The Queen v Young [2006] NZCA 22 (8 March 2006)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Young [2006] NZCA 22 (8 March 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA266/05

THE QUEEN



v



DAVID JOHN YOUNG

Hearing: 15 February 2006

Court: O'Regan, Goddard and Chisholm JJ

Counsel: Appellant in person
M D Downs for Crown

Judgment: 8 March 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]	After a jury trial in the District Court at Christchurch, Mr Young was convicted of being in possession of an airgun except for some lawful, proper and sufficient purpose, in contravention of s 45(1) of the Arms Act 1983. He now appeals to this Court against that conviction.
[2]	At the relevant time, Mr Young was a taxi driver in Christchurch. Three men entered his taxi as it was standing at a taxi stand near the Christchurch Casino. One of the men, Luke McLintock, had had a dispute over a fare with Mr Young in the past. As a result of this, he and various associates had had many encounters with Mr Young. The purpose of these was, in Mr McLintock’s words, to "get a reaction", and in Mr Young’s words to "provoke" him.
[3]	On the night of the incident in issue in this case, Mr Young ordered the three men out of his taxi, but they did not immediately comply. The Crown alleged that Mr Young then placed an air pistol on his lap, without making any comment. The three men then left the taxi, and Mr Young drove off.
[4]	The matter came to the attention of the Police a few months later, and a search warrant was executed at Mr Young’s home. Mr Young produced a photocopy of an air pistol and told the police that this was what he had put on his lap. Subsequently, the police found an air pistol at Mr Young’s home.
[5]	Mr Young represented himself at trial, and before this Court. He advanced two substantive grounds of appeal. These were:

(a) The jury could not have properly concluded that the object which he had on his lap at the relevant time was an "airgun" as defined in s 2 of the Arms Act;
(b) The Judge misdirected the jury in relation to the potential application of ss 42 and 48 of the Crimes Act 1961.

Definition of airgun

[6]	Section 2 of the Arms Act has the following definition of airgun:

"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:

[7]	Section 45 of the Arms Act says:

45 Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for lawful, proper, and sufficient purpose
(1) Every person commits an offence and is liable on conviction on indictment 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, restricted weapon, or explosive.
(2) In any prosecution for an offence against subsection (1) of this section in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, 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.

[8]	At trial the Crown adduced expert evidence from a police armourer, Mr Hewitt, as to the nature of the object seized by the police from Mr Young’s house. Mr Hewitt described the exhibit provided to him for examination as a "soft air pistol" and later as a "soft airgun". He expressed the view that the exhibit was an airgun, and when asked to elaborate, described the way in which the firing mechanism worked. He said that when the trigger was operated, a plunger was released, compressing the air in front of the plunger which forced a pellet through the barrel. When asked whether any particular mechanism pushed the pellet out of the barrel, he replied in the negative, saying that it was air pressure generated in front of the plunger as it was released which did so.
[9]	In cross examination, he was asked whether the exhibit would be an airgun if the plunger actually hit the pellet, and agreed that, in that event, the exhibit would not fit within paragraph (c) of the definition of "airgun". However, he confirmed that the actual plunger did not touch the pellet, but rather compressed the air between the plunger and the pellet, forcing the pellet out of the gun.
[10]	In summing up, the trial Judge, Judge Doherty, recorded that Mr Hewitt had given an expert view that the exhibit was an air pistol or, if it was not, then it was something that fired a pellet by compressed air and so came within the definition of airgun in the Arms Act. He gave a customary direction about the way in which expert testimony should be weighed, and the need for the jury to make its own decision. He also put to the jury the position advocated by Mr Young, namely that the firing mechanism as described by Mr Hewitt did not lead to the pellet being fired by compressed air, which would mean that the exhibit did not fall within paragraph (c) of the definition of airgun in s 2 of the Arms Act.
[11]	During their deliberations, the jury asked a question as follows:

Please may we see the definition of an airgun and an air soft gun

The Judge answered this by providing the jury with the text of the definition of airgun in s 2, and advising them that there was no definition of "air soft gun" in the Arms Act.

[12]

In this Court, Mr Young said that the jury’s question indicated that the applicability of the definition was beyond the jury’s comprehension. He said that the evidence of Mr Hewitt was contradictory, and that the matter that the gun used to discharge pellets was air pressure, rather than compressed air. Accordingly, he said it was not open to the jury to find that the exhibit was an airgun as defined.

[13]

We are satisfied that there is nothing in this ground of appeal. The jury was entitled to accept the evidence of Mr Hewitt as to the method of firing of the gun, and to conclude that the exhibit fell within paragraph (c) of the definition. It is clear that Mr Young strongly believes that Mr Hewitt was wrong in his assessment of the position, but there was no expert evidence before the jury challenging Mr Hewitt’s evidence, and the jury were entitled to accept that evidence notwithstanding Mr Young’s criticisms of it. Accordingly the first ground of appeal fails.

Sections 42 and 48

[14]	The second ground of appeal relates to the Judge’s direction as to the application of s 42 and s 48 of the Crimes Act. We will consider each in turn.
[15]	Section 42(1) of the Crimes Act provides that a person who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it in order to commit him or her into the custody of a constable. This is subject to a proviso that the interference uses no more force than is necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportionate to the danger from the continuance or renewal of the breach.
[16]	The term "justified" is defined in s 2 of the Crimes Act as follows:

Justified, in relation to any person, means not guilty of an offence and not liable to any civil proceeding.

[17]	Mr Young described s 42 as a right that must be observed by a tribunal and public authority, and argued that by continuing with the complaint (presumably by prosecuting) the police were in breach of s 27 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). We reject that submission. Section 42 provides a justification for conduct that would otherwise amount to an offence. It is not a right provided for in the Bill of Rights and has no relevance to s 27 of the Bill of Rights.
[18]	Judge Doherty directed the jury that s 42 did not apply in the present case. We can see no basis for criticising that direction. There was no evidence before the jury that a breach of the peace had occurred or was imminent at the time that Mr Young placed the airgun on his lap. No doubt the actions of the three men who entered his taxi were of considerable annoyance and concern to him, and it is understandable that he felt a sense of frustration at their ongoing campaign to annoy and upset him. But there was no basis on which the jury could have found that any action on his part was undertaken for the purpose of preventing a continuation of a breach of the peace in the circumstances of this case.
[19]	Mr Young argued that the Judge misdirected the jury as to the application of s 48. That section provides that a person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use. Again, the definition of "justified" in s 2 applies.
[20]	It was common ground in this Court that a person charged under s 45 of the Arms Act may be entitled to an acquittal if he or she establishes that the purpose for possession of a weapon was self defence. This is because use of a weapon for that purpose is lawful and may be found by a jury to be a proper and sufficient purpose, thus discharging the burden of proof which is placed on the accused person by s 45(2).
[21]	The Judge’s directions were as follows:

[13] Now in this case the Crown proceeded on the basis that Mr Young may have been acting in self defence. Mr Young has proceeded on the basis that he was acting in self defence and sometimes self defence can be a lawful, proper and sufficient purpose for possession a firearm. For example if it was held or used to defend himself against an attack. But in this case there is no evidence that there was any physical attack or imminent threat of physical attack on Mr Young. In fact you will recall the evidence is quite to the contrary. He said there was never any physical threat in any of his contacts with Mr McClintock and/or his associates and certainly there was none on the night in question here.
[14] Now the law in New Zealand is that a person can act in his own defence and use reasonable force to prevent harm, but also mental harm to that person. But our law if also that that is only where there is a foundation of expert evidence called either by the Crown or by the accused himself as to the risk of the mental harm to the person defending himself. In other words, there must be expert evidence in this case that Mr Young perceived a threat to himself of mental harm of such a nature so as to justify his response. It was not called here. There is no evidence and therefore you cannot consider the possibility of Mr Young acting in self defence as providing a proper, lawful and sufficient purpose for the possession of that firearm.

[22]	Mr Downs accepted that the reference to the need for expert evidence as to the risk of mental harm was incorrect, apparently involving a misreading of the decision of this Court in R v Kneale [1998] 2 NZLR 169. Mr Downs also accepted for the purpose of argument that, following the decision of this Court in Kneale, and the cases on which it relies, it is open to a jury to find self defence is established in circumstances where there is evidence of a risk of mental, as opposed to physical, harm to the person acting in defence of him or herself.
[23]	The question in this case is whether there was any evidential foundation on which a jury could conclude that Mr Young’s possession of the airgun in this case was for the lawful purpose of self defence. In our view there was not. That being the case, the statement made by the Judge at the end of [14] of his summing up was right, albeit for a reason other than that stated by the Judge.
[24]	Where s 48 is relied on as justification for an offence of actual violence, the question which a trial Judge must ask is whether there is a credible or plausible narrative which might lead a jury to entertain the reasonable possibility of self defence. If there is not, then the Judge should not put that defence to the jury: R v Wang [1990] 2 NZLR 529 at 533. In the present case, self defence is relied on as a component of the defence provided by s 45(2), namely possession for a lawful proper and sufficient purpose. In such a case the onus is on the accused person to establish the lawful purpose, in contrast to the situation where self defence is pleaded as a justification for an offence of violence, where the onus of proof remains on the Crown to establish that the requirements of s 48 have not been met.
[25]	In our view the Judge was entitled to say to the jury that the accused could not, as a matter of law, establish that his possession of the object on his lap was for the purpose of self defence in circumstances where there was no credible or plausible narrative which might lead the jury to entertain the reasonable possibility that that was his purpose.
[26]	Throughout his evidence, Mr Young described the behaviour of Mr McLintock and his associates as provocative. Similarly, in his questioning of Mr McLintock he repeatedly referred to Mr McLintock’s ongoing conduct as "provocation" or "continual provocation". In his evidence in chief he gave his reason for possession of the airgun in the following terms:

It is clear in hindsight the psychological force that I applied that night was nowhere near sufficient force to bring that continuing of the provocation to an end. Provoking by the public is not common, but others just don’t come back. Complaining to the police was having no effect. It got to the stage where every weekend I’d expect a visit from McLintock, and if on the odd occasion he didn’t show up, or one of his associates didn’t show up, I’d start to wonder why.
The only reason I was in possession of that gun was to stop that provocation recurring almost every weekend. Stopping provocation – or put another way, preventing a breach of the peace – is my lawful right. It wasn’t so much the behaviour which was so offensive, but more in particular the continuing nature of it. And that provocation was primarily being carried out by a person who I found to be so abnormal that in excess of 30 years that I have been in business, I have never had to deal with an individual who has behaved anything like what Luke McLintock was behaving and I had to put up with for such an extended period of time.

[27]	In cross examination, Mr Young had the following exchange with the prosecutor:

Q. They didn’t threaten you personally.

A. You mean physically threaten me. There was never any physical threat. It was always an intimidation or harassment type of threat.
Q. Just to concentrate on that, this harassment was effectively winding you up wasn’t it.
A. Yes it certainly was winding me up and it would wind anyone up. You must realise that it’d being going on for in excess of two years at that particular stage.

[28]	He continued to describe Mr McLintock’s behaviour as "provocation" throughout the cross examination. At one point in the cross examination the prosecutor put to him: "There was no direct threat to your safety", to which Mr Young responded "My mental safety was certainly threatening". [Presumably "threatening" was intended to be "threatened".] But he had not at any time in his evidence in chief described any concern about his mental health or mental safety, and the overwhelming drift of his evidence was to the effect that he was confronted with behaviour which was provocative and that he needed to take action to cause the provocation to stop.
[29]	In our view there was no credible or plausible narrative which might lead a jury to entertain a reasonable possibility that Mr Young’s possession of the airgun on the night in question was because of any imminent threat of action on the part of Mr McLintock and his associates which could have caused mental injury to Mr Young. In those circumstances there was no reasonable possibility of a finding that his possession of the airgun was for the purpose of self defence, and no miscarriage of justice arises from the Judge’s treatment of self defence in his summing up.
[30]	In those circumstances, the second ground of appeal fails.

Result

[31]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington