Sutherland v Police

[2025] NZHC 3201

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-16

[2025] NZHC 3201

BETWEEN

ALAN GORDON SUTHERLAND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

3 July 2025 (further material received on 13 and 20 October 2025)

Appearances:

M Nicholls for the Appellant

J P Hamber for the Respondent

Judgment:

24 October 2025

JUDGMENT OF GAULT J

(Appeal against conviction)

This judgment was delivered by me on 24 October 2025 at 4:00 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr M Nicholls, Martin Nicholls Ltd, Kerikeri

Mr J P Hamber, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei

SUTHERLAND v POLICE [2025] NZHC 3201 [24 October 2025]

[1]                 Mr Sutherland appeals his conviction for presenting a firearm without a lawful and sufficient purpose contrary to s 52(1) of the Arms Act 1983,1 following a judge-alone trial before Judge G Tomlinson in the District Court at Whangārei.2

The prosecution case

[2]The prosecution case was summarised in the police summary of facts.

[3]Mr Sutherland and Mr Robson are neighbours and known to each other.

[4]                 At approximately 12:30 pm on Tuesday 30 January 2024, Mr Robson went to Mr Sutherland’s house in Waipu. Mr Robson was going to discuss issues he was having with his septic pipe that runs through Mr Sutherland’s property.

[5]                 Mr Robson exited his vehicle and could see Mr Sutherland through the open kitchen window.

[6]                 As Mr Robson was about to discuss the issues, Mr Sutherland said, “you’re trespassing, fuck off”.

[7]                 As Mr Sutherland stood by the kitchen bench, he picked up a black pump action shotgun and pointed it towards the ground at a 45-degree angle, holding it in both hands.

[8]                 Mr Sutherland pulled the slide grip back and forward once to action the shotgun.  As  he  did  so,  Mr  Sutherland  was  looking  directly  at  Mr  Robson.   Mr Sutherland’s actions made Mr Robson nervous due to his threatening behaviour.

[9]Mr Robson turned and walked back towards his vehicle.

[10]              From inside the house Mr Sutherland said, “there’s a device in the pipe and   I hope it goes off when you’re sitting on the toilet”.

1      Arms Act 1983, s 52. Maximum penalty six months imprisonment; or a fine not exceeding

$10,000.

2      New Zealand Police v Sutherland [2025] NZDC 1363.

[11]Mr Robson looked back and could still see Mr Sutherland looking at him.

[12]Mr Robson got into his vehicle and drove home.

District Court decision

[13]              The Judge said the issue  was  whether,  at  the  time  Mr  Robson  visited,  Mr Sutherland had in his hands the shotgun in question. Mr Sutherland denied holding or presenting a firearm and said it was never there. The Judge rejected his account as a lie. He accepted the account of Mr Robson as honest and reliable. The Judge was satisfied beyond reasonable doubt that Mr Sutherland was holding his black shotgun. He was also satisfied that holding the shotgun, raising (though not pointing) it, actioning it and the words used amounted to presenting the firearm. There was no lawful or sufficient purpose. The Judge found Mr Sutherland guilty.

Approach on appeal

[14]              In the case of a judge-alone trial, a conviction appeal must be allowed if the Court is satisfied that:3

(a)the 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 other reason.

[15]Otherwise, the appeal must be dismissed.4

[16]              Miscarriage of justice  means  any  error,  irregularity,  or  occurrence  in  or in relation to or affecting the trial that:

(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(2).

4      Section 232(3).

[17]              The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either [16](a) or (b) arise in consequence?5

[18]In relation to [16](a), the Supreme Court has confirmed:6

… That question “requires consideration of whether there is a reasonable possibility another verdict would have been reached”. If the answer to that question is “no”, that is the end of the matter and the appeal will be dismissed. If the answer to that question is “yes”, … the appeal court then asks whether it is sure of guilt. If the answer is “no”, the appeal will be allowed. If the answer is “yes”, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed…

[19]              In relation to [16](b), contrary to the defendant’s absolute right to a fair trial affirmed in s 25(a) of the New Zealand Bill of Rights Act 1990, the consideration requires an  assessment  of  the  circumstances  of  the  trial  overall.7  As the Supreme Court said in Condon v R:8

A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair … it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or so irremediable’ that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.

[20]              The appeal proceeds by way of rehearing on the record.9 The appellate court has the responsibility of considering the merits of the case afresh.10 The appellate court must be persuaded that a miscarriage has occurred, but the weight it gives to the reasoning of the court below  is  a  matter  for  the  appellate  court’s  assessment.  No deference is required beyond the “customary caution” appropriate in cases where the trial judge has had the advantage of seeing the witnesses, such as where credibility is important.11

5      Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].

6      Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].

7      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77]-[78].

8 At [78].

9      Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].

10     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].

11     Austin, Nichols & Co Inc v Stichting Lodestar, above n 10, at [13]; Sena v New Zealand Police, above n 9, at [38]-[40].

Points on appeal

[21]              Mr Sutherland initially represented himself on the appeal (as he had at trial) but instructed Mr Nicholls as counsel prior to the hearing. At his request and without objection from the respondent, I permitted Mr Nicholls to file supplementary submissions. These helpfully distilled the points on appeal.

[22]The grounds pursued were that:

(a)The Judge erred in finding that Mr Sutherland presented a firearm at Mr Robson. Related to this, the Judge erred in allowing Mr Robson to view a photograph of the firearm before he gave evidence as to what it was.

(b)Mr Sutherland, representing himself at trial, failed to put crucial questions to Mr Robson which effectively removes some of the evidential foundation Mr Sutherland relies on in this appeal.

(c)The Judge failed to give reasons as to why Mr Sutherland did not have a lawful and sufficient purpose to present the firearm in the circumstances as found.

(d)If the Court finds that Mr Sutherland did present a firearm in the circumstances as found by the Judge, Mr Sutherland’s position is that he had possession of his firearm for a lawful and sufficient purpose when he presented the firearm in defence of his land and buildings.

Discussion

[23]              I address presentation of a firearm before turning to lawful and sufficient purpose.

[24]              Before doing so, I note a preliminary point. In the course of finalising my decision, it was unclear whether Mr Sutherland’s statement read during his  evidence

– but not transcribed in the notes of evidence – was a separate document from the

statement he gave to Police on 30 January 2024. Counsel were unable to locate a separate document so I had the missing parts of the notes of evidence transcribed, received on 13 and 20 October 2025. It transpired that the statement read by the police witness (exhibit 2) was Mr Sutherland’s earlier statement to police although there was some legal discussion as he read it. Mr Sutherland’s own evidence included reading a further statement, the transcript of which I have also reviewed.

Presentation of a firearm

[25]              The issue here is whether Mr Sutherland was holding a firearm at all, as the Judge found. If he was, there is no dispute that amounted to presenting a firearm.

[26]              Mr Nicholls submitted the Judge erred in finding that Mr Sutherland presented a firearm at Mr Robson essentially because the Judge focused on Mr Robson identifying the firearm and did not look at other factors which went against presentation. Mr Nicholls submitted those other factors were:

(a)The evidence about the window through which Mr Robson said he saw Mr Sutherland with the firearm.

(b)That it was most unlikely Mr Sutherland would have had a firearm in his  possession  while  standing  behind  his   kitchen  bench  when  Mr Robson unexpectedly arrived at the house during the day.

(c)Issues with Mr Robson’s description of the firearm which he said he saw in Mr Sutherland’s hands, whether he had seen Mr Sutherland’s firearms before, and whether Mr Robson was inadvertently allowed to look at the photobook that contained pictures of the firearms that     Mr Sutherland owned before Mr Robson gave evidence as to what he saw, making it likely that Mr Robson amended his evidence in court to correspond with what was in the photo booklet.

(d)In his 105 call, Mr Robson seemed more worried about Mr Sutherland’s threat to explode Mr Robson’s septic system than the purported presentation of a firearm. Mr Sutherland says that Mr Robson made up

the story about seeing a firearm because of Mr Robson’s concern that the Police would not investigate the threat to his septic tank without the threat of a firearm present, or that Mr Robson wanted Mr Sutherland to lose his firearms as punishment for Mr Sutherland’s actions that morning against Mr Robson’s septic tank.

[27]              Dealing with Mr Sutherland’s submissions about these other factors going against presentation of a firearm, I first address the window. Mr Robson’s evidence was that he saw Mr Sutherland through a window perpendicular to the open sliding doors he was approaching. He identified that window as being to the right of the downpipe in a  photograph  taken  outside  looking  towards  the  sliding  doors.  That window was above the sink in the kitchen.

[28]              I accept Mr Robson’s assumption that window was a sliding window may be incorrect – albeit this may not be the same window as the open top-hung window shown in a separate photograph taken inside the house. In any event, Mr Robson’s evidence was that he saw Mr Sutherland through the window perpendicular to the sliding doors, not the window to the left of the downpipe that is parallel to the sliding doors. Mr Sutherland’s evidence was the window left of the downpipe was the only window that was open, and the other window was fixed and did not open. Even if the window Mr Robson was looking through was top-hung and open as far as it could, Mr Robson  would  only  have  seen  Mr  Sutherland  through  the  glass  whereas  Mr Robson said there was no glass (since the window was slid open). However, it does not follow that Mr Robson could only have seen a small part of Mr Sutherland through the window (irrespective of Mr Sutherland’s evidence about the tint or glare).

[29]              Mr Nicholls emphasised it was most unlikely that Mr Sutherland had a firearm with him when Mr Robson arrived unexpectedly at his house. I acknowledge that submission but it only goes so far in a case challenging findings based on the credibility of Mr Robson and Mr Sutherland.

[30]              Turning to the issues with Mr  Robson’s  description  of  the  firearm,  and Mr Robson having an opportunity to view the photographic exhibits booklet and identify the firearm before he was asked about it, Mr Nicholls suggested this was a

different firearm  from  the  long-barrelled  firearms  Mr Robson  may  have  seen  Mr Sutherland with out on the farm over the preceding 10 years. I do not consider this is a particularly compelling point for three reasons.

[31]              First, Mr Nicholls acknowledged that he was only acting on instructions from Mr Sutherland that Mr Robson had the relevant page of the booklet open in front of him while the Judge was considering Mr Sutherland’s objection about the booklet – there was no evidence from Mr Sutherland supporting this assertion. While the notes of evidence only indicated there was an objection to the booklet by Mr Sutherland and a ruling by the Judge before going to the photographs, the transcript of the legal discussion was made available following my direction the day before the hearing. That transcript indicated that the objection related to the photographs of the house given the lighting at about 6:00 pm. The legal discussion indicates that the Judge asked for the booklet and told the prosecutor he wanted the earlier (firearm) photographs taped closed so Mr Robson did not see them.

[32]              Secondly, Mr Robson had described the firearm to police on the day of the incident as a black coloured pump action shotgun (having described it in his initial 105 call that day merely as a pump action shotgun). That is consistent with his evidence at trial of a black pump action firearm. Although he accepted in cross-examination that he had told police that the firearm he saw in Mr Sutherland’s hands looked like a hunting gun with a longer barrel, that was not reflected in the 105 call  transcript  or   his   handwritten   statement   to   police.   Accepting   that Mr Sutherland also owned a brown longer barrelled hunting shotgun, there is little to be gained by a subjective assessment of long versus short barrelled firearms in the context of this case, as Mr Hamber, for the respondent, submitted.

[33]              Thirdly, any such opportunity to view the firearm photographs is only relevant to credibility in the sense that it enabled Mr Robson to make false evidence (that there was a firearm) more believable. But, as Mr Hamber submitted, the improbability of Mr Robson randomly guessing the type and colour of the firearm was only one pillar of the Judge’s reasoning for rejecting Mr Sutherland’s evidence as untruthful. Other pillars were the differences between his written statement to police and his oral evidence in Court, and his contention that the police officer somehow amended

Mr Sutherland’s statement after he signed it without his knowledge. As the Judge said, that latter suggestion significantly reduced Mr Sutherland’s credibility.

[34]              The reference to the threat to explode relates to the issues with Mr Robson’s septic tank drainage system with a pipe that runs onto  Mr Sutherland’s  property.  Mr Sutherland said it deposited raw sewage onto his property and Mr Robson had agreed to fix it but did not do so. Mr Sutherland had blocked the pipe on the morning of the incident. This led to Mr Robson’s visit to Mr Sutherland’s house. Mr Robson’s evidence was that as he was walking way, Mr Sutherland said he had put something in the pipe and hoped it  would “blow up” when Mr Robson was sitting on it.        Mr Sutherland’s evidence was he said something like it would expand rather than blow up. The Judge did not believe Mr Sutherland’s explanation.

[35]              Taking all these points together, I am slow to interfere with the trial Judge’s assessment of the witnesses’ credibility. It was open to the Judge to make the credibility findings against Mr Sutherland, and in favour of Mr Robson, that he did.

[36]              In relation to the next main ground of appeal that Mr Sutherland, representing himself at trial, failed to put crucial questions to Mr Robson which effectively removes some of the evidential foundation Mr Sutherland relies on in this appeal, Mr Nicholls submitted that Mr Sutherland failed to put questions which in the case of trial counsel would have amounted to trial counsel error and, although an “own goal”, this amounts to an unfairness. The failures included not asking questions to determine whether  Mr Robson  had  a  reasonable  opportunity  to   view  the  firearm  he  identified   Mr Sutherland as holding; to determine whether Mr Robson knew that Mr Sutherland possessed firearms and what sort they were; to determine whether Mr Sutherland had a lawful and sufficient purpose including his state of mind (which I will address in relation to that separate issue); to determine Mr Robson’s gait and demeanour when he arrived unexpectedly at Mr Sutherland’s house; and the possibility that any presentation occurred after Mr Sutherland had told Mr Robson to leave and he had not. As Mr Nicholls relied by analogy on trial counsel error, he accepted that the bar should not be lower for a self-represented litigant.

[37]              Mr Hamber submitted it cannot be the case that a litigant can decline representation, conduct his or her own defence and then complain on appeal that a lawyer would have done better.

[38]              I make two points. First, insofar as the submission is that Mr Sutherland’s conduct of his own defence involved failures that risked affecting the trial or meant the trial was unfair and the conviction should be quashed, any analogy with trial counsel error should not be taken too far. As the Court of Appeal said recently in Wirihana v R:12

[32]      We accept that in principle a defendant who makes an informed decision to represent themselves is not automatically precluded from establishing on appeal that the defence could not have been put adequately without counsel’s assistance and that in consequence a real possibility of acquittal was lost.

[33]The onus however is on the appellant …

…

[36] There must, as was stated by this Court in Cant v R and reiterated in Fahey v R, “be a realistic limit to the extent to which courts are required to protect defendants from the consequences of their own decisions”.13 Here, the Crown case was very strong and, although competent legal counsel would have conducted the defence more skilfully than Mr Wirihana, that in itself is not enough.14

[39]              Here, as in Wirihana, there is no suggestion that Mr Sutherland was denied a reasonable opportunity of legal representation. It is clear from the trial record here too that during the trial the Judge intervened at appropriate times to assist Mr Sutherland in a way that was helpful but at the same time consistent with the judicial duty to maintain the appearance of neutrality. While counsel may well have cross-examined Mr Robson more skilfully, the trial Judge sought to elicit the evidence Mr Sutherland was seeking from Mr Robson and there was no evidence on appeal indicating further factual difficulties with Mr Robson’s evidence of the sort identified by Mr Nicholls that would not have been evident to the Judge.

12     Wirihana v R [2025] NZCA 408.

13     Cant v R [2013] NZCA 513 at [26]; and Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [48(c)].

14     Fahey v R, above n 13, at [48(b)]; citing R v Chatha [2008] NZCA 547 at [123]-[124].

[40]              Secondly, in circumstances where the Judge’s decision was based largely on credibility rather than a lack of factual foundation for submissions, any  failure by Mr Sutherland to exploit factual issues relevant to the presentation of a firearm issue is only relevant insofar as it could raise doubt as to the Judge’s credibility findings.

[41]              Assessing Mr Sutherland’s claimed failures together with my earlier analysis relevant to credibility, I conclude there was no error in the Judge’s  finding that     Mr Sutherland presented a firearm, which was based on an assessment of credibility of the witnesses at trial.

Lawful and sufficient purpose

[42]              The next issue is whether the Judge failed to give reasons in relation to “lawful and sufficient purpose”. There is no dispute as to the meaning of the phrase. The cases on the meaning of the similar phrase “except for some lawful, proper and sufficient purpose” in s 45 of the Arms Act relating to carrying or possessing a firearm have some application albeit recognising the absence of “proper” in s 52.15

[43]              Mr Nicholls submitted it cannot be said that because Mr Sutherland did not argue the point, the Court did not have to address whether the firearm was presented for a lawful and sufficient purpose because not having a lawful and sufficient purpose is an element of the offence whereas Mr Hamber submitted the Judge did not have to consider lawful and sufficient purpose because Mr Sutherland was not positing that there was one. In other words, this was a defence that arose only if it were raised by Mr Sutherland. An evidential foundation was required.

[44]              I was not referred to any case where this specific issue has been addressed in relation to s 52. The relevant terms of s 52(1) state:

Every person commits an offence … who, except for some lawful and sufficient purpose, presents a firearm … .

[45]              Unlike the similarly worded s 45, s 52 does not have an explicit subsection that the burden of proving the existence of some lawful and sufficient purpose shall lie on

15     See Sargeant v Police HC Christchurch CRI-2009-409-000170, 21 November 2009, French J at [13]-[14].

the defendant.16 The absence of a reverse onus in s 52 means that it is for the Crown to prove the absence of some lawful, proper and sufficient purpose beyond reasonable doubt. However, the question remains whether the words “except for” give rise to an element of the offence or a defence which requires an evidential foundation before it needs to be disproved.

[46]              I consider the words “except for some lawful and sufficient purpose” in s 52 amount to a defence which requires an evidential foundation before it needs to be disproved beyond reasonable doubt by the Crown. That is consistent with the fact that the lawful and sufficient purpose is invariably self-defence, defence of another or – as raised here on appeal – defence of land and buildings.17 Although the issue was not specifically considered in Stanbury v Police, the exception was described by Jeffries J as a defence.18

[47]              In any event, it is common ground the Judge determined that Mr Sutherland did not have a lawful and sufficient purpose. The issue on appeal relates only to lack of reasons. I consider an evidential foundation was required before the Judge was required to give reasons in relation to whether Mr Sutherland had a lawful and sufficient purpose. As the Supreme Court said in Sena v New Zealand Police:19

… appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination  of  criminal  cases   with   other   workload   requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party.

[48]              As lawful and sufficient purpose  was  not  part  of  the  case  advanced  by Mr Sutherland at trial, I conclude the Judge did not err by failing to give reasons for determining that Mr Sutherland did not have a lawful and sufficient purpose.

[49]              In terms of Mr Sutherland’s final ground of appeal, that he did have a lawful and sufficient purpose when he presented the firearm in defence of his land and buildings, Mr Nicholls acknowledged that Mr Sutherland’s argument on this ground

16     Section 45(2).

17     As under s 56 of the Crimes Act 1961.

18     Stanbury v Police (1988) 3 CRNZ 253 (HC) at 255.

19     Sena v New Zealand Police, above n 9, at [37].

stretches the evidential foundation. The lacuna in the evidence at trial precludes an argument based on the Judge’s assessment of the evidence and leaves only the possibility of miscarriage for some other reason. It is only open to Mr Sutherland to argue – for the first time on appeal – that his own failure to advance this at trial risked affecting the trial or gave rise to an unfair trial amounting to a miscarriage.

[50]              I do not consider such a miscarriage arises in this context either. Mr Sutherland elected to represent himself. His defence focused on there being no firearm. He did not advance as part of his case the (inconsistent) alternative that he had a lawful and sufficient purpose. According to the Judge, he disavowed it. That is understandable given his defence was there was no firearm. Further, he did not adduce any evidence on appeal claiming that he had made anything other than a deliberate decision to run his case that way or even what he would have said if he had sought to advance that he a lawful and sufficient purpose for presenting the firearm.

[51]              Counsel referred me to Whiu v Police.20 Both counsel were also involved in that case. Muir J allowed Ms Whiu’s appeal against convictions for discharging a firearm without a reasonable and lawful excuse and carrying a firearm without lawful purpose.21 Mr Nicholls submitted that Mr Sutherland had a similar defence albeit acknowledging this case was closer to the line. Mr Hamber submitted that Whiu v Police is distinguishable. On the evidence in this case, and even considering what  Mr Sutherland could have said, I consider that Whiu v Police is distinguishable. There was no evidence that Mr Robson had previously trespassed on Mr Sutherland’s land or otherwise violated his rights, nor that Mr Sutherland was vulnerable. Rather, it was Mr Sutherland’s action that morning that lead to Mr Robson’s visit. Mr Sutherland said nothing – at trial or on appeal – about his state of mind that could give rise to a lawful and sufficient excuse.

[52]              Mr Nicholls also relied on Stanbury v Police and Sargeant v Police.22 Neither case assists Mr Sutherland. In Stanbury, an appeal against conviction under s 52 succeeded on the basis that the defence was that the appellant presented the gun

20     Whiu v Police [2024] NZHC 208.

21     Sections 53 and 45 of the Arms Act 1983 respectively.

22     Stanbury v Police, above n 18, and Sargeant v Police, above n 15.

because he was under the impression that he was about to have his property broken into  and  entered,  and  further  thefts   might  occur  (albeit   he  was   mistaken).  Mr Sutherland’s situation was quite different. In Sargeant, involving the possession in a garage of explosives that were for experimentation but then forgotten, the appeal did not succeed.

[53]              I conclude that there is no real risk Mr Sutherland had a lawful and sufficient purpose when he presented a firearm (despite not advancing this at trial) and that no miscarriage has occurred.

Conclusion

[54]For these reasons, Mr Sutherland’s conviction appeal does not succeed.

Result

[55]The appeal is dismissed.

Gault J