Reeve v Police

[2021] NZHC 1775

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-000019

[2021] NZHC 1775

JOHN ALBIN REEVE

v

NEW ZEALAND POLICE

Hearing:

14 July 2021

Appearances:

P V Paino for the Appellant

A M Barham for the Respondent

Judgment:

14 July 2021

JUDGMENT OF COOKE J

[1]    The appellant appeals against his conviction on one charge of presenting a firearm in contravention of s 52(1) of the Arms Act 1983.1 He was fined $750, ordered to pay Court costs and his firearms license was revoked.

General background

[2]    The appellant, Mr John Reeve, and Mr Adrian McIntyre, the complainant, have been neighbours for around 20 years. Mr Reeve owns a farm block adjacent to Waihi Falls Road and Waione-Horoeka Road, while Mr McIntyre lives on Towai Road and also leases a farm block called Lindon block, which is adjacent to Waihi Falls Road, and neighbours Mr Reeves’ property. They have had a history of disagreements.

1      New Zealand Police v Reeve [2021] NZDC 2979.

REEVE v NEW ZEALAND POLICE [2021] NZHC 1775 [14 July 2021]

[3]    On Saturday 9 May 2020 Mr McIntyre’s two sons went to his leased block to hunt. Soon after, Mr McIntyre also arrived at his block to check on his sons. Meanwhile Mr  Reeve  was on his  own property, around 150 meters  away  from  Mr McIntyre’s sons who were shooting. Mr McIntyre engaged in a verbal argument with the appellant. During the argument Mr Reeve was alleged to have picked up his rifle from his vehicle. He is then alleged to have pointed it at Mr McIntyre, who began to record him with his cell phone. Mr Reeve put the rifle back in his vehicle and left.

[4]    In explanation, Mr Reeve said Mr McIntyre had started the argument and he had only shown him the rifle to explain he was entitled to shoot deer on his own property, and that he did not point it at Mr McIntyre.

Approach to appeal

[5]    This appeal is governed under s 232 of the Criminal Procedure Act 2011 as a first appeal. The Court must allow the appeal where it is satisfied that, in this case, the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred,2 or if a miscarriage of justice has occurred for any reason.3 A miscarriage of justice means any error, irregularity, or occurrence in relation to or affecting the trial that created a real risk of affecting the outcome of trial, or resulted in an unfair trial or a trial that was a nullity.4

[6]    Appeals occur by way of rehearing without the limits arising from an appeal from the exercise of a discretion.5 However, as the Supreme Court held in Sena v R,6 the language of s 232(2)(b) requires there be a “focus on the judge’s assessment of evidence, a focus which presupposes the existence of reasons from which the substance of that assessment can be discerned”.7

2      Criminal Procedure Act 2011, s 232(2)(b).

3      Section 232(2)(c).

4      Section 232(4).

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

6      Sena v R [2019] NZSC 55.

7 At [28].

The issue on appeal

[7]    The appellant contends that on the evidence at trial the District Court could not be satisfied that the prosecution had proved the elements of the offence beyond reasonable doubt, and there has been a miscarriage of justice. Section 52 of the Arms Act provides:

52 Presenting firearm, airgun, pistol, or restricted weapon at other person

(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding $10,000, who, except for some lawful and sufficient purpose, presents a firearm (other than a prohibited firearm), airgun, pistol, or restricted weapon (whether or not the firearm, airgun, pistol, or restricted weapon is loaded or capable at the time of the offence of discharging any shot, bullet, missile, or other projectile) at any other person.

[8]    The key question is whether on the facts as proved the prosecution established that the appellant presented a firearm at any person. On that issue the Judge held as follows:8

[14]      Having considered all of the evidence, I conclude that the defendant had his gun out of the vehicle, and asserted while brandishing the rifle, but not pointing it at Mr McIntyre, that he was allowed to shoot on his own property. Tempers were very high. Even after being asked whether Mr Reeve was pointing the gun at Mr McIntyre, which is plainly heard in the video, Mr Reeve repeated the assertion that he is allowed to have it on his property.

[15]      The question, legally, is whether this action amounts to presentation. Both counsel refer to me to the decision in Police v Ashby, which is authority for the proposition that a gun need not be pointed. The Court found that if a firearm is brandished, deployed or displayed in a threatening way, then it could be “presented”.

[16]      I consider that the facts are proved beyond a reasonable doubt as summarised above. I consider that the brandishing of the gun in that way, in that context, and accompanied by the immoderate exchange which both men participated in, constitutes presenting. There is no assertion of a lawful or sufficient purpose. All of the elements of the offence are proved beyond a reasonable doubt.

(Footnotes omitted)

8      Police v Reeve, above n 1.

Assessment

[9]    As is required for an appeal against conviction of this kind I have considered the underlying evidence as well as the Judge’s findings. The evidence that was led to prove that the appellant presented a firearm at Mr McIntyre came from Mr McIntyre’s evidence at trial, Mr Reeve’s formal police interview, and two short cellphone recordings.

[10]   The existence of the first cellphone recording only became apparent at trial. It is a recording from a police officer’s phone of Mr McIntyre playing a recording on his own phone. That shows the  initial  verbal  argument  between  Mr  McIntyre  and Mr Reeve. This was on the boundary of their properties when they are about 20 metres apart, and when Mr Reeve and his partner are some distance down a slope from his vehicle parked at the top of a rise facing away from Mr McIntyre. That recording does not show the incident in question.

[11]   The second recording is from Mr McIntyre’s own phone. Mr McIntyre said that he commenced making this recording immediately after the incident when the alleged presentation of the firearm took place. In this video Mr Reeve is now up at his vehicle, and can be seen placing his rifle on the dashboard. Mr McIntyre can be heard calling out to Mr Reeve  “Show  me  that  again.  Are  you  pointing  that?”. Mr Reeve turns and replies “I’m allowed to it’s my own property”. Mr McIntyre then asks again “Are you pointing that?” and then calls out “Come on here then cunty” before further verbally abusing him.

[12]   Mr McIntyre’s evidence of what occurred just before this exchange was explained in the following exchange in cross-examination:

Q.I suggest what happened is he got his firearm and he move - took it   out of the driver’s seat, driver’s door, through that and then replaced it back at the front of the vehicle and he didn't point it?

A.       That’s certainly not what happened.

Q.       That’s not what you, you'd say that?

A.       No.

Q.And he never said anything to you when you say this was happened,  he –

A.He, yes he did, he - when he pulled the firearm out he turned around  and he said, “I’m allowed to shoot deer on my own fuckin property”, shaking it and he was fairly angry now, he was pretty angry now, and then that’s when he shook it and then it came straight up and then that, like I said before, I was sort of, I just went woah, this has just gone to a new level and then, yeah, thought well, phone up, get this thing going, and yeah I, yeah I got what I got at the end.

[13]   The reference to the firearm coming “straight up” after Mr Reeve had been shaking it was Mr McIntyre’s most detailed evidence of how the firearm was being pointed at him. Mr Reeve did not give evidence, but at his formal interview he said that he had been moving the firearm from the drivers area of his vehicle up onto the dashboard, and that when Mr McIntyre asked him what he was doing he was “indicating” he was shooting and then put the gun down. There is other evidence, including on the timing of the hearing of shots from the activities of Mr McIntyre’s sons a short distance away, which I do not see as of much relevance. The key point is that Mr McIntyre’s evidence was that Mr Reeve shook or displayed the gun, and that this included him pointing the gun because “it came straight up”. In Mr Reeve’s interview he said “I was indicating, shooting, put the gun down” which might be understood to mean that he showed the firearm to Mr McIntyre saying he was shooting in response to Mr McIntyre’s question, and then put it on his dashboard. But he denied pointing it at Mr McIntyre. On both accounts Mr Reeve would likely have turned around to face Mr McIntyre when responding to him and then likely turned back to put the firearm in the vehicle. The available video occurs only after these events.

[14]   As the District Court Judge noted in Ashby v Police the High Court held that an offence against s 52 can be committed even though the defendant does not actually point the firearm at the person in question. In that case the defendant contended that the complainant had sex with his girlfriend. He went around to the complainant’s address with a shotgun and went into the complainant’s kitchen. He then said “if you screwed her I will blow you away”. He held the shotgun at his side and made a motion to cock the shotgun by moving a lever on the side. Barker ACJ focused on the meaning of the word “present” and held:9

I agree with the submissions of counsel for the respondent that, if a firearm is brandished, deployed, or displayed in a threatening way, then it could be “presented”. One looks at the object of the legislation which has a clear intention of discouraging the use of firearms without lawful excuse. Here the

9      Ashby v Police (1993) 12 CRNZ 114 at 117–118.

firearm was clearly used by the appellant in a way threatening to the complainant; particularly this was the case when the appellant moved the cocking mechanism which action justifiably induced in the complainant a feeling that the gun may well be used on him. The definitions include “hold out weapon in position for aiming” which rather implies that presenting is different from aiming. If the gun is being used to intimidate, as this gun was, then I cannot see why that action is not included within the word “presenting”.

…

What is “presenting” of course must be a matter of degree. If one were to carry a firearm in a bag or merely leave it on a table or on the floor but not use it in any menacing way, then it is doubtful whether that action could come within the definition of “presenting”. In my view, the word is sufficiently broad to encompass that which was done in this case, namely using a firearm in a clearly intimidatory way which way could in some circumstances (I do not necessarily say in these circumstances) be the forerunner of aiming it at a person.

[15]   I agree with this assessment, and suggest its correctness is further shown by the fact that under s 52 the firearm not only must be presented, but that it must be presented “at any other person” (emphasis added). The dictionary definitions of “present” have as one of the more particular meanings the holding of a firearm in an aiming position. When interpreting the text in light of its purpose the offence can be thought of as involving a threat to discharge a firearm at a person by the physical act of displaying the firearm to that person. Normally that would involve aiming, or pointing it at that person. But there will be other physical acts of display of the firearm that are the equivalent of pointing it. The actions of Mr Ashby are an example. It seems to me that the display of the firearm by the defendant must objectively involve a threat that the firearm might be fired at the person to whom it is displayed.

[16]   Based on the Judge’s findings at  [14]  quoted  above  she  did  not  accept  Mr McIntyre’s evidence that Mr Reeve pointed the firearm at him. That is an understandable finding on the evidence. Both men seem to have lost a degree of self- control, and their explanations for what happened were likely coloured accordingly.

[17]   The District Court Judge’s conclusion is based on a finding that “brandishing” weapon during the highly charged argument involved a presentation of the firearm. I do not agree that this satisfied the element that the firearm be presented at a person. It did  not  involve  the  equivalent  to  pointing  the  firearm  at  Mr McIntyre.   On   Mr McIntyre’s remaining evidence Mr Reeve was shaking the weapon and at the same time calling out that he was allowed to shoot deer on his own property. If that is what

Mr Reeve said, then  he  was  not  suggesting  that  he  was  threatening  to  shoot  Mr McIntyre with it. Mr McIntyre’s evidence that there was such a threat was based on the suggested pointing which the Judge did not accept. Mr McIntyre’s cellphone recording shows him asking the question “are you pointing that?”. That also suggests ambiguity over whether there was a pointing.  Perhaps the firearm was pointed in  Mr McIntyre’s general direction as Mr Reeve turned and put it on the dashboard after shaking it. Perhaps that ambiguity was deliberate. But the actions are ambiguous, and what Mr Reeve is reported to have said was that he had the firearm for deer hunting, rather than for use against Mr McIntyre.

[18]   The offence is not committed because a defendant is being stupid with a firearm. Indeed it is not even committed by the brandishing of a firearm. The firearm must be presented at a person. It is possible that Mr Reeve crossed the line in the manner in which he showed his firearm to Mr McIntyre, but it is only a possibility. Mr Reeve is entitled to the benefit of the doubt. Given the Judge’s finding that he did not point the firearm at Mr McIntyre, I am not satisfied that the prosecution proved beyond reasonable doubt that he presented it at Mr McIntyre in some other way that is the equivalent of pointing it at him. The circumstances are well short of the kind involved in the Ashby case.

[19]   I can understand why this prosecution was brought. Matters have been getting out of control. It seems likely that Mr Reeve had lost his temper and was behaving stupidly with a firearm in his hands. For his part Mr McIntyre was also acting in an abusive and stupid way. If Mr Reeve had really pointed the firearm at him after his first verbal challenge, or even if he had just showed it, his stupidity is reflected in his abusive retort that he “come on down then”. The incident reflects very poorly on both of them. Any further altercations they have which potentially engage the criminal law can be expected to be addressed in light of that background.

[20]The appeal is allowed and the conviction quashed. No re-trial is appropriate.

Cooke J