Whiu v Police
[2024] NZHC 208
•19 February 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2023-488-72
[2024] NZHC 208
BETWEEN GEORGINA MARIA WHIU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 February 2023 by VMR Counsel:
M Nicholls for Appellant P Hamber for Respondent
Judgment:
19 February 2024
JUDGMENT OF MUIR J
This judgment was delivered by me on 19 February 2024 at 3:00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Marsden Woods Inskip Smith, Whangarei
WHIU v POLICE [2024] NZHC 208 [19 February 2024]
Introduction
[1] On 16 August 2023, Ms Whiu was found guilty by Judge H B Shortland in respect of one charge of discharging a firearm without a reasonable and lawful excuse1 and one charge of carrying a gun without lawful purpose.2
[2] She was sentenced on 22 September 2023 to six months’ supervision and 50 hours’ community work.
[3]She appeals her conviction. She has already largely completed her sentence.
Background
[4] For an extended period, Ms Whiu had been in dispute with one of the complainants, Mr Wati Tohu, about the management of his stock which were periodically observed on Ms Whiu’s land. It is clear that she objected very vigorously to what she regarded as Mr Tohu’s disrespect of her property rights.3
[5] On 5 November 2022, Mr Tohu had come onto the land early in the day, ostensibly to recover stock. Ms Whiu remonstrated loudly with him, and he withdrew. He returned in the afternoon with two associates, Mr and Mrs Tipene, who were on a quad bike and motorbike respectively.
[6] Ms Whiu told them all to get off her land in direct and colourful terms. When they didn’t, she went to her house and returned with her Crossman Phantom .177 calibre air rifle.
[7] Her evidence was that she wanted Mr Tohu and the others to see that she had her gun, which she waved in the air, shouting “get the fuck off my land”. She said that they were not responding so she cocked the gun4 and fired it three times, each without
1 Arms Act 1983, s 53(3). Maximum penalty 3 years’ imprisonment or $4,000 fine.
2 Arms Act, s 45(1). Maximum penalty 4 years’ imprisonment or $5,000 fine.
3 She claims him to have said on numerous occasions that it was not her land despite having been bequeathed it and apparently in possession of all relevant “paperwork”.
4 Achieved by breaking the barrel and drawing it down which in turn compresses air into a chamber which is released when the trigger is pulled and provides the propellant for any “slug” loaded in the chamber.
any slug loaded to the chamber, and on each occasion aimed at an angle well above those on her property.
District Court decision
Conviction
[8] The matter proceeded to a Judge alone trial in respect of which an oral decision was delivered on the day of hearing. The Judge ruled that both charges were proved beyond reasonable doubt.
[9] In respect of the charge of discharging a firearm without a reasonable and lawful excuse, the Judge was satisfied on the evidence before him that the appellant had fired the air rifle. He held that the discharge of the gun alone had the potential to endanger the safety of the persons involved, irrespective of whether any pellets had been inserted in the breach.
[10] Regarding the charge of carrying a gun without lawful purpose, the Judge accepted that the appellant had not intended to hurt anyone. However, he observed that the production of a firearm was not an acceptable means of resolving disputes.
Law on appeal
[11] Section 229 of the Criminal Procedure Act 2011 sets out a person's right to appeal against conviction. The appeal is by way of re-hearing.5 The Court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or a miscarriage of justice has occurred for any reason.6
[12] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial, or a trial that was a nullity.7
5 Sena v Police [2019] NZSC 55 at [32], such that the principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 apply.
6 Sections 232(2)(b)-(c).
7 Section 232(4).
[13] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.8 This standard means that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe, only that there is a real possibility the verdict would be unsafe.9
Submissions
Appellant submissions
[14] In relation to the charge of carrying a gun without lawful purpose, the appellant submits that:
(a)The appellant’s possession of the firearm was for a lawful purpose under s 56 of the Crimes Act 1961, as it constituted a reasonable use of force to remove trespassers from her land.
[15] In relation to the charge of discharging a firearm without reasonable or lawful excuse, counsel for the appellant submits that:
(a)There was reasonable cause to discharge the firearm because, in the circumstances, it constituted a reasonable use of force under s 56 of the Crimes Act to remove trespassers from the appellant’s land.
(b)The gun was not discharged because it was unloaded.
(c)There was no likelihood of injury to any persons because the gun was unloaded and the complainants were over 100 metres away from the appellant.
(d)Further, the firing of the airgun did not elicit a reaction from the complainants that could cause injury; the complainants only reacted afterwards, when they saw the appellant carrying the gun.
8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
9 At [110].
(e)Adopting the Court of Appeal’s approach in R v Foley and R v Mouat, the Police are required to prove that the appellant had knowledge of the likelihood of injury.10
(i)There is no evidence to show that the appellant intended to injure anyone or knew that the discharge was likely to injure anyone.
Respondent submissions
[16]The respondent opposes the appeal in relation to both charges.
[17] In respect of the charge of carrying a gun without lawful purpose, the respondent submits:
(a)There was no lawful purpose because the actions of the appellant, having regard to the circumstances, were not appropriate, and did not constitute a reasonable use of force against trespassers under s 56 of the Crimes Act.
(i)The dispute between the complainants and the appellant had not been a violent one, so presenting a firearm was not an appropriate response.
(ii)There was no evidence the appellant had ever formally trespassed the complainants.
(iii)There were other appropriate responses the appellant should have undertaken, such as formally trespassing the complainants or calling the police.
[18] In relation to the charge of discharging a firearm without reasonable or lawful excuse, the respondent submits:
10 R v Foley CA172/93, 10 June 1993 at 4; and R v Mouat CA349/98, 7 December 1998 at 4.
(a)There was no reasonable cause to discharge the firearm.
(b)It is not necessary for an airgun to be loaded for it to be “discharged” for the purposes of the Arms Act 1983 (the Act). The appellant therefore discharged the airgun when she fired it.
(i)Nevertheless, there was sufficient evidence at trial that the gun was loaded.
(c)The appellant’s submission that no person was actually endangered mischaracterises the relevant offence, which only requires that it be likely a person is endangered by the appellant’s actions.
(d)Even if the gun were unloaded, there was a real risk that the shots would have caused the complainants to react in ways that caused injury, such as diving for cover or attempting to disarm the appellant.
(e)Finally, the appellant must have appreciated that her actions were inherently dangerous and likely to either cause injury or provoke reactions from the complainants that caused injury.
[19] Aspects of these various submissions are developed more fully in the following section.
Discussion
The section 53(3) charge
[20]Section 53(3) of the Act provides:
Every person commits an offence and is liable on conviction 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.
[21]Necessarily, the police were therefore required to establish:
(a)That Ms Whiu discharged her airgun.
(b)She did so without reasonable cause.
(c)She did so in a manner which was likely to injure or endanger the safety of any person.
(d)She did so with knowledge of likelihood of injuring or endangering the safety of any person.
[22] The fourth of these requirements was confirmed by the Court of Appeal in R v Foley, where the Court noted a Crown concession that knowledge of the likelihood of injury was an essential element of the offence and concluded that:11
… we think the omission of any reference to his state of mind from the summing-up must be regarded as serious enough to raise a real question of a miscarriage of justice.
[23] In the present case there was no finding by the trial Judge that Ms Whiu had the requisite state of mind to establish the offence. Ostensibly, the matter was simply overlooked.
[24] Conviction without reference to proof of one of the essential ingredients of the offence, in my view, comfortably satisfies the definition of a miscarriage of justice. That means that the appeal must be allowed.12 In turn, the conviction must be set aside.13
[25] The more difficult question is whether, pursuant to s 233(3), the Court should direct that a judgment of acquittal be entered or direct that a new trial be held.
[26] The conventional position is that where a conviction has been set aside because of a legal error at trial but there remains evidence on which a Court or jury could convict, a retrial is ordered leaving it for the Crown to determine whether to proceed
11 R v Foley CA172/93, 10 June 1993.
12 Criminal Procedure Act, s 232(2)(c).
13 Criminal Procedure Act, s 233(2).
further. This approach is said to respect “the important broad constitutional principle that the Crown prosecutes and the Court adjudicates”.14
[27] In the present case the relevant evidence of Ms Whiu’s state of mind was as follows:
Evidence in chief
Q. Did you ever want to hurt anybody that day?
A. No, no.
Q.Did you ever think to yourself what I’m about to do by discharging the slug gun is going to hurt someone?
A. No.
Q.Would you have discharged the slug gun if you thought it could have hurt somebody?
A. No, no.
Cross-examination
Q.You told us in evidence-in-chief that when you fired the gun you saw Wati drop?
A. Yeah.
Q.Do you think that’s an unreasonable thing for a person to do when someone thinks they’re being shot at, drop to the ground, take cover?
A.Well I don’t know. Um to me um for a gun that had no bullets, and he dropped I don’t know.
Q.You’d accept though that Wati didn’t know whether or not the gun had bullets?
A. Oh.
Q. He couldn’t know, could he?
A. [No audible answer]
[28] This evidence must be considered in context. Ms Whiu said that when she cocked and then pulled the trigger on the gun (possibly three times), the intruders on her property were about one hundred metres away. The evidence of the complainants was that the distance was considerably shorter – 20 to 30 metres. There was no finding
14 M(CA63/08) v R [2010] NZCA 302 at [47].
of the Judge in this respect. Ms Whiu’s evidence was that when she pulled the trigger, there was no slug in the chamber and that she aimed “heading up towards, well, the sky”. Although the police suggest that there was some evidence of the gun in fact having been “loaded”, there was no finding in this respect by the Judge and nor would it be safe for me to proceed on that premise.
[29] The position also has to be assessed in light of the police submission (which I accept) that likelihood of injuring or endangering safety (that is, a “real risk” of it occurring) is not, in fact, dependent upon any projectile being emitted from the barrel of a gun. That is because of the obvious risk of persons taking evasive action when any gun is fired at them and the real risk that their safety is thereby compromised.
[30] In this case, the police advance a number of scenarios based in part on what actually occurred. They refer to Mr Tohu’s evidence that on hearing the shots, he dived into the long (waist deep) grass in which he was standing and suggests that there was a real risk that in doing so he could have landed on something which caused him injury. They suggest that those who were on quad or farm bikes could have reacted by accelerating away quickly causing a loss of control and accident or that in searching for the prostrate Mr Tohu, Mrs Tipene could have run over him in the long grass. I accept that there was sufficient risk of any one or more of these events occurring as to potentially engage s 53(3). The police, in turn, say that Ms Whiu must have appreciated the likelihood of these sorts of indirect consequences occurring and so must have had the requisite knowledge.
[31] Although it will seldom, if ever, be in my view appropriate for an appellate Judge to make his or her own findings about a defendant’s state of mind (an often challenging task even when able to assess a witness directly), I accept that, having regard to the inferences available, there was evidence on which it might be concluded that the requisite mens rea was established beyond a reasonable doubt. But that outcome is far from certain on the particular facts of this case, including the fact that those on her property were identified by Ms Whiu as farming locals whom she could well have assumed would recognise the difference between a low calibre air rifle and something with a greater potential to injure (including by reference to the sound when
the trigger was pulled) the observed angle of the gun at the time the trigger was pulled and her considerable distance from the complainants.
[32] So, there is a basis for suggesting that the mens rea element could be established beyond a reasonable doubt on second trial but not an overwhelming one in light of Ms Whiu’s direct evidence and the overall circumstances.
[33] The authorities also establish that in assessing whether a retrial is appropriate, a relevant consideration is whether the appellant has served the sentence imposed following conviction, especially when it is unlikely any greater sentence would be imposed at retrial.15
[34] In this case, Ms Whiu’s sentence of six months’ supervision and 50 hours of community work has, I am advised, been largely served. The expiration date for supervision would be 22 March 2024.
[35] I do not, in this context, consider that an order for retrial is appropriate. I accordingly direct that a judgment of acquittal be entered. This disposes of the appeal on the s 53(3) charge.
[36] However, in deference to the arguments advanced before me and having regard to the fact that there does not appear to be any New Zealand authority on point, I also make some brief observations in respect of the discharge point.
[37] Mr Nicholls submits that an airgun is not “discharged” without a slug or other projectile having been prior loaded because firing an unloaded airgun emits nothing from the end of the barrel except “compressed air and some soundwaves”. He submits that because an airgun that is fired without such a projectile is harmless and cannot endanger the safety of any person and the purpose of s 53 is to promote the safe possession and use of firearms and other weapons, that purpose is not undermined when “discharge of an airgun is defined as firing an airgun with a slug or other projectile loaded at the time the airgun was fired”.
15 R v Accused (CA54/96) (1986) 13 CRNZ 561 (CA); R v Kino [1997] 3 NZLR 24 (CA) at [29].
[38] In response, Mr Hamber argues that an airgun differs from a firearm in that its design is to eject high pressure air from a barrel and that even without a projectile, the ejection of high pressure air meets the definition of “discharge”. He says that this is consistent with legislative purpose because a person in whose proximity the discharge occurs cannot know whether any projectile is being emitted from the gun, will inevitably seek to take evasive action, probably in a panicked state and in so doing is at real risk of causing injury to themselves or others.
[39] As I have indicated, the matter does not appear to have been addressed in New Zealand courts and counsel were unable to provide assistance from any other jurisdiction. My own researches16 have, however, identified relevant appellate Californian authority – The People v Charles William Grandy.17
[40] In that case, Mr Grandy faced a minimum additional 20-year consecutive term of imprisonment if, in the commission of other offences for which he was charged, he “personally and intentionally discharge[d] a firearm”. The evidence was that after a car high-jacking, police approached the defendant in a stolen Cadillac vehicle. When the defendant was told to show his hands, he raised a gun and pointed it over his shoulder at the officer who was at that point on the driver’s side of the vehicle near its “trunk”. The officer fired multiple shots which injured but did not kill the defendant.
[41] Subsequently, the defendant’s weapon was recovered from the vehicle. Its safety switch was off, and it contained four live rounds. A ruptured cartridge case was stuck in the gun’s ejection port and a bullet was lodged in the barrel. The Court accepted evidence that the gun had malfunctioned when the cartridge, entering the firing chamber, caused an explosion that tore open the case but failed to expel the bullet from the gun. It accepted also that this malfunction had occurred when the defendant took aim at the officer. His argument on appeal was that there had been no discharge of the weapon because no projectile had been ejected from the gun.
[42]The Court of Appeal of California did not agree. It noted that:18
16 Or more accurately those of my clerks.
17 People v Grandy 144 Cal App 4th 33 (2006).
18 At 42 (footnotes omitted).
As ordinarily understood, the verb “to discharge” carries several meanings... It means generally “to relieve of a charge, load or burden; to give outlet or vent to,” or “to emit”; when applied to a gun it may mean variously “to go off”, “to fire”, or “to project the missile of”. In view of these definitions, the phrase “discharge a firearm” can connote the projection of a bullet, but it is not restricted to this meaning. The phrase, as commonly understood, is also applied to the shooting of a firearm that does not emit a bullet because, for example, it is loaded with blanks.
[43] The Court went on to consider whether, in light of the various interpretations of the word which were potentially available, legislative context pointed to any one meaning as preferable. It referred to another decision of the Court of Appeal of California, People v Palmer, in which it was said that:19
It is surely to be expected that persons attempting to dodge a bullet may react in panic with evasive [manoeuvres] that are likely to cause injury to themselves or others. There appears to be no principled reason to distinguish the type of injury here – suffered when the victim took life-saving evasive action – from a direct hit by the bullet. Both are equally caused by the discharge of the firearm. In both instances the defendant’s culpability is the same. A defendant should not benefit simply because he or she is a bad shot, or because the victim was fortuitously able to move out of harm’s way.
[44]In Grandy the Court went on to say that:20
… no principled distinction can be drawn … between evasion-based injuries caused by a defendant who aims a gun, pulls its trigger, and projects a bullet, and evasion-based injuries caused by a defendant who engages in identical conduct, but whose gun noisily misfires and fails to emit a bullet. Each defendant will prompt precisely the same response in victims, who cannot see whether the gun has actually expelled a bullet. The defendants are thus equally culpable, and should be treated alike. Accordingly, limiting “discharges” … to instances in which a gun emits a bullet would arbitrarily frustrate the legislative purpose underlying [the section]”.
[45] I agree with this essential line of reasoning. Once it is recognised that the real risk that a person’s safety might be endangered or that they might be injured includes indirect endangerment or injury as a result of evasive action, then a purposive construction of s 53(3) would include a discharge without the ejection of any bullet or other projectile. Whether in any particular case the discharge was in fact likely to injure or endanger and was known by the offender to do so, will be separate inquiries, but the “discharge” requirement in the section would, in my view, itself be satisfied.
19 People v Palmer 133 Cal App 4th 1141 (2005) at 1152.
20 People v Grandy at 45.
[46]I reach that conclusion notwithstanding s 2(1) of the Arms Act:
airgun includes—
(a)any air rifle; and
(b)any air pistol; and
(c)any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged
[47] The reference in subs (c) is simply to the potentiality of the weapon. It does not of itself define when discharge does or does not occur.
[48] Likewise, the definition of “blank firing gun” which includes the requirement that it is “capable of firing blank cartridges, but incapable of discharging any shot, bullet, missile or other projectile”.21
[49] Nor do I overlook the fact that when an airgun is fired without a slug in it, there is at least in one sense an actual discharge from the end of the barrel, albeit limited to compressed air (and perhaps any minor particles of lead adhering to the barrel from previous discharges).
The section 45(1) charge
[50]Section 45 of the Act provides:
45Carrying or possessing firearms, etc, except for lawful, proper, and sufficient purpose
(1)Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—
(a)carries; or
(b)is in possession of—
any firearm, airgun, pistol, prohibited magazine, restricted weapon, or explosive.
21 Arms Act, s 2(1).
(2)In any prosecution for an offence against subsection (1) in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, prohibited magazine, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper, and sufficient purpose shall lie on the defendant.
[51] The actus reus of the offence involves carriage or possession, in this case, of an airgun.22 The present prosecution proceeded on the basis of “carriage”.
[52] Commentary on s 36 of the Act notes that for a weapon to be “carried” it must be on the person of the offender and not merely in their possession more generally, noting that there is a clear distinction in that respect in s 45(1).23 “Carriage” is, in that sense, a narrower concept than “possession” denoting a close personal link with the firearm.24 This includes someone having on their person a holstered weapon.25 It seems likely that “carriage” does not require a mens rea element, unlike possession which requires an individual to intend to exercise their possession, as well as knowing what and where the item is. Simply to hold an airgun without a lawful, proper or sufficient purpose would therefore appear to satisfy the actus reus of the offence.
[53] Assuming Ms Whiu to have been carrying the airgun (not an issue in this case) then, in terms of s 45(2), the onus fell on her to establish on the balance of probabilities some lawful, proper and sufficient purpose.26 In terms of subs (2), each requirement is cumulative.
[54] The word “lawful” denotes a purpose which is not criminal.27 A proper purpose is, in turn, one that is lawful and appropriate.28 “Sufficient” denotes some qualitative assessment of the purpose, having regard to all the circumstances.29
22 Mathew Downs (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [AA45.01A]
23 Adams on Criminal Law at [AA36.01].
24 Adams on Criminal Law at [AA46.01], [AA50D.01] and [AA51.01].
25 Gray v R [2019] NZCA 207 at [4].
26 See also Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV-2008-485-000705, 10 October 2008 at [129], confirming that offences under s 45 are offences of strict liability and proof of an innocent purpose for the alleged possession of the weapon falls upon the accused. All components of possession need, nevertheless, be proven including the mental element referred to above.
27 Iti v R [2012] NZCA 492 at [59].
28 Iti v R at [96]. The Court citing without criticism the language used in the trial Judge’s summing up.
29 Sergeant v Police HC Christchurch CRI-2009-409-170, 20 November 2009.
[55] As Randerson J observed in Brocas v Police,30 in assessing lawfulness, propriety and sufficiency:
… all of the circumstances must be considered. The manner of acquisition of the weapons may or may not be relevant depending on the circumstances. The nature of the weapons and the surrounding circumstances will also be relevant. Whether the weapons are operable may also be a relevant factor. However, at the end of the day, the enquiry must focus on the purpose for which the weapons are held by the defendant. If the defendant is able to show on the balance of probabilities that he or she has possession of the restricted weapons for some lawful, proper and sufficient purpose, then there is a good defence.
[56] I accept the Crown submission that a review of the cases indicates there is a considerable overlap in the definitions of lawfulness, propriety and sufficiency and that an overall requirement that the defendant establish “a purpose which is not criminal and which is appropriate having regard to the circumstances” conveniently summarises the position.
[57] In the present context, that in turn segues into s 56 of the Crimes Act which provides:
56 Defence of land or building
(1)Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person.
[58] It is well settled that force in this context includes the threat of force.31 I accept the police position that whether force (in the sense of presentation of an airgun) was reasonable invokes a substantially similar enquiry to whether its carriage was “appropriate having regard to the circumstances”.
[59] For the police, Mr Hamber says that though there appeared to be a history of disputes between the parties in relation to stock wandering onto the appellant’s land, this was not a situation where a landowner was presenting a firearm to protect property from individuals believed to be thieves or burglars, and not one where there was an existing or imminent breach of the peace requiring intervention or threat of violence
30 Brocas v Police HC Auckland AP279/97, 2 February 1998.
31 R v Hills (1999) 16 CRNZ 673 (CA) at [15].
against the appellant. He submits that although the history of trespass by the complainants’ stock was no doubt irritating, it was not dangerous or violent and so cannot be considered of such a character that presentation of an airgun or a firearm was an appropriate or reasonable response.
[60] He says that there was no evidence of the appellant at any earlier time formally trespassing the complainants. Therefore, to be converted to trespasses, the complainants had to be given a reasonable time to leave the property. He says that such a time would have included that required to roundup the wandering cattle and return them to their home. It was not, he says, a reasonable or appropriate response for Ms Whiu to go to her house, retrieve an airgun and use that to intimidate the complainants before they had had a reasonable time to do this.
[61] He also submits that she had several other reasonable and appropriate responses available to her, including formally trespassing the complainants, calling the police, recording evidence for civil claims, or undertaking preventive measures such as fencing off the waterway running through her property so that stock could not enter it. He submits that all that really occurred on 5 November was that the defendant became agitated that her private property rights were being disrespected yet again and resorted to intimidation.
[62] The District Court Judge seems largely to have agreed with this analysis. He said:
[15] I have to say, I do not accept a gun is the way to enforce an issue. Otherwise, it would be lawful to shoot somebody and kill them if you were not happy with what they are doing, for which we have laws for. So, I do not accept that the use of the gun was for a lawful and proper purpose, which was to get them off the land and to make the point that: “They were disrespecting me and my family”.
[63]For Ms Whiu, Mr Nicholls emphasises that:
(a)The appellant’s land was in a relatively rural location.
(b)The appellant is a middle-aged solo mother of small build and that Mr Tohu is “physically much more capable”.
(c)Mr Tohu had trespassed on the appellant’s land many times before and, despite many directives not to do so, deliberately chose to graze his cows on her land claiming that she did not own it.
(d)The appellant considered Mr Tohu was responsible for a previous burglary of her home.
(e)Despite the appellant’s request, the police had not taken any action against Mr Tohu.
(f)On the date in question there had been an earlier trespass, at which time the appellant told Mr Tohu “in no uncertain terms” to get himself and his stock off her land. Mr Tohu had ignored her lawful demands and continued to allow his cattle to graze. When, on his return later in the day with Mr and Mrs Tipene, he was again told to leave her property he did not. Ms Whiu then entered her house and uplifted her airgun, which she then “showed” to the intruders, again telling them to leave and threatening to shoot them. Because they would not comply, she discharged the gun without ammunition on approximately three occasions. Mr Nicholls says that carriage of a gun in the circumstances was, on the balance of probabilities lawful, proper and sufficient.
[64] In assessing the competing contentions, I remind myself that what is being prosecuted under s 45 is simply the carriage of the airgun, not the use to which it was subsequently put, which was the subject of the further charge against Ms Whiu.
[65] The necessary enquiry is, as I have observed, highly contextual but s 56 of the Crimes Act emphasises that peaceable possession of one’s own land is a right reasonably enforced. Whether the force, or in this case, the threat of force, is reasonable in the circumstances is an objective value judgment.32
[66] For my own part, I would be reluctant to say that a woman in a remote rural area, unsupported by a partner and who had experienced a long history of violations
32 R v Brightwell (1995) 12 CRNZ 642.
of her property by the complainant and/or his stock was not, by reasonable force, defending her peaceable possession when she recovered an airgun from her home and carried it so as to be visible to those trespassing on her land. I note that she only did so after earlier telling those unlawfully on her land to, in her own words, “get the fuck off”, that this occurred against a backdrop of earlier violation of her rights that day, and that none of those on her land made any attempt to leave until she produced her air rifle. She had, in my view, given Mr and Mrs Tipene and Mr Tohu adequate time to respond to her initial direction. The fact that they may not have been able to roundup their stock within the available time between that direction and her production of the air rifle does not seem to me to be relevant. They had been required to leave and alternative arrangements for the recovery of Mr Tohu’s stock were therefore necessary, as I am sure ultimately occurred.
[67] The evidence, in turn, suggests a long history of Mr Tohu being unwilling to recognise Ms Whiu’s property rights and further suggests a seeming unwillingness to contain his stock within his own land. I do not suggest that in every case production of a firearm is reasonable in the enforcement of property rights but, having regard to the particular circumstances of this case and especially the long history of antecedent interruption of peaceable possession; the relatively remote area in which it occurred; the fact that Ms Whiu was a woman alone; and the nature of the gun which she recovered from her home (a small calibre airgun), I consider the onus on her under s 45(2) to have been discharged.
[68] In that context, I consider the District Court to have erred in its assessment of the evidence to the extent that a miscarriage has occurred and allow the appeal. The appropriate response is, in my view, to direct that a judgment of acquittal be entered.
Result
[69] I allow the appeal, set aside Ms Whiu’s convictions under ss 45 and 53 of the Arms Act 1983 and direct that a judgment of acquittal be entered in respect of both charges.
Muir J
4
1