GORRIE v NEW ZEALAND POLICE [2019] NZCA 54

GORRIE v NEW ZEALAND POLICE [2019] NZCA 54 [14 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA553/2018[2019] NZCA 54BETWEEN DONALD JAMES GORRIEApplicantAND NEW ZEALAND POLICERespondentCourt: Clifford, Mallon and Wylie JJCounsel: Applicant in personM L Wong for RespondentJudgment:(On the papers)14 March 2019 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] Mr Gorrie was convicted on one charge of assaulting a child following aJudge-alone trial before Judge Mabey QC in the District Court at Whakatane.1 Hethen appealed against both conviction and sentence. The appeal was dismissed byEdwards J.21 Police v Gorrie [2018] NZDC 4160.2 Gorrie v Police [2018] NZHC 2129.[2] Mr Gorrie now seeks leave to further appeal both his conviction and sentence,pursuant to ss 237 and 253 of the Criminal Procedure Act 2011. The Crown opposesthe grant of leave.Background[3] Mr Gorrie owns supermarket premises in Edgecumbe. On 18 January 2017,the complainant, a 10 year old boy, was near the entrance to Mr Gorrie's supermarket.The complainant had previously been banned from entering Mr Gorrie's supermarket.[4] According to the complainant, when he saw Mr Gorrie he went to ride off onhis bicycle because he knew he had been banned. Mr Gorrie followed him andgrabbed him by a hood forming part of his jacket. He was pulled off his bicycle andthrown to the ground. Mr Gorrie then kneed him in the back, releasing him only whenhis brother arrived.[5] Mr Gorrie's version of events was rather less dramatic but there was no disputethat a physical altercation occurred and that that altercation constituted an assault.[6] The issue at trial was whether Mr Gorrie acted in defence of another under s 48of the Crimes Act 1961. Mr Gorrie gave evidence. He said that he assaulted the childto protect people who may have been coming around the corner into the alleyway frombeing hit by the complainant on his bicycle.[7] In the District Court, Judge Mabey found that Mr Gorrie had not acted indefence of another. He accepted the evidence of the complainant and another eyewitness. The Judge found that there were no other persons in the alleyway and he wassatisfied beyond reasonable doubt that Mr Gorrie had not acted in defence of anotherwhen he assaulted the complainant. Rather, the Judge found that the Mr Gorrie wasangry at the complainant, wanted to chase him away and, if he could catch him, teachhim a lesson.33 Police v Gorrie, above n 1, at [12].[8] Mr Gorrie's appeal against conviction was advanced primarily on the groundthat the trial Judge erred in the way in which he considered the issue of defence ofanother. It was argued that Judge Mabey erred in analysing the issue of defence ofanother and that he departed from the stepped approach discussed by this Court inR v Li.4 It was also argued that, when the Judge's factual findings were considered incontext, he must have accepted Mr Gorrie's evidence about what occurred.Alternatively, it was argued that if the Judge had rejected Mr Gorrie's evidence,the prosecutor had failed to put the prosecution case to Mr Gorrie as required by s 92of the Evidence Act 2006. The sentence imposed was also challenged, and it wassubmitted that Mr Gorrie should have been discharged without conviction.[9] Each of these grounds of appeal was rejected by Edwards J. She consideredthat Judge Mabey had rejected Mr Gorrie's explanation for his actions.5 She acceptedthat the Judge had not followed the approach discussed in R v Li, but considered thatthis had not led the Judge into error.6 The Judge observed that even if Judge Mabeyhad accepted Mr Gorrie's evidence, the force used was beyond what was reasonableto prevent the complainant posing a risk to others.7 Further, she considered that theprosecution case was clear from the cross-examination, and that when the cross-examination was considered in context, there was no breach of s 92.8 Edwards J wasnot persuaded that the consequences of the conviction would be out of all proportionto the gravity of the offending, and she dismissed both the appeal against convictionand against sentence.9Leave applications[10] Section 237 of the Criminal Procedure Act 2011 provides as follows:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.4 R v Li CA140/00, 28 June 2000.5 Gorrie v Police, above n 2, at [26]–[31].6 At [24]–[25].7 At [50].8 At [32]–[44].9 At [56]–[72].(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[11] Section 253 is in substantially similar terms.[12] The threshold for leave is high. An appeal will not generally give rise to anissue of general or public importance unless it raises an issue of general principle orimportance in the administration of the criminal law, that is of broad applicationbeyond the circumstances of the particular case.10 Similarly, not every error willamount to a miscarriage of justice.11 This Court will be slow to grant leave where anapplicant seeks to require the Court to reverse concurrent findings of fact made inthe Courts below. This will particularly be so where the trial was before a Judge alone,and where the applicant has had the benefit of two judgments, each giving reasons forthe factual findings made.Analysis[13] We do not consider that Mr Gorrie's proposed appeal involves matters ofgeneral and public importance, or that a miscarriage of justice has occurred in thiscase.[14] While Judge Mabey did not deal with the various elements of self defenceusing the stepped approach discussed in Li, that was because, on his factual findings,two of the three steps discussed in Li did not fall for consideration. Further, asEdwards J observed, the approach discussed in Li provides guidance only.12 While theapproach there suggested is preferable, is not compulsory. This has previously beenrecognised by this Court,13 and the arguments raised by Mr Gorrie do not involve anymatter of general or public importance going beyond the circumstances of this case.10 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.11 McAllister v R, above n 10, at [38].12 Gorrie v Police, above n 2, at [23].13 R v Lindroos CA463/05, 2 August 2006 at [24].[15] Other allegations made by Mr Gorrie in his submissions — for example thatthe police's decision to lay the charge in the first place signifies a change in policeprocedure — have no evidential foundation.[16] Nor are we satisfied that a miscarriage of justice may have occurred.[17] The trial Judge rejected Mr Gorrie's explanation for his actions. Edwards Jtook the view that Judge Mabey was entitled to form the view that he did on theevidence called at the trial.14 She also expressed the view, noted in [9] above, that theforce used by Mr Gorrie was unreasonable even if the complainant did pose a risk toothers. There are concurrent findings of fact by both Courts below. Any appeal againstthose findings would be unlikely to succeed.[18] Mr Gorrie criticises counsel retained by him both at trial and for the appeal.There is no foundation for his criticisms. They are speculative and tendentious, andMr Gorrie does not point to any specific or material error on the part of either counsel.[19] Mr Gorrie also asserts that his rights under the New Zealand Bill of Rights Act1990 (the Act) have been breached.(a) He suggests that he should have had the opportunity to instruct counselto dissuade the police from filing the charge in the first place. There isnothing advanced to suggest that there was any error by the police inexercising the discretion to charge, let alone any breach of the Act.Indeed, both the District Court and High Court decisions illustrate thatthe prosecution was properly pursued.(b) Other assertions by Mr Gorrie including that the police investigationwas delayed, and that the police were predisposed to view himunfavourably, similarly have no evidential foundation. As weunderstand it, the charge was filed within the statutory limitation periodand a number of witnesses were called to give evidence at the trial.Again, there is nothing advanced to suggest any breach of the Act.14 At [29] and [31].[20] As to sentence, the appropriate approach to an application under s 106 of theSentencing Act 2002 is well settled by this Court.15 Mr Gorrie has belatedly assertedthat there is a potential prejudice to him because he could lose his manager's certificateunder the Sale and Supply of Alcohol Act 2012. He says that he requires a manager'scertificate to sell alcohol at his supermarket. The limited evidential support for thissubmission has been filed very late (in reply submissions) and even now it is not inproper form. The relevant licensing authority is best placed to assess thecircumstances of the conviction and determine for itself whether the manager'scertificate should be revoked. There is no obvious miscarriage of justice.[21] Accordingly, leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent15 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Blythe v R [2011] NZCA 190, [2011] 2 NZLR620; and Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.