The Queen v Gadsby

[2008] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/2008
[2008] NZCA 432

THE QUEEN

v

GARTH EDWARD GADSBY

Hearing:22 September 2008

Court:Glazebrook, Rodney Hansen and Ronald Young JJ

Counsel:P H Surridge for Appellant

G J Burston for Crown

Judgment:22 October 2008 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.

REASONS OF THE COURT
(Given by Rodney Hansen J)

[1]        After trial before Judge Kelly and a jury in the Wellington District Court, Mr Gadsby was convicted of discharging a firearm with reckless disregard for the safety of others, in contravention of s 53(3) Arms Act 1983.  He was fined $3,000 and an order made for the forfeiture of the firearm.  An application for discharge without conviction was refused.

[2]        Mr Gadsby appeals against his conviction and sentence.  In support of the conviction appeal it is submitted that the Judge made errors in her summing up and in answering questions from the jury and wrongly admitted the evidence of a police firearms expert.  The appeal against sentence focuses on the Judge’s refusal to discharge Mr Gadsby without conviction.

Factual background

[3]        Mr Gadsby lives in the isolated township of Ngawi on the southern Wairarapa coast.  In September 2006 the community experienced a plague of offences of dishonesty.  There were a number of burglaries and the theft of motor vehicles.  The offending generated considerable unease in the community.

[4]        In the early hours of 18 September Mr Gadsby awoke to the sound of a motor vehicle being driven at speed through the township.  He spoke by phone to two other residents.  He took a shotgun and ammunition and met up with the other two men.  Both were driving utility vehicles.  They intercepted a Mitsubishi car, which they believed to be the vehicle they had heard and which they believed to have been associated with the property offending.  Mr Gadsby got into the passenger’s seat of one of the utilities.  He and his companion set off in pursuit of the Mitsubishi.

[5]        They caught up with the fleeing vehicle and attempted to pass it.  The driver swerved to avoid being overtaken.  In the course of a pursuit which went on for some twenty kilometres, Mr Gadsby leaned out the window and shot four times at the tyres of the Mitsubishi.

[6]        The vehicle and its occupants were nevertheless able to elude their pursuers.  They were located later in the morning.  The Mitsubishi was found nearby.  There was evidence it had been struck by shotgun pellets in the rear bumper area on the passenger’s side and around the wheels on the driver’s side.  One of the tyres was flat.

Conviction appeal

Directions

[7]        The first ground of appeal concerns the way the Judge directed the jury in relation to the elements of the offence.  Section 53(3) of the Arms Act provides:

Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, without reasonable cause, discharges or otherwise deals with a firearm, airgun, pistol, or restricted weapon in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others.

[8]        It is common ground that the Crown was required to prove that the accused:

(a)Discharged a firearm, and did so;

(b)Intentionally;

(c)Without reasonable cause; and

(d)With reckless disregard for the safety of others.

[9]        Mr Surridge initially submitted that the Judge failed to direct the jury adequately in relation to the third element of reasonable cause.  However, in the course of argument he acknowledged that the directions on all elements of the charge could not be faulted.

[10]     For the purpose of considering the further ground of appeal, it is nevertheless convenient to set out the Judge’s directions:

In this case the Crown must prove each of the elements of the charge beyond reasonable doubt.  Namely, that the accused discharged a firearm, he did so intentionally, he did so without reasonable cause and he did so with reckless disregard for the safety of others.

Here given the admissions by Mr Gadsby to Constable Wakefield and Sergeant Asher, there is no dispute that Mr Gadsby used a shotgun to deliberately shoot at the car the burglars were in at Ngawi.  Therefore you should have little difficulty being satisfied that the Crown has proved beyond reasonable doubt the first two elements of the charge, that the accused discharged a firearm and that he did so intentionally.

It may assist if the second thing you consider is whether the Crown has proved beyond reasonable doubt that Mr Gadsby did so with reckless disregard for the safety of others.  With this charge that is a risk to the safety of the occupants of the car that was shot at by Mr Gadsby.

As a matter of law a person acts with reckless disregard for the safety of others when he acts in a particular way despite having realised that his actions could well endanger others.  In other words, you are reckless if you realise that a certain consequence could well follow from what you were doing but you go ahead and do it anyway.  You realise that the consequence could well happen, not that it is just a remote risk and you decide to run the risk.

The Crown has to satisfy you objectively that it was not reasonable to run the risk in those circumstances.  Therefore, you have to be satisfied that at the time Mr Gadsby shot the shotgun at the burglar’s car, he actually realised that what he was doing could well endanger someone’s safety, but decided to go ahead and run that risk.  The Crown has to prove that he did know what the risks were and decided to run those risks.

The third thing that the Crown has to prove, is that when Mr Gadsby intentionally discharged the shotgun he had no reasonable cause to do so.  That is to say it was not reasonable for Mr Gadsby to fire the shotgun in the way he did in the circumstances as they were at the time.  It may be that you will be assisted in asking yourselves four questions:

First, did Mr Gadsby intentionally discharge the shotgun at the vehicle driven by the burglars?  I suggest the answer to that has to be yes, but of course that is a matter for you.

Second, was there in fact a real risk that to do so could well endanger the safety of others?  You look at that objectively, look at it from your point of view.  Was there a risk that shooting a shotgun from a moving car at another moving car travelling at speed, where he had no control over either driver, might endanger the safety of others.

Third, did Mr Gadsby appreciate that risk?  Was that risk consciously present in his mind when he went ahead and shot the shotgun at the car.

Fourth, did Mr Gadsby act reasonably?  Here you would examine what Mr Gadsby actually knew about the circumstances and you will assess whether a reasonable person with Mr Gadsby’s state of knowledge would have fired a shotgun.  Here the issue is whether you think Mr Gadsby acted reasonably, not whether he thought he acted reasonably, although you will have regard to his opinion.

[11]     The Judge’s directions in relation to the elements of the offence were modelled on directions given by the trial Judge in R v Tipple CA217/05 22 December 2005.  Those directions, as they related to the “without reasonable cause” and “reckless disregard” elements of s 57(3), were described by the Court in Tipple at [39] as “both accurate and adequate”.

[12]     We take the same view of the directions of Judge Kelly.

Questions

[13]     In the course of its deliberations the jury asked three questions relating to the element of reckless disregard. 

The third question was:

If the accused believes that his actions would not endanger others, can he be acting with reckless disregard?

[14]     After repeating the question, the Judge’s answer to the third question was as follows:

[2]       I have discussed your question with counsel and we have agreed the following answer.

[3]       You have to answer the questions the law requires you to answer.  The question you are seeking assistance on can be answered by focusing on the following questions:

[4]       First, “Was there in fact a real risk that to fire the shotgun in the way Mr Gadsby did could well endanger the safety of others?”  You look at that objectively.  Look at it from your point of view.

[5]       The second question is, “Did Mr Gadsby appreciate that risk?”  “Was that risk consciously present in his mind when he went ahead and shot the shotgun?”  You look at that from Mr Gadsby’s point of view.

[6]       So recklessness is deliberate and unreasonable risk running.  If Mr Gadsby did not know of the risk that people would be endangered by what he was doing, then he is not guilty of the offence.

[7]       I trust that answer is of assistance to you.  I now ask you to retire to continue your deliberations.

[15]     Mr Surridge submitted that the Judge should simply have answered the question “no”.  He conceded that there was nothing wrong or misleading in the Judge’s response but maintained that it could have had the effect of confusing the jury.

[16]     We do not agree.  It was entirely proper for the Judge to redirect the jury to the two issues which are encompassed by the requirement to prove that Mr Gadsby acted with reckless disregard for the safety of others, namely, that there was a risk that the safety of others might be endangered and that Mr Gadsby had a conscious appreciation of the risk.

[17]     The Judge referred to each of those two questions at [4] and [5] of the answer before directly responding to the jury’s question at [6].  In doing so she repeated verbatim a passage from the trial Judge’s summing up in Tipple which this Court described at [40] as “drawing together the law in a way that was particularly helpful to the jury”.

[18]     The directions given by the Judge, both in her summing up and in answer to the jury’s questions, were clear and accurate.  Far from creating confusion in the minds of jurors, as Mr Surridge contended, the answer to the jury’s question helpfully built on the Judge’s earlier directions.

Expert evidence

[19]     The second ground of appeal arises out of prosecution evidence given by an inspector of police, Gregory Phillips, as to police General Instructions and operational practice in relation to the discharge of firearms at moving vehicles, including the circumstances in which such action would be justified.

[20]     Mr Surridge’s complaints in relation to Inspector Phillips’ evidence were:

(a)He was not qualified to give expert evidence.

(b)Parts of his evidence should have been ruled inadmissible as opinions going to the ultimate issue.

(c)The way in which the evidence was introduced was unfair to the defence.

(d)The defence right of cross-examination was unfairly restricted.

[21]     The Crown had not originally intended to call a police firearms expert.  The decision to do so was taken after defence counsel had cross-examined the scene-of-crime examiner on the topic of firearms training.  The witness, who had received firearms training, was asked about the competence of a sportsman who was able to achieve a 50/50 success rate in claybird shooting.  He conceded that result would make the shooter “a pretty good shot”.

[22]     The witness was then asked about police firearms general instructions, including General Instruction F61.  The witness confirmed that it permitted police to shoot at moving vehicles in exceptional circumstances.  In re-examination the prosecutor referred to and asked the witness to read out General Instruction F65 which relates specifically to shooting at motor vehicles.

[23]     Mr Burston said that this line of cross-examination gave rise to a concern that Mr Gadsby would be put forward as an expert marksman who was entitled to give his own opinion about the dangerousness of discharging the shotgun in the circumstances in which he fired it.  He also apprehended that the defence case would be that if a police officer could be permitted to shoot at moving vehicles as long as innocent bystanders were not endangered, then the appellant, as an expert shot, would be justified in shooting at a moving vehicle. 

[24]     The Crown then took steps to prepare a brief of evidence by Inspector Phillips who would be able to outline the circumstances in which a police officer would be justified in shooting at a moving vehicle.  A draft brief of evidence was provided to the defence in the afternoon of the second day of the trial.  A signed brief was provided before the hearing commenced on the third day.

[25]     The defence objected to two paragraphs only of the brief.  They read as follows:

I deem it highly and inherently dangerous to attempt to shoot out tyres of a moving motor vehicle due to a number of variables that cannot be controlled.

I deem that this danger is further heightened when the shots are fired at a moving motor vehicle from another moving motor vehicle.

[26]     The Judge ruled that the evidence was admissible subject to amending the opening words of each paragraph to read, “In my opinion ...” instead of, “I deem ...”.  That is the way in which the evidence was given.

[27]     Inspector Phillips was undoubtedly qualified to give evidence on the use of firearms by police.  He has had specialist training and many years of experience in the area.  He is currently the officer-in-charge of the Wellington District Police Armed Offenders Squad.  At trial his expertise was conceded by the defence.  In her summing up the Judge recorded Mr S N Hewson, who appeared with Mr Surridge at the trial, as saying that the witness “is an undoubted expert in the use of rifles and shotguns ...” but, she recorded counsel as adding, “he has never been skeet shooting”.

[28]     Mr Surridge complained that in the passages in his evidence to which the defence objected, the police inspector gave evidence on one of the ultimate issues to be determined.  That does not, of course, render it inadmissible:  s 25(2) Evidence Act 2006.  Evidence of opinion is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding: s 25(1) Evidence Act.

[29]     The evidence of Inspector Phillips bore on the question of whether, objectively, there was a risk to the safety of others.  In light of the foreshadowed defence evidence that there was no such risk in the circumstances, the opinion of the police officer was clearly relevant and likely to assist the jury.  It did not foreclose the defence which continued to maintain, with apparent skill and vigour, that it was not dangerous for a crack marksman to use birdshot in an attempt to halt the progress of the vehicle.  The evidence was clearly admissible.

[30]     Mr Surridge complained that the defence was given insufficient notice of the contents of the Inspector’s brief of evidence and was disadvantaged by its late admission.  We find nothing in this complaint.  The defence was given notice of the evidence by way of the unsigned brief at the earliest opportunity.  If the defence had wanted time to consult its own expert, it could have sought an adjournment.  It did not do so.  In any event, we have been given nothing to indicate how a defence expert may have assisted.  As we have already observed, the Crown case did not prevent the defence putting to the jury that it was neither unreasonable nor reckless for an expert marksman in Mr Gadsby’s position to fire birdshot at the fleeing vehicle. 

[31]     Finally, Mr Surridge complained that the defence was restricted in its cross-examination of Inspector Phillips.  He relied on the evidence of Mr Hewson who filed an affidavit in support of the appeal.  His affidavit relevantly states:

5.The Crown Prosecutor correctly records the inter-change that took place prior to and during the introduction of that [Inspector Phillips’] evidence.  However at the end of the evidence in chief of Inspector Phillips as I was about to cross-examine him the Crown Prosecutor then advised the Court (in front of the jury) to the effect he would oppose any cross-examination of the witness in respect of Police operational matters.  This submission had never been raised at all until then.  It had never been signalled or anticipated in the earlier arguments that occurred on this aspect.

6.At para. 1.24 of the Crown submission the Crown Prosecutor states he has no recollection of such an objection being raised by him.  His recollection is deficient and whilst the transcript of evidence may not record it that embargo was announced by him in open Court.  I invite this Court to seek, if possible, the un-edited verbatim record of the Court proceedings and I am happy to give evidence on this point.

7.Needless to say faced with the objection in front of the jury and faced with the historic and acrimonious exchange that had taken place between the Crown Prosecutor and myself in relation to this evidence I felt constrained and powerless by the sudden objection raised.  Any inflaming of it in front of the jury on this evidence could have raised its significance to the greater level than it deserved.  Accordingly my cross-examination was limited.

[32]     As the notes of evidence contained no reference to the intervention referred to by Mr Hewson and Mr Burston had no recollection of it, we gave leave to counsel to listen to the in-court recording of the trial.  They listened to the period during which the Crown objection was said to have occurred and, at Mr Surridge’s request, to other parts of the recording to ascertain whether Mr Burston made an objection to cross-examination of Inspector Phillips at any other part of the trial.  There is no record of an objection by the Crown at any stage to cross-examination of Inspector Phillips. 

[33]     We find no reason to doubt the accuracy of the record.  Indeed, the timing of the concluding part of Inspector Phillips’ evidence tells against any question being raised about the scope of cross-examination.  At 12:58:46 p.m. on the day Inspector Phillips gave evidence, the jury returned to the Court after the Judge had addressed an objection to police instructions being produced as exhibits.  She directed that, instead of their being produced, Inspector Phillips should re-read police instruction FO 65.  At 12:59:14 Mr Burston asked the witness to slowly re-read the last two paragraphs of the instruction.  At 13:00:01 Mr Hewson asked a single question in cross-examination and it was answered.  At 13:00:35 Mr Burston advised that he would not be re-examining and at 13:00:51 he closed the Crown case.  The jury retired at 13:01:08.

[34]     There is no reasonable possibility of an objection being raised but not recorded during that brief period.  There was no ruling by the Judge limiting cross-examination.  We are satisfied there was no impediment to the defence cross-examining Inspector Phillips on any aspect of his evidence-in-chief.

[35]     We are also satisfied that the defence appropriately exercised its right to cross-examine Inspector Phillips.  The single question asked in cross-examination, which elicited that the witness had no experience as a skeet-shooter, enabled the defence to argue in closing that Inspector Phillips’ evidence would not assist the jury in the particular circumstances of the case.  We were not told how any further questioning might have advanced the defence case.

Appeal against sentence 

[36]     Mr Gadsby’s application for a discharge without conviction required the Judge to be satisfied that the direct and indirect consequences of a conviction outweighed the gravity of the offending: s 107 Sentencing Act 2002.

[37]     The Judge characterised the offending as moderately serious.  She said, although Mr Gadsby was undoubtedly a good shot, he had risked the safety of the occupants of the fleeing car by shooting at the tyres during a high-speed chase.  The occupants had already been chased out of town; they posed no threat to members of the community.  The police were on their way. 

[38]     The Judge noted that Mr Gadsby had shown no insight into his offending and had not expressed remorse.  On the contrary, in a media interview he had maintained that he had done the right thing and that his actions were not dangerous.  He maintained his position in an affidavit sworn in support of the application.

[39]     At the age of 60, Mr Gadsby had no previous convictions.  He had been actively involved in the Ngawi community.  His good character and contribution to the community were attested to in a number of testimonials, including one from the Mayor of the South Wairarapa District Council. 

[40]     In his affidavit Mr Gadsby said that he was considering retirement and he and his wife were planning an extended overseas holiday.  He referred to the likelihood that a conviction would preclude entry to Canada and the United States and possibly other countries.  He claimed this would be a harsh and devastating consequence for what he considered to be a low level offence.

[41]     The Judge accepted that a conviction would potentially curtail Mr Gadsby’s ability to travel but noted there is no suggestion that he had an urgent need or reason to travel.  Rather, she said, he may be precluded, at least for a period of time, and subject to the attitude of the immigration authorities in other countries, from travelling to certain parts of the world.  She described that as a modest consequence of a conviction.  She concluded that the consequences of a conviction would not be out of all proportion to the gravity of the offending.

[42]     Mr Surridge argued that, given Mr Gadsby’s “honesty of motive” and the fact that no one had been hurt, the consequences complained of were out of proportion to the gravity of the offending.

[43]     We do not agree.  The Judge correctly identified the factual matters bearing on the competing considerations.  There is nothing to indicate that she did not fairly weigh those considerations.  The offending was rightly characterised as moderately serious.  It was more serious than the offending in Gillespie v Police HC WN AP294/94 16 February 1999 (a conviction for careless use of a firearm causing bodily injury) and Tipple, where refusals to discharge were upheld on appeal notwithstanding, in the latter case, that damage to the appellant’s employment prospects would likely follow a conviction.  On the other hand, the consequences of a conviction for Mr Gadsby were unexceptional.

[44]     The appeal against sentence must fail.

Result

[45]     The appeal against conviction and sentence is dismissed.

Solicitors:
Surridge & Co, Porirua for Appellant
Crown Law Office, Wellington