Whiu v Police - [2024] NZHC 208

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whiu v Police

Details

AGLC: Whiu v Police [2024] NZHC 208
Case: [2024] NZHC 208
Decision Date: 19 February 2024

CaseChat Overview and Summary

Georgina Maria Whiu appeals against her conviction on two charges under the Arms Act 1983. The first charge relates to the discharge of a firearm without a reasonable and lawful excuse, and the second to carrying a gun without lawful purpose. The appeal was heard by Muir J in the High Court at Whangarei on 2 February 2023, with judgment delivered on 19 February 2024. The appeal was allowed in part, with the convictions set aside and a judgment of acquittal entered.

Whiu had been in dispute with Mr Wati Tohu over the management of his stock on her land. On 5 November 2022, Tohu returned to her land with two associates. When Whiu confronted them and ordered them to leave, they refused. She retrieved her air rifle and fired it three times into the air. She was subsequently found guilty of both charges by Judge H B Shortland in the Whangarei District Court. She was sentenced to six months’ supervision and 50 hours’ community work. The appeal was lodged before she had served her sentence.

The appeal against the first charge hinges on whether there was a discharge of the air rifle. The relevant section of the Arms Act states that a person commits an offence if they discharge a firearm without reasonable cause and in a manner likely to injure or endanger the safety of any person. The court must establish that the accused discharged the firearm, without reasonable cause, in a manner likely to injure or endanger the safety of any person, and with knowledge of the likelihood of injury or endangerment. The District Court did not find that the appellant had the requisite state of mind, which is an essential element of the offence. The court held that the absence of such a finding constituted a miscarriage of justice. Although there was evidence that the appellant’s actions could have caused injury to the complainants, it was not certain that the requisite mens rea was established. The court ordered that a judgment of acquittal be entered on this charge.

The appeal against the second charge concerns whether carrying the air rifle was for a lawful, proper, and sufficient purpose. The court held that the appeal should be allowed because the District Court had erred in its assessment of the evidence and a miscarriage had occurred. The court considered the history of trespass by the complainants’ stock, the rural location of the land, the appellant’s status as a solo mother, the nature of the gun, and the lack of police intervention. It found that the appellant had given adequate time for the complainants to leave and that carrying the air rifle was a reasonable means of enforcing her peaceable possession of her land. The court ordered that a judgment of acquittal be entered on this charge as well.

Orders