Ewens v R [2014] NZCA 318 (14 July 2014)

Last Updated: 27 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA11/2014 [2014] NZCA 318
BETWEEN	STEVEN JASON EWENS Appellant
AND	THE QUEEN Respondent

Hearing:	8 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	J J Corby for Appellant BCL Charmley for Respondent
Judgment:	14 July 2014 at 10 am

JUDGMENT OF THE COURT

The appeal, which is against conviction, is dismissed.
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REASONS OF THE COURT

(Given by Wild J)

[1] There is no merit in the short point taken on this appeal.
[2] Mr Ewens was at a party in suburban Auckland. A fight had broken out with punching and kicking. One of the people involved had an air rifle. Another was waving a pole around.
[3] The appellant fetched a shotgun from his vehicle, went into the house and loaded the gun, then went outside and fired it. That had the effect of breaking up the fight and also the party. The police arrived shortly afterwards.
[4] When the police spoke to Mr Ewens, he denied he had been at the party. The following day he told the police that was a lie and he had been there. He continued to deny that he had a gun or had fired it.
[5] Mr Ewens went to trial in the Auckland District Court on one charge of possession of a firearm in a public place and one charge of reckless discharge of a firearm. Those are offences under ss 51 and 53(3) of the Arms Act 1983 respectively. He was convicted on both charges but appeals only against the reckless discharge conviction.
[6] At trial Mr Ewens’ defences were:

• (a) he had not fired the gun;
• (b) alternatively, if the jury accepted he had fired the gun, he had reasonable excuse to fire it (although what that excuse was was not explicit in the defence closing).

[7] The challenge on appeal is to this part of Judge Mathers’ summing up:^[1]

[46] Here the issue is whether you think that Mr Ewens acted reasonably, not whether he thought he acted reasonably. You might well think that firing a firearm in the circumstances described to you in a residential area with a number of people in the vicinity might not be considered reasonable but that is a matter for you of course.

[8] Mr Corby submits this observation trespasses into the province of the jury and renders the reckless discharge verdict unsafe.
[9] For three reasons, we reject this. First, as this Court reiterated in Waara v R,^[2] trial judges are not precluded from expressing views to the jury about the facts of the case, as long as they make it clear it is for the jury to determine the facts. Here, Judge Mathers’ “you might well think” comment was immediately followed by her statement “but that is a matter for you of course”.
[10] Secondly, the Judge also directed the jury in the usual way that it was for the jury to decide the facts and they must disregard any view she may express about the facts. Those directions are in [4] and [5] of the summing up, but the direction is reiterated later in the summing up where the Judge said:

[57] So I now turn to the facts of the case and I remind you again the facts are entirely for you. ...

[11] Thirdly, in accordance with what has become common practice, the Judge gave the jury a question trail to assist them in their deliberations. Mr Corby rightly took no issue with the question trail. Relevant is the last of the sequence of questions set out in this passage in the Judge’s summing up:

[56] Next question is, “Are you sure that any reasonable person would have appreciated the risk to the safety of others in firing a firearm at Bridgman Avenue at that time?” If the answer is “yes”, go to the next question. If “no”, you would find him not guilty. The next question, “Are you sure that when Mr Ewens did so he appreciated there was a risk to the safety of [others] in doing so?” If the answer is “yes”, go to the next question. If “no”, you would find him not guilty. “Are you sure that Mr Ewens risked the safety of others despite appreciating that risk?” If the answer is “yes”, you go to the next question. If “no”, you would find Mr Ewens not guilty. In relation to the last question, “Are you sure that in those circumstances it was unreasonable for Mr Ewens to take that risk?” If the answer is “yes”, you would find him guilty. If “no”, not guilty.

[12] Those questions, in particular the last one, are shorn of any judicial observation about the facts. The jury took that question trail into the jury room with them, and presumably worked their way through the questions in arriving at their verdicts.
[13] The verdict challenged is not unsafe. This appeal, which is against conviction, is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Ewens DC Auckland CRI-2013-004-0756, 21 November 2013 (Summing Up).

^[2] Waara v R [2010] NZCA 517 at [59].