PEI v NEW ZEALAND POLICE [2017] NZHC 1154

PEI v NEW ZEALAND POLICE [2017] NZHC 1154 [30 May 2017]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2017-454-4[2017] NZHC 1154BETWEEN FARANIKO PEIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 May 2017Appearances: P L Murray for the AppellantJ A Eng for the RespondentJudgment: 30 May 2017JUDGMENT OF CULL JIntroduction[1] Mr Pei appeals against his conviction and sentence on a charge of using a firearm against a law enforcement officer.1 On 2 March 2017, following a Judge alone trial in the District Court, Judge Edwards sentenced Mr Pei to five years, tenmonths' imprisonment for this and other offences.2[2] Mr Pei says that a miscarriage of justice has occurred on the grounds that:(a) the Judge misapplied the law relating to the correct interpretation ofthe word "against" in s 198A(1) of the Crimes Act 1961 (the Act); and(b) the Judge erred in her assessment of the evidence that Mr Pei used afirearm "against" Constable Ross.1 Crimes Act 1961, s 198A(1), which has a maximum sentence of 14 years' imprisonment.2 New Zealand Police v Pei [2016] NZDC 16990 [conviction decision]; and [2017] NZDC 4206 [sentence decision].[3] Mr Pei accepts that he was guilty of an offence of reckless discharge of a firearm, which he contends should be entered in substitution for using a firearm against a law enforcement officer.3 Mr Pei submits that, arguably, he used a firearm against the Police, but not against the specified law enforcement officer, namely Constable Ross.Factual background4[4] On the evening of 10 August 2015, Mr Pei went to the Highbury Community Policing Centre and fired two shots from a 12 gauge shotgun into the front door and windows from outside. Mr Pei then drove to the Palmerston North Central Police Station, which was still open to the public, and fired two shots into the safety glass at the public counter. A non-uniformed police officer, Constable Ross, was sitting behind the counter at the time. The shots impacted between two to three metres from where Constable Ross was seated. It is common ground that the shots were not fired at the Constable or with any intention to shoot at her.[5] Mr Pei then turned around, walked back outside through the main entrance and fired a further two shots at the outer glass entrance doors. After a police chase, the defendant was eventually arrested on the outskirts of Palmerston North.[6] The day before the shooting, Mr Pei had complained to police about the treatment his sister was receiving at Palmerston North Hospital. His sister was a patient at the Hospital and very unwell at the time. Mr Pei had gone to the police the day before the incident to express his concern for how she was being treated. The police contacted the Hospital by phone, but told Mr Pei that he would need to make a complaint directly to the Hospital administration. Judge Edwards found that Mr Pei fired the shots into the partition intending to intimidate and pressurise the Constable, so that the police would take his grievance more seriously.53 Arms Act 1983, s 53(3), which has a maximum sentence of three years' imprisonment or a fine not exceeding $4,000, or both.4 The facts are fully set out in the conviction decision, above n 2; and the pre-trial appeal decision of Williams J in Pei v R [2016] NZHC 896 [Williams J decision].5 Conviction decision, above n 2, at [30].[7] Mr Pei pleaded guilty to three charges under the Arms Act 1983 and two charges under the Land Transport Act 1998 in relation to that incident.[8] He pleaded not guilty to a charge under s 198A(1) of the Act for using a firearm against a law enforcement officer. He elected a Judge-alone trial. Prior to trial, Mr Pei applied for an order under s 147 of the Criminal Procedure Act 2011, dismissing this charge on the basis that there was no case to answer. That application was declined by Judge Large in the District Court. Mr Pei appealed that decision to this Court, where Williams J dismissed the appeal.6 The appeal before Williams J dealt with similar matters now before this Court, and is discussed in detail below.[9] Mr Pei's case then proceeded to trial, where Judge Edwards found him guilty under s 198A(1). Judge Edwards sentenced Mr Pei to five years and ten months'imprisonment for this and the other offences related to the incident. He was alsodisqualified from holding or obtaining a driver's licence for a total of nine months.District Court decision[10] In the conviction decision, the Judge identified three elements that the prosecution must prove under s 198A(1) of the Act:7(a) the defendant used a firearm in any manner whatever against Constable Ross;(b) Constable Ross was acting in the course of her duty; and(c) the defendant knew, or was reckless as to whether or not, Constable Ross was a constable acting in the course of her duty.[11] The Judge considered that the second and third elements were not in dispute: Mr Pei accepted that Constable Ross was acting in the course of her duty at the time and he had been reckless as to whether or not she was a constable.86 Williams J decision, above n 4.7 Conviction decision, above n 2, at [8].[12] The only element of the offence that the Judge considered was in issue at trial was whether Mr Pei had used a firearm against Constable Ross. The Judge observed that Mr Pei did not point or fire the shotgun at Constable Ross; that he walked up to the front counter and turned his body away to his right before raising the shotgun and firing it into the glass partition two to three metres from her.9[13] When determining whether the firearm was "used against" the police, the Judge found that it is not necessary for the firearm to be presented, aimed or discharged.10 The Judge applied the meaning of "against" from Hutton v R, wherethe Court of Appeal held that "against" is to be given its ordinary meaning: that the firearm was used in a manner that was adverse in some way to the interests of one or more members of the police who were present at the time.11 The Judge held that an intention by the defendant, at least in part, to frighten, intimidate, pressurise, persuade or warn Constable Ross was sufficient and consistent with Williams J'sformulation.12 The Judge found that those words aptly conveyed the intention which could be inferred from the evidence in this case.[14] The Judge was satisfied that Mr Pei had intentionally used the firearm against Constable Ross. The Judge highlighted that Mr Pei was drawing attention to his cause (reporting what was happening to his sister) by targeting two police stations, and particularly one that was open. Mr Pei acknowledged he made eye contact with Constable Ross. The Judge found that he was conscious that his actions would have an adverse effect on her, shooting again after she had ducked down and moved. Indeed, following the events, Mr Pei repeatedly asked Detective Busuttin whether the media had reported the incident and declined to be interviewed until he was told the story had been on television news. Her Honour thus held:13[30] I am satisfied that the defendant fired the shots into the glass partition in close proximity to Constable R intending to intimidate and pressurise her, so the police as a whole would take his grievance more seriously. I do not consider it reasonably possible that her presence was irrelevant to what the defendant did or intended. I therefore find the8 At [9] – [12].9 At [13].10 At [14].11 Hutton v R [2010] NZCA 160 at [20].12 Williams J decision, above n 4, at [34] – [37].13 Conviction decision, above n 2, at [30].prosecution has proved the charge of using a firearm against Constable R beyond reasonable doubt.Williams J's decision[15] The pre-trial appeal before Williams J dealt with similar matters now before this Court. Mr Pei sought dismissal of the trial on the grounds that there was no case to answer.14 Judge Large declined that application and Williams J determined the appeal. There were two questions of law before his Honour:(a) What is the correct interpretation of the term "against" as used in s198A, Crimes Act 1961?(b) Did Judge Large correctly interpret the word "against" in s 198A, Crimes Act 1961 when declining to discharge the Appellant under s 147, Criminal Procedure Act 2011?[16] Williams J primarily considered two cases put before him by counsel wherethe meaning of "against" in this context had been discussed,15 Hutton v R and R v Swain.16 In Hutton, the defendant reached into a bag and removed a pistol in the presence of the police. The Court of Appeal held that the firearm was used against the officer in question. In Swain, a man found by police at a service station at threeo'clock in the morning, clad in overalls and a balaclava, with a gun belt strapped tohis waist, was found to have used his pistol grip sawn-off shotgun against the police when he reached into his bag and pulled it out. Williams J noted that the authoritiesall involve a "highly contextualised assessment".17[17] Williams J identified that the wider statutory context within which s 198A sits is relevant. Where a gun is pointed and discharged at or toward a named constable, this constitutes the offence of discharging a firearm with intent pursuant to s 198 of the Act. On the other hand, simply possessing a gun in the vicinity of a constable would not be enough to establish an intention to use it "against" the constable under14 Criminal Procedure Act 2011, s 147.15 Williams J decision, above n 4, at [32]16 Hutton, above n 11; and R v Swain (1992) 8 CRNZ 657 (HC).17 Williams J decision, above n 4, at [32]s 198A. Williams J found that "context will be everything in establishing whether the requisite intention to 'use against' is established."18[18] In light of the evidence, Williams J noted that there were two possibilities to be determined at trial.19 First, whether Mr Pei had walked into the station intending to shoot holes in it to make his point, and the fact that Constable Ross was in the vicinity was irrelevant to his action and intention. Second, whether Mr Pei entered, saw Constable Ross and sought to make his point, in whole or in material part, by frightening or intimidating her with his firearm. In the second scenario, Mr Peiwould be found to have used the firearm "against" Constable Ross. It was left openfor the trial Judge to determine which scenario in fact occurred.Approach to appeal[19] An appeal against conviction is a general appeal and proceeds by way of rehearing. The established principles espoused by the Supreme Court in Austin, Nichols & Co Ltd v Stichting Lodestar apply.20 The appellate court is entitled to its own assessment of the merits of the case. Elias CJ summarised the position of the appellate Court:21Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.[20] Section 229 of the Criminal Procedure Act 2011 sets out a person's right toappeal against conviction, which is a first appeal. Section 232 outlines the standard required for a conviction appeal to be allowed:18 At [31].19 At [34] – [37].20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].21 At [16].232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.(3) The first appeal court must dismiss a first appeal under this subpart in any other case.(4) In subsection (2), 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.(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.[21] Of relevance to this appeal, a miscarriage of justice must have occurred,either as a result of legal error or as a result of error in the Judge's assessment of theevidence.Relevant law[22] Section 198A of the Crimes Act provides:22198A Using any firearm against law enforcement officer, etc(1) Every one is liable to imprisonment for a term not exceeding 14 yearswho uses any firearm in any manner whatever against any constable, or any traffic officer, or any prison officer, acting in the course of his or her duty knowing that, or being reckless whether or not, that person is a constable or a traffic officer or a prison officer so acting.22 Emphasis added.(2) Every one is liable to imprisonment for a term not exceeding 10 years who uses any firearm in any manner whatever with intent to resist the lawful arrest or detention of himself or herself or of any other person.Appellant's positionLegal error as to interpretation[23] The appellant argues that the Judge misapplied the law in the correctinterpretation of "against" in s 198A, alleging that the Judge's interpretation was too wide. This was an error and a miscarriage of justice has occurred as a result.[24] Counsel for Mr Pei offers two dictionary meanings of the term "against":(a) In opposition to, in anticipation of and in preparation for;23 and(b) Adverse to; contrary; opposed to; without the consent of; in contact with.24[25] Counsel submits that both Judge Edwards and Williams J applied aninterpretation of "against" that was too broad and in error. The appellant's positionis that s 198A(1) requires an intended, direct connection between the use of the firearm and the named constable, rather than affecting him or her indirectly or collaterally. This narrower interpretation is said to be consistent with the wording ofthe section, the dictionary and ordinary meanings of "against" and the comments inSwain.[26] It is submitted that "against" cannot naturally extend to the use of a firearmagainst the police generally, even if it is used in the vicinity of a named constable and where the defendant is mindful of their presence. The term "against" is notconsidered wide enough to include discharging a firearm in a direction that is deliberately away from a named constable.23 Counsel cites from English Oxford Living Dictionaries <www.en.oxforddictionaries.com>. Itshould be noted that the Oxford English Dictionary defines "against" as "expressing motion towards", "in a direction facing; towards, forward to" or as "expressing motion or action in opposition", see Oxford English Dictionary (3rd ed, 2012, online ed) Against.24 Black's Law Dictionary (2nd ed, 1910, online ed) Against.Error in assessment of the evidence[27] Counsel further submits that Judge Edwards erred in her assessment of the evidence and that Mr Pei did not have any intention to use the firearm against Constable Ross. The appellant argues that Constable Ross was irrelevant to his actions and intention and there was no direct connection between the two, as isrequired under Counsel's proposed narrower interpretation. His consciousness and awareness of her presence does not equate to an intention to frighten or intimidatethe constable. Rather, Mr Pei's intent was to make a point about the treatment of hissister and to receive media coverage for what he had done. This is supported by the evidence that Mr Pei re-positioned his body to shoot away from the constable.[28] It is submitted that nothing was said or done to imply or constitute a direct threat towards the constable, unlike the facts in Swain. Mr Pei's actions are alsoconsidered distinct from those in Hutton where a threat could be inferred from Mr Hutton's behaviour.[29] It is the appellant's case that Mr Pei did not use the firearm "against"Constable Ross, he did not have any intention of frightening or intimidating her when he fired the shots and the prosecution did not prove their case beyond reasonable doubt. There is a real risk that the outcome of the trial was affected and a miscarriage of justice has occurred.Crown's position[30] The Crown submits that the Judge applied Hutton appropriately in definingthe meaning of "against" and drew proper and available inferences from theevidence, including Mr Pei's police interview and the CCTV footage.25 The Crown'scase is that there was no error.[31] The Crown argues that Mr Pei wanted to draw attention to his complaint and took it into his own hands by shooting at two police stations. Mr Pei entered the Central Station, saw Constable Ross, turned and fired two shots into the glass. He said he saw the constable was scared by the first shot before he discharged the25 Hutton, above n 11.second. Based on this evidence, the Crown submits that Mr Pei was conscious that his actions would have an adverse effect on Constable Ross and there has been no miscarriage of justice.Discussion[32] This appeal turns on two aspects of the word "against" in s 198A. The firstaspect relates to the interpretation of "against" within the subsection and the secondis whether the Judge erred in her assessment of the evidence about Mr Pei's use ofthe firearm against Constable Ross.The statutory interpretation[33] There are two cases where the meaning of "against" in s 198A of the Act has been considered. These cases were the subject of Counsels' submissions both before Williams J on the pre-trial appeal and Judge Edwards. Williams J summarised thosedecisions, as they were submitted by the appellant's Counsel.[34] The first is R v Swain, where the Judge adopted the dictionary definition of"facing; in full view of" or "towards or towards another into contact with" and found that removing a firearm from a bag and uttering the words "don't be stupid" inresponse to a request from the Police officer that the defendant reveal himself was sufficient for s 198A.26 Although the issue in that case may have involved the meaning of the word "use" in s 198A, the actions of Mr Swain were directly inresponse to the constable and amount to "against" for that reason. The circumstances of a defendant's actions were also considered relevant.[35] The second case is the Court of Appeal decision in Hutton v R, in which theterm "against" was given its "ordinary meaning" which:27is that the pistol was used in a manner that was adverse in some way to the interests of one or more members of the police who were present at the property.26 Swain, above n 16, at 659.27 Hutton, above n 11, at [20].[36] Notably, it was not necessary to present and aim the pistol. Removing it from the bag was sufficient to satisfy the actus reus. In that case, the Armed Offenders Squad was looking for Mr Hutton and a pistol. Police advised him of this. He said nothing, went to a vehicle and removed a firearm. He was described as holding it with his thumb on the trigger. He resisted but eventually let the officer take the pistol. The trial Judge directed the jury that Mr Hutton must have handled or manipulated the firearm so as to deliberately and intentionally threaten its use.[37] Mr Murray, Counsel for Mr Pei, submits that the definition in Hutton was broader than that in Swain. His argument is that discharging a firearm at or inside apolice station will in any circumstances be "adverse in some way to the interests of one or more members of the police who are present" and that it cannot be that everysuch instance constitutes an offence. Mr Murray argues that the term "against"connotes that a firearm must be used against a particular named officer and there must be an intended, direct connection between the defendant's use of the firearm and the named officer.[38] He argues further that both Judge Edwards and Williams J applied aninterpretation of "against" that was too broad and was therefore in error. Thus, on the appellant's view, s 198A(1) requires an intended direct connection between the use of the firearm and the named constable, rather than affecting him or her indirectly or collaterally.[39] The test in Hutton, of adverse use, was adopted by Williams J and followed by Judge Edwards.28 For reasons that are self-evident, as Williams J found, context is everything in establishing whether the requisite attention to "use a firearm against"is established. I respectively concur with Williams J, when he observed that the wider statutory context of s 198A suggests that "against" does not require the gun tobe pointed and discharged at or toward the named constable. That scenario is covered by s 198 and the offence of discharging a firearm with intent. Equally, simply possessing a gun in the vicinity of a constable will not be enough to establishan intention to use it "in any manner whatever against" the constable in question.28 Subject to Williams J's note that the prosecution would need to prove an intention to frighten or intimidate; Williams J decision, above n 4, at [37].[40] In Hutton, reaching into a bag and removing a pistol in the presence of the police to convey a threat to the police was upheld by the Court of Appeal as use by the appellant against the officer in question. Similarly, in Swain, reaching into a bag and pulling out a sawn off shotgun at three o'clock in the morning in a service station, by a man clad in overalls and a balaclava, with a gun belt strapped to his waist was a qualifying use of a firearm in any manner whatever against the constable in question.[41] I am unable to uphold the appellant's submissions that the interpretation of "against" by Williams J and the Judge was in error. In light of the authorities, it isclear that the appellant's narrower interpretation cannot be adopted. I am also unableto uphold the submission for the appellant by Mr Murray that the phrase "uses in any manner whatever against" relates to the word "use" and not to "against". It is a strain to attempt to interpret the section to suggest that "in any manner whatever"cannot apply to against any constable, because the words to not say "against in any manner". It is plain from the interpretation placed upon the wording by the Court ofAppeal in Hutton and this Court in Swain, that the use of a firearm in any manner whatever against any constable reinforces that the gun does not need to be pointed and discharged at or toward the named constable as Williams J found.29[42] I consider that the statutory definition adopted by the Judge was correct and accords with the authorities and the definition that was applied, particularly inHutton. I do not consider the Judge was in error in so doing.Assessment of evidence[43] I turn then to consider whether the Judge erred in her assessment of the evidence that the appellant used a firearm "against" Constable Ross.[44] The Judge was satisfied the evidence established beyond reasonable doubt that the defendant intentionally used the firearm against Constable Ross. She said:30I do not consider it a reasonable possibility that her presence was irrelevant to what the defendant did or intended.29 Williams J decision, above n 4, at [31].30 Conviction decision, above n 2, at [19].[45] The Judge then went on to assess the evidence and the focus of the appellant when he first went to the Highbury Station and then to the Central Station. It was to draw attention to his cause as he wanted his complaint about his sister's treatment inhospital to be reported in the media. The Judge referred to the appellant's statementin his interview with the police that:31what he did in firing the shotgun was "pretty much a kick up the arse"because he had heard nothing more about his complaint. He wanted to draw attention to the complaint he had made the day before "so they will knowhow serious it is ".[46] The Judge canvassed the facts, including the footage from the CCTV camera and the evidence from Constable Ross and the appellant. Her Honour found that after Mr Pei pulled into a park in front of the Station and got out of his car, he moved to the rear of the car and reloaded the shotgun which was in the boot. Thirty two seconds later the camera shows him walking past the front of the car and into the first set of doors and on that basis, the Judge found there was ample time for him to have seen Constable Ross behind the counter.[47] The facts, which are undisputed, disclose the following actions of the appellant that night:(a) The appellant fired two shots from a 12 gauge shotgun into the glass partition in the Central Police Station. The police station was still open to the public at the time, being just before 8.00 pm.(b) A non-uniform police constable, Constable Ross was staffing the public counter, which was behind the glass partition.(c) The appellant did not point or fire the gun directly at Constable Ross but fired the shots into the partition two to three metres from where she was seated.(d) The appellant, having discharged the shotgun twice, left through the main entrance and fired two further shots at the glass entrance doors.31 At [20].(e) The appellant, in his police interview, said he saw "the lady there andI just turned away from her and I shot the window". He noticed that "she ducked down and moved, so I shot, like more from ... the side tothe street in front of me "(f) The Constable had asked him how she could help him when hewalked in the door initially. He said "I didn't say anything, I looked at her and she saw me with the gun when I, before she asked me, and Ilooked at her and I just turned away and then I shot the window."[48] The Judge specifically referred to the appellant's acknowledgement that hemade eye contact with Constable Ross and heard her ask him how she could help him and from that point in time, the appellant was aware that Constable Ross was behind the counter. As the Judge put it:32he was not just conscious of her presence but conscious that his actions would have an adverse affect on her. He acknowledged he was conscious ofthis between firing the first and second shots [49] On that basis, the Judge found she was satisfied the evidence established beyond reasonable doubt that the appellant intentionally used the firearm against Constable Ross. She did not consider it a reasonable possibility that the Constable'spresence was irrelevant to what the appellant did or intended.[50] The evidence discloses that the appellant wanted to draw attention to his complaint and took it into his own hands by shooting at the two police stations. Iaccept the Crown's submission that the appellant entered the Central Station, sawConstable Ross, turned and fired two shots into the glass, recognising that the Constable was scared by the first shot before he discharged the second. I accept the submission that the appellant was conscious that his actions would have an adverse affect on Constable Ross in those circumstances.[51] The Judge assessed, from the evidence before her, that the appellant was conscious of the Constable's presence and even discharged a second shot once sheappeared frightened and had moved from her original position. Further, even though32 Conviction decision, above n 2, at [26].she wasn't in uniform, the appellant was reckless as to whether she was a policeofficer. I respectively concur with the Judge when she found that the Constable'spresence was not irrelevant to what the appellant did or intended. He discharged afirearm at the glass partition, while "in full view of" and "facing" the Constable.The appellant met the Hutton test of using a firearm in a manner that was adverse tothe interests of a member of the police and I consider the Judge's assessment of theevidence was not in error.Result[52] The appeal is dismissed.Cull J