Pei v The Queen - [2016] NZHC 896

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pei v The Queen

Details

AGLC: Pei v The Queen [2016] NZHC 896
Case: [2016] NZHC 896
Decision Date: 5 May 2016

CaseChat Overview and Summary

The appellant, Mr Pei, has applied for leave to appeal the decision of Judge Large in the Palmerston North District Court, declining to dismiss the charge against him of using a firearm against a law enforcement officer under section 198A of the Crimes Act 1961. Mr Pei fired a shotgun at the Highbury Police Station and then entered the Palmerston North Police Station, firing two shots into the safety glass at the public counter, before leaving and firing two further shots at the glass entrance doors. The Crown counsel accepts that the High Court has jurisdiction to hear the appeal under section 296 of the Criminal Procedure Act 2011.

The legal issue before the court was whether the term "against" in section 198A requires the gun to be pointed and discharged at or toward the named constable. The court examined the relevant case law and the wider statutory context of the provision, noting that 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. The court concluded that the interpretation of the term "against" requires a contextualised assessment and that the issues raised in the appeal cannot be pre-empted by a Judge on a s 147 application. Accordingly, the court dismissed the application for leave to appeal.

This decision highlights the importance of a contextualised assessment of the term "against" in section 198A of the Crimes Act 1961 and the need for a trial to determine the appellant's intention in using the firearm. The court's decision also underscores the limited role of a Judge in determining the merits of a s 147 application and the importance of jurisdictional considerations in such appeals.

Orders