Stansbury v The King
[2025] NZHC 2860
•30 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2025-463-000067
[2025] NZHC 2860
BETWEEN SAM STANSBURY
Appellant
AND
THE KING
Respondent
Hearing: 24 September 2025 Appearances:
L J L Hemi for Appellant
T T T S Taane for Respondent
Judgment:
30 September 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 30 September 2025 at 3.30 pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Pollett Legal Ltd, Tauranga Piki Mai Law, Whakatane
STANSBURY v R [2025] NZHC 2860 [30 September 2025]
Introduction
[1] The appellant Sam Stansbury appeals against convictions entered by Judge L M Bidois in the District Court at Ōpōtiki on 18 February 2025 following a Judge-alone trial.1
[2]The appellant was convicted of the following charges:
(a)unlawful possession of a firearm;
(b)presenting a firearm at a named person;
(c)presenting a firearm at a second named person; and
(d)discharging a firearm with reckless disregard for the safety of others.
[3]The central issue is the trial Judge’s rejection of self-defence.
[4]The Crown opposes the appeal.
Background
[5] The charges arose from an incident on 29 December 2023 at Ford Street, Ōpōtiki. The Crown alleged that the appellant rode a quad bike on the street while in possession of a shotgun, presented the gun at neighbours Casey Loader and Edward Watene, and then discharged it with intent to cause grievous bodily harm.
[6] The appellant denied these allegations, accepting only that he presented the firearm at Edward Watene and discharged the firearm once into the air in self-defence. The appellant also says that he had possession of the firearm for a lawful purpose, namely hunting.
1 R v Stansbury [2025] NZDC 3383.
The District Court decision
[7] The Judge set out the four charges faced by Mr Stansbury and recorded that it was not disputed that Mr Stansbury had a shotgun or that he discharged it on the night in question.
[8] The Judge set out the defence to each charge. Mr Stansbury said that he had the firearm for the purposes of hunting and not for any illegal activity and had only used it for the lawful purpose of self-defence; Mr Stansbury denied that the firearm was presented at the respective complainants. He said that he had fired a shot in the air and not at the complainants, and at the time did not have an intent to cause grievous bodily harm (as charge four was initially discharging a firearm with intent to cause grievous bodily harm).
[9] The Judge recorded that the Crown called four civilian witnesses who had all seen different aspects of the incident which was short in duration. The witnesses were the two complainants Mr Loader and Mr Watene, Mr Watene’s partner and a neighbour. All witnesses saw the defendant with the firearm and witnessed the discharge of the firearm.
[10] Mr Loader described a sawn-off shotgun taken from a black bag. He said that Mr Stansbury waved it at him, then pointed the gun at the second complainant Mr Watene when he became involved. There was yelling, words were exchanged and then Mr Stansbury fired a shot over Mr Watene’s head.
[11] Mr Watene’s partner described investigating an argument at the front of her property. The defendant drove a short distance down the street, stopped, said something, drove a little further, took the gun out and shot it. The witness said it looked like the gun was aimed at Mr Watene, rather than pointed at the air.
[12] Another witness described going out the front of her home having heard an argument. She said that Mr Stansbury pulled a gun out of a fish bin and fired it towards Nelson Street in the general vicinity of where the complainant was standing. She said that there were two shots fired before he left.
[13] Mr Watene said that he heard yelling, so he went out to the front of his property. He got involved in an argument with Mr Stansbury. Mr Stansbury then drove a short distance down the road and fired the gun. The gun was fired in such a way that Mr Watene expected to be hit with pellets but was not. A single shotgun casing was found at the scene.
[14] The Judge also recorded the defendant’s account in evidence. Mr Stansbury said he had picked up a single-barrel shotgun and other belongings from his mother’s address to transport them to a farm so that he could hunt and fish with his children. He said that, as he was driving his quad bike to the farm, he was attacked by Mr Loader and punched in the face. He said Mr Loader tried to drag him off the quad bike and was yelling at him. It was then that Mr Watene came out and approached him.
[15] Mr Stansbury said he accelerated down the road in fear of his safety but unfortunately ran out of fuel because he had turned the fuel pump cap off. He then grabbed the gun from a firearms case, loaded it and fired a shot into the air. He turned the fuel line on, pumped the starter switch for about five seconds, got the bike going and took off.
[16] Mr Stansbury was not a firearms license holder, but the Judge accepted that having a gun for hunting purposes can be legitimate. However, the Judge said that hunting was something in the future. Mr Stansbury had the gun at the time of the incident not to go hunting, but to transport it from his mother’s address to the farm.
[17] The Judge was also sceptical about Mr Stansbury’s account of why he was transporting the gun at that particular time.
[18] The Judge then turned to consider self-defence in respect of the other three charges, noting that it was also relevant to Charge 1 because self-defence can be a legitimate purpose to possess a firearm.
[19] The Judge accepted that words were exchanged between Mr Loader and Mr Stansbury but could not resolve whether Mr Stansbury was punched by Mr Loader. Mr Stansbury asserted he was, while Mr Loader denied punching him, and no one else
saw the start of the incident. Ultimately, the Judge accepted that there were exchanges of words and Mr Stansbury could well have feared for his safety.
[20]However, the Judge found two problems with Mr Stansbury’s account:2
(a)Firstly, he said he turned the fuel cap off after revving up the bike to try and get the car started. But he had not got the car started, therefore he knew he had to use the bike to get to the farm, so he would not have turned the fuel cap off. Therefore, I do not accept his “running out of petrol” scenario.
(b)Even if the defendant did run out of fuel, the time difference to turn the tap on, pump the starter for five seconds and to get the bike going was shorter than it would have taken to lean forward, unzip a bag, remove the gun, locate a cartridge, load it and then fire it. The defendant was not under imminent attack at that time. Most of the evidence puts the defendant down the road, not near either Watene or Loader, they being some distance back.
[21] The Judge made a factual finding rejecting the explanation that the quad bike had run out of fuel. That is an important factual finding because, but for that fact, Mr Stansbury had the means of leaving the scene and there was no need whatsoever to use a firearm. Even if the explanation was true, the time needed to turn the fuel switch back on was a matter of seconds.
[22] The Judge rejected self-defence on the basis that Mr Stansbury was not under direct threat. He could easily have got on the bike and taken off. There were alternative and less dangerous options available to him even if he had run out of fuel. He could have pulled the gun out and just shown it towards the complainants or pointed it towards them to try to get them to back off, but instead he discharged a shot.
[23] In that finding, the Judge is essentially saying that even if self-defence were established, which the Judge was not satisfied it was given that he did not accept the running out of fuel scenario, the force used was excessive.
[24] The Judge then discussed the firearm itself, saying that Mr Loader was clear that the firearm was under one metre long and therefore had to be a modified shotgun.
2 At [24].
Mr Stansbury said it was a standard firearm (which is 1.5 m) but the Judge said that when he demonstrated the height of that it was not convincing. The Judge recorded that the firearm was not recovered because Mr Stansbury was able to make his escape. The Judge did not make any final determination as to whether the shotgun was cut down.
[25] The Judge acknowledged that Mr Loader did not describe the defendant moving down the road and then discharging the gun. His account was that Mr Stansbury stopped, started yelling and then pulled the firearm out.
[26] The Judge was satisfied that Mr Stansbury did move from the initial contact scene with Mr Loader down the road before the firearm was discharged. The Judge referred to the evidence of Mr Watene’s partner that the gun was pointed at Mr Watene or in his general direction. He did not accept evidence from the neighbour that there were two shots fired and was satisfied there was a single shot as a single spent shotgun cartridge was located at the scene.
[27] The Judge made a credibility finding and preferred Mr Loader’s account over Mr Stansbury’s account about him waving the gun around and pointing it at both him and Mr Watene, albeit that was not at the immediate time of the discharge which followed shortly afterwards.
[28] The Judge acknowledged Mr Stansbury’s account that he had been assaulted by Mr Loader at the beginning of the confrontation and on a much earlier occasion, 10 years before. This was denied by Mr Loader and not determined by the Judge.
[29] The Judge found that Mr Stansbury’s actions may well have been reactive but were not in self-defence.
[30] The Judge accepted that, when Mr Watene arrived on the scene, Mr Stansbury immediately turned his attention from Mr Loader to Mr Watene and, in doing so, would have also turned the gun towards him. Mr Watene anticipated being hit by pellets. It is implicit that the Judge accepted Mr Watene’s impression that he would be hit by pellets was a good indication of where the gun was pointed.
[31] The Judge was satisfied that the firearm was pointed at both Mr Loader and Mr Watene, albeit fleetingly.
[32] The Judge then recorded that the charge of discharging a firearm with intent to cause grievous bodily harm was more problematic. Expert evidence was called about pellet spread and factors impacting upon whether a target will be hit. Factors included the length of the barrel, length of the cartridge, size of the cartridge, atmospheric conditions and the range the shot was fired over, the size of the target and whether the target is static or moving, and the direction of the aim.
[33] The Judge accepted that there are about 450 pellets in a shotgun cartridge and anticipated that, if aimed at a target, some pellets should make contact if within range. In the present case, the Judge recorded that there was no gun recovered, no clear evidence of range, no evidence of the length of the barrel and no evidence on atmospheric conditions.
[34] The Judge found that Mr Stansbury was seated on a quad bike and Mr Watene was standing in the general area at which the shot was fired. The pellets all missed Mr Watene; many went through a tree well above the height of Mr Watene. In order to find the charge proven, the Judge said the intent must be to hit Mr Watene. Logic suggested that the complainant was not hit because the firearm was raised above him to such an extent that even the pellets at the bottom end of the spread missed. Mr Watene did not describe feeling the pellets go past him and he did not need to take any evasive action to avoid being hit. The Judge recorded Mr Stansbury’s evidence that he is an expert with firearms and that if he had wanted to hit Mr Watene he would have done.
[35] The Judge was not satisfied that the intent was to harm Mr Watene but was more likely to scare him and to deter any advance. The Judge said he had no doubt that the shot was fired in Mr Watene’s general direction but was not satisfied it was fired directly at him.
[36] The Judge recorded that the Crown applied to amend the charge to the included or alternative charge of discharging a firearm with reckless disregard.
[37] The Judge said that at the time Mr Stansbury took or removed the firearm, loaded it, and discharged it, he was not under imminent attack. He had an alternative option available to him which was to turn the tap on if he had run out of petrol, start the bike and take off, or having rejected the run out of fuel scenario, could have just taken off.
[38] The Judge said that given the effect of the discharge of the firearm was to cause real concern, upset or fear to those people in the neighbourhood who had come out to witness the argument, the charge should be amended to one of without reasonable cause discharging a firearm with reckless disregard for the safety of others.
[39] The Judge offered the defendant the opportunity to produce further evidence in respect of the amended charge.
The approach on appeal
[40] The appeal against conviction is governed by s 232(2)(b) and (c) of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that:
(a)the trial Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[41] A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that:3
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
3 Criminal Procedure Act 2011, s 232(4).
[42] The appeal is by way of rehearing.4 The appellate court must form its own view of the evidence.5 In doing so, the appellate court must recognise any advantages enjoyed by the trial judge in assessing evidence and must exercise “customary caution” where the challenge is to credibility findings based on contested oral evidence.6 If the appellate court comes to a different view of the evidence to the trial judge, that is necessarily indicative of error, and the appeal must be allowed.7 It is for the appellant to show that the judge erred either by pointing to an error in the assessment of the evidence or by pointing to a miscarriage which occurred for some other reason.8
[43] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without the error, the appellant would have secured a more favourable result; or because the error made the trial unfair.9
[44] Further, not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.10 What is required is a fair trial not a perfect trial.11
Discussion
[45] The evidence of Mr Stansbury directly contrasted the evidence of Mr Loader and Mr Watene. Mr Stansbury described being assaulted and threatened, with Mongrel Mob members chasing him down the road. In contrast, Mr Loader described Mr Stansbury being confrontational and aggressive. Mr Watene described sitting in his house and hearing yelling, before going outside to investigate and being confronted by an angry Mr Stansbury.
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
5 Austin, Nichols & Co Inc v Stiching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
6 Sena v Police, above n 4, at [38].
7 At [38].
8 At [38].
9 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
10 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
11 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58], citing R v Find [2001] 1 SCR 863.
[46] The appellant says that the Judge failed to resolve the conflict in the evidence between Mr Loader and other witnesses. Mr Loader said that the firearm was presented at him when the quad bike was first stopped outside his house. The other witnesses said that the firearm was only produced once Mr Stansbury had moved the quad bike down the road. The appellant submits that the Judge’s failure to resolve the conflict resulted in a miscarriage of justice. Mr Stansbury says that acceptance of his version (which was supported by the other witnesses) provided a narrative that, if accepted, provided a full defence to the charge.
[47] Having heard and seen from the witnesses, the trial Judge was in a much better position than I am to assess the evidence as a whole. However, even from the transcript, it is obvious that Mr Loader and Mr Watene were forthright and consistent in many aspects of their evidence. Mr Watene was very angry at what had occurred and said that Mr Stansbury would have got more than “a hiding” but I read that as a reaction to Mr Stansbury having discharged a shotgun towards him. It was not a reference to Mr Watene’s intention before that happened. Mr Watene clearly felt that he was the victim. He was very open in his reaction to the questions put to him and did not attempt to present himself in a positive light.
[48] The Judge explicitly accepted Mr Loader’s and Mr Watene’s account over Mr Stansbury’s account about Mr Stansbury waving the gun around and pointing it at both complainants. The Judge recorded that Mr Stansbury would have needed to register who was his main threat at the time he pulled the firearm out which was consistent with Mr Loader’s description of him waving it around. In that context, the Judge was satisfied the firearm was pointed at both Mr Loader and Mr Watene, albeit fleetingly.
[49] I consider that finding was available to the Judge, having heard and seen the witnesses. Accordingly, there is no error.
[50] On the issue of self-defence, the Judge rejected a core plank of the self-defence argument: that Mr Stansbury had run out of fuel and therefore was effectively unable to immediately leave the scene. He gave his reasons for failing to accept that. For Mr Stansbury, Mr Hemi complains that the Judge did not refer to Mr Stansbury’s
evidence about the fuel switch. Mr Stansbury said that he had turned the fuel switch off to prevent it flooding or leaking and had forgotten to switch it on again as he left his mother’s address. The Judge found that explanation implausible.
[51] Reviewing the evidence, I agree that it was open to the Judge to find the explanation implausible. Mr Stansbury gave evidence that he had driven from his mother’s address and stopped outside Mr Loader’s address because an item was insecure. He then became involved in a confrontation with Mr Loader which resulted in Mr Watene coming outside. Mr Stansbury said he was being chased by Mongrel Mob members. On the evidence, that was at best an exaggeration. Mr Watene’s evidence was that he was 10–15 m away and behind a fence. He did not jump the fence and he did not chase Mr Stansbury.
[52] Even if the fuel explanation was true, the evidence was that it took only seconds to switch to fuel back on and start the bike. The Judge went on to say that, even if true, this would not have altered his finding that the use of the gun was aggressive. There was simply no need to use a firearm to ensure he could leave the scene. Restarting the bike was the obvious step to take. Mr Watene was yelling at Mr Stansbury, but he was behind a fence and not chasing him down the road.
[53] Given the Judge’s credibility findings, it would be very difficult for the defence of self-defence to succeed. That is because Mr Stansbury clearly had options available to him other than either presenting or discharging the firearm. He could have, and should have, simply driven away.
[54] The appellant criticises what he calls the use of judicial logic. I find that criticism difficult to understand. Where judicial logic involves drawing inferences from proven facts, then it is clearly part of the proper function of the Court.
[55] The Judge rejected self-defence on a number of bases. He did not accept the underlying facts of the appellant’s evidence, namely the running out of fuel scenario. As stated above, the Judge said that even if he had accepted that fact, the discharge of the firearm was an excessive use of force and self-defence fails where the force used is excessive.
[56] In respect of the charges of presenting a firearm, the appellant acknowledges that the law does not require a firearm to be directly pointed at a person for it to be captured by the term “presenting”. Rather, there needs to be evidence that the firearm is being presented in an intimidatory way towards the complainant. Mr Hemi says there was a conflict in the evidence as to whether the firearm was presented at Mr Loader. The Judge did not sufficiently address the conflict in evidence or give sufficient reasons why Mr Loader’s evidence was preferred over Mr Stansbury’s.
[57] Assessment of credibility is the function of the trial Judge. The Judge acknowledged the differing accounts from a number of witnesses and the speed at which matters escalated. But Mr Loader’s evidence on the core issue was quite clear. There was at least a verbal confrontation between Mr Loader and Mr Stansbury and Mr Stansbury reacted by pulling out a firearm. Had he only done that, and had the Judge found that Mr Stansbury believed he was under imminent threat if he could not start the quad bike and leave, that action might be justified as self-defence. But the Judge did not accept that the firearm was produced for the purpose of self-defence. The Judge viewed Mr Stansbury as acting aggressively not defensively.
[58] As Mr Stansbury’s purpose in pulling out the firearm was not defensive but aggressive, the available inference is that it must have been presented at Mr Loader. Even on Mr Stansbury’s evidence, the purpose in taking the firearm out of the bag was to make Mr Loader and Mr Watene stay away from him. It is only logical that the firearm must have been pointed in their general direction in an intimidatory way and that is what both witnesses described.
[59] Turning to the charge of unlawful possession of a firearm, the appellant says that he did not have the firearm for an unlawful purpose. His purpose was hunting which the Judge accepted can be a lawful purpose even when the possessor of the firearm does not hold a firearms license.
[60] Possession encompasses a variety of situations. It can be the ability to exercise control over an item so that the possession in that sense, while the firearm was on the back of a quad bike in the fishing bin, would not have amounted to unlawful possession. At that stage, there was no unlawful element.
[61] The Judge found that, at the time when the appellant possessed the firearm — in the sense of holding it in his hands for the purpose of using it against the complainants — Mr Stansbury’s possession was unlawful. He was not the holder of a firearms licence, and he did not at that point possess it only for the purposes of hunting, although his general possession of the firearm could be legitimately explained that way. Had the appellant simply had the firearm in the fishing bin, a lawful purpose defence would likely have succeeded. But at the point Mt Stansbury removed the firearm from the bag, his purpose had changed. He possessed it for the purpose of using it aggressively against Mr Loader and Mr Watene. Absent self-defence, that is not lawful.
[62] The findings of fact and law in this case were available to the Judge. An appeal against a conviction is not an opportunity for this Court to substitute its own view of the evidence which is necessarily inferior because the trial Judge had the benefit of hearing and seeing from the witnesses.
[63] However, I agree with the findings of the Judge on the evidence. I would reject the defence of self-defence and I would find that charge of unlawful possession of a firearm proved.
[64] I also agree with the decision to amend the charge to a charge of reckless discharge of a firearm rather than discharge of a firearm with intent to cause grievous bodily harm.
Result
[65]The appeal is dismissed.
Wilkinson-Smith J
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