsel submitted that if a narrow, ordinary meaning of “against” is adopted then there is no case to answer. This is because Mr Pei’s intent was to make a point about the treatment of his sister, and not to target any particular police officer. The CCTV footage shows that the appellant moved away from Constable Ross before discharging the firearm. It was therefore not fired, or used in any other way “against” her.
Crown submissions
[23] Counsel submitted that presentation (in the literal sense) of a firearm in clear view of a police officer and discharging the firearm in close proximity to the officer, in any direction, are forms of use against the officer. Counsel submits that this is evident from the cases and consistent with the statutory purpose of the section.
[24] In Hutton, removing the weapon from the bag was sufficient to satisfy the actus reus. Counsel submitted it must follow that in this case, levelling the firearm in close and direct view of the constable is itself use against her, and discharging it in close proximity to her is also use against her.
[25] Counsel referred to additional sentencing cases under a 198A to illustrate the ambit of conduct that falls within the section. Counsel pointed to the discussion in R v Taylor about the section being broad and not requiring intention to fire the
weapon.9 In R v Samuels the defendant fired at police cars during a chase, and then got out, walked towards police, and shot a constable directly.10 There were four charges of presenting the firearm and four of discharging it. Counsel submitted that aiming generally at the vehicles was considered use against the officers driving
them.
[26] In R v Wells, the discharges were in the general direction of the pursuing officer.11 Two older decisions (Atkinson v R12 and R v Collier13) were cited to illustrate that shots not directed at the police officer directly can still amount to “use against”.
[27] As to intent, this can be inferred, as it was in Swain. Counsel submitted that the intended adverse effect of the use can be inferred from presentation or actual discharge. Mr Pei’s intention to draw attention to his sister’s treatment does not change this analysis.
[28] As to the phrase “uses in any manner whatever against”, counsel submits that this is to be interpreted as a whole. If the word “against” meant that the direction of the use was at the officer, then the reference to any manner whatever would be unnecessary, because only presenting the weapon directly would be covered. Since presentation of firearms generally is already expressly criminalised, if Parliament only intended to cover presentation in this section it would have adopted different wording.
[29] Counsel submitted further, that s 198A can be contrasted with the offence in s 198, discharging a firearm with intent. This requires a particular form of use (discharge) with a particular form of intent (to cause grievous bodily harm). Section 198A must therefore, it was submitted, cover situations short of discharge
with intent to cause grievous bodily harm.
9 R v Taylor CA407/88 9 May 1989.
10 R v Samuels [2009] NZCA 153.
11 R v Wells HC Auckland CRI-2003-092-26964 30 April 2004.
12 R v Atkinson [1990] 2 NZLR 513.
13 R v Collier CA27/92 21 May 1992.
[30] For these reasons, counsel submitted, it would be anomalous for s 198A to cover the situations in Swain and Hutton where there was no discharge, presentation or intent to discharge, but not cover the present situation where the firearm was both presented and discharged.
Discussion
[31] The wider statutory context within which s 198A sits, suggests that “against” does not require the gun to be pointed and discharged at or toward the named constable. That scenario is covered by s 198 in the offence of discharging a firearm with intent. On the other hand, simply possessing a gun in the vicinity of the constable will not be enough to establish an intention to use it “in any manner whatever against” the constable in question. As the cases all demonstrate, context will be everything in establishing whether the requisite intention to “use against” is established.
[32] Thus, in the context of an Armed Offender Squad raid on the appellant’s property (Hutton), it is hardly surprising that reaching into a bag and removing a pistol in the presence of the police was seen by the Court of Appeal as use against the officer in question. Similarly, it was predictable that a man found by police at a service station at 3 o’clock in the morning, clad in overalls and a balaclava, with a gun belt strapped to his waist (Swain), would be found to have used his pistol grip sawn-off shotgun against the police when he reached into his bag and pulled it out. Perhaps importantly, the constable in question was only one metre from the appellant at that time.
[33] It is unnecessary to traverse other authorities cited on the subject, but they all follow a common theme of highly contextualised assessment.
[34] In the case before me, there are at least two available interpretations of the evidence, including the CCTV footage. Either the appellant walked into the Palmerston North Police Station intending to shoot holes in it to make his point; or he came in, saw Constable Ross and sought to make his point, in whole or in material part, by frightening or intimidating her with his firearm.
[35] On the first scenario, the firearm cannot be said to have been used against Constable Ross because she was irrelevant to the appellant’s action and intention. She just happened to be in the vicinity.
[36] On the second scenario, the appellant is mindful of Constable Ross’ presence and she becomes part of the means by which he pursues his objective – that is, to make a point about his sister’s safety. On that scenario, using the firearm, even partly, to intimidate Constable Ross becomes another way of underlining his anger and frustration about his sister’s treatment.
[37] Thus, the question in the particular context of this case is whether the appellant used the firearm intending, in whole or in part to frighten or intimidate Constable Ross. If by being present behind the counter at the time, Constable Ross became an impromptu part of the appellant’s point-making strategy, then the weapon was used against her.
[38] The long and short of it is, these issues are for the Judge to resolve at trial having heard all of the evidence and seen the CCTV footage. If the first scenario is a reasonable possibility, the verdict will be not guilty. If the second scenario is proved beyond a reasonable doubt, the verdict will be guilty. These choices cannot be pre- empted by a Judge on a s 147 application.
[39] It must follow that since the question as posed cannot be determinative of the charge, it is not appropriate to grant leave to appeal under s 296, and the application
for leave must be dismissed accordingly.
Williams J
Solicitors:
P Murray, Barrister & Solicitor, Palmerston North
BVA Law, Palmerston North
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