REEVE v NEW ZEALAND POLICE [2021] NZHC 1775

REEVE v NEW ZEALAND POLICE [2021] NZHC 1775 [14 July 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-000019[2021] NZHC 1775JOHN ALBIN REEVEvNEW ZEALAND POLICEHearing: 14 July 2021Appearances: P V Paino for the AppellantA M Barham for the RespondentJudgment: 14 July 2021JUDGMENT OF COOKE J[1] The appellant appeals against his conviction on one charge of presenting afirearm in contravention of s 52(1) of the Arms Act 1983.1 He was fined $750, orderedto pay Court costs and his firearms license was revoked.General background[2] The appellant, Mr John Reeve, and Mr Adrian McIntyre, the complainant, havebeen neighbours for around 20 years. Mr Reeve owns a farm block adjacent to WaihiFalls Road and Waione-Horoeka Road, while Mr McIntyre lives on Towai Road andalso leases a farm block called Lindon block, which is adjacent to Waihi Falls Road,and neighbours Mr Reeves' property. They have had a history of disagreements.1 New Zealand Police v Reeve [2021] NZDC 2979.[3] On Saturday 9 May 2020 Mr McIntyre's two sons went to his leased block tohunt. Soon after, Mr McIntyre also arrived at his block to check on his sons.Meanwhile Mr Reeve was on his own property, around 150 meters away fromMr McIntyre's sons who were shooting. Mr McIntyre engaged in a verbal argumentwith the appellant. During the argument Mr Reeve was alleged to have picked up hisrifle from his vehicle. He is then alleged to have pointed it at Mr McIntyre, who beganto record him with his cell phone. Mr Reeve put the rifle back in his vehicle and left.[4] In explanation, Mr Reeve said Mr McIntyre had started the argument and hehad only shown him the rifle to explain he was entitled to shoot deer on his ownproperty, and that he did not point it at Mr McIntyre.Approach to appeal[5] This appeal is governed under s 232 of the Criminal Procedure Act 2011 as afirst appeal. The Court must allow the appeal where it is satisfied that, in this case,the Judge erred in her assessment of the evidence to such an extent that a miscarriageof justice has occurred,2 or if a miscarriage of justice has occurred for any reason.3 Amiscarriage of justice means any error, irregularity, or occurrence in relation to oraffecting the trial that created a real risk of affecting the outcome of trial, or resultedin an unfair trial or a trial that was a nullity.4[6] Appeals occur by way of rehearing without the limits arising from an appealfrom the exercise of a discretion.5 However, as the Supreme Court held in Sena v R,6the language of s 232(2)(b) requires there be a "focus on the judge's assessment ofevidence, a focus which presupposes the existence of reasons from which thesubstance of that assessment can be discerned".72 Criminal Procedure Act 2011, s 232(2)(b).3 Section 232(2)(c).4 Section 232(4).5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.6 Sena v R [2019] NZSC 55.7 At [28].The issue on appeal[7] The appellant contends that on the evidence at trial the District Court could notbe satisfied that the prosecution had proved the elements of the offence beyondreasonable doubt, and there has been a miscarriage of justice. Section 52 of the ArmsAct provides:52 Presenting firearm, airgun, pistol, or restricted weapon at otherperson(1) Every person commits an offence and is liable on conviction toimprisonment for a term not exceeding 6 months, or to a fine notexceeding $10,000, who, except for some lawful and sufficientpurpose, presents a firearm (other than a prohibited firearm), airgun,pistol, or restricted weapon (whether or not the firearm, airgun, pistol,or restricted weapon is loaded or capable at the time of the offence ofdischarging any shot, bullet, missile, or other projectile) at any otherperson.[8] The key question is whether on the facts as proved the prosecution establishedthat the appellant presented a firearm at any person. On that issue the Judge held asfollows:8[14] Having considered all of the evidence, I conclude that the defendanthad his gun out of the vehicle, and asserted while brandishing the rifle, but notpointing it at Mr McIntyre, that he was allowed to shoot on his own property.Tempers were very high. Even after being asked whether Mr Reeve waspointing the gun at Mr McIntyre, which is plainly heard in the video, Mr Reeverepeated the assertion that he is allowed to have it on his property.[15] The question, legally, is whether this action amounts to presentation.Both counsel refer to me to the decision in Police v Ashby, which is authorityfor the proposition that a gun need not be pointed. The Court found that if afirearm is brandished, deployed or displayed in a threatening way, then it couldbe "presented".[16] I consider that the facts are proved beyond a reasonable doubt assummarised above. I consider that the brandishing of the gun in that way, inthat context, and accompanied by the immoderate exchange which both menparticipated in, constitutes presenting. There is no assertion of a lawful orsufficient purpose. All of the elements of the offence are proved beyond areasonable doubt.(Footnotes omitted)8 Police v Reeve, above n 1.Assessment[9] As is required for an appeal against conviction of this kind I have consideredthe underlying evidence as well as the Judge's findings. The evidence that was led toprove that the appellant presented a firearm at Mr McIntyre came from Mr McIntyre'sevidence at trial, Mr Reeve's formal police interview, and two short cellphonerecordings.[10] The existence of the first cellphone recording only became apparent at trial. Itis a recording from a police officer's phone of Mr McIntyre playing a recording on hisown phone. That shows the initial verbal argument between Mr McIntyre andMr Reeve. This was on the boundary of their properties when they are about 20 metresapart, and when Mr Reeve and his partner are some distance down a slope from hisvehicle parked at the top of a rise facing away from Mr McIntyre. That recording doesnot show the incident in question.[11] The second recording is from Mr McIntyre's own phone. Mr McIntyre saidthat he commenced making this recording immediately after the incident when thealleged presentation of the firearm took place. In this video Mr Reeve is now up athis vehicle, and can be seen placing his rifle on the dashboard. Mr McIntyre can beheard calling out to Mr Reeve "Show me that again. Are you pointing that?".Mr Reeve turns and replies "I'm allowed to it's my own property". Mr McIntyre thenasks again "Are you pointing that?" and then calls out "Come on here then cunty"before further verbally abusing him.[12] Mr McIntyre's evidence of what occurred just before this exchange wasexplained in the following exchange in cross-examination:Q. I suggest what happened is he got his firearm and he move - took itout of the driver's seat, driver's door, through that and then replacedit back at the front of the vehicle and he didn't point it?A. That's certainly not what happened.Q. That's not what you, you'd say that?A. No.Q. And he never said anything to you when you say this was happened,he –A. He, yes he did, he - when he pulled the firearm out he turned aroundand he said, "I'm allowed to shoot deer on my own fuckin property",shaking it and he was fairly angry now, he was pretty angry now, andthen that's when he shook it and then it came straight up and then that,like I said before, I was sort of, I just went woah, this has just gone toa new level and then, yeah, thought well, phone up, get this thinggoing, and yeah I, yeah I got what I got at the end.[13] The reference to the firearm coming "straight up" after Mr Reeve had beenshaking it was Mr McIntyre's most detailed evidence of how the firearm was beingpointed at him. Mr Reeve did not give evidence, but at his formal interview he saidthat he had been moving the firearm from the drivers area of his vehicle up onto thedashboard, and that when Mr McIntyre asked him what he was doing he was"indicating" he was shooting and then put the gun down. There is other evidence,including on the timing of the hearing of shots from the activities of Mr McIntyre'ssons a short distance away, which I do not see as of much relevance. The key point isthat Mr McIntyre's evidence was that Mr Reeve shook or displayed the gun, and thatthis included him pointing the gun because "it came straight up". In Mr Reeve'sinterview he said "I was indicating, shooting, put the gun down" which might beunderstood to mean that he showed the firearm to Mr McIntyre saying he was shootingin response to Mr McIntyre's question, and then put it on his dashboard. But he deniedpointing it at Mr McIntyre. On both accounts Mr Reeve would likely have turnedaround to face Mr McIntyre when responding to him and then likely turned back toput the firearm in the vehicle. The available video occurs only after these events.[14] As the District Court Judge noted in Ashby v Police the High Court held thatan offence against s 52 can be committed even though the defendant does not actuallypoint the firearm at the person in question. In that case the defendant contended thatthe complainant had sex with his girlfriend. He went around to the complainant'saddress with a shotgun and went into the complainant's kitchen. He then said "if youscrewed her I will blow you away". He held the shotgun at his side and made a motionto cock the shotgun by moving a lever on the side. Barker ACJ focused on the meaningof the word "present" and held:9I agree with the submissions of counsel for the respondent that, if a firearm isbrandished, deployed, or displayed in a threatening way, then it could be"presented". One looks at the object of the legislation which has a clearintention of discouraging the use of firearms without lawful excuse. Here the9 Ashby v Police (1993) 12 CRNZ 114 at 117–118.firearm was clearly used by the appellant in a way threatening to thecomplainant; particularly this was the case when the appellant moved thecocking mechanism which action justifiably induced in the complainant afeeling that the gun may well be used on him. The definitions include "holdout weapon in position for aiming" which rather implies that presenting isdifferent from aiming. If the gun is being used to intimidate, as this gun was,then I cannot see why that action is not included within the word "presenting".What is "presenting" of course must be a matter of degree. If one were tocarry a firearm in a bag or merely leave it on a table or on the floor but not useit in any menacing way, then it is doubtful whether that action could comewithin the definition of "presenting". In my view, the word is sufficientlybroad to encompass that which was done in this case, namely using a firearmin a clearly intimidatory way which way could in some circumstances (I donot necessarily say in these circumstances) be the forerunner of aiming it at aperson.[15] I agree with this assessment, and suggest its correctness is further shown bythe fact that under s 52 the firearm not only must be presented, but that it must bepresented "at any other person" (emphasis added). The dictionary definitions of"present" have as one of the more particular meanings the holding of a firearm in anaiming position. When interpreting the text in light of its purpose the offence can bethought of as involving a threat to discharge a firearm at a person by the physical actof displaying the firearm to that person. Normally that would involve aiming, orpointing it at that person. But there will be other physical acts of display of the firearmthat are the equivalent of pointing it. The actions of Mr Ashby are an example. Itseems to me that the display of the firearm by the defendant must objectively involvea threat that the firearm might be fired at the person to whom it is displayed.[16] Based on the Judge's findings at [14] quoted above she did not acceptMr McIntyre's evidence that Mr Reeve pointed the firearm at him. That is anunderstandable finding on the evidence. Both men seem to have lost a degree of self-control, and their explanations for what happened were likely coloured accordingly.[17] The District Court Judge's conclusion is based on a finding that "brandishing"weapon during the highly charged argument involved a presentation of the firearm. Ido not agree that this satisfied the element that the firearm be presented at a person. Itdid not involve the equivalent to pointing the firearm at Mr McIntyre. OnMr McIntyre's remaining evidence Mr Reeve was shaking the weapon and at the sametime calling out that he was allowed to shoot deer on his own property. If that is whatMr Reeve said, then he was not suggesting that he was threatening to shootMr McIntyre with it. Mr McIntyre's evidence that there was such a threat was basedon the suggested pointing which the Judge did not accept. Mr McIntyre's cellphonerecording shows him asking the question "are you pointing that?". That also suggestsambiguity over whether there was a pointing. Perhaps the firearm was pointed inMr McIntyre's general direction as Mr Reeve turned and put it on the dashboard aftershaking it. Perhaps that ambiguity was deliberate. But the actions are ambiguous, andwhat Mr Reeve is reported to have said was that he had the firearm for deer hunting,rather than for use against Mr McIntyre.[18] The offence is not committed because a defendant is being stupid with afirearm. Indeed it is not even committed by the brandishing of a firearm. The firearmmust be presented at a person. It is possible that Mr Reeve crossed the line in themanner in which he showed his firearm to Mr McIntyre, but it is only a possibility.Mr Reeve is entitled to the benefit of the doubt. Given the Judge's finding that he didnot point the firearm at Mr McIntyre, I am not satisfied that the prosecution provedbeyond reasonable doubt that he presented it at Mr McIntyre in some other way thatis the equivalent of pointing it at him. The circumstances are well short of the kindinvolved in the Ashby case.[19] I can understand why this prosecution was brought. Matters have been gettingout of control. It seems likely that Mr Reeve had lost his temper and was behavingstupidly with a firearm in his hands. For his part Mr McIntyre was also acting in anabusive and stupid way. If Mr Reeve had really pointed the firearm at him after hisfirst verbal challenge, or even if he had just showed it, his stupidity is reflected in hisabusive retort that he "come on down then". The incident reflects very poorly on bothof them. Any further altercations they have which potentially engage the criminal lawcan be expected to be addressed in light of that background.[20] The appeal is allowed and the conviction quashed. No re-trial is appropriate.Cooke J